ORAL ARGUMENT NOT YET SCHEDULED

No. 18-5239

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

CAMPAIGN LEGAL CENTER & DEMOCRACY 21,

Plaintiffs-Appellants,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

F8, ELI PUBLISHING, AND STEVEN J. LUND,

Intervenors-Appellees.

On Appeal from the United States District Court

for the District of Columbia, No. 1:16-cv-00752-TNM

Before the Honorable Trevor McFadden

OPENING BRIEF OF PLAINTIFFS-APPELLANTS 

CAMPAIGN LEGAL CENTER AND DEMOCRACY 21

Fred Wertheimer

DEMOCRACY 21

2000 Massachusetts Ave. NW

Washington, DC 20036 

(202) 429-2008

Donald J. Simon

SONOSKY, CHAMBERS, SACHSE

ENDRESON & PERRY, LLP

1425 K Street, NW, Ste. 600

Washington, DC 20005

(202) 682-0240

Paul M. Smith 

Tara Malloy

Megan P. McAllen 

Mark P. Gaber

Urja Mittal

CAMPAIGN LEGAL CENTER

1101 14th Street NW, Ste. 400

Washington, DC 20005

(202) 736-2200

mmcallen@campaignlegalcenter.org

Counsel for Plaintiffs-Appellants

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CERTIFICATE AS TO PARTIES, 

RULINGS, AND RELATED CASES

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

Center (“CLC”) and Democracy 21 hereby certify as follows:

(a) Parties and Amici. CLC and Democracy 21 are plaintiffs in the district 

court and appellants in this Court. 

Pursuant to Circuit Rule 26.1, CLC 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. CLC 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. 

Pursuant to Circuit Rule 26.1, Democracy 21 likewise certifies that it has no 

parent companies, does not issue stock, and no publicly owned company has any 

ownership interest in it. Democracy 21 is a nonprofit, nonpartisan organization 

dedicated to making democracy work for all Americans through support of 

campaign finance and other political reforms.

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

in the district court and appellee in this Court. F8 LLC, Eli Publishing L.C., and 

Steven J. Lund are intervenor-defendants in the district court and intervenorappellees in this Court.

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No amici appeared in the district court and no amici have yet appeared in this 

Court. Appellants understand that one or more parties may appear as an amicus 

curiae in this appeal.

(b) Rulings Under Review. Plaintiffs-appellants appeal the June 7, 2018 

final order and judgment of the U.S. District Court for the District of Columbia 

(McFadden, J.), which denied plaintiffs’ motion for summary judgment and granted 

the FEC’s and intervenor-defendants’ motions for summary judgment. The 

memorandum opinion is reported at Campaign Legal Center v. FEC, 312 F. Supp. 

3d 153 (D.D.C. 2018).

(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.

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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 ..........................................................................1

ISSUES PRESENTED...............................................................................................1

STATUTES AND REGULATIONS.........................................................................3

STATEMENT OF THE CASE..................................................................................3

A. Statutory and Regulatory Framework ........................................................3

1. FECA’s Disclosure Provisions..............................................................3

2. The Commission’s Administrative Complaint and Enforcement 

Process...................................................................................................4

B. Procedural Background ..............................................................................6

1. Appellants’ “Straw Donor” Complaints................................................6

2. The Controlling Commissioners’ Statement of Reasons....................10

3. The District Court Proceedings...........................................................12

SUMMARY OF ARGUMENT...............................................................................13

STANDARD OF REVIEW.....................................................................................16

ARGUMENT...........................................................................................................18

I. THE DISMISSALS ARE REVIEWABLE ........................................................18

A. CREW Does Not Bar Review of Dismissals Premised on Legal Error.........18

1. The dismissals in this case were based entirely on the 

Commission’s erroneous interpretations of law..................................19

2. CREW is distinguishable on its facts...................................................23

3. CREW does not permit the Commission to block review of the 

legal bases for its dismissals by invoking “discretion”.......................26

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B. The Commission Does Not Have Unreviewable Discretion to Dismiss 

Allegations without Explanation or Engage in De Facto Rulemaking .........29

1. The Commission did not provide any rationale, discretionary or 

otherwise, for failing to address whether respondents should 

have registered and reported as political committees .........................29

2. The new “legal standard” announced by the controlling 

Commissioners is ripe for review .......................................................30

C. Considerations Unique to FECA’s Statutory Scheme Strongly Favor 

Review ...........................................................................................................34

II. THE DISMISSALS WERE CONTRARY TO LAW ........................................37

A. The District Court Incorrectly Deemed the Dismissals a Legitimate 

Exercise of the Commission’s Discretion Not to Enforce ............................37

B. The Decision to Dismiss the Straw Donor Claims Was Arbitrary and 

Capricious, and Contrary to Law...................................................................38

1. The dismissals were based on a rationale that is contrary to the 

plain language and purpose of the statute ...........................................38

2. Respondents did not lack adequate notice simply because corporate 

contributions were a matter of “first impression”...............................42

3. Respondents could not have been “misled” by Commission 

precedents addressing funds deposited in corporate accounts 

because none of these authorities concerned section 30122...............47

4. The proposition that respondents lacked notice was not credible.......50

C. The Failure to Address Whether the Political Committee Requirements 

Applied to Respondents Was a Fatal Defect .................................................52

D. The Controlling Commissioners’ “Intent” Standard Is Arbitrary, 

Capricious, and Contrary to Law...................................................................54

CONCLUSION........................................................................................................57

CERTIFICATE OF COMPLIANCE.......................................................................59

CERTIFICATE OF SERVICE ................................................................................60

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

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TABLE OF AUTHORITIES

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

Cases: Page

Abbott Labs. v. Gardner, 387 U.S. 136 (1967)........................................................31

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996) (en banc)..................19, 21, 27, 28, 29

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam)...........................................3, 4, 52

Campaign Legal Ctr. v. FEC, 245 F. Supp. 3d 119 (D.D.C. 2017) ..........................2

Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995)................... 27-28, 36

Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012)...........................50

Citizens United v. FEC, 558 U.S. 310 (2010)................................................6, 19, 40

*Citizens for Responsibility & Ethics in Wash. (CREW) 

v. FEC, 892 F.3d 434 (D.C. Cir. 2018) ................. 1, 2, 16, 19, 21, 24, 25, 26, 30 

CREW v. FEC, 236 F. Supp. 3d 378 (D.D.C. 2017)................................................24

CREW v. FEC, 923 F.3d 1141 (D.C. Cir. 2019)..........................................18, 34, 36

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988)...............................5, 35, 36

Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131 (D.C. Cir. 

1987).................................................................................................... 5, 27-28

Edison Elec. Inst. v. EPA, 996 F.2d 326 (D.C. Cir. 1993) .......................... 21, 32-33

FEC v. Akins, 524 U.S. 11 (1998)....................................................18, 19, 26, 27, 28

FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004)............................................53

FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471 (D.C. Cir. 1992).......16

Gen. Elec. Co. v. EPA, 53 F.3d 1324 (D.C. Cir. 1995) ...........................................39

Hagelin v. FEC, 411 F.3d 237 (D.C. Cir. 2005)......................................................16

Heckler v. Chaney, 470 U.S. 821 (1985).................................................2, 21, 25, 26

ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270 (1987)........................................28

Indep. Inst. v. FEC, 216 F. Supp. 3d 176 (D.D.C. 2016) (three-judge court).........41

In re Carter-Mondale Reelection Comm., Inc., 642 F.2d 538 (D.C. Cir. 1980) .....17

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J.J. Cassone Bakery, Inc. v. NLRB, 554 F.3d 1041 (D.C. Cir. 2009)......................17

La Botz v. FEC, 61 F. Supp. 3d 21 (D.D.C. 2014)............................................. 18-19

Lieu v. FEC, 370 F. Supp. 3d 175 (D.D.C. 2019) ...................................................18

Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015).............................................18

McConnell v. FEC, 540 U.S. 93 (2003)...................................................................42

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 

29 (1983)...........................................................................................17, 25, 38, 53

NAACP v. Trump, 298 F. Supp. 3d 209 (D.D.C. 2018)...........................................23

Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423 (D.C. 

Cir. 1996)...................................................................................................... 31-32

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986)...........................................15, 16, 38

OSG Bulk Ships, Inc. v. United States, 132 F.3d 808 (D.C. Cir. 1998)............. 32-33

Payne Enterprises v. United States, 837 F.2d 486 (D.C. Cir. 1988).......................32

Sea-Land Serv., Inc. v. Dep’t of Transp., 137 F.3d 640 (D.C. Cir. 1998)...............22

Sierra Club v. Jackson, 648 F.3d 848 (D.C. Cir. 2011) ....................................26, 29

Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) ...........................................................31

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc).....................6, 19

SEC v. Chenery Corp., 332 U.S. 194 (1947)...........................................................29

Univ. of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002)..............................17

United States v. Danielczyk, 788 F. Supp. 2d 472 (E.D. Va. 2011)........................39

United States v. O’Donnell, 608 F.3d 546 (9th Cir. 2010)....................40, 41, 42, 46

Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016)..........................................22, 57

Federal Statutes:

28 U.S.C. § 1291........................................................................................................2

28 U.S.C. § 1331........................................................................................................2

52 U.S.C. § 30101(4).................................................................................................4

52 U.S.C. § 30101(4)(A)......................................................................................4, 52

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*52 U.S.C. § 30101(11).................................................................................4, 39, 43

52 U.S.C. § 30102........................................................................1, 4, 7, 8, 12, 29, 37

52 U.S.C. § 30103........................................................................1, 4, 7, 8, 12, 29, 37

52 U.S.C. § 30104........................................................................1, 4, 7, 8, 12, 29, 37

52 U.S.C. § 30106(c) ...........................................................................................4, 35

52 U.S.C. § 30109(a)(1).......................................................................................4, 36

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

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

52 U.S.C. § 30109(a)(4)(A).......................................................................................5

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

52 U.S.C § 30109(a)(5)(B) ......................................................................................55

52 U.S.C § 30109(a)(5)(C) ......................................................................................55

52 U.S.C. § 30109(a)(6)(A).......................................................................................5

52 U.S.C. § 30109(a)(8)(A).......................................................................2, 5, 12, 36

52 U.S.C. § 30109(a)(8)(C) ...........................................................................6, 16, 36

52 U.S.C. § 30109(a)(9).............................................................................................2

52 U.S.C § 30109(d)(1)(D)......................................................................................55

52 U.S.C. § 30116(a)(2)...........................................................................................49

52 U.S.C. § 30116(a)(8)...........................................................................................49

52 U.S.C. § 30118..............................................................................................47, 48

52 U.S.C. § 30121....................................................................................................40

*52 U.S.C. § 30122.......................1, 3, 6-11, 13-15, 19, 20, 22, 29-32, 37-50, 54-56

Federal Regulations and Administrative Materials:

11 C.F.R. § 110.1(g) ................................................................................................47

11 C.F.R. § 110.1(e).................................................................................................49

Certification, MUR 7114 (Casperson for Congress) (June 26, 2018), 

https://www.fec.gov/files/legal/murs/7114/17044430961.pdf...........................35

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Dismissal Report, MUR 7254 (Trump for President, Inc.) (Nov. 15, 2017), 

https://eqs.fec.gov/eqsdocsMUR/18044436431.pdf...........................................25

FEC Advisory Op. 1986-41 (Dec. 5, 1986).............................................................41

FEC, Guidebook for Complainants and Respondents on the FEC Enforcement 

Process (May 2012), https://transition.fec.gov/em/respondent_guide.pdf ...... 4-5

Factual and Legal Analysis, MUR 4634 (Sam Brownback) (June 8, 

1998), https://www.fec.gov/files/legal/murs/4634/28044194356.pdf ...............45

Factual and Legal Analysis, MUR 5968 (John Shadegg’s Friends) (Nov. 10, 

2008), https://www.fec.gov/files/legal/murs/5968/28044221606.pdf ...............45

