IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

COMMON CAUSE GEORGIA and

TREAUNNA C. DENNIS 

 Plaintiffs,

v. Civil Action No. 1:22-cv-03067

FEDERAL ELECTION COMMISSION

 Defendant. 

PLAINTIFFS’ COMBINED REPLY IN SUPPORT OF THEIR MOTION 

FOR SUMMARY JUDGMENT AND MEMORANDUM IN OPPOSITION TO 

DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT

Megan P. McAllen (DC Bar No. 1020509) 

mmcallen@campaignlegalcenter.org

Erin Chlopak (DC Bar No. 496370) 

echlopak@campaignlegalcenter.org 

CAMPAIGN LEGAL CENTER ACTION

1101 14th St. NW, Suite 400 

Washington, D.C. 20005 

(202) 736-2200 

Attorneys for Plaintiffs

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TABLE OF CONTENTS

Page

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

INTRODUCTION AND SUMMARY OF ARGUMENT ..........................................................1

ARGUMENT ..................................................................................................................................4 

I. Plaintiffs Have Established Their Standing to Bring This Lawsuit ...........................................4 

A. Plaintiffs have proven their informational standing .............................................................5 

B. Common Cause Georgia has also established a distinct organizational injury based on

the direct impairment of its mission to protect Georgians’ right to vote ...........................12 

II. The Dismissal Was Contrary to Law .......................................................................................14 

A. The FEC misconstrues the applicable standards of review ...............................................14 

1. Even when applicable, deferential review does not excuse impermissible

constructions of the Act or arbitrary and unreasoned decisionmaking ........................14 

2. The FEC is not entitled to the added boost of Chevron or Auer deference here .........17 

B. The dismissal rested on an invented and impermissible exemption from FECA for

“state law compliance” that lacks any basis in law and is fundamentally irrational .........20 

1. Neither FECA nor FEC regulations authorize the FEC to grant a categorical

enforcement exemption for electoral contributions related to “state law

compliance” .................................................................................................................20 

2. The FEC fails to justify the Commissioners’ improper and arbitrary reliance on a

non-preemption theory that has no relevance to this case and that vitiates the Act ....21 

C. The FEC fails to show any reason the Commissioners’ “issue advocacy” rationale is

consistent with law or reasoned decisionmaking ...............................................................28 

1. FECA and Supreme Court precedent foreclosed treating TTV’s in-kind

contributions as constitutionally unregulable “issue advocacy” ..................................29 

2. The Commissioners’ assessment that TTV lacked any federal electoral purpose

was arbitrary and capricious because they failed to articulate any legally or

logically sound basis for it ...........................................................................................32 

D. The dismissal rested on an impermissible coordination standard ......................................38 

E. The dismissal rested on conclusions that were arbitrary, unreasonable, and wholly

contrary to the record .........................................................................................................43 

CONCLUSION ............................................................................................................................47 

CERTIFICATE OF SERVICE ..................................................................................................49 

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iii

TABLE OF AUTHORITIES

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

Cases: Page

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996) .......................................................................... 17-18 

Allentown Mack Sales & Service, Inc. v. NLRB, 522 U.S. 359 (1998) ..........................................22

*Buckley v. Valeo, 424 U.S. 1 (1976) ......................................................................7, 28, 29, 30, 31 

Burlington Truck Lines, Inc. v. United States, 371 U.S. 156 (1962) ............................................23

Campaign Legal Center v. FEC, 31 F.4th 781 (D.C. Cir. 2022) (“CLC II”) ..................5, 9, 10, 11 

Campaign Legal Center v. FEC, 245 F. Supp. 3d 119 (D.D.C. 2017) (“CLC I”) .......................6, 8

Campaign Legal Center v. FEC, No. 19-cv-2336-JEB, 2022 WL 17496220 

(D.D.C. Dec. 8, 2022) ..............................................................................................................45 

Campaign Legal Center & Democracy 21 v. FEC, 952 F.3d 352 (D.C. Cir. 2020) 

(“Democracy 21”) ................................................................................................................9, 15 

Carlson v. Postal Regulatory Commission, 938 F.3d 337 (D.C. Cir. 2019) ..................................45 

Chevron U.S.A., Inc. v. Natural Resource Defense Council, Inc., 

467 U.S. 837 (1984) ...........................................................................................................14, 15 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) .........................................................18, 43 

Cmty. Television of S. Cal. v. Gottfried, 459 U.S. 498 (1983).......................................................16

Connecticut Nat’l Bank v. Germain, 503 U.S. 249 (1992) ............................................................39 

Constellation Mystic Power, LLC v. FERC, 

45 F.4th 1028 (D.C. Cir. 2022) ..........................................................................................15, 32

CREW v. FEC, 209 F. Supp. 3d 77 (D.D.C. 2016) ........................................................................18 

CREW v. FEC, 316 F. Supp. 3d 349 (D.D.C. 2018) ......................................................................19 

Democratic Congressional Campaign Comm. v. FEC, 831 F.2d 1131 

(D.C. Cir. 1987) .......................................................................................................................39 

Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891 (2020) ...................23, 39

Envtl. Def. Fund v. EPA, 922 F.3d 446 (D.C. Cir. 2019) ................................................................6 

Equal Rights Center v. Post Properties, Inc., 633 F.3d 1136 (D.C. Cir. 2011) ............................12 

Ethyl Corporation v. EPA, 306 F.3d 1144 (D.C. Cir. 2002) ...........................................................6 

*FEC v. Akins, 524 U.S. 11 (1998) .............................................................................. 4, 6, 9-12, 18 

Fogo de Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec., 769 F.3d 1127 

(D.C. Cir. 2014) .......................................................................................................................18

Fred Meyer Stores, Inc. v. NLRB, 865 F.3d 630 (D.C. Cir. 2017) ................................................44 

Friends of Animals v. Jewell, 828 F.3d 989 (D.C. Cir. 2016) .........................................................6 

Haselwander v. McHugh, 774 F.3d 990 (D.C. Cir. 2014) .............................................................35 

Case 1:22-cv-03067-DLF Document 16 Filed 04/13/23 Page 3 of 56
iv

Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) ................................................................12 

In re Carter-Mondale Reelection Committee, Inc., 642 F.2d 538 (D.C. Cir. 1980) ......................15 

J.J. Cassone Bakery, Inc. v. NLRB, 554 F.3d 1041 (D.C. Cir. 2009) ............................................16 

Kisor v. Wilkie, 139 S. Ct. 2400 (2019) ...................................................................................18, 19 

Lieu v. FEC, 370 F. Supp. 3d 175 (D.D.C. 2019) ..........................................................................17 

McConnell v. FEC, 540 U.S. 93 (2003) .........................................................................7, 25, 31, 41 

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

463 U.S. 29 (1983) ...................................................................................................................15 

Nat’l Gypsum Co. v. EPA, 968 F.2d 40 (D.C. Cir. 1992) .............................................................33

Nat’l Treasury Emps. Union v. Horner, 854 F.2d 490 (D.C. Cir. 1988) .......................................39 

Northern Air. Cargo v. U.S. Postal Service, 674 F.3d 852 (D.C. Cir. 2012) ...............................23 

Oglala Sioux Tribe v. U.S. Nuclear Regul. Comm’n, 896 F.3d 520 (D.C. Cir. 2018) ...................23

*Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) .........................................................14, 15, 20, 41 

PETA v. U.S. Dep’t of Agric., 797 F.3d 1087 (D.C. Cir. 2015) ...........................................5, 12, 13 

Priorities USA v. Nessel, 978 F.3d 976 (6th Cir. 2020).................................................................27

SEC v. Chenery Corporation, 318 U.S. 80 (1943) ........................................................................11 

Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) (“Shays II”) .......................................................25, 42 

Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008) (“Shays III”) ....................................9, 10, 19, 25, 27 

Skidmore v. Swift & Co., 323 U.S. 134 (1944) ..............................................................................15

Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) ...............................................................................4, 6 

Springsteen-Abbott v. SEC, 989 F.3d 4 (D.C. Cir. 2021) ..............................................................32 

Stop This Insanity Inc. Emp. Leadership Fund v. FEC, 761 F.3d 10 (D.C. Cir. 2014) ...................7 

Teper v. Miller, 82 F.3d 989 (11th Cir. 1996) .........................................................................27, 28 

United States v. Locke, 471 U.S. 84 (1985) ...................................................................................32 

United States v. Mead Corp., 533 U.S. 218 (2001) .................................................................15, 17 

U.S. Sugar Corp. v. EPA, 830 F.3d 579 (D.C. Cir. 2016) .............................................................45 

Univ. of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) ....................................................16 

Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014) ..........................................................25 

Waterkeeper Alliance v. EPA, 853 F.3d 527 (D.C. Cir. 2017) ........................................................6 

Weber v. Heaney, 793 F. Supp. 1438 (D. Minn. 1992) .................................................................27 

Williams Gas Processing – Gulf Coast Co., L.P. v. FERC, 373 F.3d 1335 (D.C. Cir. 2004) ...... 23 

Constitutional Provisions and Statutes:

U.S. Const. art. 1, § 4, cl. 1 ............................................................................................................21 

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52 U.S.C. § 30101(8)(A)....................................................................................................26, 30, 34 

52 U.S.C. § 30101(9)(A)(i) ..........................................................................................26, 30, 34, 40 

52 U.S.C. § 30104 ............................................................................................................................7 

52 U.S.C. § 30109(a)(8)(C) ...........................................................................................................14 

52 U.S.C. § 30116(a)(7)(B)(ii) ..................................................................24, 26, 31, 38, 39, 40, 44 

52 U.S.C. § 30118 ....................................................................................................................26, 34 

52 U.S.C. § 30118(a) .........................................................................................................19, 24, 31 

52 U.S.C. § 30118(b)(2) ....................................................................................................19, 24, 31 

52 U.S.C. § 30143(a) .........................................................................................................21, 25, 27

Regulations: 

11 C.F.R. § 100.52(d)(1) ................................................................................................................42 

11 C.F.R. § 104.3 .............................................................................................................................7 

11 C.F.R. § 108.7 ...........................................................................................................................21 

11 C.F.R. § 108.7(b) ................................................................................................................21, 27 

11 C.F.R. § 108.7(c)(3) ..................................................................................................................21 

11 C.F.R. § 108.7(c)(4) ..................................................................................................................21 

11 C.F.R. § 109.20(a).....................................................................................................................40 

11 C.F.R. § 109.21(e).....................................................................................................................40 

11 C.F.R. § 114.l ............................................................................................................................21 

11 C.F.R. § 114.l(a)(l) ....................................................................................................................21 

11 C.F.R. § 114.2(b) .....................................................................................................................21 

11 C.F.R. § 114.4(a).......................................................................................................................21 

11 C.F.R. § 114.4(c)(2)(i) ..............................................................................................................21 

11 C.F.R. § 114.4(c)(2)(ii)(B) ........................................................................................................21 

11 C.F.R. § 114.4(c)(3)(i) ..............................................................................................................21 

11 C.F.R. § 114.4(c)(3)(iv)(B) .......................................................................................................21 

Other Authorities

148 Cong. Rec. S2145 (Daily Ed. Mar. 20, 2002) (statement of Sen. McCain) ............................40 

Certification, MUR 7510 (Katie Arrington for Congress, et al.) (Nov. 9, 2021) ..........................43 

Coordinated and Independent Expenditures, 68 Fed. Reg. 421 (Jan. 3, 2003) ..............................40 

Factual and Legal Analysis, MUR 7024 (Van Hollen for Senate) (May 31, 2017) ......................36 

Factual and Legal Analysis, MURs 7324, 7332, 7366 (A360 Media, LLC f/k/a American 

Media, Inc.) (Apr. 13, 2021) ....................................................................................................46 

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Factual and Legal Analysis, MUR 7797 (Sara Gideon for Maine, et al.) (Mar. 16, 2022) ...........43 

Factual and Legal Analysis, MUR 7870 (Google LLC, et al.) (Mar. 28, 2022) .....................36, 37 

FEC Advisory Opinion 1989-25 (New Hampshire Republican State Committee) .......................28 

FEC Advisory Opinion 2018-11 (Microsoft Corp.) ......................................................................37 

FEC Statement of Policy Regarding Commission Action in Matters at the Initial Stage 

in the Enforcement Process, 72 Fed. Reg. 12545 (Mar. 16, 2007) ..........................................45 

Brief for Pet’r, FEC v. Akins, 524 U.S. 11 (No. 96-1590), 1997 WL 523890 

(Aug. 21, 1997) ........................................................................................................................10 

Pet’r Reply Brief, FEC v. Akins, 524 U.S. 11 (No. 96-1590), 1997 WL 675443 

(Oct. 30, 1997) .........................................................................................................................10 

First General Counsel’s Report, MUR 7510 (Katie Arrington for Congress, et al.)

