Case 1:19-cv-02336-JEB Document 73 Filed 12/21/22 Page 1 of 11 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

) 

CAMPAIGN LEGAL CENTER, et al., ) 

) 

Plaintiffs, ) Civ. No. 19-2336 (JEB) 

)

 v. ) 

) 

FEDERAL ELECTION COMMISSION, ) 

)

 Defendant, ) 

)

 and ) 

) MOTION FOR STAY 

Hillary for America, et al., ) PENDING APPEAL 

)

 Defendant-Intervenors. ) 

) 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

MOTION FOR STAY OF REMAND ORDER PENDING APPEAL 

Pursuant to Federal Rule of Civil Procedure 62, defendant Federal Election Commission 

(“FEC” or “Commission”) moves this Court for a stay of its December 8, 2022, Order — which 

granted plaintiffs summary judgment and ordered the Commission to conform with its decision 

within 30 days — pending the Commission’s appeal to the United States Court of Appeals for 

the District of Columbia Circuit. 

A stay of the order compelling the Commission to conform with this court’s ruling is 

warranted to permit the FEC to seek further review at the Court of Appeals. In the absence of a 

stay, the Commission will face the dilemma of either taking action on the underlying 

administrative complaint — which would in all likelihood moot its appeal — or permanently 

losing exclusive civil enforcement jurisdiction over the case by triggering a private right of 
Case 1:19-cv-02336-JEB Document 73 Filed 12/21/22 Page 2 of 11 

action under 52 U.S.C. § 30109(a)(8)(C). Conversely, plaintiffs will face only minimal harm if a 

stay of the Commission’s conformance period is granted, as the additional time necessary for 

appellate review will only marginally add to the total duration of this case, which involves 

campaign conduct related to the 2016 presidential election. And though the Court has already 

ruled in favor of the opposing party (as is always the case when stays pending appeal are 

considered), the questions the FEC seeks to argue on appeal are substantial and establish its 

likelihood of success on the merits. This Court should grant a stay to permit these worthy issues 

to be considered by the Court of Appeals. 

ARGUMENT 

I. STANDARD OF REVIEW 

A party seeking a stay pending appeal bears the burden of showing such a stay is 

warranted upon consideration of four factors: “(1) whether the stay applicant has made a strong 

showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably 

injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties 

interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 

418, 434 (2009). “When the government is a party, its ‘harm and the public interest are one and 

the same, because the government’s interest is the public interest.’” Ala. Ass’n of Realtors v. 

U.S. Dep’t of Health & Human Servs., 539 F. Supp. 3d 211, 213 (D.D.C. 2021) (quoting 

Pursuing America’s Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016)). 

Although the precise balance between these four factors remains an open question, 

“courts in this Circuit have continued to analyze the four factors ‘on a sliding scale whereby a 

strong showing on one factor could make up for a weaker showing on another.’” Id. at 213 

(quoting NAACP v. Trump, 321 F. Supp. 3d 143, 146 (D.D.C. 2018)). Under that framework, a 

movant may “remedy a lesser showing of likelihood of success on the merits with a strong 

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showing as to the other three factors, provided that the issue on appeal presents a ‘serious legal 

question’ on the merits.” Cigar Ass’n of Am. v. U.S. Food & Drug Admin., 317 F. Supp. 3d 555, 

560 (D.D.C. 2018) (quoting Wash. Metro Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 

841, 844 (D.C. Cir. 1977)). 

II. THE COMMISSION FACES IRREPARABLE HARM IN THE ABSENCE OF A 

STAY PENDING APPEAL 

Absent a stay of the order directing the FEC to conform, the Commission will have no 

practical ability to challenge this Court’s interpretation and application of FECA and the internet 

exemption to the administrative dismissal plaintiff challenges. Irreparable harm is established by 

a “de facto deprivation of the basic right to appeal,” which would be the case here. Republican 

Nat’l Comm. v. Pelosi, No. 22-659, 2022 WL 1604670, at *4 (D.D.C. May 20, 2022); Ctr. for 

Int’l Envtl. Law v. Office of U.S. Trade Representative, 240 F. Supp. 2d 21, 23 (D.D.C. 2003). If 

the Court’s order is not stayed, the Commission would essentially be put to an untenable choice: 

conform and give up the right to appeal or give up its jurisdiction over this case. Should the 

Commission elect to conform to the Court’s order despite disagreeing with it, the FEC would 

effectively lose any opportunity to seek review of that order because its remand proceedings 

would be governed by the legal standards articulated in the decision. See, e.g., County of Los 

Angeles v. Shalala, 192 F.3d 1005, 1012 (D.C. Cir. 1999); Maine Med. Ctr. v. Burwell, 841 F.3d 

10, 16 (1st Cir. 2016). 