First General Counsel’s Report, MUR 6002 (Freedom’s Watch) (Mar. 12, 

2010), https://www.fec.gov/files/legal/murs/6002/10044272054.pdf ...............46

First General Counsel’s Report, MUR 6485 (W Spann) (Aug. 28, 2012),

https://www.fec.gov/files/legal/murs/6485/16044390492.pdf...........................52

MUR 3460 (Sports Shinko).....................................................................................40

MUR 4398 (Thomas Kramer)..................................................................................40

MUR 4884 (Future Tech, Inc.) ................................................................................40

Statement of Reasons of Comm’rs Hunter & Petersen, MURs 6968 

(Tread Standard LLC), 6995 (Right to Rise), 7014/7017/7019/7090 

(DE First Holdings et al.) (July 2, 2018), https://www.fec.gov/files/

legal/murs/7017/7017_2.pdf...............................................................................44

Miscellaneous Resources:

Alexander Burns, Romney: Pay no attention to the man behind W Spann 

LLC, Politico (Aug. 8, 2011), http://www.politico.com/story/2011/08/

romney-pay-no-attention-to-the-man-behind-w-spann-llc-060895 .....................9

Press Release, U.S. Dep’t of Justice, Entertainer/Businessman and Malaysian 

Financier Indicted for Conspiring to Make and Conceal Foreign and 

Conduit Contributions During 2012 U.S. Presidential Election (May 10, 

2019), https://www.justice.gov/opa/pr/entertainerbusinessman-and-malay

sian-financier-indicted-conspiring-make-and-conceal-foreign ..........................10

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GLOSSARY OF ABBREVIATIONS

CLC Campaign Legal Center

CREW Citizens for Responsibility & Ethics in Washington

FEC Federal Election Commission

FECA Federal Election Campaign Act

LLC Limited Liability Company

MUR Matter Under Review

PAC Political Action Committee

OGC FEC Office of General Counsel

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INTRODUCTION

This case challenges the dismissals of three FEC complaints alleging schemes 

to conceal the true sources of millions of dollars in campaign contributions laundered

through LLCs and other corporate entities, in violation of the Federal Election 

Campaign Act (“FECA”)—specifically, FECA’s “straw donor” prohibition, 52 

U.S.C. § 30122, and its “political committee” disclosure provisions, 52 U.S.C. 

§§ 30102, 30103, and 30104. All three complaints, along with two others that are no 

longer at issue, were dismissed in 2016 after the Commission deadlocked, 3-3, in 

each matter. 

The three “controlling Commissioners” who voted not to proceed found that 

there was no “reason to believe” the respondents violated FECA. They characterized 

their decision—and the Commission has defended it—as an exercise of prosecutorial 

discretion, and as such, completely beyond judicial review following Citizens for 

Responsibility & Ethics in Washington v. FEC, 892 F.3d 434 (D.C. Cir. 2018) 

(“CREW”). But their votes against proceeding, by their own admission, were based 

solely on their conclusions of law, drawn from judicial precedent and “principles of 

due process, fair notice, and First Amendment clarity.” JA 148. CREW does not 

shield their legal errors from judicial scrutiny. The dismissals were contrary to law, 

at odds with FECA’s text and purpose, and unsustainable under any standard of 

reasoned decisionmaking.

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JURISDICTIONAL STATEMENT

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

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

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). Appeal was timely taken on August 

2, 2018, within sixty days of the district court’s June 7, 2018 decision under review. 

Appellants Campaign Legal Center and Democracy 21 have informational standing 

as to the three administrative complaints that remain at issue, for the reasons stated 

by the district court (Bates, J.) in its March 29, 2017 memorandum opinion. See

Campaign Legal Ctr. v. FEC, 245 F. Supp. 3d 119, 129 (D.D.C. 2017) (granting in 

part and denying in part FEC motion to dismiss); see also JA 32-45 (opinion); JA 31

(order). 

ISSUES PRESENTED

1. Whether the district court erred in ruling that it was not contrary to law

for the controlling Commissioners to find no “reason to believe” a violation of FECA 

had occurred.

2. Whether the controlling Commissioners’ purported exercise of 

prosecutorial discretion renders the dismissals unreviewable under Heckler v. 

Chaney, 470 U.S. 821 (1985), and CREW, 892 F.3d 434 (D.C. Cir. 2018), even 

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though the dismissals in this case were premised on erroneous interpretations of 

statutory provisions, judicial precedent, and the Constitution.

3. Whether the district court erred in finding that the new “intent-based” 

interpretation of 52 U.S.C. § 30122 embedded in the controlling Commissioners’ 

rationale for dismissal was unreviewable on ripeness grounds.

STATUTES AND REGULATIONS

All applicable statutory provisions are reproduced in the Addendum to this 

brief.

STATEMENT OF THE CASE

A. Statutory and Regulatory Framework

1. FECA’s Disclosure Provisions

A core purpose of federal campaign finance law is to serve the electorate’s 

interest in knowing “where political campaign money comes from.” Buckley v. 

Valeo, 424 U.S. 1, 66 (1976) (per curiam). Toward that end, FECA contains 

numerous provisions designed to ensure accurate reporting from those who give and 

spend money to influence elections. One such provision is FECA’s “straw donor” 

prohibition, which provides that “[n]o person shall make a contribution in the name 

of another person or knowingly permit his name to be used to effect such a 

contribution, and no person shall knowingly accept a contribution made by one 

person in the name of another person.” 52 U.S.C. § 30122. “Person” is defined to 

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include “an individual, partnership, committee, association, corporation, labor 

organization, or any other organization or group of persons.” Id. § 30101(11). 

FECA also provides a comprehensive registration and reporting system for 

“political committees.” Id. § 30101(4). The FEC employs a two-pronged test for 

determining political committee status under FECA, asking: (1) whether an entity or 

other group of persons has made more than $1,000 in “expenditures” or received 

more than $1,000 in “contributions” during a calendar year, id. § 30101(4)(A); and 

(2) whether the organization has as its “major purpose the nomination or election of 

a candidate.” Buckley, 424 U.S. at 79. Any entity that meets this test must file a 

“statement of organization,” 52 U.S.C. § 30103, comply with organizational and 

recordkeeping requirements, id. § 30102, and file periodic reports disclosing its 

receipts and disbursements, id. § 30104.

2. The Commission’s Administrative Complaint and Enforcement 

Process

Any person may file a complaint alleging a violation of FECA. Id.

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

then votes on whether there is “reason to believe” a violation has occurred, in which 

case it “shall” investigate. Id. § 30109(a)(2). FECA requires an affirmative vote of 

four Commissioners to undertake most agency actions, id. § 30106(c), including a 

reason-to-believe finding necessary to initiate an investigation, id. § 30109(a)(2), or 

a vote to dismiss on discretionary grounds, FEC, Guidebook for Complainants and 

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Respondents on the FEC Enforcement Process 12 (May 2012), https://transition.fec.

gov/em/respondent_guide.pdf.

After the investigation, the Commission votes on whether there is “probable 

cause” to believe FECA was violated. 52 U.S.C. § 30109(a)(3). If it determines, by 

an affirmative vote of at least four Commissioners, that there is probable cause, it 

“shall” attempt to “correct or prevent such violation” by conciliating with the 

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

violation and enter a conciliation agreement, 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 decisionmaking 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” 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.5 (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 

seeking review of the Commission’s action. 52 U.S.C. § 30109(a)(8)(A). If the court 

finds the dismissal “contrary to law,” it may order the Commission to conform with 

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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. Procedural Background

1. Appellants’ “Straw Donor” Complaints 

In 2011, the media began reporting on a rash of donors who were trying to 

evade federal disclosure laws by using LLCs and similar corporate entities as 

conduits, or “straw donors,” to obscure that they were the true contributors to certain 

political committees. Following Citizens United v. FEC, 558 U.S. 310 (2010), and 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc), the FEC had 

authorized corporations to make both independent expenditures and unlimited 

contributions to “independent expenditure-only groups,” or “super PACs,” but 

FECA’s existing disclosure requirements remained intact. 

Appellants filed five administrative complaints between August 2011 and 

April 2015, JA 9-10, alleging that suspect contributions from LLCs to super PACs—

ranging from $875,000 to over $12 million—violated section 30122 by concealing 

the identities of the true donors. The complaints were filed separately over a fouryear period, but the Commission evaluated them jointly, JA 148-49, 169-70. On 

February 23, 2016, the three controlling Commissioners voted against a reason-tobelieve finding in all five matters, issuing a single Statement of Reasons in April 

2016 to explain their votes. Three of the five dismissals are at issue here: Matter 

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Under Review (“MUR”) 6487 (F8 LLC), MUR 6488 (Eli Publishing), and MUR 

6711 (Specialty Group).

The F8 and Eli Publishing complaints, filed in August 2011, alleged that two 

LLCs were used as illegal straw donors to conceal the true sources of two $1 million 

contributions to Restore Our Future, a super PAC supporting Mitt Romney’s 2012 

presidential run. According to media reports, the two entities shared an address in 

Provo, Utah but “[didn’t] seem to do any substantial business.” JA 179. Steven J. 

Lund, the registered agent of Eli Publishing, was reported as a possible source of the 

two $1 million contributions, JA 179-80, and he later admitted that he used the two 

LLCs to contribute to the super PAC because “he did not want ‘to be real public

about being a part of the campaign.’” JA 112.

Appellants asked the FEC to find reason to believe a violation had occurred 

and to authorize an investigation into whether Eli Publishing, F8, Lund, and other 

respondents had violated 52 U.S.C. § 30122. Appellants also argued that there was 

reason to believe F8 and Eli Publishing had violated 52 U.S.C. §§ 30102, 30103, 

and 30104 by failing to register and file reports as political committees, since both 

organizations made contributions in excess of $1,000 and appeared to have 

campaign activity as their “major purpose” in the relevant time frame.

On June 6, 2012, the FEC’s Office of General Counsel (“OGC”) 

recommended the Commission find reason to believe that F8, Eli Publishing, and 

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Lund violated 52 U.S.C. § 30122, but take “no action at th[at] time,” JA 122, with 

respect to the alleged violations of 52 U.S.C. §§ 30102, 30103, and 30104, 

“[b]ecause the resolution of this [political committee] allegation may depend on the 

disposition of the section [30122] allegation.” JA 252, 336.

The third complaint—filed December 20, 2012, more than a year after the first 

two—alleged that Specialty Investment Group Inc. (“Specialty Group”) and its 

subsidiary, Kingston Pike Development LLC (“Kingston”), were used as conduits 

to hide the true source of almost $12 million contributed to another super PAC, 

FreedomWorks for America (“FreedomWorks”). JA 193-204. Media reports noted 

that “Specialty Group filed its incorporation papers on Sept. 26, less than a week 

before it gave several contributions to [FreedomWorks] worth between $125,000 

and $1.5 million apiece.” JA 196.

Appellants alleged that Specialty Group, Kingston, and any other persons who 

made contributions in their names had violated 52 U.S.C. § 30122, and that Specialty 

Group and Kingston violated FECA by failing to register as political committees. 

Appellants amended their complaint in April 2013 to take into account news reports 

that FreedomWorks and its leadership may have facilitated the potential straw donor 

contributions, and accordingly, may have also violated section 30122. JA 225-27.

On June 6, 2014, OGC recommended the Commission find reason to believe 

that the undisclosed individuals who contributed over $12 million to FreedomWorks 

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in the names of Specialty Group and Kingston had violated section 30122. JA 268. 

It again recommended deferring action on the political committee allegations until 

the section 30122 allegations were resolved. JA 252, 267.

Appellants filed two other administrative complaints that are no longer at 

issue. Because the Commission disposed of all five complaints together, all of these 

matters “informed the Commission’s decision,” as the district court recognized, JA 

410. 