(Oct. 15, 2019) .........................................................................................................................43 

H.R. Rep. No. 93-1239, 93d Cong., 2d Sess. 10 (1974) ................................................................28 

Statement of Reasons of Chair Broussard, Vice Chair Dickerson, & Commissioners 

Trainor, Walther, & Weintraub, MUR 7832 (Twitter, Inc.) (Oct. 26, 2021) ...........................37 

Statement of Reasons of Chairman Dickerson & Commissioners Cooksey, Trainor, & 

Weintraub, MUR 7700 (Vote Vets, et al.) (Apr. 29, 2022) .....................................................43 

Statement of Reasons of Vice Chair Dickerson & Commissioners Cooksey and Trainor, 

MURs 7324, 7332, 7364, & 7366 (A360 Media, LLC f/k/a American Media, Inc., et 

al.) (June 28, 2021) ..................................................................................................................47 

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TABLE OF ABBREVIATIONS

BCRA Bipartisan Campaign Reform Act

CLC Campaign Legal Center

CREW Citizens for Responsibility and Ethics in Washington

FEC Federal Election Commission

FECA Federal Election Campaign Act

F&LA Factual and Legal Analysis

GOTV Get Out the Vote

MUR Matter Under Review

OGC Office of General Counsel (FEC)

TTV True the Vote

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INTRODUCTION & SUMMARY OF ARGUMENT

As plaintiffs explained in their opening summary judgment brief, Congress, in enacting the 

Federal Election Campaign Act (“FECA” or “Act”), established clear and unambiguous mandates 

that broadly prohibit corporations from making contributions to political party committees, and 

that require transparency of money spent to influence federal elections. See Pls.’ Mem. Supp.

Summ. J. (“Pls.’ MSJ”), ECF No. 13 (Feb. 16, 2023). These statutory provisions, plaintiffs 

explained, guard against corruption and its appearance and protect voters’ First Amendment rights 

to be informed participants in the political process. The Federal Election Commission (“FEC” or 

“Commission”) is responsible for administering and enforcing these statutory provisions. And 

while the FEC may exercise its expertise to interpret FECA provisions where there is ambiguity 

or uncertainty, the agency has zero authority to ignore, disregard, or alter clear, unambiguous 

statutory requirements like those at issue in the administrative complaint underlying this lawsuit. 

In dismissing plaintiffs’ administrative complaint based on Commissioner-invented exceptions to 

federal statutes, the FEC failed to fulfill its responsibility and acted contrary to law. 

Plaintiffs’ opening brief detailed the extensive, compounding flaws in the explanation 

provided by the controlling Commissioners for dismissing plaintiffs’ administrative complaint. 

These include the Commissioners’ reliance on a newly made-up, categorical exemption from 

FECA’s provisions governing coordinated election spending for expenditures that are purportedly 

related to “state law compliance,” as well as the Commissioners’ supposed application of 

constitutional narrowing constructions that are inapplicable to the legal provisions at issue in 

plaintiffs’ administrative complaint, not to mention contrary to the essential purposes of those 

provisions. Plaintiffs also explained how the Commissioners’ insistence that respondents True the 

Vote (“TTV”) and the Republican Party of Georgia (“Georgia GOP”) did not “coordinate” any 

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activitites within the meaning of the Act, notwithstanding their unambiguous statements in the 

administrative record to the contrary, resulted from the Commissioners’ application of an 

improperly stringent standard that is inconsistent with FECA, as well as their unexplained and 

unreasonable disregard of a mountain of inconvenient facts in the administrative record. 

In addition to detailing these critical deficiencies in the controlling Commissioners’ 

dismissal decision, plaintiffs also explained the serious ramifications that decision will have: it 

threatens to open an enormous loophole in federal campaign finance law, allowing for ready

circumvention of FECA’s contribution restrictions and disclosure requirements for any 

coordinated spending that is purportedly related to “compliance” with state election law.

The Federal Election Commission’s response to these detailed arguments essentially boils 

down to two, fatally flawed contentions: (1) plaintiffs lack standing to pursue some—but not all—

of the violations alleged in the underlying administrative complaint against TTV and the Georgia 

GOP, see FEC Mem. Supp. Summ. J. & Opp’n to Pls.’ MSJ (“FEC Br.”) at 14-19, ECF No. 14-1 

(Mar. 17, 2023); and (2) the FEC is entitled to judicial deference so the Court must rule in its favor, 

id. at 1, 2, 3, 12, 19-24, 25, 27, 30, 31, 35, 36, 39, 40-41, 42 (invoking deference no fewer than 

fifty times). 

As explained below, the first contention is unavailing, both because the FEC appears to 

concede, as it must, that plaintiffs have established standing to pursue their disclosure-related 

allegations, and because plaintiffs’ coordination-related allegations are inextricably intertwined 

with those allegations, and are thus essential to evaluating the Commissioners’ dismissal decision 

with respect to the alleged disclosure violations. More fundamentally, the FEC’s flawed standing 

arguments are directly contravened by controlling decisions from the Supreme Court and D.C. 

Circuit—decisions that the agency conspicuously ignores. 

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The second contention is as extraordinary as it is wrong. Indeed, the FEC goes so far as to 

claim that the Court should defer to the controlling Commissioners’ decision, even “to the extent 

there is any uncertainty as to whether it was reasonable to conclude that the Commission ‘has no 

authority to police’ the ‘Georgia laws at the heart of TTV’s activities.’” FEC Br. 30 (citing AR 

282). The Commission’s explicit request for such a grossly exaggerated application of judicial 

deference not only defies well-established standards for when and how to apply judicial deference 

to FEC dismisal decisions, but also exposes the Commission’s fundamental inability to defend the 

controlling Commissioners’ legal analyses and interpretations on their own terms as consistent 

with law or reasoned agency decisionmaking. 

Aside from challenging plaintiffs’ standing (in part) and urging judicial deference, the FEC 

does not present any serious defense of the Commissioners’ flawed legal analysis. To be sure, the 

Commission’s lawyers do offer some impermissible and unavailing post hoc rationalizations, 

discussion of inapposite court decisions, and misplaced analogies to entirely unrelated factual 

contexts. But the FEC provides no real explanation of how what the controlling Commissioners 

actually decided here is consistent with FECA, controlling case law, or reasoned agency 

decisionmaking. This is unsurprising because the dismissal comes up short in all three respects. 

For the reasons below and those set forth in plaintiffs’ opening brief, the Court should find 

that the FEC’s dismissal of plaintiffs’ administrative complaint was contrary to law and remand 

this matter to the FEC with instructions to conform to the Court’s order within thirty days.

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ARGUMENT

I. Plaintiffs Have Established Their Standing to Bring This Lawsuit. 

Plaintiffs have proven their informational and organizational standing1 because Common 

Cause Georgia and Ms. Dennis have each “suffered an injury in fact” that is “fairly traceable” to 

the FEC’s dismissal of their complaint and “likely to be redressed by a favorable judicial decision.” 

Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). Plaintiffs’ injury—the deprivation of information 

to which they are entitled under FECA regarding the undisclosed in-kind contributions alleged in 

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

And the relief they seek—an order declaring the dismissal contrary to law—would unquestionably 

redress their injuries. See FEC v. Akins, 524 U.S. 11, 25 (1998). 

The FEC devotes much of its brief to challenging plaintiff Common Cause Georgia’s 

standing with respect to certain aspects of plaintiffs’ administrative complaint concerning TTV’s 

unlawful in-kind contributions to the Georgia GOP in the form of coordinated expenditures. But 

the complaint alleged both coordination and disclosure violations, and the FEC does not appear to 

contest that Ms. Dennis has standing in her capacity as an individual voter, and that both plaintiffs 

have informational standing generally, to challenge the FEC’s dismissal of their complaint with 

respect to the alleged disclosure violations. Nor could it. See Pls.’ MSJ 17-19. 

And even the FEC’s attempted partial standing challenge is critically misconceived—

because it depends on the faulty premise that plaintiffs’ single cause of action against the FEC here 

can be separated into “two basic categories of claims” against TTV and the Georgia GOP. FEC 

 

1

 The FEC also argues that Common Cause Georgia lacks competitor standing, see FEC Br. 19, 

but neither plaintiff asserts standing on that basis. 

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Br. 14-16, 19. But this case is brought against the FEC and it presents only a single count alleging 

that the dismissal of plaintiffs’ administrative complaint was contrary to law. 

In any event, even if the Court were to consider plaintiffs’ standing based on the distinct 

coordination and disclosure violations alleged in their administrative complaint, the “coordinationrelated” claims against TTV and the Georgia GOP are inextricable from those concerning the 

Georgia GOP’s failure to disclose in-kind contributions resulting from such coordination, and the 

latter unquestionably provide informational standing to both plaintiffs. Controlling decisions, 

including the D.C. Circuit’s recent decision in Campaign Legal Center v. FEC, 31 F.4th 781 (D.C. 

Cir. 2022) (“CLC II”), confirm that plaintiffs’ allegations regarding coordinated expenditures are 

appropriately before this Court and necessary to assess the propriety of the FEC’s dismissal of the 

alleged, related reporting violations. Id. at 790 (“FECA clearly gives [plaintiffs] a statutory right 

to information about the amounts, dates, recipients, and purposes of any coordinated expenditures 

and contributions.”).

Plaintiff Common Cause Georgia has also demonstrated, in addition to informational 

standing, that it has organizational standing to pursue this lawsuit against the FEC. See, e.g., Pls.’ 

MSJ 18-19; Decl. of Treaunna C. Dennis, ECF No. 13-1 ¶¶ 10-11, 13 (Feb. 16, 2023); cf., e.g., 

People for the Ethical Treatment of Animals v. U.S. Department of Agriculture, 797 F.3d 1087, 

1094 (D.C. Cir. 2015) (“PETA”). But this separate basis for standing has no bearing on whether 

plaintiffs have shown informational standing, notwithstanding the FEC’s attempts to conflate the 

two. 

A. Plaintiffs have proven their informational standing.

Plaintiffs have established their informational standing. They have suffered a 

“quintessential informational injury,” CLC II, 31 F.4th at 784, and thus “easily satisfy the causation 

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and redressability requirements of Article III standing”—“because of [the FEC’s] dismissal, they 

lack access to FECA-required information” and “[i]f their challenge succeeds, they will gain 

access to that information, which will no doubt ‘help them . . . evaluate candidates for public 

office,’” id. at 784, 793 (citing Akins, 524 U.S. at 25).2

The FEC concedes—as it must—that plaintiffs have suffered an informational injury 

sufficient to confer standing. See FEC Br. 16 (“Plaintiffs’ purported informational injury may be 

sufficient to establish standing as to the disclosure allegations”); see also id. at 15 (noting without 

contesting that plaintiffs “alleg[e] informational injury to support their claims”). 

Indeed, “[t]he law is settled that ‘a denial of access to information’ qualifies as an injury in 

fact ‘where a statue (on the claimant’s reading) requires that the information be publicly disclosed 

and there is no reason to doubt their claim that the information would help them.” Envtl. Def. Fund 

v. EPA, 922 F.3d 446, 452 (D.C. Cir. 2019) (citing Friends of Animals v. Jewell, 824 F.3d 1033, 

1040-41 (D.C. Cir. 2016); Ethyl Corp., 306 F.3d at 1148; Akins, 524 U.S. at 21) (internal quotation 

marks omitted). Moreover, “a plaintiff seeking to demonstrate that it has informational standing 

generally ‘need not allege any additional harm beyond the one Congress has identified.’” Friends 

of Animals v. Jewell, 828 F.3d 989, 992 (D.C. Cir. 2016) (quoting Spokeo, Inc., 578 U.S. at 342) 

(emphasis in original). Although the Commission attempts to muddy the waters by invoking a 

variety of irrelevant principles, including the requirements for standing with respect to “procedural 

 

2

 Plaintiff Common Cause Georgia maintains that it also has shown a distinct basis for

organizational standing. See infra at 12-13; Pls.’ MSJ 18-19. But both plaintiffs have clearly 

proven informational injury and that is sufficient for Article III purposes. See, e.g., Waterkeeper 

All. v. EPA, 853 F.3d 527, 534 (D.C. Cir. 2017) (“Because we find informational standing 

exists . . . we need not reach [] remaining theories of injury and instead proceed to the merits.”); 

Ethyl Corp. v. EPA, 306 F.3d 1144, 1148 (D.C. Cir. 2002) (same); Campaign Legal Ctr. v. FEC, 

245 F. Supp. 3d 119, 128 (D.D.C. 2017) (“CLC I”) (where plaintiff organizations “have already 

established their informational standing . . . [t]hey need not satisfy [the] requirements for 

organizational standing as well”).

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rights” violations, FEC delay cases, and private rights of action, see FEC Br. 14, none of those 

principles is applicable here. 

FECA’s political committee disclosure provisions require comprehensive reporting of 

receipts and disbursements, including in-kind contributions in the form of coordinated 

expenditures. See 52 U.S.C. § 30104; 11 C.F.R. § 104.3. These reporting requirements lie at the 

heart of the disclosure regime prescribed by Congress and advance important constitutional values. 

See, e.g., McConnell v. FEC, 540 U.S. 93, 121-22 (2003) (noting that disclosure serves three 

“important state interests”: “providing the electorate with information, deterring actual corruption 

and avoiding its appearance, and gathering data necessary to enforce more substantive 

electioneering restrictions”) (citing Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam)); Stop This 

Insanity Inc. Emp. Leadership Fund v. FEC, 761 F.3d 10, 16 (D.C. Cir. 2014) (emphasizing the 

“First Amendment rights of the public to know the identity of those who seek to influence their 

vote”). The Georgia GOP, however, defied its disclosure obligations by failing to report any inkind contributions from TTV—despite clear evidence that TTV performed a variety of electionrelated services in cooperation and partnership with the political party committee and for the 

conceded purpose of assisting the party with specific federal elections. See Pls.’ MSJ 38-40. 