 Even if the Commission elected to dismiss the administrative complaint on other 

grounds, it would have lost its ability to directly raise its arguments in a higher court. Cf. 

Citizens for Responsibility & Ethics in Wash. v. FEC, 2022 WL 17578942, at *5 (D.C. Cir. Dec. 

12, 2022) (Millett, J., dissenting from denial of rehearing en banc) (criticizing a controlling 

group of FEC commissioners for purportedly failing to adhere to district court remand order in 

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later case). And if the Commission took steps to enforce FECA as this Court directed, it could 

obviously not appeal a conciliation agreement or successful enforcement action on the grounds 

that the charge was legally invalid. 

Should the Commission elect not to conform, by contrast, that would trigger the 

plaintiffs’ right to bring a private lawsuit against the administrative respondents and the 

Commission would lose its otherwise exclusive civil jurisdiction over enforcement of claims of 

FECA violations. 52 U.S.C. § 30109(a)(8)(C); see id. § 30107(a)(6). At a minimum, that would 

result in duplicative proceedings as the private right of action advanced in this Court while the 

Court of Appeals considered the Commission’s case. 

For similar reasons, a stay of the period for conformance would also promote judicial 

economy and is therefore in the public interest. Were the Commission required to conform while 

an appeal is pending, it would be forced to apply this Court’s interpretation of the internet 

exemption while at the same time defending the controlling statement at the Court of Appeals. 

That approach would undoubtedly cause confusion in the regulated community. 

The dangers of this approach are not hypothetical. In FEC v. National Republican 

Senatorial Committee, the Commission felt compelled to apply a district court’s view of the law 

after it had rejected the agency’s original reasoning behind a dismissal of an administrative 

complaint. 966 F.2d 1471 (D.C. Cir. 1992). After the remand, the Commission filed an 

enforcement action against the respondent, applying the district court’s views. When the 

administrative respondent appealed the subsequent enforcement litigation, the Court of Appeals 

deferred to the views of the original controlling Commissioners and ordered the case dismissed. 

Id. At 1476-78. As that court noted, the “district judge’s decision in the first phase of this case 

did not cause the scales to fall from the Commissioners’ eyes, did not persuade them, did not in 

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any way cause them to exercise their expertise or policymaking judgment — the twin fonts from 

which our deference to the Commission flows.” Id. At 1476. The Commission had evenly 

divided over whether to take an appeal from that original decision, and therefore did not appeal, 

but the opinion aptly counsels in favor of preserving space for appellate review prior to requiring 

the Commission to conform. 

III. A STAY PENDING APPEAL WILL NOT SUBSTANTIALLY 

INJURE PLAINTIFFS 

Plaintiffs’ claimed injury in this case is that they “lack access” to the “disaggregated” 

spending reports that would reveal how much of Correct the Record’s spending was coordinated 

with Hillary Clinton’s 2016 presidential campaign committee, Hillary for America. Campaign 

Legal Ctr. v. FEC, 31 F.4th 781, 790-93 (D.C. Cir. 2022). Those reports would reveal 

information related to a failed 2016 presidential campaign and a candidate who has not 

subsequently sought elected office. Correct the Record, moreover, is no longer a going concern. 

While the Court of Appeals ruled that this information “will no doubt ‘help [plaintiffs] evaluate 

candidates for public office,’” id. (quoting FEC v. Akins, 524 U.S. 11, 21 (1998), no currently 

active candidate’s or committee’s spending records are involved in this case. As such, there is 

little imminent need for plaintiff to access the information plaintiffs seek now, even if they are 

correct that they are entitled to it. 

To be sure, the Commission recognizes that disclosure of campaign finance information 

FECA requires be made public will sometimes be time sensitive. Cf. WP Company LLC v. U.S. 

Small Business Admin., Nos. 20-1240, 20-1614, 2020 WL 6887623, at *4 (D.D.C. Nov. 24, 

2020) (noting the public’s “urgent and immediate interest in assessing” administration of smallbusiness relief package because it would “inform a critical, ongoing federal debate” and help 

“remedy failures in the loan-disbursement process moving forward”). Here, however, the 

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marginal extra time that an appeal will add to final resolution of this case is minimal compared 

with the time that has already elapsed. 