The first of these other complaints, MUR 6485 (W Spann LLC), involved an 

LLC that was created in March 2011, made a $1 million contribution in April 2011 

to Restore Our Future, and then, three months later, dissolved. Only after this 

contribution attracted public attention and prompted the FEC complaint did Edward 

Conard, Romney’s former business partner, acknowledge that he was the true source 

of the W Spann contribution, and had contributed through an LLC to conceal his 

involvement. JA 17-19. The W Spann contribution “set off a furor over secrecy in 

politics,” prompting Romney to assure the public that there was “no controversy 

because [Conard] said, ‘Hey, it’s me, and I’ve given to Mitt many times before.’”

Alexander Burns, Romney: Pay no attention to the man behind W Spann LLC, 

Politico (Aug. 8, 2011), http://www.politico.com/story/2011/08/romney-pay-noattention-to-the-man-behind-w-spann-llc-060895.

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The other complaint, filed in April 2015, MUR 6930 (Michel), alleged that

there was reason to believe that Prakazrel “Pras” Michel violated section 30122 by 

routing $875,000 through SPM Holdings LLC to the super PAC Black Men Vote. 

JA 22-23. While the original theory was that Michel likely funded the contribution 

himself, this straw donor contribution was later revealed to be part of a much larger

alleged conspiracy: Michel was recently indicted for laundering millions of dollars 

in illegal foreign contributions through Black Men Vote into President Obama’s 

2012 campaign.1

OGC recommended the Commission find reason to believe that Conard and 

W Spann violated section 30122, but find no reason to believe in the Michel matter.

JA 152.

2. The Controlling Commissioners’ Statement of Reasons

Although OGC recommended investigation in each of the three complaints at 

issue here, the Commission deadlocked in each, by a vote of 3-3, on whether there 

was reason to believe a FECA violation had occurred. Unable to proceed because of 

 1 This revelation came courtesy of the “1MDB” global corruption probe involving 

Malaysia’s sovereign investment fund. See Press Release, U.S. Dep’t of Justice, 

Entertainer/Businessman and Malaysian Financier Indicted for Conspiring to Make 

and Conceal Foreign and Conduit Contributions During 2012 U.S. Presidential 

Election (May 10, 2019), https://www.justice.gov/opa/pr/entertainerbusinessmanand-malaysian-financier-indicted-conspiring-make-and-conceal-foreign.

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the deadlocks, the Commission voted 6-0 to dismiss the complaints, JA 138-39, 399-

400, as it customarily does in cases of deadlock.

The three controlling Commissioners issued a single Statement of Reasons 

setting forth their legal analysis of all five complaints. JA 147-61. The three 

“dissenting” Commissioners who voted to proceed also issued a Statement of 

Reasons addressing all five MURs, JA 163-67, prompting a supplemental statement 

by the controlling Commissioners in response. JA 173-76.

In explaining their decision, the controlling Commissioners relied upon their 

interpretations of FECA and prior Commission guidance, as well as their 

understanding of judicial precedent and “First Amendment clarity.” JA 148. They 

acknowledged that “section 30122 applies to closely held corporations and corporate 

LLCs.” JA 158. Nevertheless, invoking prosecutorial discretion, they voted against 

finding reason to believe, concluding that it would be “unfair” to apply the law to

corporate respondents who, they believed, lacked sufficient notice that section 30122 

applied to their activity. JA 154.

That “inadequate notice” theory rested on these Commissioners’

interpretations of judicial precedent and constitutional rights, which they understood 

to require creating a new “intent-based standard” for section 30122 before it could 

be enforced against corporations. Their new standard was devised in opposition to 

the dissenting Commissioners’ alternative “functional” standard, which the 

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controlling Commissioners decided would render “hollow” the corporate “speech 

rights recognized in Citizens United.” JA 148.

The controlling group did not consider appellants’ claim that respondent 

corporations, if not straw donors, would qualify as “political committees,” and thus 

had violated 52 U.S.C. §§ 30102, 30103, and 30104 by failing to register and report 

as committees.

3. The District Court Proceedings

Appellants filed this action on April 22, 2016 in the U.S. District Court for the 

District of Columbia seeking review of all five dismissals under 52 U.S.C. 

§ 30109(a)(8)(A). 

The Commission moved to dismiss the complaint for want of standing. JA 32.

On March 29, 2017, the district court denied the motion in part, finding that 

appellants had standing to challenge the dismissals of MURs 6487 (F8 LLC), 6488 

(Eli Publishing), and 6711 (Specialty Investment). JA 31, 38-40, 45.

The parties filed cross-motions for summary judgment. On June 7, 2018, the 

district court granted summary judgment for the Commission, holding that the 

dismissals were (1) premised on prosecutorial discretion and thus subject only to 

review for “abuse of discretion,” and (2) not an abuse of discretion because the 

controlling Commissioners had provided a rational basis for their decision. JA 417-

18 (finding invocation of “intertwined concerns of fair notice and due process in a 

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post-Citizens United context, confusing Commission precedent, and the obligation 

to protect First Amendment speech” “supplied a rational basis” for dismissal). 

SUMMARY OF ARGUMENT

Appellants’ administrative complaints asked the Commission to apply a clear 

statutory prohibition to clear violations by persons that the statute clearly covers. 

The controlling Commissioners did not dispute the applicability of section 30122, 

nor the sufficiency or gravity of the allegations in the complaints. Instead, they

refused to proceed because they concluded that the respondents lacked adequate 

“notice” of a law that is unambiguous on its face—and on that basis, invoked their 

“prosecutorial discretion” not to investigate “some of the most crystal-clear 

violations this Commission had seen in recent memory.” JA 169. 

This was not the reasoned analysis the Commission was bound to provide, 

and the district court was wrong to find that it was not contrary to law. 

Rather than defend the dismissals on the merits, however, the Commission

has primarily focused on shielding them from any judicial review. In fact, since the 

CREW decision—which postdated the district court decision here—the Commission 

has treated the mere invocation of prosecutorial discretion as a bar to judicial review 

that is automatic, absolute, and unbounded.

But withholding review in this case would stretch CREW beyond its breaking 

point. The CREW majority specifically noted that it was not constraining judicial 

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review under 52 U.S.C. § 30109(a)(8) for FEC dismissals based on interpretations 

of law. And here, the controlling Commissioners’ rationale rested entirely on a series 

of erroneous propositions of law, including their interpretations of judicial precedent 

and “due process, fair notice, and First Amendment clarity.” JA 148. These are legal 

arguments well within the capacity of a court to judge.

CREW is also distinguishable on its facts. The dismissal there was based on

concerns about scarce agency resources and the time already spent on a costly and 

increasingly futile investigation pursuing a defunct organization. No such

discretionary considerations prompted the dismissals here. 

Because CREW differs so significantly from this case, there is no need to

explore all of its potential implications for judicial review of FEC non-enforcement 

decisions. But clearly, CREW cannot be read to preclude judicial review of the legal

justifications underpinning the dismissal of a complaint following a deadlocked 

reason-to-believe vote simply because the controlling Commissioners invoke the 

words “prosecutorial discretion” or mention agency resources. To hold otherwise 

would contradict prior precedents of the Supreme Court and this Circuit.

Moreover, CREW has no relevance to determinations that were not even 

nominally justified on discretionary grounds, like the controlling Commissioners’ 

cursory rejection of the allegations that FECA’s political committee disclosure 

provisions were violated. And the announcement of a new “legal interpretation” of 

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section 30122 is indisputably not something “committed to the agency’s 

unreviewable discretion,” nor is it unripe for review, given that it was part and parcel 

of their rationale for dismissal. 

On the merits, it is clear that the Commission’s explanation for the dismissals 

does not meet even the bare test of credibility, much less the standards of reasoned 

decisionmaking required by Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). 

Resting their decision on a theory of inadequate notice required the controlling 

Commissioners to manufacture ambiguity in a legal and factual setting where none 

was present. No respondent claimed any confusion about the applicability of section 

30122 to corporate straw donors. None contested the law’s clarity. Even a 

perfunctory review of the record makes clear that the Commissioners’ “unfair 

notice” rationale lacked any basis in the facts of these proceedings.

It is also impossible to sustain as a legal theory. The controlling 

Commissioners made much of Citizens United and SpeechNow, but the simple fact 

that corporations were newly able to make contributions does not mean that section 

30122 did not clearly prohibit corporations from acting as straw donors. Likewise 

unavailing are the controlling Commissioners’ citations to “confusing” FEC

guidance on the attribution of corporate contributions, because none of the 

precedents concern section 30122 or address how to determine the true sources of 

contributions in potential straw donor situations. JA 148, 418.

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For these reasons, this Court should reject the Commission’s attempt to 

inoculate its interpretations of law from judicial review, reverse the judgment of the

district court, and remand these proceedings with a direction to grant appellants’

motion for summary judgment.

STANDARD OF REVIEW

This Court reviews a district court’s grant of summary judgment de novo. 

Hagelin v. FEC, 411 F.3d 237, 242 (D.C. Cir. 2005).

Under FECA, the Commission’s decision to dismiss an administrative

complaint will be set aside if it is “contrary to law,” 52 U.S.C. § 30109(a)(8)(C), 

meaning the dismissal (1) rests on an impermissible interpretation of law, or (2) is 

“arbitrary or capricious, or an abuse of discretion.” Orloski, 795 F.2d at 156, 161. 

FEC dismissals are subject to judicial review under the contrary-to-law standard 

regardless of whether they spring from a majority vote or a deadlock. When the 

Commission fails to muster four votes to proceed in any enforcement matter, to 

enable and “make meaningful” the review that FECA provides, the Commissioners

voting against proceeding must “issue a statement explaining their votes,” CREW, 

892 F.3d at 437-38, which the court treats as dispositive because “their rationale 

necessarily states the agency’s reasons for acting as it did.” FEC v. Nat’l Republican 

Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992). 

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The test for whether the FEC’s dismissal of a complaint was arbitrary, 

capricious, or an abuse of discretion under Orloski is analytically similar to the 

“arbitrary [or] capricious” standard applied under the APA. In re Carter-Mondale 

Reelection Comm., Inc., 642 F.2d 538, 550-51 & n.6 (D.C. Cir. 1980). A court must 

set aside agency action “if the agency has relied on factors which Congress has not 

intended it to consider, entirely failed to consider an important aspect of the problem, 

offered an explanation for its decision that runs counter to the evidence . . . or is so 

implausible that it could not be ascribed to a difference in view or the product of 

agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 

U.S. 29, 43 (1983).

Dismissals grounded on the Commission’s interpretation of judicial precedent 

or constitutional issues, however, are reviewed de novo. J.J. Cassone Bakery, Inc. v. 

NLRB, 554 F.3d 1041, 1044 (D.C. Cir. 2009). That is especially so where, as here, 

the decision “is based on constitutional concerns, an area of presumed judicial, rather 

than administrative, competence.” Univ. of Great Falls v. NLRB, 278 F.3d 1335, 

1341 (D.C. Cir. 2002). 

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ARGUMENT

I. THE DISMISSALS ARE REVIEWABLE.

A. CREW Does Not Bar Review of Dismissals Premised on Legal Error.

There is a “‘strong presumption’ favoring judicial review of administrative 

action.” Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015) (citation

omitted). That imperative applies with even more force in statutory settings, such as 

this one, where Congress has expressed its “clear intent” to make judicial review 

available. CREW, 923 F.3d 1141, 1142 (D.C. Cir. 2019) (Griffith, J., concurring in 

denial of rehr’g en banc). 

Therefore, “[a]lthough Heckler does stand for the proposition that there is a 

presumption that agency decisions not to enforce are unreviewable,” FECA “rebuts 

that presumption.” Lieu v. FEC, 370 F. Supp. 3d 175, 183 (D.D.C. 2019) (finding 

Heckler “inapposite” in light of “FECA’s express provision for the judicial review 

of FEC dismissal decisions”) (citing FEC v. Akins, 524 U.S. 11, 26 (1998)). 

Applying CREW to foreclose review here would effectively render any Commission 

decision that refers to “prosecutorial discretion”—however insubstantial the 

reference—entirely unreviewable. The CREW majority did not purport to do that, 

and neither should this Court.