Absent FECA-required disclosure, information about these coordinated expenditures is not 

available to plaintiffs in any other form—as the FEC’s Office of General Counsel (“OGC”) 

recognized. See AR 75 (noting that “the Georgia GOP failed to disclose any contribution or 

expenditure information in connection with its self-described partnership with True the Vote, 

including the dates, amounts, and purposes of the in-kind contributions”); AR 76 (noting that “[t]he 

available information in this matter does not include how much money True the Vote expended” 

in connection with its Georgia activities). Indeed, even after reviewing the groups’ administrative 

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filings and responses, the OGC recommended that the Commission investigate plaintiffs’ claims 

to determine the magnitude of TTV’s unreported in-kind contributions to the Georgia GOP, see 

AR 73-77—a recommendation the controlling Commissioners flouted, leaving plaintiffs in the 

dark about the true extent of TTV’s contributions to the Georgia GOP, see, e.g., CLC I, 245 F. 

Supp. 3d at 127 (“If the General Counsel did not know the whole story then, there is little reason 

to believe that plaintiffs know it now.”). 

There is no question that such FECA-required disclosure information is “useful” to both 

plaintiffs, and that plaintiffs’ inability to access this information has directly and concretely injured 

their interests. Ms. Dennis considers FECA-required disclosure information “essential” to her 

ability to make informed choices at the ballot box, including “assess[ing] candidates for office,” 

“evaluat[ing] the roles that True the Vote and similar outside groups play in elections,” and 

“monitor[ing] the influence of campaign money on officeholders and public policy.” Dennis Decl.

¶¶ 5-7. Plaintiff Dennis’s ability to “participat[e] in the political process” is impeded when she is 

deprived of information about who is spending money to influence her vote. Id. ¶¶ 8-9. Plaintiff 

Common Cause Georgia likewise suffers an informational injury, as it depends on accurate and 

complete disclosure information “to carry out activities central to its mission, including public 

education and research about the true sources and scope of political campaign spending,” which 

the organization uses to equip its members and the public with information necessary to cast 

informed votes. Id. ¶¶ 10-12. Without FECA-required disclosure information, Plaintiff Common 

Cause Georgia’s “core activities are obstructed.” Id. ¶ 12. 

Each plaintiff has thus established a quintessential informational injury. See, e.g., Akins, 

524 U.S. at 21; CLC II, 31 F.4th at 783-84; CLC & Democracy 21 v. FEC, 952 F.3d 352, 356 

(D.C. Cir. 2020) (per curiam). 

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9

Plaintiffs’ informational injuries also “easily satisfy” Article III causation and 

redressability requirements, and the FEC’s contrary argument that the harm at issue here is “too 

attenuated,” see FEC Br. 17-18, is flatly contradicted by the Supreme Court’s holding in Akins and 

the D.C. Circuit’s holding in CLC II, a recent, controlling decision that the FEC conspicuously 

fails to address. Plaintiffs’ informational injuries are indistinguishable from those recognized in 

both cases and, as such, “easily satisfy the causation and redressability requirements of Article III 

standing.” CLC II, 31 F.4th at 784 (citing Akins, 524 U.S. at 25). 

The FEC’s flawed argument depends on a mischaracterization of plaintiffs’ informational 

injury, which stems from the FEC’s denial of information to which plaintiffs are entitled by law, 

not “from TTV’s election-integrity efforts in the Georgia 2021 runoff election.” FEC Br. 17; 

compare, e.g., CLC II, 31 F.4th at 784 (“As the Supreme Court made clear in Akins, ‘the injury in 

fact that Appellants have suffered consists of their inability to obtain information—including 

campaign-related contributions and expenditures—that on Appellants’ view of the law, the statute 

requires [be] ma[d]e public.’”) (citing Akins, 524 U.S. at 21) (cleaned up); Shays v. FEC, 528 F.3d 

914, 923 (D.C. Cir. 2008) (“Shays III”) (“Here, as in Akins, Shay’s injury in fact is the denial of 

information he believes the law entitles him to.”). This informational injury is directly traceable to 

the dismissal of plaintiffs’ administrative complaint, and is redressable by an order of this Court 

declaring that dismissal contrary to law. 

Indeed, just last year, the D.C. Circuit directly held that a virtually identical informational 

injury satisfied causation and redressability requirements. As the Court of Appeals explained, the 

denial of information about in-kind contributions to a political committee was “fairly traceable to 

the Commission’s decision to dismiss the [administrative] complaint.” CLC II, 31 F.4th at 793 

(citing Akins, 524 U.S. at 25). And “[s]hould a reviewing court find that the Commission’s 

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determinations are contrary to law, the agency’s action would be set aside and the case would 

likely redress Appellant’s injury in fact.” Id. (citing Akins, 524 U.S. at 25; Shays III, 528 F.3d at 

923); see also id. at 783. In sum, “[w]here, as here, a plaintiff demonstrates on the record that 

additional, statutorily-required information would be exposed under plaintiff’s theory of the law 

that would serve an interest Congress sought to protect through disclosure, the plaintiff has 

undoubtedly established [] informational [standing] under Akins and Shays.” Id. at 792. 

The FEC ignores this precedent, and instead seeks to resurrect an argument that the 

Supreme Court long ago rejected. In Akins, the FEC’s unsuccessful standing argument likewise 

turned predominantly on claims about the “obstacles to redressability” for plaintiffs seeking to 

remedy informational injuries caused by the FEC’s failure to enforce the law against a third party. 

Pet’r Reply Br., Akins, 524 U.S. 11 (No. 96-1590), 1997 WL 675443, at *4 (Oct. 30, 1997); see 

also id. at *7 (“the Commission cannot itself compel [respondent] to disclose whatever relevant 

information may remain in its possession”). The Commission’s briefing stressed that there was 

“no guarantee that any remedy imposed by a court, or negotiated by the Commission as part of a 

conciliation agreement, would result in” any action by a third party. Br. for Pet’r, Akins, 524 U.S. 

11 (No. 96-1590), 1997 WL 523890, at *29-30 (Aug. 21, 1997); compare with FEC Br. 18 

(“[R]edressability cannot be founded on mere speculation as to what third parties might do in 

response to a favorable ruling”). Notwithstanding that possibility, the Supreme Court rejected the 

FEC’s redressability argument, explaining that “[i]f a reviewing court agrees that the agency 

misinterpreted the law, it will set aside the agency’s action and remand the case—even though the 

agency (like a new jury after a trial) might later, in the exercise of its lawful discretion reach the 

same result for a different reason.” Id. (citing SEC v. Chenery Corp., 318 U.S. 80 (1943)). 

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Consequently, “respondents’ injury in fact’ [was] ‘fairly traceable’ to the FEC’s decision” and, 

“[f]or similar reasons,” the courts” could “‘redress’” it. Id. 

While ignoring the controlling decisions in Akins and CLC II, the FEC points the Court to 

inapposite decisions in Freedom Republicans, Inc. v. FEC, 13 F.3d 412 (D.C. Cir. 1994), and 

Fulani v. Brady, 935 F.2d 1324 (D.C. Cir. 1991), neither of which even involves informational 

injuries. In Freedom Republicans, for example, minority members of a political party challenged 

an FEC decision to provide the party with public funds, after the party allegedly engaged in a 

discriminatory delegate-allocation scheme. 13 F.3d at 413-14. Under those circumstances, the D.C. 

Circuit found that “the actions of the FEC authorizing convention funding” were not sufficiently 

related to, nor likely to redress “the delegate-selection practices of the Republican Party.” Id. at 

418. Similarly in Fulani, as the FEC itself explains, “this Circuit held that alleged harm to a 

presidential candidate because of that candidate’s deprivation of media coverage and political 

legitimacy as a result of her exclusion from a debate could not be traced to the Internal Revenue 

Service’s grant of tax-exempt status to the debate sponsor.” FEC Br. 18 (citing Fulani, 935 F.2d 

at 1328-29). The injuries alleged in Freedom Republicans and Fulani are a far cry from the 

“quintessential informational injur[ies]” at issue here, which “easily satisfy” Article III’s causation 

and redressability requirements, as the Supreme Court and D.C. Circuit have confirmed. Akins, 

524 U.S. at 21; CLC II, 31 F.4th at 793. 

In sum, plaintiffs have proven their informational standing. If plaintiffs succeed on the 

merits of their FECA claim, the Georgia GOP “would be obligated to disclose FECA-required 

factual information about the amounts of the contested coordinated, in-kind contributions. And 

that ‘information would help [plaintiffs] (and others to whom they would communicate it) to 

evaluate candidates for public office . . . and to evaluate the role that [TTV’s] financial assistance 

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might play in a specific election.” CLC II, 31 F.4th at 783 (quoting Akins, 524 U.S. at 21). This 

more than satisfies plaintiffs’ burden under Article III. 

B. Common Cause Georgia has also established a distinct organizational injury based 

on the direct impairment of its mission to protect Georgians’ right to vote. 

In addition to both plaintiffs’ informational standing, plaintiff Common Cause Georgia has 

shown a distinct basis for organizational standing, separate and apart from its standing based on 

the deprivation of statutorily required disclosure information. The FEC tries to conflate the two

plaintiffs in this case and its standing arguments focus almost entirely on Common Cause Georgia

and its distinct organizational injury. See FEC Br. 14-17. 

To demonstrate standing, an organization, “like an individual plaintiff,” must “show ‘actual 

or threatened injury in fact that is fairly traceably to the alleged . . . action and likely to be redressed

by a favorable court decision.’” Equal Rights Ctr. v. Post Properties, Inc., 633 F.3d 1136, 1138 

(D.C. Cir. 2011); see also Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79 (1982). A 

“concrete and demonstrable injury to [an] organization’s activities—with the consequent drain on 

the organization’s resources—constitutes far more than simply a setback to the organization’s 

abstract social interests” and thus suffices for standing. Havens Realty, 455 U.S. at 379. To 

determine whether an organization’s injury is “concrete and demonstrable” or “simply a setback 

to [its] abstract social interests,” courts “ask, first, whether the agency’s action or omission to act 

‘injured the [organization’s] interest’ and, second, whether the organization ‘used its resources to 

counteract that harm.’” PETA, 797 F.3d at 1094 (quoting Equal Rights Ctr., 633 F.3d at 1140). 

Here, the FEC’s dismissal of plaintiffs’ administrative complaint concretely impaired 

Common Cause Georgia’s efforts to “protect and expand voting rights for all eligible Georgians 

and to empower citizens through public education—activities central to its organizational mission 

of strengthening public participation in the democratic process and creating open, honest, and 

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accountable governments.” Dennis Decl. ¶ 13; see also id. ¶¶ 10-11. As the record indicates, access

to the Georgia GOP’s network through the groups’ coordination and “partnership” enabled TTV 

to supercharge its mass voter eligibility challenge. See AR 70 (noting evidence that TTV “worked 

with members of the Georgia GOP to recruit volunteers”); AR 71 (“[T]he available information 

also suggests a partnership between TTV and the Georgia GOP for the Georgia GOP to provide 

access to Georgia county residents willing to serve as ‘challengers’ and challenge the ballots 

identified by TTV in the counties in which the challengers resided.”); see also AR 60-61. By 

allowing TTV to coordinate with the Georgia GOP on mass voter eligibility challenges—as well 

as signature verification training, absentee ballot drop box monitoring, and “other election integrity 

initiatives,” see, e.g., AR 3-4—the FEC empowered TTV to more effectively engage in activities 

that impinge on eligible Georgians’ right to vote, thereby directly injuring Common Cause 

Georgia’s organizational efforts to protect that right. And Common Cause Georgia has “used 

resources to counteract the harm,” PETA, 797 F.3d at 1094, including by hiring a contractor to 

work on voter protection efforts, “such as disinformation monitoring and public education on the 

implications of voter challenges like those brought by [TTV].” Dennis Decl. ¶ 13. 

The controlling Commissioners’ dismissal based on a purported “state law compliance” 

exemption further ensures that the harm to Common Cause Georgia’s organizational interests will 

continue, as it creates “a roadmap” for TTV and others to collaborate freely with political party 

committees, and tap into their deep in-state networks, when pursuing so-called “election integrity”

efforts. Dennis Decl. ¶¶ 9, 13.3

 

 

3

 The Commission also argues that “even if plaintiffs were to obtain a favorable ruling in this 

case, there is no reason to believe that would address their alleged grievance, because TTV would 

remain free to engage in the same ballot-integrity initiatives in the future in the absence of 

coordination.” FEC Br. 16-17; see also id. at 17 (“if TTV’s activities would have happened 

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II. The Dismissal Was Contrary to Law.

A. The FEC misconstrues the applicable standards of review. 

The FEC insists—ad nauseam—that its dismissal of plaintiffs’ administrative complaint 

must be upheld because of the deference due to agency decisionmaking. See FEC Br. 1, 2, 3, 12, 

19-24, 25, 27, 30, 31, 35, 36, 39, 40-41, 42. But the FEC overreaches in treating the inquiry under 

FECA’s “contrary to law” standard as merely a rubber stamp. It is not, and the Commission’s 

overwhelming emphasis on “deference”—under Chevron and otherwise—only illustrates its 

inability to defend the controlling Commissioners’ interpretations as consistent with law or 

reasoned agency decisionmaking. 

1. Even when applicable, deferential review does not excuse impermissible 

constructions of the Act or arbitrary and unreasoned decisionmaking. 

FECA provides for a Commission decision dismissing an administrative complaint to 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 v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). 