IV. THE COMMISSION IS LIKELY TO SUCCEED ON THE MERITS, OR AT 

LEAST PRESENTS A SERIOUS LEGAL QUESTION 

The Commission recognizes that the Court has written five opinions addressing aspects 

of this matter and will not belabor the merits of this case more than is necessary to establish an 

entitlement to a stay. Suffice it to say that this case involves a decision by a controlling group of 

Commissioners to dismiss an administrative complaint based on their interpretation of FEC 

regulations — the so-called “internet exemption” — that exclude certain internet 

communications not placed for a fee from being an in-kind contribution to a campaign even if 

that campaign coordinates with the third party regarding the activity. Mem. Op. 3-4. See 11 

C.F.R. § 100.26 (excluding “communications over the Internet, except for communications 

placed for a fee on another person’s Web site” from the definition of “public communication”). 

Under those regulations, a “coordinated communication” is an in-kind contribution to a 

candidate, political committee, or political party if it satisfies a three-pronged test, including a 

payment prong, a content prong, and a conduct prong. See 11 C.F.R. § 100.21. As relevant here, 

the content prong of that test is satisfied only if the communication is an “electioneering 

communication” or a “public communication.” Id. § 109.21(c)(1)-(5). Because Commission 

regulations exclude unpaid internet communications from the definition of “public 

communication,” such communications can never be in-kind contributions.1 

As the controlling Commissioners noted, the definition of “electioneering 

communication” includes only “broadcast, cable, or satellite communication[s]” and therefore 

does not apply to communications on the internet, whether or not they were placed for a fee. 

52 U.S.C. § 30104(f)(3); 11 C.F.R. § 100.29(a), (b)(1); J.A. 389. 

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Plaintiffs’ administrative complaint contended that the intervenor-defendants violated 

FECA because Correct the Record made excessive and prohibited in-kind contributions to 

Hillary for America because they were coordinated and were not excluded by the internet 

exemption. Two FEC Commissioners, enough to block further enforcement, concluded there 

was not “reason to believe” intervenor-defendants violated FECA. These controlling 

Commissioners concluded that the majority of Correct the Record’s expenses could not be inkind contributions because they reflected the input costs of creating the communication to be 

placed on the internet for no fee and therefore were excluded by the internet exemption. The 

controlling Commissioners also concluded that evidence related to other expenses that were 

indisputably not for internet communications did not create reason to believe FECA violations 

had occurred because (1) “the complaints fail to provide the Commission with information 

showing that Correct the Record did not receive fair market compensation for Hillary for 

America” (J.A. 85 [SOR 14].); and (2) that the record did not suggest that intervenor-defendants 

coordinated on anything beyond the unpaid internet communications that Commission 

regulations exempted from regulation (J.A. 87 [SOR 16].) 

This Court concluded that the controlling Commissioner’s interpretation of the internet 

exemption to apply to all input costs to those communications was contrary to law. Because this 

case involves a controlling group’s application of a Commission regulation, however, judicial 

review of that decision should give “‘controlling weight’” to the controlling group’s 

interpretation “‘unless it is plainly erroneous or inconsistent with the regulation.’” Kisor v. 

Wilkie, 139 S. Ct. 2400, 2415 (2019) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 

410, 414 (1945)). 

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The controlling Commissioners’ Statement of Reasons based its conclusion that Correct 

the Record’s expenses for online communications, including input costs, were not in-kind 

contributions on the “plain text of” the internet exemption and prior enforcement cases. (J.A. 83-

84 [SOR 12-13].) The Court appears to have focused on whether that “decision contravenes 

FECA’s plain language” (Mem. Op. at 11) or the explanation underlying the adoption of the 

internet exemption (id. at 12-13), while arguably failing to consider whether the controlling 

Commissioners’ reasoning was permissible under the text of its regulations. The Court of 

Appeals should be permitted to consider the argument that the Court in essence jumped straight 

from the facts the Commission considered to the statutory text, which does not explicitly address 

how FECA should apply to internet communications and the costs to create them, and elided 

analysis of the regulatory text on which the controlling Commissioners relied. 