Importantly, it is not necessary to delineate the outer bounds of 

unreviewability under CREW in order to decide this case. Unlike the Commission 

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decision at issue in CREW, the dismissals here were not based on a “complicated 

balancing of factors which are appropriately within [the FEC’s] expertise,” La Botz 

v. FEC, 61 F. Supp. 3d 21, 33 (D.D.C. 2014), but on conclusions of law falling 

squarely within the Court’s expertise: interpreting statutes, judicial decisions, and 

constitutional rights.

1. The dismissals in this case were based entirely on the 

Commission’s erroneous interpretations of law. 

As CREW acknowledged, a decision to dismiss an administrative complaint 

based entirely on an interpretation of law remains subject to review. 892 F.3d at 441 

n.11. And, of course, this Court is “not obliged to defer” at all to “an agency’s 

interpretation of Supreme Court precedent under Chevron or any other principle,” 

Akins v. FEC, 101 F.3d 731, 740 (D.C. Cir. 1996) (en banc), vacated on other 

grounds, 524 U.S. at 29—much less treat dismissals based on an agency’s 

interpretation of judicial precedent as unreviewable.

The dismissals here rested entirely on a series of erroneous propositions of 

law. The controlling Commissioners did not dispute that the straw donor prohibition 

in section 30122 clearly covered the corporate respondents. Instead, they concluded

that judicial decisions concerning unrelated FECA provisions—including Citizens 

United, 558 U.S. at 366 (invalidating a ban on corporate independent expenditures), 

and SpeechNow, 599 F.3d at 696 (allowing unlimited contributions to independent 

expenditure-only committees)—rendered section 30122 and existing regulatory 

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guidance “unclear” with respect to how contributions from LLCs should be 

attributed. They ultimately determined that even though section 30122, by its 

express terms, “applies to closely held corporations and corporate LLCs,” JA 158, it 

would be “manifestly unfair”—and would raise “numerous legal and constitutional 

concerns”—to enforce the prohibition here. JA 154, 159. 

In reaching this determination, the controlling Commissioners relied upon 

other faulty propositions of law, including: 

• FECA had not been applied to corporate straw donors in the past,

and the allegations here “differ[ed] substantially” from prior matters 

applying section 30122 to analogous recipient entities, such as 

political committees. JA 155.

• Congress had not “contemplate[d] that corporations could violate 

the prohibition against giving in the name of another,” id., despite 

having enacted a statutory prohibition that unambiguously and on 

its face applies to corporations. 

• The Commission’s default attribution rules—which, by definition, 

do not apply in straw donor situations, see infra Part II.B.3—made 

it unclear whether a contribution by a closely held corporation or 

LLC to a super PAC was attributable to the entity’s owner or to the 

entity itself. JA 155-58.

• The First Amendment rights recognized in Citizens United would be 

rendered “hollow” without the addition of an “intent” standard to 

section 30122. JA 148.

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In short, the dispositive statement in this case relied entirely on a legal analysis

of statute and precedent. This is plain from the document’s subheadings alone. See

JA 149-52 (“Factual Background”), JA 152-60 (“Legal Analysis”) (emphasis 

added), JA 160 (“Conclusion”). There was no discussion of any discretionary factors 

“peculiarly within the agency’s expertise.” Heckler, 470 U.S. at 831-32. Given the 

controlling Commissioners’ exclusive focus on considerations of law, their mere 

invocation of the words “prosecutorial discretion” cannot insulate their conclusions

from judicial review. 

An agency’s dismissal based on its erroneous interpretation of a statute, or the 

statute’s substantive requirements, is reviewable. See, e.g., CREW, 892 F.3d at 441 

n.11; Edison Elec. Inst. v. EPA, 996 F.2d 326, 333 (D.C. Cir. 1993) (holding 

agency’s “Enforcement Policy Statement” was reviewable because its 

“interpretation has to do with the substantive requirements of the law”). And a 

dismissal based on an agency’s belief that clear statutory language requires further

“clarification” in light of judicial precedent is plainly reviewable. See, e.g., Akins, 

101 F.3d at 740 (“[S]ince it is not, and cannot be, contended that the statutory 

language itself is ambiguous, and the asserted ‘ambiguity’ only arises because of the 

Supreme Court’s narrowing opinions, we must decide de novo the precise impact of 

those opinions.”).

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Even assuming arguendo that Heckler or CREW would foreclose review of 

FEC dismissals in some instances, neither bars review of a dismissal that some 

Commissioners erroneously believe to be compelled by the Constitution or judicial 

precedent. “An agency action, however permissible as an exercise of discretion, 

cannot be sustained where it is based not on the agency’s own judgment but on an 

erroneous view of the law.” Sea-Land Serv., Inc. v. Dep’t of Transp., 137 F.3d 640, 

646 (D.C. Cir. 1998).

And here, the controlling Commissioners did not ultimately discuss their 

conclusions in discretionary terms, but rather as “compelled” by the Constitution 

and judicial precedent. See JA 155. According to their Statement of Reasons, they

were following a constitutional “command”: “the Commission’s approach may not

merely presume that contributions from closely held corporations or corporate LLCs 

are actually contributions in the name of another,” because, “[a]s Commissioners,” 

they were “obligated to ‘safeguard the First Amendment when implementing’ the 

Act.” JA 158 (emphasis added) (citing Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 

2016)). Even taken on its own terms, their “discretionary” decision to dismiss was 

bootstrapped from their own decision to formulate a new “legal interpretation” of

section 30122, JA 159, and that decision was based on the misguided view that a 

new standard was legally and constitutionally required. See, e.g., JA 158-59. On the 

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merits, they are wrong, see infra Part II.D, and this Court is empowered to correct 

their error.

Having claimed that the dismissal decision was “dictated by the plain text of 

the Act, court decisions, forty years of Commission practice, and common sense,” 

JA 174 (emphasis added), the Commission cannot now insulate it from review by 

framing it as discretionary. “[A]n official cannot claim that the law ties her hands 

while at the same time denying the courts’ power to unbind her.” NAACP v. Trump, 

298 F. Supp. 3d 209, 249 (D.D.C. 2018), cert. granted before judgment, No. 18-588 

(June 24, 2019). 

2. CREW is distinguishable on its facts.

In stark contrast to the underlying dismissal in CREW, the controlling 

Commissioners’ putative discretionary action here did not rest on any actual 

discretionary considerations. At no point in this litigation has the FEC attempted to 

argue otherwise.

In CREW, the rationale for dismissal was rooted in traditionally

“prosecutorial” considerations about agency resources. The administrative 

respondent was a fly-by-night political association that had dissolved and vanished 

while CREW’s complaint was pending. The controlling Commissioners explained 

their decision to end the agency’s enforcement efforts almost exclusively based on

concerns about scarce agency resources and the dim prospects for success. They 

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found, inter alia, that the “defunct” association “no longer existed,” “had filed 

termination papers with the IRS in 2011,” and “had no money . . . [or] 

counsel . . . [or] agents who could legally bind it.” 892 F.3d at 438. They also cited 

concerns about timing, noting that any agency action against the association would 

“raise[] novel legal issues that the Commission had no briefing or time to decide.” 

CREW v. FEC, 236 F. Supp. 3d 378, 389 (D.D.C. 2017), aff’d, 892 F.3d 434. 

Moreover, the dismissal at issue in CREW came after the Commission had 

already voted unanimously to authorize an investigation at the reason-to-believe 

stage; OGC then spent significant time and effort to conduct that investigation, 

which “encountered procedural and evidentiary difficulties from the outset” that

only multiplied over time, until it became clear “that CHGO had become a defunct 

organization without any money, officers, directors, or attorney representing it.” Id.

at 388. At that point, even OGC conceded that further enforcement efforts would be 

a “pyrrhic” exercise. Id. at 388-89.

In this case, by contrast, the rationale did not hinge on factors such as “whether 

agency resources are best spent on this violation or another, whether the agency is 

likely to succeed if it acts, whether the particular enforcement action requested best 

fits the agency’s overall policies, [or], indeed, whether the agency has enough 

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resources to undertake the action at all.” CREW, 892 F.3d at 439 n.7 (citing Heckler, 

470 U.S. at 831-32).

2

Nor did the controlling Commissioners here even mention the “discretionary” 

factors identified in Heckler. They did not claim to find the factual allegations in the 

complaints insufficient to support a reason-to-believe finding. They did not address 

the significance or severity of the alleged violations. They did not weigh how or 

whether enforcement would tax scarce agency resources. And they did not consider 

the potential effects of letting the violations go unchecked, either on the agency’s 

own enforcement priorities or the purposes of FECA. In other words, they did not 

base their votes upon any conventional discretionary considerations. 

While the district court recast their reasons into concerns about litigation risk, 

the Commissioners themselves never mentioned that concern. “[A]n agency’s action 

must be upheld, if at all, on the basis articulated by the agency itself.” State Farm, 

463 U.S. at 50. Courts may not rely on a rationale unarticulated by the agency. Were 

it otherwise, especially given the contested constitutional space in which the 

 2 Notably, the Commission has created internal policies to focus its enforcement 

efforts—including through an Enforcement Priority System that “us[es] formal, predetermined scoring criteria to allocate agency resources” and evaluate whether 

incoming complaints rated “low priority” or de minimis should be dismissed,

“consistent with the Commission’s prosecutorial discretion.” Dismissal Report, 

MUR 7254 (Trump for President, Inc.) (Nov. 15, 2017), https://eqs.fec.gov/eqsdocs

MUR/18044436431.pdf. None of those criteria were cited here.

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campaign finance laws operate, the Commission could invoke a post hoc “litigation 

risk” rationale in virtually any case and thereby erect an absolute bar to judicial

review of its decisions. 

3. CREW does not permit the Commission to block review of the

legal bases for its dismissals by invoking “discretion.”

CREW did not claim to erect a categorical bar to judicial review of FEC 

dismissal decisions, because doing so would have required reading Congress’s

express provision for judicial review out of FECA and departing from Supreme 

Court and Circuit precedent—which the panel was not empowered to do. Sierra 

Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011) (“[T]his Court is bound to 

follow circuit precedent until it is overruled either by an en banc court or the 

Supreme Court.”) (citation omitted).

To be sure, the CREW majority viewed aspects of FEC non-enforcement 

decisions as “control[led]” by Heckler, 892 F.3d at 439—although this view is in 

potential tension with the Supreme Court’s decision in Akins. 524 U.S. at 26 (noting

that although “agency enforcement decisions have traditionally been committed to 

agency discretion, . . . [w]e deal here with a statute [FECA] that explicitly indicates 

the contrary” (quoting Heckler, 470 U.S. at 832) (internal quotation marks omitted)). 

But this case does not require exploring the outer reaches of the holding in CREW, 

or whether it conflicts with existing precedents, because the rationale for the 

dismissals here, unlike in CREW, was entirely a matter of law. 

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However, if the district court’s post hoc manufacture of “implicit” 

discretionary bases for the dismissals here is credited, or the controlling 

Commissioners’ rationale is retroactively recast as a mixed decision of law and 

discretion, CREW may require further consideration. A reading of CREW that would 

preclude judicial review of a dismissal based predominantly on legal grounds 

because one or two discretionary factors are also mentioned, or even just inferred, 

would be unsustainable.

The presumption of unreviewability established in Heckler was premised on 

the fact that agency enforcement decisions have “traditionally” been committed to 

agency discretion. Here, however, the “statute . . . explicitly indicates the contrary.” 