Under Orloski’s first prong, the Court evaluates whether the FEC’s interpretation of law 

used to justify dismissal, as set forth in the controlling Statement of Reasons, is a permissible 

interpretation of that law. In certain circumstances, the FEC’s interpretations of FECA may 

warrant deference under Chevron U.S.A., Inc. v. Natural Resource Defense Council, Inc., 467 U.S. 

837 (1984). But such deference is only called for when an agency is construing ambiguities in a 

statute as to which Congress has delegated it interpretive authority. United States v. Mead Corp., 

 

anyway, then presumably any alleged diversion of resources or other response by Common Cause 

Georgia would have happened anyway as well”). But it is far from evident that TTV or comparable 

groups could engage in “the same” activities—on the same scale or scope—without access to 

access to the Georgia GOP’s state network.

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533 U.S. 218, 229-30 (2001). Absent a basis for Chevron deference, an agency’s legal 

interpretation is due only that deference warranted by the persuasiveness of its reasoning. See, e.g.,

id. at 234-35; Skidmore v. Swift & Co., 323 U.S. 134 (1944). The Court should weigh the 

interpretation provided by the agency against the Court’s independent interpretation of the law to 

determine whether the agency’s interpretation is “[]permissible.” Orloski, 795 F.2d at 161. 

As to the second Orloski prong—whether the FEC’s dismissal of the complaint was 

arbitrary, capricious, or an abuse of discretion—the Court applies a standard analytically similar 

to the “arbitrary [or] capricious” standard applied under the Administrative Procedure Act, 5 

U.S.C. § 706(2)(A). See In re Carter-Mondale Reelection Comm., Inc., 642 F.2d 538, 550-51, 551 

n.6 (D.C. Cir. 1980) (Wald, J., concurring). 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,” or “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 of the U.S. v. State Farm Mut. Auto. Ins. 

Co., 463 U.S. 29, 43 (1983); see also, e.g., Chevron, 467 U.S. at 842-43 (agency decision entitled 

to deference only when “based on a permissible construction of the statute”). While it is true that 

this is a “deferential inquiry,” Democracy 21, 952 F.3d at 357, “deference does not mean carte 

blanche, and the Commission must at all times demonstrate the markers of ‘principled and 

reasoned decision[making] supported by the evidentiary record.’” Constellation Mystic Power, 

LLC v. FERC, 45 F.4th 1028, 1043 (D.C. Cir. 2022) (citation omitted). The Commissioners’ 

decision here bears none of these hallmarks.

The FEC further overreaches by characterizing the dismissal as a permissible exercise of 

“enforcement discretion.” FEC Br. 1. In fact, the challenged dismissal decision does not purport 

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to rely on the agency’s “discretion” at all; the controlling Commissioners relied on their incorrect 

legal conclusions that they lacked authority under the Constitution and “jurisdiction” under FECA 

to proceed. See AR 281-85; see also Pls.’ MSJ 38-44. The FEC is not entitled to deference for its 

interpretations of the Constitution or judicial precedent. See, e.g., AR 280 (arguing that the FEC’s 

“authority is cabined both by the Act . . . and by decades of jurisprudence narrowing that 

legislative grant”). When the agency 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), the Court’s review is “de novo,” J.J. Cassone Bakery, Inc. v. 

NLRB, 554 F.3d 1041, 1044 (D.C. Cir. 2009). “[A] reviewing court owes no deference to the 

agency’s pronouncement on a constitutional question.” Id. (internal quotation marks omitted). 

Accordingly, the FEC’s arguments about the controlling Commissioners’ “view of the 

Commission’s limited role in our Constitutional structure” are misdirected. FEC Br. 24; see also 

id. at 25 (insisting that the Commissioners were “reasonable to note that this Circuit has instructed 

the FEC to construe FECA narrowly in light of First Amendment concerns”). Nothing in the 

Constitution generally or the First Amendment in particular excuses the FEC from lawfully 

administering and enforcing duly enacted laws. Nor does the Constitution permit Commissioners 

to read statutory provisions out of existence. See, e.g., Cmty. Television of S. Cal. v. Gottfried, 459 

U.S. 498, 516 (1983) (“[A]n agency may not ignore a relevant Act of Congress” or “simply ‘close 

its eyes’ to the existence of the statute.”). And nothing whatsoever suggests that requiring 

disclosure here would engender some “partisan misuse,” as the FEC speculates. FEC Br. 26, 30. 

Nor is it true that the Commissioners’ stated “views” of the agency’s limited constitutional 

role constituted mere “prefatory language” providing “insight” into their decisionmaking or 

warranting greater deference to it. Id. at 24-25. The Commissioners’ discussion of constitutional 

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considerations was part and parcel of the Commissioners’ unqualified interpretation that the 

Constitution and FECA “categorically” barred enforcement here. See, e.g., AR 280-81, 284, 286. 

The question therefore is not, as the FEC suggests, whether it was “permissible for the controlling 

Commissioners to cautiously employ their enforcement authority,” FEC Br. 26, but whether it was 

permissible to determine that they could not “employ” that authority at all—a question the Court 

ultimately must answer based on the actual, contemporaneous rationale they gave. 

2. The FEC is not entitled to the added boost of Chevron or Auer deference here.

The FEC’s attempt to rescue the controlling Commissioners’ flawed legal interpretations 

by claiming entitlement to an even higher level of judicial deference is woefully misguided. As 

plaintiffs previously explained, Pls.’ MSJ 17, to qualify for either Chevron or Auer deference, an 

FEC decision must reflect an exercise of delegated authority to make “rules carrying the force of 

law,” Mead Corp., 533 U.S. at 227. No such exercise occurred here. For starters, neither the 

controlling Commissioners’ “view of the Commission’s limited role in our Constitutional 

structure,” FEC Br. 24; nor their interpretation of federal court decisions construing the scope of 

FECA preemption, id. at 27; nor their speculation about abuse that might result from the 

Commission’s proper enforcement of the law, id. at 26, 30, represent such delegated agency 

authority, see, e.g., Lieu v. FEC, 370 F. Supp. 3d 175, 183 (D.D.C. 2019); Akins v. FEC, 101 F.3d 

731, 740 (D.C. Cir. 1996) (en banc), vacated on other grounds, 524 U.S. 11 (1998); see also CREW 

v. FEC, 209 F. Supp. 3d 77, 87 (D.D.C. 2016) (collecting cases).

More fundamentally, the FEC’s attempt to claim a heightened level of deference here is 

misguided because a statement of two Commissioners, even if “controlling” for purposes of 

judicial review of a particular enforcement decision, is not “the agency’s ‘authoritative’ or ‘official 

position’” on the law. Kisor v. Wilkie, 139 S. Ct. 2400, 2416 (2019) (quoting Mead, 533 U.S. at 

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257-59 & n.6 (Scalia, J., dissenting)); see also Common Cause v. FEC, 842 F.2d at 436, 449 n.32, 

453 (D.C. Cir. 1988) (recognizing that three-vote Statement of Reasons is “not law” and does not 

create “binding legal precedent or authority for future cases”).4 Indeed, the FEC appears to concede 

this point with respect to Auer deference, which, the FEC acknowledges, applies to “an agency’s 

interpretation of its own regulations” —action that the FEC did not purport to undertake here. FEC 

Br. 22 (discussing Kisor’s holding regarding the scope of Auer deference). And with that 

concession, the FEC is left to make the extraordinary argument that this Court owes even greater

judicial deference to the flawed statutory interpretations of two FEC Commissioners than it would 

owe to those Commissioners’ interpretations of the FEC’s own regulations. See FEC Br. 22 

(purporting to distinguish Kisor on the basis that it “did not concern the scope of judicial deference 

as to an agency’s interpretation of its implementing statute”). 

But even assuming, arguendo, that Chevron were applicable here, and, thus, that the 

controlling Commissioners’ reasonable interpretations of FECA are entitled to deference, 

Congress’s unambiguous mandate in FECA makes clear that the challenged decision would fail at 

Chevron step one. In particular, FECA explicitly and unambiguously prohibits corporations like 

 

4

 To the extent prior district court and Circuit precedent might have suggested non-majority 

decisions were due heightened deference under the Chevron framework, see FEC Br. 21-22, those 

cases have been abrogated by subsequent Supreme Court and Circuit precedent. The D.C. Circuit 

has interpreted Mead to hold that “the expressly non-precedential nature” of a decision 

“conclusively confirms” that it is not an exercise of authority “to make rules carrying the force of 

law” that are entitled to deference. Fogo de Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec., 

769 F.3d 1127, 1137 (D.C. Cir. 2014). A split vote by the FEC lacks the precedential effect 

essential to actions with the force of law under Mead and Fogo de Chao. The FEC cites no postMead authority from the D.C. Circuit applying Chevron deference to a legal interpretation 

announced in a split-vote FEC dismissal. 

Moreover, whether or not these proceedings might have been analogous to “formal 

adjudications,” FEC Br. 24, they were not formal in the sense identified in Fogo de Chao. The fact 

that there was a formal complaint filed, and a formal response, does not mean the non-majority 

legal standard has the force of law or bears the hallmarks of a formal rulemaking process.

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TTV from providing a political party like the Georgia GOP “anything of value . . . in connection 

with any election.” 52 U.S.C. § 30118(a), (b)(2). The controlling Commissioners’ legal analysis is 

contrary to the plain meaning of this statutory language and thus fails the Chevron analysis right 

at the start. See, e.g., CREW v. FEC, 316 F. Supp. 3d 349, 396 (D.D.C. 2018) (“To ‘avoid a literal 

interpretation at Chevron step one,’ a party ‘must show either that, as a matter of historical fact, 

Congress did not mean what it appears to have said, or that, as a matter of logic and statutory 

structure, it almost surely could not have meant it.’”) (citation omitted), aff’d, 971 F.3d 340 (D.C. 

Cir. 2020). Indeed, while the FEC briefly acknowledges that “FECA generally prohibits 

corporations from making contributions to federal political committees,” FEC Br. 6 (citing 52 

U.S.C. § 30118(a); 11 C.F.R. § 114.2(b)), it conspicuously avoids discussing the statutory 

language establishing the breadth of this prohibition. 

And if this did not settle the question, under Chevron step two courts still “must reject 

administrative constructions of [a] statute . . . that frustrate the policy that Congress sought to 

implement. While that policy may sometimes be unclear, here it is not: ‘BCRA’s fundamental 

purpose [is] prohibiting soft money from being used in connection with federal elections.’” Shays 

III, 528 F.3d at 925 (cleaned up). The Commissioners’ interpretation unquestionably 

“compromise[s]” that purpose, “create[s] the potential for gross abuse,” Orloski, 795 F.2d at 165, 

and must be set aside.

B. The dismissal rested on an invented and impermissible exemption from FECA for

“state law compliance” that lacks any basis in law and is fundamentally irrational. 

As plaintiffs previously explained, Pls.’ MSJ 24-28, the controlling Commissioners’

invention of a “categorical” exemption for spending connected to what they characterize as “state 

law compliance” activities—irrespective of the spender’s federal election-related purpose or 

degree of coordination with federal candidates and parties—is impossible to reconcile with FECA.

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The Commissioners reached this conclusion based on a non-preemption theory that they plucked 

out of thin air, although this case implicates no questions about the scope, validity, or application 

of any state law. 

The FEC purports to defend this theory by summoning straw men, engaging in post hoc 

rationalization, and citing inapposite case law—before finally conceding that there could be

“uncertainty” about the Commissioners’ non-preemption rationale, while invoking agency 

deference as a justification to uphold it anyway. See FEC Br. 30 (allowing that there may be 

“uncertainty as to whether it was unreasonable to conclude that the Commission ‘has no authority 

to police’ the ‘Georgia law at the heart of TTV’s activities’”) (quoting AR 282). Its arguments fail 

to rescue the Commissioners’ unlawful and fundamentally irrational decisionmaking. 

1. Neither FECA nor FEC regulations authorize the FEC to grant a categorical 

enforcement exemption for electoral contributions related to “state law 

compliance.”

The Commission acted contrary to law by dismissing plaintiffs’ complaint pursuant to a 

baseless legal theory of non-preemption that has no grounding in FECA and no relevance to the 

violations alleged here. See Orloski, 795 F.2d at 161. The idea that disbursements related to 

supposed “state law compliance” must be categorically exempted from the Act’s regulation of 

contributions—even when coordinated with a political party in connection with a federal election, 

and without regard to other indicia of federal electoral purpose—is flatly contrary to FECA, 

“unduly compromises the Act’s purposes,” and clearly “create[s] the potential for gross abuse.” 

Id. at 164, 165. 

It is also incoherent. The Commissioners’ exclusion of “state law compliance” from the 

Act rested on a fanciful and unsupported theory of non-preemption—despite there being no 

question of preemption posed in this case and no question that FECA would preempt a conflicting 

state law if there were. See, e.g., U.S. Const. art. 1, § 4, cl. 1; 52 U.S.C. § 30143(a) (preempting 

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21

“any provision of State law with respect to election to Federal office”); 11 C.F.R. § 108.7(b) 

(providing that “Federal law supersedes State law” regarding “[d]isclosure of receipts and 

expenditures by” and “[l]imitation[s] on contributions and expenditures regarding” federal 

candidates and political committees). Worse still, the Commissioners’ uncalled-for application of 

the FEC’s preemption rule, 11 C.F.R. § 108.7, led them to introduce a direct conflict between it

and the FEC’s regulations on corporate contributions, see id. § 114.1 et seq. Despite asserting that 

the FEC’s “regulations are explicit” that FECA’s contribution limits cannot reach any payments 

for activities related to “voter registration,” AR 281-82 (citing 11 C.F.R. § 108.7(c)(3), (4)), the 

corporate contribution rules—which, unlike the rule about the scope of preemption under FECA, 

are actually relevant to this case—confirm that a corporation makes a prohibited contribution when 

it coordinates with a political party regarding, inter alia: the distribution of voter registration or 

get-out-the-vote (“GOTV”) communications to the general public, 11 C.F.R. § 114.4(c)(2)(i), 

(ii)(B); the distribution of registration or voting information produced by official election 

administrators, id. § 114.4(c)(3)(i), (iv)(B); or voter registration or GOTV drives, id. § 114.4(a), 

(d)(1). The Commissioners offered no explanation or justification for this discrepancy, and neither 

does the FEC here. 