Reasoning the way it did, the Court concluded that “the internet exemption must be 

meaningfully bounded” to “comply with [FECA’s] statutory language.” (Mem. Op. at 11.) But 

as the Court previously observed in concluding that plaintiffs’ Administrative Procedure Act 

claim was precluded by FECA’s special review provision, plaintiffs here do not make any 

“attack on the facial validity of any regulation.” (Dkt. No. 53, at 5.) The question this case 

presents, it should be argued on appeal, is not whether the internet exemption is appropriately 

bounded to the statutory text, but whether the controlling group’s decision reasonably applies the 

regulation.2 

This Court also concluded that the controlling Commissioner’s conclusion that the record 

evidence as to Correct the Record’s offline activities did not support reason to believe they were 

The Court also placed at least some weight on the fact that the Commission had not 

appeared to defend itself in court. (See Mem. Op. at 12.) The Court of Appeals would have the 

benefit of considering the issues without that concern at that stage. 

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in-kind contributions was arbitrary and capricious because it did not “meaningfully consider” 

that organization’s “broad statements of intent to coordinate and instead looked for ‘transactionby-transaction’ evidence of coordination.” (Mem. Op. at 16.) That conclusion is potentially 

erroneous for two reasons. 

First, this Court never contested the controlling Commissioners’ legal conclusion that an 

expenditure is only an in-kind contribution if that transaction is coordinated, not if an entity 

declares its intent to coordinate with a candidate as a general matter. The relevant statutory and 

regulatory language confirms that whether an expense is an in-kind contribution depends on 

whether the “expenditure[]” is made “in cooperation, consultation, or concert, with, or at the 

request or suggestion of” the candidate, not whether the outside group intends to coordinate 

generally. 52 U.S.C. § 30116(a)(7)(B)(i) (emphasis added); see also 11 C.F.R. 109.20(b) (“Any 

expenditure that is coordinated [is] an in-kind contribution . . . .”). The controlling 

Commissioners’ insistence on assessing whether the record established any connection between 

the intervenor-defendants’ coordination and the relevant transactions was a reasonable method of 

implementing that requirement at the reason-to-believe stage. 

Second, though this Court suggested that the controlling Commissioners “fail[ed] to 

engage” with the public information suggesting broad coordination between Correct the Record 

and Hillary for America, their Statement of Reasons arguably did consider that information and 

simply reached different conclusions than the Court would have. Indeed, the controlling 

Commissioners specifically addressed the statements cited by the Court. Compare Mem. Op. 

15-16 (citing Correct the Record press release and David Brock interview) with J.A. 226 

(quoting the press release language cited by the Court) and J.A. 6-7 (addressing Brock 

interview). The controlling Commissioners also cited other evidence suggesting that the Clinton 

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Campaign had paid fair market value for some of the services cited and had not coordinated on 

other services. (See J.A. 229.) The controlling Commissioners concluded that nothing in 

plaintiffs’ administrative complaint suggested otherwise. (See J.A. 240.) Those Commissioners 

were simply unwilling to conclude that Correct the Record’s statement that it would be able to 

coordinate much or most of its activities with the Clinton campaign established that there was 

reason to believe that all of Correct the Record’s expenses were in-kind contributions. While 

this Court would have reached a different conclusion in the first instance, that difference of 

opinion arguably should not have negated the “rational connection” between the facts in the 

record and the choice the controlling Commissioners made. Airmotive Eng’g Corp. v. FAA, 882 

F.3d 1157, 1159 (D.C. Cir. 2018). 

Pursuant to Local Civil Rule 7(m), counsel for the FEC has conferred with counsel for 

the other parties. Counsel for the plaintiffs oppose this motion. Counsel for the intervenordefendants takes no position on this motion. 

* * * * 

Even if the Court maintains its opinion that the controlling Commissioners’ reasoning in 

this matter was contrary to law, the Commission respectfully submits that the questions 

presented by this case are worthy of consideration by the Court of Appeals before the agency is 

required to conform to the Court’s ruling. While the Commission believes it has established that 

it is likely to succeed on the merits of its appeal, at a minimum this case presents serious legal 

questions worthy of appellate consideration before the Commission must conform. 

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CONCLUSION 

For the foregoing reasons, this Court should grant the Commission’s motion to stay the 

judgment pending appeal. 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Jacob S. Siler (D.C. Bar No. 1003383) 

Assistant General Counsel 

jsiler@fec.gov 

Respectfully submitted, 

/s/ Greg J. Mueller 

Greg J. Mueller (D.C. Bar. No. 462840) 

Attorney 

gmueller@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

1050 First Street, NE 

Washington, DC 20463 

(202) 694-1650 

December 21, 2022 

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