Akins, 524 U.S. at 26. CREW cannot mean that a non-majority bloc of 

Commissioners can dress their legal determinations in “discretionary” garb and 

thereby defeat the judicial review that FECA provides. There is no authority for

negating judicial review in this manner where—as recognized repeatedly in the 

decisions of the Supreme Court and this Circuit—Congress expressly overrode any 

presumption of unreviewability. Akins, 524 U.S. at 26; Akins, 101 F.3d at 734 

(noting that FECA “permits a complainant to bring to federal court an agency’s 

refusal to institute enforcement proceedings”); Chamber of Commerce v. FEC, 69 

F.3d 600, 603 (D.C. Cir. 1995) (“[FECA] is unusual in that it permits a private party 

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to challenge the FEC’s decision not to enforce.”); DCCC, 831 F.2d at 1133-34 

(finding 3-3 decision not to enforce based on “prosecutorial discretion” reviewable).

To be sure, an “otherwise unreviewable action” does not “become[] 

reviewable” simply because “the agency gives a ‘reviewable’ reason.” ICC v. Bhd.

of Locomotive Eng’rs, 482 U.S. 270, 283 (1987). By the same token, an otherwise 

reviewable action does not become unreviewable simply because the agency tacks 

on an unreviewable reason. This is even more strongly the case here, where the 

controlling Commissioners did not actually raise any unreviewable reasons. 

The Commission cannot shield its dismissals from review merely by labeling

its reviewable reasons (its legal premises) in unreviewable terms (“prosecutorial 

discretion”). This would be impossible to reconcile with Akins. There, the 

Commission argued that the complainants lacked standing because their 

informational injury ultimately might not be redressed on remand. Even if the 

Supreme Court agreed that the dismissal was “contrary to law” and remanded the 

matter to the FEC, the FEC could still “reach the same result” for a different, 

discretionary reason, 524 U.S. at 25—and therefore, the theory went, there would 

still not be any FECA-required disclosure. But the Supreme Court rejected the 

argument, id., and this Court deemed it “a breathtaking attack on the legitimacy of 

virtually all judicial review of agency action.” Akins, 101 F.3d at 738. 

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Instead, as this Court noted and the Supreme Court confirmed, “it has always

been an acceptable feature of judicial review of agency action that a petitioner’s 

‘injury’ is redressed by the reviewing court notwithstanding that the agency might 

well subsequently legitimately decide to reach the same result through different 

reasoning.” Id. That the Commission, like other agencies, generally “enjoy[s] some 

measure of enforcement discretion,” did not mean the Commission’s erroneous legal 

determinations were unreviewable, because “that would virtually end judicial review 

of agency action.” Id. The role of the courts is to “correct[] a legal error—if error is 

committed—in the agency decision,” provided the error is “one upon which the 

agency decision rests.” Id. (citing SEC v. Chenery Corp., 332 U.S. 194, 196-97 

(1947)). CREW did not claim to overrule this holding; nor could it have done so. 

Sierra Club, 648 F.3d at 854. 

B. The Commission Does Not Have Unreviewable Discretion to Dismiss 

Allegations without Explanation or Engage in De Facto Rulemaking.

1. The Commission did not provide any rationale, discretionary or 

otherwise, for failing to address whether respondents should have 

registered and reported as political committees. 

The controlling Commissioners claimed to exercise their prosecutorial 

discretion in dismissing the alleged violations of section 30122, but they made no 

such claim in dismissing appellants’ allegations that the respondent corporations had 

violated 52 U.S.C. §§ 30102, 30103, and 30104 by not registering and filing reports 

as political committees. The Commissioners did not meaningfully address these 

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claims at all, in terms of discretion or otherwise, remarking only that they would 

“not discuss those allegations,” JA 152, and would rest on OGC’s recommendation. 

That silence makes their rationale inadequate on its face. See infra Part II.C. 

2. The new “legal standard” announced by the controlling 

Commissioners is ripe for review. 

In dismissing the straw donor allegations, the controlling Commissioners

announced a “new” “governing interpretation” of section 30122, under which they 

would find the statute was violated only if presented with “direct evidence” that 

funds were “intentionally funneled” through a closely held corporation or LLC for 

the purpose of evading FECA’s reporting requirements. JA 158. 

The Commission has not even tried to characterize this new “intent” standard 

as a matter committed to the agency’s unfettered discretion. And for good reason. 

Such a standard is the paradigmatic “interpretation of FECA” that the CREW

majority confirmed “is not committed to the agency’s unreviewable discretion.” 892 

F.3d at 441 n.11. Instead, the Commission has resisted any review of this new “legal 

interpretation” as premature. JA 159. The district court agreed, JA 425-27, but this 

was error. The Commission’s “ripeness” arguments are unavailing because the new

legal standard was part and parcel of the controlling group’s rationale for dismissal, 

and is reviewable as such. 

The controlling Commissioners declared that in “similar future matters,” they 

would examine “whether funds were intentionally funneled through a closely held 

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corporation or corporate LLC for the purpose of making a contribution that evades 

the Act’s reporting requirements,” and that corporate contributions “shall be 

presumed lawful unless specific evidence demonstrates otherwise.” JA 158. Then, 

referring back to this new “intent” standard, these Commissioners declared that 

enforcing section 30122 as written—or as the dissenting Commissioners interpreted 

it—would create constitutional notice concerns and chill First Amendment activity. 

Based on their concerns about the constitutionality of applying section 30122 

without their narrowing gloss on it, the Commissioners voted against OGC’s 

recommendation to find reason to believe. Their “intent” standard was essential to

their no-vote, so it is necessarily ripe for review.

Whether the newly announced legal standard is a permissible interpretation of 

FECA is also a purely legal question. The purpose of the ripeness doctrine is to 

prevent courts from engaging in the “premature adjudication” of “abstract 

disagreements.” Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967). Here, the 

“intent” standard devised by the controlling Commissioners is a “purely legal” 

interpretation of FECA and thus “presumptively suitable to judicial review.” Shays 

v. FEC, 414 F.3d 76, 95 (D.C. Cir. 2005) (citation omitted). Moreover, because the 

standard was devised in response to five successive complaints over multiple 

election cycles, the factual setting is particularly well-developed for the Court’s 

review. Indeed, the fact that the standard emerged in an adjudication indicates that 

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the “facts upon which its resolution may depend are . . . . ‘fully crystallized.’” Nat’l 

Treasury Emps. Union v. United States, 101 F.3d 1423, 1431 (D.C. Cir. 1996).

The hardship that appellants will suffer if review is withheld is also sufficient

to “outweigh any institutional interests in the deferral of review.” Payne Enterprises

v. United States, 837 F.2d 486, 493 (D.C. Cir. 1988) (citation omitted). The district 

court was incorrect to accept the Commission’s argument that the “only hardship 

that the [appellants] face is the speculative possibility that the Commission will 

apply this standard in a future case to their detriment.” JA 427. The controlling 

Commissioners dismissed all five complaints precisely because they concluded that 

section 30122 “must be modified” to incorporate their standard, JA 175, thus giving

rise to this lawsuit. As a result, appellants—and the public—have been denied the 

disclosure to which they are entitled under FECA with respect to five different straw 

donor schemes. JA 40-44. This is sufficient hardship to merit review of both the 

dismissals and the newly created legal standard that gave rise to them.

Withholding review of the controlling group’s intent standard would also 

clear an easy path for partisan blocs of Commissioners to bypass notice-andcomment rulemaking procedures and instead announce their preferred legal 

interpretations in an enforcement setting. See OSG Bulk Ships, Inc. v. United States, 

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132 F.3d 808, 812 (D.C. Cir. 1998); Edison Elec, 996 F.2d at 333.3 Here, the 

controlling Commissioners acknowledged that they “proceeded to announce [their] 

view of the proper standard” in the context of these MURs only after concluding that 

“notice and comment rulemaking would not be constructive.” JA 155. If this Court 

were to decline to review the crux of their reasoning—their new “intent” standard—

it would effectively allow a non-majority of Commissioners to engage in de facto 

rulemaking without judicial oversight. 

The controlling Commissioners “delay[ed] the consideration of these matters 

repeatedly over the course of almost four years,” JA 169, justified the delay by 

kicking up a cloud of legal uncertainty unmoored from the statute or the facts, and 

on that basis decided that the straw donor provision “must be modified,” JA 175,

before it could be fairly applied. They cannot now block judicial review by 

attempting to decouple the “discretionary” dismissal decisions from the standard that 

served as the express justification for them.

 3 Citing a lone enforcement case involving corporate straw donors (see FEC Mot. 

for Summ. Aff. 17 n.2) also does not suffice to defeat concerns about agency

abdication. Notably, that case involved conduct that predated the “governing norm” 

(JA 148) announced here, potentially raising separate questions about consistent 

treatment. See Pls.’-Appellants’ Opp’n to Summ. Aff. 22 (noting prevalence of FEC 

dismissals citing “prosecutorial discretion” following the district court decision in 

CREW).

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C. Considerations Unique to FECA’s Statutory Scheme Strongly Favor

Review.

When legal determinations underlie an FEC decision to dismiss, this Court 

has always exercised its responsibility to review whether those determinations are 

“contrary to law.” Preserving that judicial role is even more important when

Commission enforcement decisions lack majority support. Dismissals invoking 

“prosecutorial discretion” that garner four or more votes may not be as difficult to 

square with “[t]he purposes underlying FECA,” because “the fourth vote—

necessarily from a Commissioner who crossed party lines—makes us less worried 

about partisan gamesmanship.” CREW, 923 F.3d at 1142 (Griffith, J., concurring in 

denial of rehr’g en banc). But when a dismissal invoking “prosecutorial discretion” 

fails to attract four votes, a presumption of unreviewability runs distinctly against 

the statutory scheme.

The deadlock dismissals here fall squarely in the latter camp. When three 

Commissioners refuse to apply an unambiguous statutory prohibition to conduct that 

it indisputably covers, rest their refusal on views about the law that are contrary to

FECA, and then seek to immunize their action from review by invoking the “magic 

words” of “prosecutorial discretion,” the need for FECA’s judicial check is at its 

apex. 

In addition, the dispositive vote in each matter here was on a question of law—

whether there was “reason to believe” the administrative respondents had violated 

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FECA. Although the controlling Commissioners tried to characterize their action as 

discretionary, their explanation rests entirely on flawed legal determinations. See 

supra Part I.A.1. If the Commission had really wanted to avoid making any legal 

findings, it could have done so—by directly voting to dismiss for discretionary 

reasons. It did not do so here, even though the Commission can and sometimes does

dispose of enforcement actions specifically on the basis of Heckler.

4 A direct vote 

to dismiss on grounds of prosecutorial discretion might warrant different 

consideration. But that did not happen here. 

In any case, Congress did not intend to endow a non-majority bloc of 

Commissioners with unreviewable enforcement discretion. FECA requires 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). “To ignore this requirement

would be to undermine the carefully balanced bipartisan structure which Congress 

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

And insofar as Congress wished to offset the effects of partisan parity on the

FEC, it was for the purpose of promoting compliance with FECA, not impeding it. 

 4 See, e.g., Certification, MUR 7114 (Casperson for Congress) (June 26, 2018), 

https://www.fec.gov/files/legal/murs/7114/17044430961.pdf (dismissing by a vote 

of 5-0 under Heckler); see also supra note 2 and accompanying text.

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Congress created several mechanisms for private involvement to ensure that partisan 

deadlock did not render the FEC toothless or FECA unenforceable. See, e.g., 52 

U.S.C. § 30109(a)(1) (permitting filing of complaints); id. § 30109(a)(8)(A) 

(permitting judicial review of dismissals); id. § 30109(a)(8)(C) (permitting

complainant to bring civil action against violator if the FEC fails to conform to a 

judicial decision in an (a)(8)(A) suit). 

These “unusual” features of FECA further distance it from the realm of 

Heckler. Chamber of Commerce, 69 F.3d at 603. So, too, does this Court’s 

longstanding requirement in cases of deadlock that the naysayers provide their 

reasons “to allow meaningful judicial review of the Commission’s decision not to 

proceed.” Common Cause, 842 F.2d at 449. The reflexive resistance to judicial 

review the Commission has advocated in cases following CREW—including in this 

appeal—is a significant departure from this precedent, and indeed, antithetical to the 

very notion of judicial review under FECA. This cannot be the proper reading of 

CREW.