“Not only must an agency’s decreed result be within the scope of its lawful authority, but 

the process by which it reaches that result must be logical and rational.” Allentown Mack Sales & 

Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998). The Commissioners’ “non-preemption” theory falls 

short on both counts. 

2. The FEC fails to justify the Commissioners’ improper and arbitrary reliance on 

a non-preemption theory that has no relevance to this case and vitiates the Act. 

The FEC fails to offer any rational explanation for this incoherent approach, let alone one 

that is consistent with FECA. Instead, the FEC variously resorts to straw man arguments, post hoc 

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22

rationalization, and generic demands for deference. None of its arguments can excuse the 

Commissioners’ arbitrary and unlawful reliance on an invented non-preemption theory that has no 

application to this case and threatens to open a massive loophole in the Act. 

a. The FEC accuses plaintiffs of supposedly “exaggerat[ing] the scope of what the 

Commissioners concluded” with regard to non-preemption, FEC Br. 29, but it is the FEC—not 

plaintiffs—taking liberties with the Commissioners’ Statement of Reasons. The Commissioners’ 

“categorical[]” exception of what they termed “state law compliance” activities from FECA was 

not equivocal or couched. AR 281. In the single paragraph of their Statement setting forth this 

theory, the Commissioners opined: 

First, state law compliance is categorically excluded from the Commission’s 

enforcement jurisdiction. Our regulations are explicit that “[t]he Act does not 

supersede State laws which provide for,” among other things, “[v]oter registration” 

and the “[p]rohibition of false registration, voting fraud, theft of ballots, and similar 

offenses.” Because TTV’s activities targeted compliance with valid Georgia laws 

governing signature-verification, ballot-curing, ballot drop boxes, and residence 

requirements, they fall squarely within this exemption. Accordingly, TTV’s 

activities fall outside of the ambit of FECA. In other words, because Congress has 

declined to preempt the Georgia laws at the heart of TTV’s activities, the 

Commission has no authority to police those activities. 

AR 281-82 (citations omitted). This language, which provides the sum total of the Commissioners’

analysis, does not admit ambiguity. Nor does it require any “exaggerat[ion]” to appreciate its

breadth. FEC Br. 29. Nevertheless, the FEC faults plaintiffs for failing to intuit a different 

rationale—one that the Commissioners themselves did not offer—based on the possible “chilling 

effect” that might occur “if the Commission were to interpret such activities as presumptively 

having a partisan impact in federal elections and thus constituting in-kind contributions.” Id. at 29-

30. But this charge fails in numerous respects. 

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For one thing, it is improper because this “presumptively partisan” explanation is nowhere 

to be found in the controlling Commissioners’ Statement, and it is a “foundational principle of 

administrative law that judicial review of agency action is limited to the grounds that the agency 

invoked when it took the action.” Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. 

Ct. 1891, 1907 (2020) (citation and internal quotation marks omitted). The FEC’s litigators cannot 

defend the dismissal by offering up “post hoc justifications” for the decision that the Commission

itself did not provide. See Oglala Sioux Tribe v. U.S. Nuclear Regul. Comm’n, 896 F.3d 520, 536 

n.11 (D.C. Cir. 2018). Instead, “[i]t is axiomatic” that the validity of agency action must be 

assessed “based only on reasoning that is fairly stated by the agency in the order under review,” 

and cannot consider “‘post hoc rationalizations by agency counsel.” Williams Gas Processing – 

Gulf Coast Co., L.P. v. FERC, 373 F.3d 1335, 1345 (D.C. Cir. 2004) (citations omitted); accord

N. Air. Cargo v. U.S. Postal Serv., 674 F.3d 852, 860 (D.C. Cir. 2012) (courts must look to 

agency’s “contemporaneous justification” for the decision, not “post hoc explanation[s] of 

counsel”); Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69 (1962). 

And here, the controlling Commissioners did not purport to justify their “non-preemption” 

theory by claiming to have “foresee[n] a chilling effect” on “state law compliance” activities. FEC 

Br. 29. Nor did they cite any desire to narrowly “interpret[] their authority so as to avoid” a 

theoretical “conflict” between federal and state law. Id. at 30. The Commissioners instead 

determined, “categorically,” that the Act cannot extend to any disbursements arguably relating to

“compliance” with a state law that FECA does not explicitly preempt—without regard to whether 

the payments would otherwise meet FECA’s statutory definition of a contribution or coordinated 

expenditure, as TTV’s here clearly do. See AR 281-82; see also Pls.’ MSJ 21-23. Whether their

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novel “non-preemption” theory is permissible or even coherent must be evaluated according to the

contemporaneous reasons they gave, not the post hoc arguments of agency counsel. 

The FEC’s post hoc explanation is unsupportable in any event. The purported need to 

proceed “cautiously” for fear that applying FECA would create a presumption of “partisan 

impact,” FEC Br. 25, 30, ignores the key feature of this case that obviates any such concern: the 

“activities” here were undertaken in the immediate weeks before the 2021 Georgia runoff election 

at the direct request of the Georgia GOP, a political party committee whose entire raison d’être at 

that time was to help its two Republican Senate candidates win their runoff elections. See AR 72-

73, 134; see also AR 59-60, 67-68. FECA, on its face, unambiguously regulates a corporation’s 

provision of “anything of value” to a political party “in connection with any election,” 52 U.S.C. 

§ 30118(a), (b)(2), as a contribution—including where, as here, the “thing of value” involves the 

provision of federal election-related services at a political party’s express “request or suggestion,” 

see id. § 30116(a)(7)(B)(ii). 

Moreover, even if the Commissioners had actually based their decision on implicit 

concerns about “chilling” “constitutionally protected activity” or “interfer[ing] with” state election 

laws, FEC Br. 30, the rationale would still be untenable. The FEC is not empowered to “rewrite 

clear statutory terms” or engage in this kind of roving constitutional reinterpretation of the Act “to 

suit its own sense of how the statute should operate.” Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 

328 (2014). That is all the more true when its interpretation is contrary to the clearly expressed 

mandate and objectives of Congress. See, e.g., McConnell, 540 U.S. at 165-66 (noting 

congressional purpose in the Bipartisan Campaign Reform Act of 2002 (“BCRA”) of “[p]reventing 

corrupting activity from shifting wholesale to state [party] committees and thereby eviscerating 

FECA”); Shays III, 528 F.3d at 925 (“[B]y allowing soft money a continuing role in the form of 

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coordinated expenditures, the FEC’s . . . rule would lead to the exact perception and possibility of 

corruption Congress sought to stamp out”); Shays v. FEC, 414 F.3d 76, 112 (D.C. Cir. 2005) 

(“Shays II”) (invalidating post-BCRA rule involving state and local parties’ financing of certain 

“[f]ederal election activity” because the FEC had unreasonably “construed a BCRA provision 

sweeping state activities within FECA as an excuse to punt federal activities outside it”) (emphasis 

in original). 

Providing valuable election-related services to a political party committee in the immediate 

weeks before a hotly contested federal election, at the party’s request and with an avowed goal of 

assisting the party in that election, cannot be carved out of FECA merely because the activity also 

purports to advance other valid “state law” goals. Nothing in the Act—and certainly not its general 

preemption of state law respecting elections for federal office, see 52 U.S.C. § 30143(a)—

empowers the Commission to adopt sweeping “jurisdictional” limitations on these core statutory 

provisions based on inchoate First Amendment or federalism principles. Even had the controlling 

Commissioners expressed or relied on such concerns, their personal disagreements with the scope 

of the statute would not authorize them to depart from it. The invented notion that FECA’s 

expansive statutory preemption provision precluded the Commission from enforcing the federal 

contribution limits and disclosure requirements at issue here is backwards and untenable. 

b. The FEC’s alternative argument—that, even if the controlling Commissioners’ 

non-preemption rationale appears unreasonable, “the Court should defer” to their interpretation 

“as to the scope of preemption of state law” FEC Br. 30 (citation and emphasis omitted)—is even 

more problematic. This case does not involve preemption; indeed, it does not even theoretically

implicate the validity of any state law, much less raise the specter of a possible conflict between 

FECA and a particular state law. The Court cannot accord deference to the Commissioners’ 

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interpretation of a FECA provision with no bearing on this case. Nor, to be sure, is any deference 

due to the Commissioners’ introduction of an enormous loophole in FECA’s core provisions based 

on a theory of implicit non-preemption that the Commissioners invented out of whole cloth. 

The theory that FECA does not preempt certain state election laws is immaterial to whether 

TTV provided valuable services to (and in coordination with) the Georgia GOP “in connection 

with,” and “for the purpose of influencing,” federal elections. Regarding that question, FECA’s 

plain text mandates the conclusion that TTV made, and the Georgia GOP accepted and failed to 

report, in-kind contributions amounting to the fair market value of those services. But rather than 

answering this question by looking to the text of the relevant substantive FECA provisions, see 52 

U.S.C. §§ 30101(8)(A), (9)(A); 30116(a)(7)(B)(ii); 30118 (defining when a corporation’s “indirect 

payment” or coordinated expenditure is an in-kind contribution), the Commissioners turned to the 

Act’s general preemption provision and answered a completely different question: whether 

Congress’ decision not to expressly preempt certain State laws also implicitly carved out all 

disbursements that purportedly target “compliance” with such laws from FECA’s core regulation 

of federal campaign contributions. 

But Congress’s broad preemption of “any provision of State law with respect to election 

for Federal office” did not silently open a massive loophole in the Act’s core campaign finance 

provisions. 52 U.S.C. § 30143(a). The FEC’s own regulations confirm as much. See 11 C.F.R. 

§ 108.7(b) (providing that “Federal law supersedes State law” regarding “[d]isclosure of receipts 

and expenditures by” and “[l]imitation[s] on contributions and expenditures regarding” federal 

candidates and political committees). And the potential abuse this “enormous loophole” allows is 

manifest. Shays III, 528 F.3d at 928. This interpretation would allow any person to evade FECA’s 

contribution limits and disclosure requirements so long as their coordinated expenditures relate in 

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some way to “compliance” with state election law—an option sure to be frequently available given 

the States’ role in election administration. Indeed, under the Commissioners’ theory, a political 

party could ask a corporation to conduct its entire field operation. Activities such as collecting 

signatures to get on the ballot, obtaining and updating voter files, and even maintaining 

unemployment insurance for employees are governed by state law. So under the Commissioners’ 

strange understanding of the law, a corporation could gift all of those services to a party (or 

campaign), and because they necessarily entail state-law compliance, the corporation’s spending 

on the party’s behalf would not be a contribution—indeed, would not even be publicly reported. 

The FEC has no answer to this. It cites the same inapposite case law interpreting the scope 

of the Act’s preemption of state law as the controlling Commissioners did in their Statement of 

Reasons—and it too fails to explain how these decisions are remotely on point. See FEC Br. 27, 

30; see also Teper v. Miller, 82 F.3d 989, 993 (11th Cir. 1996) (finding Georgia statute limiting 

campaign contributions to federal candidates preempted by FECA); Priorities USA v. Nessel, 978 

F.3d 976, 978 (6th Cir. 2020) (declining to enjoin Michigan from enforcing a state statute 

restricting voter transportation based on FECA preemption); Weber v. Heaney, 793 F. Supp. 1438, 

1456 (D. Minn. 1992) (invalidating state law expenditure limit based upon finding that FECA

“occupied the field as to federal election financing”), aff’d, 995 F.2d 872 (8th Cir. 1993).5

 

 

5

 Indeed, in one of the cases the FEC points to as reason to “defer to the controlling 

Commissioners’ interpretation here,” FEC Br. 30, the FEC interpretation at issue was its 

conclusion that FECA’s preemption clause was “intended to have broad scope” and that “federal 

law occupied the field as to federal election financing.” Weber, 793 F. Supp. at 1456; see also FEC 

Advisory Op. 1989-25 at 3 (N.H. Republican State Comm.) (“The report of the House committee 

that drafted the preemption clause explains its intent in sweeping terms. Federal law is to be 

‘construed to occupy the field with respect to elections to Federal office’ and is to be ‘the sole 

authority under which such elections will be regulated.’”) (citing H.R. Rep. No. 93-1239, 93d 

Cong., 2d Sess. 10 (1974)). The FEC’s characterization that the Commissioners’ non-preemption 

theory properly reflected “the agency’s limited role,” FEC Br. 30, ignores that the FEC has 

previously maintained that FECA’s preemptive scope is to be interpreted expansively. 

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Even if there were any occasion to apply preemption analysis in a matter involving no 

application of state law and no conflict between FECA and state law, “[p]reemption of any type 

‘fundamentally is a question of congressional intent.’” Teper, 82 F.3d at 993 (citation omitted). 

And providing valuable services to a political party committee “in connection with” and “for the 

purpose of influencing” a federal election is unquestionably not a category of activity “outside the 

ambit of FECA” that “Congress has declined to preempt.” AR 282. It is campaign-related spending 

going to the heart of Congress’ efforts to prevent corruption and its appearance in the financing of 

campaigns for federal office—which for fifty years has included “prevent[ing] attempts to 

circumvent the Act through prearranged or coordinated expenditures amounting to disguised 

contributions.” Buckley, 424 U.S. at 67. The FEC’s appeals to deference do not justify the 

Commissioners’ decision to disregard this clear mandate in service of a contrived and unreasonable 

non-preemption argument. 

In short, the Commissioners’ interpretation of FECA to “categorically” exclude 

coordinated expenditures like TTV’s here ignores the relevant statutory text, Congress’s clear 

purposes in enacting BCRA, and any pretense of reasoned decisionmaking. It cannot be sustained.

C. The FEC fails to show any reason the Commissioners’ “issue advocacy” rationale is 

consistent with law or reasoned decisionmaking. 

The FEC’s attempt to defend the Commissioners’ “issue advocacy” rationale is just as 

flawed. As plaintiffs have explained, the Commissioners acted contrary to law by applying a 

constitutional narrowing construction of the term “expenditure” that the Supreme Court has 

specifically recognized has no application in the context of contributions, including in-kind 

contributions and coordinated expenditures. See Pls.’ MSJ 28-33. The FEC does not even mention 

this deficiency of the Commissioners’ reasoning, much less attempt to justify it. Instead, its brief 

generally reiterates the Commissioners’ conclusory assertion that TTV’s activities here 

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“reflect[ed] issue advocacy” and, as such, were constitutionally beyond regulation based on the 

“foundational premise” of Buckley. FEC Br. 31. But this supposed “premise,” given that it relies 

on Buckley’s narrowing construction of the statutory term “expenditure,” is foreclosed by Supreme 

Court precedent rejecting any such limitation with respect to FECA’s regulation of contributions—

a point the FEC wholly fails to address and, therefore, concedes. 

The FEC’s alternative attempts to defend the Commissioners’ flawed “issue advocacy” 

rationale are a continued resort to “deference” combined with a refusal to address TTV’s specific 

conduct, generic hypotheticals about other groups that may engage in similar “core programmatic 

activities,” and citations to inapposite enforcement matters that distract from—but do not 

explain—the Commissioners’ failure to reasonably support or even explain the dismissal decision 

challenged here. 

1. FECA and Supreme Court precedent foreclosed treating TTV’s in-kind 

contributions as constitutionally unregulable “issue advocacy.” 

Rather than attempt to justify the Commissioners’ “issue advocacy” rationale in light of 

contrary Supreme Court precedent, the FEC resorts to the same inapposite hypotheticals and 

fallacious reasoning as the Commissioners did in their Statement—once again improperly 

recasting the Commissioners’ expansive and unqualified “jurisdictional” rationale as one grounded 

in administrative modesty or constitutional avoidance. See FEC Br. 33. But it offers no serious 

defense of the Commissioners’ determination that TTV’s services “fall outside [the FEC’s] 

jurisdiction” because, “[u]nder Buckley’s narrowing construction of the phrase ‘for the purpose of 

influencing,’” TTV’s activities were required to be treated as “issue advocacy” and constitutionally 

excluded from regulation. AR 283. Indeed, the FEC’s vague handwringing about “constitutionally 

fraught” cases or potentially difficult line-drawing, see FEC Br. 33, only illustrates why, consistent 

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with Buckley and other Supreme Court precedent involving contributions and coordinated 

expenditures, this case implicates no such concerns. 

While the Supreme Court in Buckley narrowly construed the statutory term “expenditure” 

to alleviate potential vagueness in the context of independent spending, 424 U.S. at 79, it also 

specifically addressed and rejected the argument that FECA’s definition of “contribution” was 

impermissibly vague, even though it relies on the same “for the purpose of influencing” language, 

see 52 U.S.C. § 30101(8)(A) (defining “contribution”); id. § 30101(9)(A) (defining 

“expenditure”); Buckley, 424 U.S. at 23 n.24, 78. The Court’s concerns about possible vagueness 

were thus specific to “expenditures” by independent actors—spenders that were neither “political 

committees” nor coordinating with candidates—because use of the phrase “for the purpose of 

influencing” in that context potentially “encompass[ed] both issue discussion and advocacy of a 

political result.” 424 U.S. at 79. 

However, as the Buckley Court also found, FECA’s definition of contribution did not raise 

the same concerns and required no commensurate narrowing limitation. Id. at 23 n.24 (observing 

that the phrase “presents fewer problems in connection with the definition of a contribution

because of the limiting connotation created by the general understanding of what constitutes a 

political contribution”); see also id. at 78 (construing “contribution” broadly to include coordinated

expenditures). Moreover, since Buckley, and contrary to the Commissioners’ unsupported claim

that FECA cannot be constitutionally applied in this case based on TTV’s supposed status as an 

“issue advocacy group,” see AR 282-84, the Supreme Court has flatly “rejected the notion that the 

First Amendment requires Congress to treat so-called issue advocacy differently from express 

advocacy,” McConnell, 540 U.S. at 194; see also id. at 203 (“Buckley’s narrow interpretation of 

the term ‘expenditure’ was not a constitutional limitation on Congress’s power to regulate federal 

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elections,” and there was “no reason why Congress may not treat coordinated disbursements . . . in 

the same way it treats all other coordinated expenditures.”). 

Buckley’s narrowing of the phrase “for the purpose of influencing” with respect to 

expenditures thus has no application to this case involving contributions and, specifically, 

corporate contributions and expenditures placed in coordination with a political party. Instead, as 

the Supreme Court has recognized, the Act “pre-empts a possible claim” that Buckley’s narrowing 

construction of expenditures applies to contributions or that the definition of coordinated

expenditures must be “similarly limited, such that coordinated expenditures for communications 

that avoid express advocacy cannot be counted as contributions.” Id. at 202. 

In the face of this clear, controlling authority, the FEC offers no justification for the

Commissioners’ application of that narrowing construction to the FECA provisions at issue here. 

See 52 U.S.C. § 30118(a), (b)(2) (providing that a “contribution or expenditure” for purposes of 

the corporate contribution ban includes “any direct or indirect payment, distribution, loan, 

advance, deposit, or gift of money, or any services, or anything of value” to any political party “in 

connection with any election” to federal office); id. § 30116(a)(7)(B)(ii) (“[E]xpenditures made 

by any person . . . in cooperation, consultation, or concert, with, or at the request or suggestion of, 

a . . . political party, shall be considered to be contributions made to such party committee”). The 

Commissioners had no authority to read these statutory terms out of existence or to manufacture 

ambiguity when there was none. Where the congressional mandate and purpose is clear, as it is 

here, the Commission may not elect to sidestep it—based on Commissioners’ subjective

constitutional concerns or otherwise. Cf. United States v. Locke, 471 U.S. 84, 96 (1985) (“We 

cannot press statutory construction ‘to the point of disingenuous evasion’ even to avoid a 

constitutional question.”) (citation omitted); Springsteen-Abbott v. SEC, 989 F.3d 4, 8 (D.C. Cir. 

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2021) (“[R]egulatory agencies are not free to declare an act of Congress unconstitutional.”) 

(quoting Meredith Corp. v. FCC, 809 F.2d 863, 872 (D.C. Cir. 1987)). 

2. The Commissioners’ assessment that TTV lacked any federal electoral purpose 

was arbitrary and capricious because they failed to articulate any legally or 

logically sound basis for it. 

The FEC fails to provide any reason the Commissioners’ “issue advocacy” rationale is 

consistent with law or reasoned decisionmaking. Courts cannot reflexively uphold or “defer to” 

conclusory and counterfactual agency decisionmaking like the Commissioners’ decision here with 

respect to TTV’s electoral purpose—however many times the FEC invokes the word “deference.” 

Nor can the Commissioners’ discursions into generic hypotheticals about other groups or citation 

of inapposite enforcement matters excuse their failure to reasonably support, or even coherently

explain, their conclusions about this case. “[D]eference does not mean carte blanche, and the 

Commission must at all times demonstrate the markers of ‘principled and reasoned 

decision[making] supported by the evidentiary record.’” Constellation Mystic, 45 F.4th at 1043 

(citation omitted). The Commissioners failed in this task here. 

In explaining their decision that pursuing the FECA violations alleged here fell “outside 

[the FEC’s] jurisdiction,” AR 282, the controlling Commissioners asserted, in conclusory fashion, 

that “TTV’s activities”—including the election-related services it undertook in the 2021 Senate 

run-off elections, at the Georgia GOP’s express request and in the immediate weeks before 

Election Day—lacked any federal electoral purpose because TTV engages in “the sort of issue 

advocacy” that cannot be constitutionally subject to regulation under the Act, AR 283. But the

Commissioners offered no intelligible explanation of how they arrived at that characterization of 

TTV’s specific conduct here. Indeed, the Commissioners simply ignored whether their assessment 

of TTV’s electoral purpose was compatible with the undisputed record showing that its Georgia 

activities were undertaken “at the request of” and in “partnership” with a political party committee 

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in connection with specific federal elections. Their conclusion was ultimately “nothing more than 

[an] unsupported assumption[]” bereft of cogent factual justifications or reasoned analysis, and 

thus cannot be credited. Nat’l Gypsum Co. v. EPA, 968 F.2d 40, 43 (D.C. Cir. 1992). 

In lieu of the requisite reasoned analysis, the Commissioners posited that TTV’s general

focus on so-called “election integrity” issues makes it similar to other groups whose “core 

programmatic activities” involve “activism” around “provocative issues,” AR 283—insinuating 

that a spender’s self-described organizational mission is somehow dispositive of whether it can

ever be regulated under FECA. AR 283. But a group’s overarching purpose and overall activities

do not negate its ability to make federal campaign contributions. 

Indeed, the Commissioners’ invention of a “foundational distinction” between “trying to 

influence how elections are administered” and making federal campaign contributions or 

expenditures under FECA simply begs the question. AR 282. The statutory standard they were 

purporting to apply does not look to the spender’s general organizational purpose or turn on 

whether its activities could incidentally impact the outcome of federal elections, see AR 282-84; 

under FECA, the operative question is whether the person made contributions or expenditures “in 

connection with” and “for the purpose of influencing” an election for federal office, see 52 U.S.C. 

§§ 30101(8)(A), (9)(A)(i); 30118. And what brings TTV’s activities within FECA’s ambit here 

was not the group’s purported general focus on “election integrity,” but its self-described 

“partnership” with the Georgia GOP—a political party committee “whose fundamental purpose is 

to help Republicans win elections in Georgia,” AR 72—and coordination with respect to particular 

election-related services that TTV provided at the party’s “request” and with the avowed aim of 

assisting with the party’s efforts in the 2021 Senate run-off elections.

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Nevertheless, the FEC suggests that whether “election integrity is a core programmatic 

activity of TTV” somehow controls any assessment of whether TTV’s particular expenditures are 

covered by FECA. See FEC Br. 31.6 But that conclusion does not follow. Regardless of how TTV 

(or the FEC) characterizes the group’s “programmatic activity” as a general matter, the FEC’s 

focus on whether TTV’s usual organizational activities might or “could” influence federal 

elections fails to answer whether its specific activities here were undertaken for that purpose. And 

the Commissioners’ conclusory assertions and hypotheticals about other groups and fact patterns 

do nothing to elucidate the basis for their decision with respect to TTV. The issue was not whether 

some group’s theoretical activities “could influence” or “impact” a federal election, or incidentally 

“benefit” a candidate, AR 283, 284, but whether TTV’s disbursements at the Georgia GOP’s 

express “request” had that purpose. Because the FEC’s “explanation for its determination . . . lacks 

any coherence, the court owes no deference” to it. Haselwander v. McHugh, 774 F.3d 990, 996 

(D.C. Cir. 2014) (citation and internal quotation marks omitted). 

The FEC further contends that the controlling Commissioners’ issue advocacy rationale 

was ultimately “reasonable” because they cited past FEC non-enforcement decisions assertedly 

involving “programmatic activity with the potential to influence the outcome of a federal election” 

and “provided multiple examples of a wide variety of organizations engaged in issue advocacy 

directly impacting the administration (and potentially the outcome) of federal elections.” FEC Br. 

 

6

 The FEC also falsely asserts that plaintiffs “do not appear to contest” that TTV’s “efforts at 

issue here were undertaken at least in part to advance the policy goals of the organization as to 

election administration and ballot integrity.” FEC Br. 31. Plaintiffs have made no such allowance. 

Plaintiffs have consistently maintained that TTV—while it described its services as generally 

targeting “election integrity”—in fact undertook them for the purpose of influencing the Senate 

run-off elections, specifically, by providing them in avowed “partnership” with and “at the request 

of” the Georgia GOP to help its candidates “‘win by eliminating votes and changing the count.’” 

AR 73. 

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31. But the Commissioners’ non sequiturs about other “issue advocacy” groups and hypotheticals 

based on dissimilar facts in no way support or explain their decision that TTV is categorically 

exempt from the Act’s requirements. The truism that “trying to influence how elections are 

administered, as a policy matter, is different from acting ‘for the purpose of influencing’ a federal 

election,” AR 282, is no substitute for a coherent exposition of their reasoning and conclusions 

here. 