If CREW is understood to mean that blocs of fewer than four Commissioners

can invoke “prosecutorial discretion” to foreclose review of the legal bases for 

dismissals, that “certainly seems contrary to Congress’s intent.” CREW, 923 F.3d at

1142 (Griffith, J., concurring in denial of rehr’g en banc). And it would also be 

contrary to Congress’s intent if this Court were to block judicial review of dismissals 

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premised on three Commissioners’ perceived need to “clarify” a clear FECA 

provision with a legal interpretation that narrows the statute’s application. This 

would go far beyond giving a non-majority of Commissioners veto power over 

Commission enforcement decisions: it would endow them with absolute authority to 

control the Act’s interpretation, all without judicial review. 

II. THE DISMISSALS WERE CONTRARY TO LAW.

A. The District Court Incorrectly Deemed the Dismissals a Legitimate 

Exercise of the Commission’s Discretion Not to Enforce.

Appellants presented the Commission with facts alleging serious potential 

violations of two key disclosure provisions in FECA: the straw donor prohibition at 

52 U.S.C. § 30122 and the political committee disclosure requirements at 52 U.S.C. 

§§ 30102, 30103, and 30104. The controlling Commissioners declined to initiate an 

investigation of any of these allegations—describing this as “an exercise of the 

Commission’s prosecutorial discretion”—although their justifications were entirely 

rooted in legal analysis. JA 149; see supra Part I.A.1. 

The district court was wrong to accept this characterization of the decision,

and wrong to apply rational basis review as a result. The court acknowledged, as 

appellants had argued below, that the controlling group did not “explicitly rely” upon 

grounds typically regarded as committed to agency discretion, such as “‘agency 

resource[]’ constraints or likelihood of success [in litigation].” JA 416. But the court 

nonetheless assumed that the controlling Commissioners, in citing factors such as 

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“fair notice and due process,” had “implicitly raised questions about the likelihood 

of success in a legal challenge.” JA 416-17 (emphasis added). 

In fact, and as the district court essentially acknowledged elsewhere in its

opinion, see JA 422-25, the controlling Commissioners’ “fair notice” rationale was 

founded on constitutional concerns and interpretations of case law. Their 

conclusions are thus owed no deference, and this Court should review de novo

whether they reflect an impermissible interpretation of law, or were “arbitrary or 

capricious, or an abuse of discretion.” Orloski, 795 F.2d at 161.

Furthermore, under any standard, the Commission must “articulate a 

satisfactory explanation for its action including a ‘rational connection between the 

facts found and the choice made.’” State Farm, 463 U.S. at 43 (citation omitted). 

Here, however, the controlling Commissioners relied on conclusory citations and 

inapposite case law to arrive at a “fair notice” rationale contradicted by the facts 

before them. That explanation falls far short of supplying a “reasoned basis” for the 

dismissals here. Id.

B. The Decision to Dismiss the Straw Donor Claims Was Arbitrary and 

Capricious, and Contrary to Law.

1. The dismissals were based on a rationale that is contrary to the 

plain language and purpose of the statute.

The language of section 30122 is unambiguous: “[n]o person shall make a 

contribution in the name of another person or knowingly permit his name to be used 

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to effect such a contribution.” In turn, FECA defines “person” as “an individual, 

partnership, committee, association, corporation, labor organization, or any other 

organization or group of persons.” 52 U.S.C. § 30101(11) (emphasis added).

The controlling Commissioners acknowledged that the straw donor 

prohibition specifically covers “partnerships, corporations, and other 

organizations,” JA 153 (emphasis added), and that “closely held corporations and 

corporate LLCs may be considered straw donors in violation of section 30122.” JA 

154. They did not assert that the statute itself is ambiguous in any way, nor did the 

district court suggest that it was. See, e.g., JA 417. 

The dismissals were thus based on a legally unsustainable proposition: that a

clear and unambiguous law failed to provide the regulated community with 

sufficient notice as a matter of due process. But any “regulated party acting in good 

faith would be able to identify, with ‘ascertainable certainty,’ the standards” 

applicable to violations of section 30122, because those standards are evident on the 

face of the statute. Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1329 (D.C. Cir. 1995). 

Indeed, courts have already specifically considered and rejected various claims that 

section 30122 is unconstitutionally vague. See, e.g., United States v. Danielczyk, 

788 F. Supp. 2d 472, 485 (E.D. Va. 2011) (noting that section 30122 “defines the 

offense unambiguously and in plain terms, such that ordinary people can understand 

what is prohibited conduct”), rev’d on other grounds, 683 F.3d 611 (4th Cir. 2012); 

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cf. United States v. O’Donnell, 608 F.3d 546, 555 (9th Cir. 2010) (rejecting criminal 

defendant’s notice-based rule of lenity argument because “the statutory language, 

structure and purpose [of § 30122] do not leave the provision’s meaning ‘genuinely 

in doubt’” (citation omitted)). 

Applying section 30122 to corporate straw donors is not only mandated by 

the statute’s text, but is also necessary to achieve Congress’s goal of securing 

disclosure of the true sources of money flowing into federal elections. Disclosure 

“‘[e]nsure[s] that the voters are fully informed’ about the person or group who is 

speaking” and “able to evaluate the arguments to which they are being subjected.” 

Citizens United, 558 U.S. at 368 (citations omitted).

Disclosure laws like section 30122 also work in tandem with FECA’s 

prohibition on contributions from foreign nationals, 52 U.S.C. § 30121, because they

help to expose foreign efforts to influence U.S. elections. The Commission has 

recognized this interplay in past enforcement cases.5 Indeed, one of the five LLC 

straw donor complaints considered by the Commission below—though not one of 

the three that remains at issue, see supra at 10 (discussing MUR 6930)—highlighted 

contributions that were part of a much broader straw donorscheme to launder money 

from foreign nationals though U.S. corporations and PACs. The straw donor 

 5 See, e.g., MUR 4884 (Future Tech, Inc.); MUR 4398 (Thomas Kramer); MUR 

3460 (Sports Shinko).

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prohibition is thus a key part of FECA’s disclosure regime: it “ensure[s] that foreign 

nationals or foreign governments do not seek to influence United States’ elections.” 

Indep. Inst. v. FEC, 216 F. Supp. 3d 176, 191 & n.11 (D.D.C. 2016) (three-judge 

court).

The FEC has long recognized that disclosure is a central and distinct purpose 

of the straw donor prohibition. See, e.g., FEC Advisory Op. 1986-41, at 2 (Dec. 5, 

1986) (noting that section 30122 “serves to [e]nsure disclosure of the source of 

contributions to Federal candidates and political committees as well as compliance 

with the Act’s limitations and prohibitions”). The courts have agreed. O’Donnell, 

608 F.3d at 553 (“[T]he congressional purpose behind [§ 30122]—to ensure the 

complete and accurate disclosure of the contributors who finance federal elections—

is plain.”).

The evident purposes of section 30122 are impossible to reconcile with the 

controlling group’s view that dismissal was required because congressional intent 

with respect to the scope of section 30122 was “unclear.” JA 155 (arguing that 

Congress “did not contemplate that corporations could violate the prohibition against 

giving in the name of another by acting as straw donors for contributions”). 

Congress’s intent to cover corporations is evident on the law’s face. And Congress’s

focus on disclosure is buttressed by the legislative history of section 30122—which 

was initially enacted before FECA’s contribution limits were in place, because 

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“Congress believed that full disclosure would make contribution limits 

unnecessary.” O’Donnell, 608 F.3d at 553. 

The controlling Commissioners did not even try to engage with this history

before declaring congressional intent unclear. Nor did they undertake any analysis 

of how their decision would bear on the disclosure purposes of section 30122. Their 

refusal to enforce the straw donor prohibition was contrary to both the clear language 

and undisputed purposes of the statute.

2. Respondents did not lack adequate notice simply because 

corporate contributions were a matter of “first impression.”

The controlling Commissioners’ notice argument was largely premised on the 

contention that the administrative complaints presented an “issue of first 

impression” in light of the Citizens United and SpeechNow rulings and the “new” 

corporate contributions these rulings authorized. But even accepting their claim that 

corporate contributions in federal elections were novel,6 this does not mean applying 

section 30122 to corporate straw donors raised any novel legal issues, or differed 

meaningfully from longstanding application of the statute to other entities and 

organizations that make contributions.

 6 As the district court acknowledged, corporations had donated millions of dollars 

to political parties until the Bipartisan Campaign Reform Act of 2002 prohibited 

these “soft money” contributions. JA 420; see also McConnell v. FEC, 540 U.S. 93, 

124-25 (2003) (noting that largest corporate donors “often made substantial 

contributions to both parties”).

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And importantly, these supposed notice concerns were rooted in legal, not 

prudential, considerations: the controlling Commissioners cited no facts unique to 

the respondents or their knowledge of FECA. Instead, the “notice” rationale was 

built on a variety of generic legal and constitutional considerations, including “due 

process in a post-Citizens United context,” “confusing Commission precedent,” and 

“the obligation to protect First Amendment speech.” JA 417-18.

As a legal and constitutional theory, it was without merit.

First, the controlling Commissioners observed that the FEC had never 

addressed “whether . . . a closely held corporation or corporate LLC may be 

considered a straw donor under section 30122,” JA 153, but they did not explain 

why this was enough to deprive respondents of notice that the statute potentially

applied to their activity: section 30122 unambiguously covers corporate straw 

donors, and its clarity is not in dispute. See supra Part II.B.1. Moreover, Citizens 

United did not address section 30122, which, by its terms, applied to corporations 

both before and after the decision. In other words, the corporate respondents had the 

same “notice” that FECA’s straw donor prohibition applies to corporations after 

Citizens United as they did before. 

Indeed, they had exactly the same notice as all other “persons” subject to 

section 30122—whether an “individual, partnership, committee, association, 

corporation, labor organization, or any other organization.” 52 U.S.C. § 30101(11). 

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The controlling Commissioners’ reasoning, taken to its logical conclusion, would 

mean that enforcement violates due process whenever a statute is for the first time

applied to any class of “person” it covers, or whenever anything about the legal 

landscape changes. The Constitution does not require the Commission to give every 

regulated class one bite of the apple before it will enforce the law.7

The controlling Commissioners also claimed the administrative complaints 

were novel because the alleged straw donors were corporate entities, whereas the 

FEC had previously “considered alleged violations of section 30122 almost 

exclusively in contexts where individuals were the purported straw donors.” JA 155. 

In fact, the FEC has scrutinized non-individual straw donors—specifically, political 

action committees (“PACs”)—yet the controlling Commissioners neither 

acknowledged nor distinguished these cases. For example, the FEC found reason to 

believe that two individuals violated section 30122 by making disguised 

 7 Regardless, that dispensation could only reasonably apply to the first LLC straw 

donor violations—not those that came years later. Following the five dismissals 

here, the FEC deadlocked on and dismissed at least another five corporate/LLC 

straw donor complaints filed in subsequent election cycles, because the controlling 

Commissioners believed the regulated community still lacked notice that “closely 

held corporations and corporate LLCs could violate section 30122.” Statement of 

Reasons of Comm’rs Hunter & Petersen 10, MURs 6968 (Tread Standard LLC), 

6995 (Right to Rise), 7014/7017/7019/7090 (DE First Holdings et al.) (July 2, 2018), 

https://www.fec.gov/files/legal/murs/7017/7017_2.pdf.

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contributions that were “funneled through” various PACs to a candidate.8 Given 

these precedents, regulated parties could not have reasonably believed that the FEC 

would regard non-individual entities as categorically incapable of being straw 

donors. 

The controlling Commissioners—and the district court—attempted to 

distinguish corporations from PACs on the ground that “political committees could 

make contributions before Citizens United.” JA 420. This observation is true, but 

irrelevant: it does not explain why applying section 30122 to corporations is any 

more “confusing” than applying it to PACs. Considerations concerning the 

independence of the entity from its funder, see JA 155-57, the intent of the original 

donors, see JA 158-59, and the potential “chill” to the entity’s speech, see JA 158, 

would arise as to either type of organization. 