Nor is any of the FEC “precedent” cited by the Commissioners in their Statement of 

Reasons or by the FEC in its motion remotely supportive of the decision. See FEC Br. 32-35. For 

instance, the FEC places extraordinary weight on Matter Under Review (“MUR”) 7024 (Van 

Hollen for Senate). See FEC Br. 32-33; AR 284. But its own description of that matter only echoes 

plaintiffs’ central point here: “[T]he fact that services rendered may benefit a campaign does not 

answer the question of whether such services were provided for the purpose of influencing a 

federal election.” FEC Br. 32-33; see also Pls.’ MSJ 38 n.7. In MUR 7024, the Commission found 

that pro bono legal services to an elected federal official were not provided “for the purpose of 

influencing” a federal election, where the representation focused solely on challenging specific 

FEC regulations through an administrative rulemaking petition and subsequent, related litigation. 

See Factual & Legal Analysis (“F&LA”) at 4-6, MUR 7024 (May 31, 2017). But in MUR 7024, 

unlike here, the record contained no “objective or subjective indication” whatsoever that the 

services in question were provided “for the purpose of influencing an election.” Id. at 4; see also 

id. at 8 (“[I]nformation in the record indicate[d] that [the administrative respondents] Wilmer Hale, 

Democracy 21, and CLC provided the legal services at issue here to Van Hollen and not to a 

political committee, for the purpose of challenging a rule of general application, not to influence a 

particular election.”); id. at 4-5 (noting respondents’ “sole purpose” in representing Van Hollen 

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was “‘challeng[ing] the relevant FEC regulation in Court’” and, specifically, “to guarantee 

standing under D.C. Circuit law” in pursuit of that challenge). 

The FEC also cites the Commissioners’ reliance on “longstanding Commission precedent” 

under which “actions taken for bona fide commercial reasons are not ‘for the purpose of 

influencing an election’ even ‘if a candidate benefitted from the commercial activity.’” FEC Br. 

33 (quoting AR 284); see also AR 284-85. But this principle has no bearing here, as plaintiffs have 

explained. See Pls.’ MSJ 32 n.8. TTV has never alleged that its activities were undertaken for a 

commercial purpose. See generally AR 33-50. And the enforcement decisions and advisory 

opinions that the FEC cites are manifestly off point. All involved practices undertaken by large 

technology companies in the ordinary course of business solely to “improve the user experience 

and protect advertising revenue,” “protect [corporate] brand reputation,” and otherwise safeguard 

the companies’ positions in the commercial marketplace—for example, Google’s use of 

“technologies for filtering content on the Internet to provide a more attractive service to users,”

F&LA at 8, MUR 7870 (Google LLC, et al.) (Mar. 28, 2022); Microsoft’s commercially 

reasonable efforts “to protect [its] brand reputation” by providing election-sensitive customers 

with free account security services, FEC Advisory Op. 2018-11 (Microsoft Corp.); or Twitter’s

“decision not to verify” a federal candidate “predicated on pre-candidacy violations of Twitter’s 

rules and terms of service and made in accordance with corporate policies implemented to protect 

and maximize profits,” Statement of Reasons of Chair Broussard, Vice Chair Dickerson, & 

Comm’rs Trainor, Walther, & Weintraub at 1, MUR 7832 (Twitter, Inc.) (Oct. 26, 2021). And 

none involved any evidence of a countervailing electoral purpose or coordination. See, e.g., F&LA 

at 8, 11, MUR 7870 (noting complaint’s “vague and speculative” allegations provided “no 

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indication” of coordination and failed to support any inference that Google’s actions were 

“motivated by something other than a commercial interest”). 

Even the FEC’s own description of these matters confirms that they have no relevance to 

this case and the Commissioners’ reliance on them was arbitrary. See FEC Br. 34. Here, there was 

ample reason to believe that TTV’s services—provided at the “request” of the Georgia GOP in 

furtherance of the groups’ self-described “partnership,” see, e.g., AR 3-4—were directed at 

influencing the 2021 Senate runoff elections in Georgia. The record abounds with “objective and 

subjective indication[s]” of that purpose, F&LA at 4, MUR 7024. TTV itself explained that it was 

motivated by “what happened in November” to join forces with the Georgia GOP and to “assist 

with the Senate runoff election process,” AR 60; the record also contained statements by TTV that 

“illegal votes” occur “in Democrat counties,” AR 73, as well as communications reflecting that 

the purpose of TTV’s activities was to “‘win by eliminating votes and changing the count.’” AR 

73 (citation omitted). Moreover, beyond the undisputed fact that TTV responded to a “request” 

from the Georgia GOP by “partnering” with it to provide these services in the immediate weeks 

before the Senate runoff elections, see AR 3-4, 35, 43, 47, 59-60, 67-68, available information also 

indicated ongoing and “active cooperation between the two groups beyond their initial 

discussions,” AR 70-71. 

Summoning fanciful hypotheticals and inapposite enforcement cases is no justification for

the Commissioners’ irrational and counterfactual assessment that they lacked “jurisdiction” to 

pursue the violations alleged here—all the more so given that their analysis ignores FECA’s 

express text and relies on a constitutional line between express and issue advocacy that the 

Supreme Court has rejected. The Commissioners’ “issue advocacy” argument was utterly 

unsupported, unreasonable, and thus contrary to law. 

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D. The dismissal rested on an impermissible coordination standard. 

In attempting to defend the Commissioners’ impermissibly constrained coordination 

analysis, the FEC—again falling back on reflexive appeals to agency deference—suggests that 

plaintiffs challenged only “the weight to be given to the evidence of coordination,” and not the 

substantive legal standards the Commissioners employed. See FEC Br. 36 (emphasis added). The 

FEC’s gloss on plaintiffs’ arguments is demonstrably incorrect. See generally Pls.’ MSJ 33-37. 

And in limiting its motion to countering what it falsely describes as plaintiffs’ “simple 

disagreement over the significance of evidence in the record,” FEC Br. 39, the FEC effectively 

concedes the point: the Commissioners’ coordination analysis was afflicted by fatal errors of law. 

1. The Commissioners unreasonably disregarded the Georgia GOP’s explicit “request” 

for help. AR 286 (emphasis added). Their failure to assess the significance of—or even 

acknowledge—the Georgia GOP’s undisputed “request” defies Congress’s unambiguous textual 

mandate to treat “anything of value” provided “at the request or suggestion of” a political party as 

an in-kind contribution. See 52 U.S.C. § 30116(a)(7)(B)(ii). It is a “cardinal canon” of statutory 

interpretation to “presume that a legislature says in a statute what it means and means in a statute 

what it says.” Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992). Congress here 

unequivocally directed that all “expenditures made by any person . . . in cooperation, consultation, 

or concert with, or at the request or suggestion of, a national, State, or local committee of a political 

party[] shall” be regulated as in-kind contributions. 52 U.S.C. § 30116(a)(7)(B)(ii) (emphasis 

added). A standard that wholly ignores the relevant statutory text cannot be consistent with law. 

The FEC makes no attempt to justify this lapse. Instead, it focuses on the Commissioners’ 

inexplicable—and unexplained—conclusion that the groups’ own characterization of their efforts 

as a “partnership” was not “legal[ly] significan[t].” AR 286. But “[s]tating that a factor was 

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considered . . . is not a substitute for considering it.” Nat’l Treasury Emps. Union v. Horner, 854 

F.2d 490, 499 (D.C. Cir. 1988) (citation omitted). The FEC again attempts to backfill with post 

hoc justifications for the Commissioners’ nonexistent analysis, but its “arguments come too late 

and from the wrong source.” Democratic Congressional Campaign Comm. v. FEC, 831 F.2d 1131, 

1135 n.6 (D.C. Cir. 1987); see also, e.g., Regents of the Univ. of Cal., 140 S. Ct. at 1934 (courts 

must “assess agency action based on the official explanations of the agency decisionmakers, and 

not based on after-the-fact explanations advanced by agency lawyers during litigation”) (emphasis 

in original). Regardless, the FEC’s emphasis on whether the Commissioners “were entitled to 

credit TTV’s explanation in the record for its use of the term ‘partnership’”—putting aside that, as 

the FEC itself concedes, “the controlling Commissioners’ [Statement] did not cite that 

explanation,” FEC Br. 37—still fails to show how this “explanation” comports with the Act. And

it does not. As plaintiffs have highlighted, see Pls.’ MSJ 34, Congress specifically directed that 

the Commission “shall not require agreement or formal collaboration to establish coordination,” 

BCRA § 214(c), 116 Stat. at 95. Congress instead, recognizing that “[i]nformal understandings 

and de facto arrangements can result in actual coordination as effectively as explicit agreement or 

formal collaboration . . . . expect[ed] the FEC to cover ‘coordination’ whenever it occurs.” 148 

Cong. Rec. S2145 (daily ed. Mar. 20, 2002) (statement of Sen. McCain). Commission regulations 

likewise do not require a formalized agreement or official partnership to find coordination. See, 

e.g., Coordinated and Independent Expenditures, 68 Fed. Reg. 421, 440 (Jan. 3, 2003) 

(“[C]oordination . . . does not require a mutual understanding or meeting of the minds as to all, or 

even most, of the material aspects of a communication,” and “[i]n the case of a request or 

suggestion . . . agreement is not required at all.”) (emphasis added); 11 C.F.R. § 109.21(e) 

(providing that “agreement”—meaning “a mutual understanding or meeting of the minds on all or 

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any part of the material aspects of the communication or its dissemination”—“is not required for 

a communication to be . . . coordinated”).7

Even putting aside the evident deficiencies in the Commissioners’ rationale that use of the 

term “partnership” had no “legal significance,” AR 286, the FEC still does not account for their 

complete and unjustifiable failure to address the other, statutorily directed indicium of coordination

present here: an express “request” from a political party committee. Whether TTV’s reference to 

its “partnership” with the Georgia GOP was meant “colloquially” or to denote a more formalized 

relationship was not license for the Commissioners to disregard that, “in [TTV]’s own words, 

[TTV]’s activity followed a consultation with and then a request from a political party committee, 

and [TTV] agreed to ‘assist’ that political party committee.” AR 67-68 (emphasis added). This 

failure was clear legal error, and the FEC cannot excuse it by ascribing it to a “simple 

disagreement” about the evidence. FEC Br. 39. The Commissioners’ approach of ignoring the 

presence of an explicit “request” while demanding proof of a formal agreement or official 

partnership was flatly contrary to FECA, inconsistent with the FEC’s own rules, and clearly 

unsustainable under any standard. 

 

7

 Nor was it permissible to treat TTV’s contention that it would have pursued similar activities 

regardless of its “partnership” with the Georgia GOP as effectively dispositive of whether the 

groups in fact coordinated, given that TTV did meet with the Georgia GOP and did undertake its

activities in “partnership” with and at the party’s “request.” See, e.g., AR 67-68, 70. An activity 

may be subject to regulation under FECA when done in coordination with a political party, and 

not when done independently, but engagement in the latter does not transform a group’s 

coordinated conduct into something else. Moreover, FECA’s plain language and Commission 

regulations broadly define coordination and impose no requirement that the spender experience a 

“loss of autonomy” for coordination to occur. See AR 70 (citing 11 C.F.R. § 109.20(a)); see also

52 U.S.C. § 30101(9)(A)(i) (defining expenditures to include “anything of value”); id.

§ 30116(a)(7)(B)(ii) (regulating as contributions all “expenditures made by any person . . . in 

cooperation, consultation, or concert with, or at the request or suggestion of, a national, State, or 

local committee of a political party”).

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2. The Commissioners also fabricated new and impermissible exceptions to FECA for inkind contributions that are purportedly made available to both parties or placed in the public 

domain. Neither exception has any basis in the Act. See Pls.’ MSJ 35-36. Reading a free-floating

“bipartisanship” exception into FECA’s regulation of corporate contributions and coordinated 

expenditures, as plaintiffs have explained, see id. at 35, is manifestly at odds with the policy

Congress sought to enact in BCRA, “unduly compromise[s] the Act’s purposes,” and “create[s] 

the potential for gross abuse,” Orloski, 795 F.2d at 165—as vividly illustrated by the copious and 

“troubling” evidence in the BCRA record that most soft-money donors deployed largesse on both 

sides of the aisle, McConnell, 540 U.S. at 148 & n.7. The FEC counters by faulting plaintiffs for 

assertedly failing “to credit” TTV’s claims of bipartisanship. See FEC Br. 37 (noting claims that 

TTV’s services “were pursued in a non-partisan manner” by virtue of its delayed “offer of 

assistance to the Democratic Party of Georgia”) (citing AR 47-49). But this misses the point. The 

broader or “bipartisan” availability of TTV’s services is simply not germane to whether it 

coordinated any of them with the Georgia GOP. An agency action that “relied on factors which 

Congress has not intended it to consider” must be set aside, State Farm, 463 U.S. at 43—especially 

when, as here, its action affords such a readily exploitable loophole in the Act’s regulation of 

coordinated expenditures. 

Likewise, the Commissioners’ focus on the supposed public availability of certain TTV 

“election integrity” materials was erroneous and improper. TTV’s provision of valuable services 

to members of the public, whether for free or at a charge, does not change the fact that TTV 

coordinated with the Georgia GOP when it agreed to provide the party some of the same services 

at no charge. Cf. 11 C.F.R. § 100.52(d)(1) (“anything of value” includes the “provision of . . . 

services without charge”). A rule that treats a corporation’s provision of valuable services at the 

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request of a political party as presumptively unregulable if the services are also offered in some 

form to other parties, candidates, or members of the public is patently susceptible to abuse, and 

cannot be sustained. See Shays II, 414 F.3d at 115 (admonishing that “if regulatory safe harbors 

permit what [FECA] bans . . . savvy campaign operators will exploit them to the hilt”); cf. FEC v. 

Beaumont, 539 U.S. 146, 160 (2003) (recognizing that corporations are “susceptible . . . to misuse 

as conduits for circumventing” FECA). 

The various matters cited in the Commissioners’ Statement—which plaintiffs stand 

accused of failing to “engage with” to the FEC’s satisfaction, FEC Br. 39—bear not even a passing 

resemblance to this case. For example, in MUR 7119 (Donald J. Trump, et al.), the Commission 

rejected a finding of coordination based on the “mere appearance” of a person allegedly associated 

with a candidate campaign committee at an event organized by a super PAC, because there was 

“no evidence that the [campaign] requested or suggested that [the super PAC] sponsored the event” 

or that the two were “acting in cooperation, consultation, or concert” with regard to the event—

nor even that the individual in question was an actual staffer or agent of the campaign. F&LA at 

4, 5, MUR 7119; see AR 286 (citing F&LA at 5, MUR 7119). Here, in contrast, the FEC’s attempt 

to recast TTV’s self-described “partnership” with the Georgia GOP as merely TTV hosting public 

events attended by the Georgia GOP, see FEC Br. 38, is belied by record evidence of both a request 

for assistance from the Georgia GOP, and subsequent, sustained coordination between the groups. 

See, e.g., AR 67-68.8

 

8

 The other cited matters are equally inapposite. In MUR 7797 (Sara Gideon for Maine, et al.), 

the Commission found no coordination between a candidate committee and a super PAC, where 

the super PAC was alleged to have published ads in response to “coded words” in a tweet from the 

candidate’s communications director and “there was no indication that private communications 

had occurred beyond the public notice.” See F&LA at 1, 8, MUR 7797. Similarly, in MUR 7700 

(Vote Vets et al.), the FEC rejected allegations that a single “tweet by a senior official for the 

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E. The dismissal rested on conclusions that were arbitrary, unreasonable, and wholly 

contrary to the record. 

The dismissal was contrary to law because the Commissioners, in concluding that there 

was “nothing in the record” showing that TTV coordinated with the Georgia GOP, arbitrarily 

ignored key facts, including statutorily prescribed indicia of coordination; imposed an improperly 

heightened standard of proof; and, overall, failed to exercise reasoned agency decisionmaking. The 

FEC counters that the Commissioners’ imposition of an unduly strict standard of proof and 

arbitrary and capricious disregard for the record is justified because of the deference owed to 

agency decisionmaking. FEC Br. 40. In particular, the FEC suggests that their explanation “met 

the standard for deference” because it was set forth in a “ten-page, single-spaced” Statement of 

Reasons with “65 supporting footnotes.” Id.9 But the length of their Statement hardly suffices to 

show that the reasoning contained therein was cogent or consistent with the record. It was neither. 

 

candidate’s committee constituted a request or suggestion that brought later advertising by the 

super PAC under the Commission’s coordination regulations.” Statement of Reasons of Chairman 

Dickerson & Comm’rs Cooksey, Trainor, & Weintraub at 1, MUR 7700 (Apr. 29, 2022). Here, in 

stark contrast, TTV’s president submitted a declaration explicitly acknowledging that the group 

“met with the Georgia GOP and discussed its operations in Georgia, and that the Georgia GOP 

indicated to [TTV] that it should continue with its activities.” AR 71. 

MUR 7510 (Katie Arrington for Congress, et al.) is even less help. In that matter, OGC agreed 

that coordination had occurred where a candidate had “participated in a videotaped interview” with 

a corporation that then “used the footage to create” a campaign ad, but recommended dismissing 

as an exercise of prosecutorial discretion because the corporation immediately canceled its media 

buy “before the advertisement ever aired,” and never “authorize[d] or pa[id] for placement of the 

ad.” See First Gen. Counsel’s Report at 1-2, 13-14, MUR 7510 (Oct. 15, 2019). The FEC cites a 

two-Commissioner Statement rejecting the OGC’s coordination finding while agreeing with its 

dismissal recommendation, but even setting aside the obvious factual dissimilarities between the 

cases, that Statement did not garner majority support and thus cannot serve as precedent here. See

Certification, MUR 7510 (Nov. 9, 2021); Common Cause, 842 F.2d at 449 n.32. 

9 Of course, the first four pages of the Statement just provide a selective recitation of the facts in 

the administrative complaint and responses. The Commissioners’ actual analysis is squeezed into 

the remaining pages, and the large majority of it consists of extraneous hypotheticals and bland

statements about the law. Similarly, a significant share of the space occupied by the “65 footnotes”

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As plaintiffs have stressed, see Pls.’ MSJ 38-41, the respondents’ own statements refuted

the Commissioners’ conclusory pronouncement that “nothing in the record” indicated coordination 

between the two groups, AR 286, and the record was replete with corroborating evidence from 

other sources showing the same. See generally Pls.’ MSJ 38-41. The decision “evidences a 

complete failure to reasonably reflect upon the information contained in the record and grapple 

with contrary evidence—disregarding entirely the need for reasoned decisionmaking.” Fred Meyer 

Stores, Inc. v. NLRB, 865 F.3d 630, 638 (D.C. Cir. 2017). 

But perhaps most glaringly, neither the Commissioners in their Statement of Reasons nor 

the FEC in defense of it have attempted to offer any explanation for why it was reasonable for the 

Commissioners to discount the unrebutted evidence showing that TTV provided its services at the 

Georgia GOP’s “request” to assist with the Senate runoff elections. See, e.g., AR 3-4, 57-58. It 

was not reasonable. The Commissioners flagrantly disregarded conduct falling squarely within the 

plain terms of the statute, i.e., FECA’s definitional language providing that all expenditures made 

“at the request or suggestion of . . . a political party” “shall be considered to be contributions.” 52 

U.S.C. § 30116(a)(7)(B)(ii) (emphasis added). This failure to “examine the relevant data and 

articulate a . . . rational connection between the facts found and the choice made” confirms that 

the Commissioners’ conclusions were unreasonable, arbitrary, and merit no deference. State Farm, 

463 U.S. at 43 (citation omitted); cf. Carlson v. Postal Regul. Comm’n, 938 F.3d 337, 344 (D.C. 

Cir. 2019) (“Even when an agency ‘has significant discretion in deciding how much weight to 

accord each statutory factor,’ that does not mean it is ‘free to ignore any individual factor 

entirely.’”) (quoting Tex. Oil & Gas Ass’n v. EPA, 161 F.3d 923, 934 (5th Cir. 1998)). 

 

the FEC highlights is taken up by long string citations of materials that are demonstrably off point. 

See, e.g., AR 281 n.36, 283-84 nn.46-49. 

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Compounding their errors of law and reasoning, the Commissioners imposed a heightened 

standard of proof that has no place at the threshold, pre-investigatory stage of FEC enforcement 

matters. A reason-to-believe finding requires “only a credible allegation” of wrongdoing, and 

“does not require ‘conclusive evidence’ that a violation occurred or even ‘evidence supporting 

probable cause’ for finding a violation.” CLC v. FEC, No. 19-cv-2336-JEB, 2022 WL 17496220, 

at *8 (D.D.C. Dec. 8, 2022); see also FEC Statement of Policy Regarding Commission Action in 

Matters at the Initial Stage in the Enforcement Process, 72 Fed. Reg. 12545, 12545 (Mar. 16, 2007)

(“The Commission will find ‘reason to believe’ in cases where the available evidence in the matter 

is at least sufficient to warrant conducting an investigation.”). Although the FEC concedes that 

“the evidentiary standard at issue is of course relevant to the Court’s determination as to the 

reasonableness of the dismissal,” its main response on this point is that the FEC’s evidentiary 

assessments are entitled to “extreme” or “fundamental deference.” FEC Br. 41. “But for all of the 

discretion the [agency] enjoys, it must nonetheless demonstrate that it exercised its judgment in a 

reasoned way.” United States Sugar Corp. v. EPA, 830 F.3d 579, 652 (D.C. Cir. 2016). The 

Commissioners here did not. 

The FEC’s gloss on plaintiffs’ arguments as reflecting “mere disagreements” with the 

Commissioners’ ultimate conclusions requires ignoring every legal error and lapse of reasoning 

that plaintiffs have identified. See FEC Br. 41. For similar reasons, the FEC’s reliance on Nader 

v. FEC, 854 F. Supp. 2d 30 (D.D.C. 2012), is misplaced. The plaintiff there was faulting not the 

FEC but the district court, which he claimed had imposed “an ‘improper evidentiary burden’ on 

him by requiring ‘actual proof’ of FECA violations.” Id. at 33. And the supposed error the plaintiff 

identified—that the Court had improperly required him to “establish” coordination—derived from 

the plaintiff’s own insertion of that language into the Court’s decision. Id. at 34 (“The Court didn’t 

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say that the FEC reasonably determined that [plaintiff]’s supporting facts failed to ‘establish’ 

coordination . . . . The Court’s use of the word ‘suggest’—rather than ‘establish’—is consistent 

with the statutory requirement that the FEC determine whether there is ‘reason to believe’ a 

violation of the Act occurred.”). Here, in contrast, plaintiffs have explained that the 

Commissioners’ decisionmaking was afflicted by numerous errors of judgment and law, failed to 

address crucial facts without saying why, and ultimately rested on the conclusory and indefensible 

statement that “nothing in the record indicate[d] that TTV, in fact, undertook any of its activities 

‘in cooperation, consultation, or concert with, or at the request or suggestion of’ the Georgia GOP.” 

AR 286. 

However, the Commissioners’ inexplicable conclusions about the record are less 

surprising, though no less wrong, when considered alongside their description of what level of 

evidence they would have deemed satisfactory: a respondent’s sworn admission, in a NonProsecution Agreement with the Department of Justice, “specif[ying]” that it made federal 

campaign contributions. See AR 285 (citing, in describing the coordination standard they applied,

F&LA, MURs 7324, 7332, & 7366 (A360 Media, LLC f/k/a American Media, Inc., et al.)). Indeed, 

in the cited matter, the same Commissioners confirmed in an accompanying Statement of Reasons

that their reason-to-believe finding was predicated on the availability of “a sworn statement 

admitting the elements of a campaign-finance violation” and thus “obviat[ing] the need for further 

investigation.” Statement of Reasons of Vice Chair Allen Dickerson and Comm’rs Sean J. 

Cooksey and James E. “Trey” Trainor, III, MURs 7324, 7332, 7364, & 7366 (June 28, 2021). 

In applying their constrained test to reach the extraordinary and unsupported conclusion 

that “nothing in the record” indicated coordination between TTV and the Georgia GOP, see AR 

286 (emphasis added), the Commissioners made no attempt to explain their reasoning based on

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facts in the record. Nor could they have, because the record in this case clearly compelled the 

opposite conclusion: it showed, inter alia, that TTV responded to the Georgia GOP’s “request” for 

assistance by “partnering” with the party to provide various election-related services and 

resources—not all of which were publicly available or “open to all comers,” see, e.g., AR 3-4, 35, 

47, 57-58, 61-63, 67-68; TTV continued to collaborate with the Georgia GOP following the 

groups’ initial discussions on voter challenges and other election-related endeavors, see AR 70-

71; and it undertook these activities “for the purpose of influencing” the Senate runoff elections, 

see AR 3-4, 46, 72-73, 111-12, 134. 

In sum, not only did the Commissioners apply an improperly exacting standard of proof, 

they did so while also failing to address statutorily prescribed factors evincing coordination and 

unreasonably ignoring contradictory facts in the record. This in no way comports with reasoned 

decisionmaking, and the FEC’s arguments fail to justify it. 

CONCLUSION

For all the foregoing reasons, the Court should grant plaintiffs’ motion for summary 

judgment, deny the FEC’s cross-motion for summary judgment, and enter an order declaring the 

dismissal of plaintiffs’ administrative complaint contrary to law and remanding this matter with 

instructions to conform to the Court’s order within thirty days. 

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Dated: April 13, 2023 Respectfully submitted,

/s/ Megan P. McAllen

Megan P. McAllen (DC Bar No. 1020509) 

mmcallen@campaignlegalcenter.org

Erin Chlopak (DC Bar No. 496370) 

echlopak@campaignlegalcenter.org 

CAMPAIGN LEGAL CENTER ACTION

1101 14th St. NW, Suite 400 

Washington, D.C. 20005 

(202) 736-2200 

Attorneys for Plaintiffs

Case 1:22-cv-03067-DLF Document 16 Filed 04/13/23 Page 55 of 56
49

CERTIFICATE OF SERVICE

I hereby certify that on April 13, 2023, I caused a true and correct copy of the foregoing 

document to be served upon all counsel of record registered with the Court’s ECF system, by 

electronic service via the Court’s ECF transmission facilities.

/s/ Megan P. McAllen

Megan P. McAllen (DC Bar No. 1020509) 

mmcallen@campaignlegalcenter.org

CAMPAIGN LEGAL CENTER ACTION

1101 14th St. NW, Suite 400 

Washington, D.C. 20005 

(202) 736-2200 

Case 1:22-cv-03067-DLF Document 16 Filed 04/13/23 Page 56 of 56