The district court, finding no actual explanation of this purported “legal 

confusion” in the Statement of Reasons itself, hypothesized that a potential 

complication in applying section 30122 to LLCs might be that “these small 

corporations blur the lines between the individual and the corporation, and 

 8 See Factual and Legal Analysis 10, MUR 4634 (Sam Brownback) (June 8, 1998), 

https://www.fec.gov/files/legal/murs/4634/28044194356.pdf; see also Factual and

Legal Analysis 7-8, MUR 5968 (John Shadegg’s Friends) (Nov. 10, 2008), https://

www.fec.gov/files/legal/murs/5968/28044221606.pdf (proceeding from the premise 

that a contribution knowingly funneled to a candidate through a PAC would violate 

section 30122).

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thus . . . between a ‘true’ donor and ‘straw’ donor.” JA 421. But this is equally the 

case with other politically active groups, which often have only a handful of donors 

or have donors active in their operations.9 In short, the controlling Commissioners 

and the district court concluded that PACs and corporations are different, but failed 

to explain why any of these differences matter. 

Finally, the controlling Commissioners treated this as a case of first 

impression because, in the past, “nearly every alleged straw-donor scheme 

addressed by the Commission involved excessive and/or prohibited contributions.” 

JA 155. Again, they did not explain why the distinction is pertinent. To be sure, one 

objective of section 30122 is to prevent circumvention of the contribution limits and 

source restrictions. But it is undisputed here that a central and independent goal of 

the straw donor prohibition is to ensure disclosure of the true sources of campaign 

money. See, e.g., O’Donnell, 608 F.3d at 553; see also supra Part II.B.1. A 

reasonable person could not read FECA to permit straw donor schemes where the 

true sources of a contribution were misreported but the contribution itself was within 

the applicable contribution limits.

 9 See, e.g., First General Counsel’s Report 4, MUR 6002 (Freedom’s Watch) (Mar. 

12, 2010) (noting group’s “‘roughly $30 million’ in spending came almost entirely 

from casino mogul Sheldon Adelson”), https://www.fec.gov/files/legal/murs/6002/

10044272054.pdf.

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3. Respondents could not have been “misled” by Commission 

precedents addressing funds deposited in corporate accounts 

because none of these authorities concerned section 30122. 

The controlling Commissioners attempted to bolster their theory of inadequate 

notice by claiming that although section 30122 may be clear, the FEC’s own 

administrative guidance on the attribution of corporate contributions may have 

“[m]isled” respondents as to the application of the straw donor provisions to 

corporations. JA 155. The district court similarly presumed that respondents may 

“have reasonably been confused.” JA 421. But although the administrative guidance 

cited in the statement is copious, it is all off point. The FEC cannot maintain that 

respondents were confused by guidance that had no application to their case.

The controlling Commissioners observed that historically, the FEC had found 

that contributions disbursed from corporate accounts violate FECA’s ban on 

corporate contributions, 52 U.S.C. § 30118, irrespective of whether the corporation 

was controlled by a single shareholder or otherwise closely held. JA 155-57. They 

also pointed to an FEC rule providing that LLCs are treated as individuals, 

partnerships, or corporations for purposes of FECA’s contribution limits and source 

restrictions depending on the federal tax treatment they elect. 11 C.F.R. § 110.1(g). 

Relying on these authorities, the controlling Commissioners posited that the 

“historical treatment of contributions made from funds deposited into a corporate 

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account as corporate contributions” might have led the respondents to believe their 

conduct would not violate section 30122. JA 157.

Their conclusion is unsustainable. None of the cited guidance addresses 

section 30122; it simply establishes the default rules for attributing corporate 

contributions to their original source in the absence of any evidence of fraud or straw 

donor activity, generally for the purpose of applying FECA’s corporate contribution 

ban, 52 U.S.C. § 30118. But as default rules, these authorities cannot speak to 

situations involving deceptive conduct. 

The Commission’s OGC articulated at length the distinction between the 

default attribution rules and section 30122 in its analysis of the complaints here. It 

noted that respondents in the F8/Eli Publishing MURs, for instance, defended their 

actions by arguing that the contribution from Eli Publishing to Restore Our Future 

was drawn from Eli’s “corporate funds, a lawful transaction on its face.” JA 114-15. 

But as OGC pointed out, whether Eli’s corporate contribution to a super PAC was 

permitted by section 30118 was not the correct inquiry in a straw donor case:

[Respondents’] assertion simply elides the critical factual question—

who was the true source of the contribution. And to the extent it is meant 

to imply that simply because the contribution came from an Eli 

Publishing account, it is “a lawful transaction,” the contention fails as a 

matter of law. . . . Every contribution made “in the name of another” 

appears “on its face” to have been made from that source. 

JA 115. As OGC recognized, asking whether funds drawn from a corporate account 

are “corporate” or lawful under section 30118 “simply begs the question.” Id. The 

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FEC’s default rules concerning how funds are generally attributed to corporate 

entities have no bearing on its inquiry under section 30122 as to whether the 

corporation is in fact the true donor, or just a conduit used to conceal the true donor. 

Furthermore, the presumption that the immediate contributor is the true source 

of the donated amount is not unique to corporations. FECA and Commission 

regulations establish default rules for the attribution of contributions for all 

organizations active in federal elections. See, e.g., 11 C.F.R. § 110.1(e) (providing 

that contribution from a partnership will be attributed to each partner in an amount 

directly proportional to their share of partnership profits); 52 U.S.C. § 30116(a)(2), 

(a)(8) (providing that contributions from political committees are attributed to the 

committee and not to its donors unless a donor has earmarked funds for a specific 

recipient). None of these default rules suggest that these entities are not on “notice” 

that their contributions can be investigated as potential straw donor transactions if 

evidence suggests the entity is not the true source of the funds. 

The entire point of section 30122 is to proscribe fraudulent conduct where 

there is evidence that applying the default rule would not result in the disclosure of 

the true donor. This was exactly the conclusion the Commission came to in earlier 

enforcement actions where it found violations of section 30122 when individuals 

“funneled” contributions through PACs to a candidate. See supra Part II.B.2. The 

fact that a PAC contribution is typically attributed to the PAC as an entity, and not 

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to its underlying donors, was not deemed so confusing in those cases as to preclude

applying section 30122 to the PAC.

As OGC explained, “[e]very contribution made ‘in the name of another’ 

appears ‘on its face’ to have been made from that source.” JA 115; see also JA 263. 

The existence of default rules—and their assumption that the immediate donor is the 

true source of the funds—has never been treated as a source of “confusion” and then

used to excuse other entities from being held accountable as straw donors. To find 

otherwise would render section 30122 a nullity. 

4. The proposition that respondents lacked notice was not credible.

This Court should not accept an administrative decision “when there is reason 

to suspect that the agency’s interpretation ‘does not reflect the agency’s fair and 

considered judgment on the matter in question.’” Christopher v. SmithKline 

Beecham Corp., 567 U.S. 142, 155 (2012) (citation omitted). Here, all record 

evidence contradicts the conclusion that the corporate respondents lacked “notice”

of the potential application of section 30122 to their activity.

None of the respondents raised issues of notice in their responses to the

admininistrative complaints. See JA 103-05, 190-92, 214-15, 217-20, 231-36, 238-

40, 242-47. None professed any confusion about the applicability of section 30122 

in even the most general terms. This record—or lack thereof—makes clear that the 

notice theory was an invention of the controlling Commissioners, who made no 

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attempt to consider whether these respondents were actually aware of the law’s 

requirements. Nor did any respondents specifically refute any of the factual 

allegations leveled against them; they focused almost exclusively on attacking the 

facial sufficiency of the complaints. See, e.g., JA 103, 190 (F8/Eli Publishing) 

(claiming “allegations in the complaint [were] insufficient” and plaintiffs’ reliance 

on news reports inappropriate); JA 231 (FreedomWorks) (same). 

The notice theory is belied by the facts in another important respect: the 

chronology of events. The straw donor contribution identified in the earliest

administrative complaint (W Spann) was widely reported in national media outlets 

at the time, and drew enough attention to trigger comment from the candidate who 

would become the 2012 Republican Presidential nominee. See supra at 9 (discussing 

Romney’s response). The Specialty Group respondents hatched their straw donor 

scheme more than a year later. And although the F8/Eli Publishing respondents made 

their contribution at the same time as W Spann, Lund and any other donors 

associated with the effort had years to come forward to correct the reporting at issue.

It strains credulity that the respondents here—million-dollar donors who were 

sophisticated enough to create corporate entities to conceal their campaign activity—

were unaware of these events, or confused about the law’s requirements.

More importantly, several respondents conceded their intent to evade FECA’s

disclosure requirements. Lund admitted that he made the contribution through his 

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LLCs because “he did not want ‘to be real public about being a part of the 

campaign.’” JA 117. Conard—respondent in the W Spann matter—was even more 

explicit, conceding that “he set up the business entity for the sole purpose of 

conveying his funds to [Restore Our Future] without disclosing his identity.” First 

General Counsel’s Report 9, MUR 6485 (W Spann) (Aug. 28, 2012), https://www.

fec.gov/files/legal/murs/6485/16044390492.pdf.

The “fair notice” rationale thus lacks any foundation in the facts of this case

and does not meet even the most deferential standard of reasoned decisionmaking. 

C. The Failure to Address Whether the Political Committee 

Requirements Applied to Respondents Was a Fatal Defect. 

The complaints also alleged that there was reason to believe the corporate 

respondents had satisfied the two-pronged test for “political committee” status under 

FECA, because they (1) had a “major purpose” of influencing the “nomination or 

election of a candidate,” Buckley, 424 U.S. at 79, and (2) had received 

“contributions” or made “expenditures” of $1,000 or more, 52 U.S.C. 

§ 30101(4)(A). JA 87-90, 181-84, 199-202. Indeed, in the case of F8 and Specialty 

Group, both entities appeared to have campaign activity as their sole purpose in the 

relevant period. JA 110, 118, 257-58.

The controlling Commissioners ignored this distinct allegation. They did not 

suggest that the federal political committee registration and reporting requirements 

were ambiguous. Nor did they dispute that a corporate entity could qualify as a 

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“political committee”; indeed, the Commission has found in the past that certain 

corporations were required to register as political committees. See, e.g., FEC v. 

Malenick, 310 F. Supp. 2d 230, 237 (D.D.C. 2004) (finding that Triad Management 

Services, Inc. illegally failed to register as a political committee). And they did not

claim that a determination that a corporation was a “political committee” would in 

any way be a matter of “first impression” for which respondents lacked “notice.”

In fact, they made no real attempt whatsoever to analyze whether respondents 

violated the political committee disclosure requirements. This omission makes their 

Statement of Reasons inadequate on its face. State Farm, 463 U.S. at 43 (“In 

reviewing [the agency] explanation, we must ‘consider whether the decision . . . . 

entirely failed to consider an important aspect of the problem.” (citations omitted)). 

The district court glossed over this glaring defect, suggesting only that the 

Commissioners “viewed this case as a straw donor case, not a political committee 

case.” JA 425. But to state the obvious, the FEC cannot simply dismiss a legal claim 

in a complaint because it prefers not to “view” the claim: the Commission still must 

articulate a reasonable basis for dismissing it. This it failed to do.

In the district court, the FEC attempted to justify this omission by claiming 

that the controlling group relied upon OGC’s recommendation to “take no action at 

[that] time” on the political committee allegations. JA 122, 268 (emphasis added). 

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But OGC’s recommendation was not that the Commission should analyze only the 

section 30122 claims, just that it should analyze these claims first. 

The reason OGC recommended deferring action on the political committee 

allegation was “because the resolution of this allegation may depend on the 

disposition of the section [30122] allegation.” JA 252. “[A]n entity can be a conduit 

or a political committee, but not both,” OGC theorized. JA 120. If a section 30122 

conduit violation were found, under OGC’s theory, it would serve no purpose to 

analyze whether the political committee requirements were also violated: if 

respondent corporations are mere conduits, then the illegal conduit activity would 

not make them into political committees. 

But OGC never suggested that the reverse was true: if respondent corporations 

were not conduits, then they may indeed have qualified as political committees. 

Because the controlling Commissioners declined to find any violations of section 

30122, they should have considered whether the political committee allegations 

merited investigation. Their statement addressed only half of the potential FECA 

violations alleged in each complaint, so by any measure, it was fatally incomplete.

D. The Controlling Commissioners’ “Intent” Standard Is Arbitrary, 

Capricious, and Contrary to Law.

Although the controlling Commissioners declined to investigate the straw 

donor violations before them, they announced what they described as a prospective 

standard for assessing such violations in the future: they would find reason to believe 

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if “direct evidence” showed that funds were “intentionally funneled through a 

closely held corporation or corporate LLC for the purpose of making a contribution 

that evades the Act’s reporting requirements.” JA 158. Other relevant evidence 

would include that “the corporate entity did not have income from assets, investment 

earnings, business revenues, or bona fide capital investments, or was created and 

operated for the sole purpose of making political contributions.” Id. (emphasis 

added).

The “intent” standard, which was integral to the controlling Commissioners’ 

decision, is contrary to law. As the FEC acknowledged below, the text of section 

30122 contains no scienter requirement. And FECA already sets forth an alternative 

set of penalties for violations of section 30122 that do meet a “knowing and willful” 

standard—one that includes higher civil fines and possible referral to the Attorney 

General for criminal prosecution. 52 U.S.C § 30109(a)(5)(B)-(C), (d)(1)(D). These 

provisions—and the stepped-up penalties they prescribe—would make no sense if 

scienter was a requisite element for all violations of section 30122, including the 

civil violations at issue here.

The new standard also fails to capture the full range of straw donor activity 

proscribed by FECA. Its intent prong requires evidence that “funds used to make a 

contribution were intentionally funneled through a closely held corporation or 

corporate LLC for the purpose of making a contribution that evades the Act’s 

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reporting requirements.” JA 158 (emphasis added). This scienter requirement 

provides an easy escape hatch for donors to claim that they contributed through an 

LLC for any reason other than avoiding disclosure. And the requirement that 

“political contributions” be a corporation’s “sole purpose” before a violation would 

be found allows corporate straw donors with any non-campaign activity, however 

artificial or minimal, to escape application of section 30122. JA 158. This standard 

contravenes the plain text of the statute.

The controlling Commissioners attempted to justify the need for their 

narrowing standard on the ground that the dissenting Commissioners’ alternative 

approach would infringe upon First Amendment activities. The dissenters declared 

that there would be reason to believe section 30122 was violated where there is 

evidence that (1) “an individual is the source of the funds” and (2) an LLC “conveys 

the funds at the direction of” that individual. JA 166. The controlling Commissioners

asserted that their colleagues’ standard would have “presumed” that all corporate 

contributors are straw donors, rendering “hollow” the “speech rights recognized in 

Citizens United,” JA 148, but did not provide even a scintilla of evidence to 

substantiate this fear. 

The district court tried to augment this constitutional avoidance rationale by

noting that “vagueness and notice concerns carry special weight” in the First 

Amendment context. JA 423. True enough. But the Commission has never claimed 

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that the statute is unconstitutionally “vague,” nor has any court concluded as much.

The district court also quoted Van Hollen, 811 F.3d at 501, for the proposition that 

it was appropriate for the FEC to consider First Amendment issues in “balanc[ing] 

the competing values that lie at the heart of campaign finance law.” JA 424. But Van 

Hollen reviewed, under Chevron Step Two, an FEC regulation interpreting an 

ambiguous FECA provision, 811 F.3d at 488-89, not the dismissal of an

administrative complaint alleging clear violations of a clear FECA provision. If 

FECA is ambiguous, the Commission may well pick an interpretation “which avoids 

legal and constitutional doubt.” JA 159. But where FECA is clear, the Commission 

cannot sidestep its statutory mandate by manufacturing confusion or falling back on

generalized concerns about First Amendment “chill.”

CONCLUSION

This Court should reverse the district court’s ruling that the dismissals were 

not contrary to law, and remand with a direction to reverse its grant of the 

Commission’s motion for summary judgment and grant appellants’ motion for 

summary judgment. 

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Respectfully submitted,

/s/ Megan P. McAllen

Fred Wertheimer 

DEMOCRACY 21

2000 Massachusetts Ave. NW

Washington, DC 20036

(202) 355-9600

Donald J. Simon 

SONOSKY, CHAMBERS, SACHSE,

 ENDRESON & PERRY, LLP

1425 K St. NW, Suite 600

Washington, DC 20005

(202) 682-0240

Paul M. Smith

Tara Malloy 

Megan P. McAllen

Mark P. Gaber 

Urja Mittal

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Suite 400

Washington, DC 20005

(202) 736-2200

E-mail: mmcallen@campaignlegalcenter.org

Attorneys for Plaintiffs-Appellants

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CERTIFICATE OF COMPLIANCE

This response complies with the word limit of Fed. R. App. P. 32(a)(7)(B)(i)

because it contains 12,831 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 #18-5239 Document #1797230 Filed: 07/15/2019 Page 69 of 80
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CERTIFICATE OF SERVICE

I hereby certify that on July 15, 2019, I electronically filed this Brief and Joint 

Appendix 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.

I further certify that I caused the required copies of the Brief of Appellants 

and Joint Appendix to be filed with the Clerk of the Court.

/s/ Megan P. McAllen

Megan P. McAllen

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ADDENDUM

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ADDENDUM – TABLE OF CONTENTS

Federal Statutes

52 U.S.C. § 30101(4)(A)..........................................................................................1a

52 U.S.C. § 30101(11).............................................................................................1a

52 U.S.C. § 30109....................................................................................................1a

52 U.S.C. § 30122....................................................................................................8a

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TITLE 52. VOTING AND ELECTIONS

Chapter 301—Federal Election Campaigns

Subchapter 1—Disclosure of Federal Campaign Funds

§ 30101. Definitions 

When used in this Act:

* * *

(4) The term “political committee” means—

 (A) any committee, club, association, or other group of persons 

which receives contributions aggregating in excess of $1,000 during a 

calendar year or which makes expenditures aggregating in excess of $1,000 

during a calendar year;

* * *

(11) The term “person” includes an individual, partnership, committee, 

association, corporation, labor organization, or any other organization or 

group of persons, but such term does not include the Federal Government or 

any authority of the Federal Government.

* * *

§ 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 

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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 

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 

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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.

(C) (i) Notwithstanding subparagraph (A), in the case of a violation 

of a qualified disclosure requirement, the Commission may—

(I) find that a person committed such a violation on the 

basis of information obtained pursuant to the procedures 

described in paragraphs (1) and (2); and

(II) based on such finding, require the person to pay a 

civil money penalty in an amount determined, for violations of 

each qualified disclosure requirement, under a schedule of 

penalties which is established and published by the Commission 

and which takes into account the amount of the violation 

involved, the existence of previous violations by the person, and 

such other factors as the Commission considers appropriate.

(ii) The Commission may not make any determination adverse to 

a person under clause (i) until the person has been given written notice 

and an opportunity to be heard before the Commission.

(iii) Any person against whom an adverse determination is made 

under this subparagraph may obtain a review of such determination in 

the district court of the United States for the district in which the person 

resides, or transacts business, by filing in such court (prior to the 

expiration of the 30-day period which begins on the date the person 

receives notification of the determination) a written petition requesting 

that the determination be modified or set aside.

(iv) In this subparagraph, the term “qualified disclosure 

requirement” means any requirement of—

(I) subsections (a), (c), (e), (f), (g), or (i) of section 

30104 of this title; or

(II) section 30105 of this title.

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(v) This subparagraph shall apply with respect to violations that 

relate to reporting periods that begin on or after January 1, 2000, and 

that end on or before December 31, 2023.

(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 

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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.

(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), subpenas 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.

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(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.

(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.

(b) Notice to persons not filing required reports prior to institution of 

enforcement action; publication of identity of persons and unfiled reports

Before taking any action under subsection (a) against any person who has failed to 

file a report required under section 30104(a)(2)(A)(iii) of this title for the calendar 

quarter immediately preceding the election involved, or in accordance with section 

30104(a)(2)(A)(i) of this title, the Commission shall notify the person of such failure 

to file the required reports. If a satisfactory response is not received within 4 business 

days after the date of notification, the Commission shall, pursuant to section 

30111(a)(7) of this title, publish before the election the name of the person and the 

report or reports such person has failed to file.

(c) Reports by Attorney General of apparent violations

Whenever the Commission refers an apparent violation to the Attorney General, the 

Attorney General shall report to the Commission any action taken by the Attorney 

General regarding the apparent violation. Each report shall be transmitted within 60 

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days after the date the Commission refers an apparent violation, and every 30 days 

thereafter until the final disposition of the apparent violation.

(d) Penalties; defenses; mitigation of offenses

(1) (A) Any person who knowingly and willfully commits a violation of 

any provision of this Act which involves the making, receiving, or reporting 

of any contribution, donation, or expenditure—

(i) aggregating $25,000 or more during a calendar year shall be 

fined under Title 18, or imprisoned for not more than 5 years, or both; 

or

(ii) aggregating $2,000 or more (but less than $25,000) during a 

calendar year shall be fined under such title, or imprisoned for not more 

than 1 year, or both.

(B) In the case of a knowing and willful violation of section 

30118(b)(3) of this title, the penalties set forth in this subsection shall apply 

to a violation involving an amount aggregating $250 or more during a calendar 

year. Such violation of section 30118(b)(3) of this title may incorporate a 

violation of section 30119(b), 30122, or 30123 of this title.

(C) In the case of a knowing and willful violation of section 30124 

of this title, the penalties set forth in this subsection shall apply without regard 

to whether the making, receiving, or reporting of a contribution or expenditure 

of $1,000 or more is involved.

(D) Any person who knowingly and willfully commits a violation of 

section 30122 of this title involving an amount aggregating more than $10,000 

during a calendar year shall be—

(i) imprisoned for not more than 2 years if the amount is less than 

$25,000 (and subject to imprisonment under subparagraph (A) if the 

amount is $25,000 or more);

(ii) fined not less than 300 percent of the amount involved in the 

violation and not more than the greater of—

(I) $50,000; or

(II) 1,000 percent of the amount involved in the 

violation; or

(iii) both imprisoned under clause (i) and fined under clause (ii).

(2) In any criminal action brought for a violation of any provision of this 

Act or of chapter 95 or chapter 96 of Title 26, any defendant may evidence their lack 

of knowledge or intent to commit the alleged violation by introducing as evidence a 

conciliation agreement entered into between the defendant and the Commission 

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under subsection (a)(4)(A) which specifically deals with the act or failure to act 

constituting such violation and which is still in effect.

(3) In any criminal action brought for a violation of any provision of this 

Act or of chapter 95 or chapter 96 of Title 26, the court before which such action is 

brought shall take into account, in weighing the seriousness of the violation and in 

considering the appropriateness of the penalty to be imposed if the defendant is 

found guilty, whether—

(A) the specific act or failure to act which constitutes the violation 

for which the action was brought is the subject of a conciliation agreement 

entered into between the defendant and the Commission under subparagraph 

(a)(4)(A);

(B) the conciliation agreement is in effect; and

(C) the defendant is, with respect to the violation involved, in 

compliance with the conciliation agreement.

* * *

§ 30122. Contributions in Name of Another Prohibited

No person shall make a contribution in the name of another person or 

knowingly permit his name to be used to effect such a contribution and no person 

shall knowingly accept a contribution made by one person in the name of another 

person.

USCA Case #18-5239 Document #1797230 Filed: 07/15/2019 Page 80 of 80