Case 1:21-cv-00406-TJK Document 25 Filed 05/16/22 Page 1 of 5 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CAMPAIGN LEGAL CENTER, 

Plaintiff, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant, 

HERITAGE ACTION FOR AMERICA, 

Proposed Intervenor-Defendant. 

Case No. 1:21-cv-0406 (TJK) 

NOTICE OF FEDERAL ELECTION COMMISSION ACTIONS 

Proposed Intervenor-Defendant Heritage Action for America (“Heritage Action”) 

respectfully notifies the Court that on May 13, 2022, Defendant Federal Election Commission 

(“FEC”) released two documents that support Heritage Action’s expedited motion to intervene for 

the purpose of reconsideration or appeal. Dkt. No. 24. 

1. In response to Heritage Action’s FOIA request, the FEC released three pages of heavily 

redacted vote certifications related to CLC’s administrative complaint against Heritage Action in 

Matter Under Review (“MUR”) 7516. See Exhibit A, attached. For the reasons explained in 

Heritage Action’s amicus brief and motion to intervene, the certifications confirm that the FEC 

voted (i.e., acted) on CLC’s administrative complaint on April 6, 2021, and January 14, 2022. See 

Amicus Curiae Br. 4–7, 10–11, Dkt. No. 17-3; Mem. of Points & Authorities in Support of the 

Expedited Mot. to Intervene 4–5, Dkt. No. 24-1. Heritage Action has already filed an 

administrative appeal challenging the FEC’s improper redactions of the vote certifications. Mem. 

of Points & Authorities Ex. 2, Dkt. No. 24-3. 
Case 1:21-cv-00406-TJK Document 25 Filed 05/16/22 Page 2 of 5 

2. The FEC’s Chairman and two other Commissioners issued a Statement “Regarding 

Concluded Enforcement Matters” (“Statement”), explaining that the FEC has taken “action” on 

the administrative complaint in enforcement matters, such as MUR 7516, when the FEC has voted 

on the merits of the complaint but not ministerially closed the administrative file for public release 

of its action. See Exhibit B, attached. 

The Commissioners explain, among other things, that: 

 “In eight enforcement matters presently before the Commission, [some Commissioners] 

have made the unprecedented decision to refuse to close the file—even though the 

Commission took final votes on the merits of these complaints more than a year ago.” Id. 

at 1. 

 “[T]he unprecedented decision to refuse to close the file” in these terminated matters “is 

premised on the thin fiction that a deadlocked vote to close the file in a particular [MUR] 

keeps the matter open perpetually—even where the Commission has voted on all the 

underlying merits. This assertion is unsupportable.” Id. at 1–2. 

 These matters “have . . . long concluded” because “votes have been taken as to all parties 

and statements of reasons have been included in the file by the commissioners declining to 

move forward,” meaning “there is no basis for claiming that the Commission is continuing 

to deliberate. In these cases, [the Commission’s] work is done and a vote to close the file, 

while welcome and administratively convenient, is legally immaterial.” Id. at 2. 

 In connection with these matters, lawsuits like this one “have been filed against the 

Commission for ‘failing to act’ even though [it has], in fact, acted.” Id. at 1. 

 By refusing to close the file, some Commissioners “are weaponizing a nominal 

housekeeping act, not to allow future action, but to create the public impression that [the 
 

Case 1:21-cv-00406-TJK Document 25 Filed 05/16/22 Page 3 of 5 

Commission has] not started [its] work, even though [the FEC has] actually finished it.” 

Id. at 4 (footnotes omitted). 

 This gamesmanship “prejudices respondents” like Heritage Action “who are entitled to 

learn when the Commission has voted not to pursue enforcement in connection with a 

complaint about their (often constitutionally protected) activity.” Id. at 5. 

 Instead, respondents like Heritage Action have been exposed to civil lawsuits because the 

FEC has “affirmatively misled respondents by claiming these matters remain pending when 

they are concluded. And [the FEC’s] actions have been intentionally shielded from both 

judicial and public review.” Id. at 1. 

 “‘Closing the file,’” in sum, “has no legal significance where the Commission has fully 

decided the merits of a MUR. Rather, in the matters [some Commissioners] continue to 

hold open—where the Commission has voted and chosen not to proceed with enforcement, 

and commissioners rejecting OGC’s enforcement recommendation have provided 

statements of reasons explaining their votes—the Commission has concluded its 

deliberations.” Id. at 6. 

In deciding this case challenging the FEC’s purported failure to act (i.e., vote) on the merits 

of the administrative complaint in MUR 7516, the Court never had the benefit of the FEC’s voting 

records in MUR 7516, as explained in Heritage Action’s motion to intervene, or the 

Commissioners’ Statement. Nor did Heritage Action know about the FEC’s action in MUR 7516 

until the FEC confirmed the existence of voting records on May 6, 2022, and finally released them 

on May 13, 2022 (in heavily redacted form). Heritage Action respectfully requests that the Court 

afford Heritage Action an opportunity to seek reconsideration or appeal on the basis of these newly 

discovered records by granting the motion to intervene. 
 

Case 1:21-cv-00406-TJK Document 25 Filed 05/16/22 Page 4 of 5 

Respectfully submitted, on May 16, 2022. 

/s/ Brett A. Shumate 

Brett A. Shumate (D.C. Bar No. 974673) 

E. Stewart Crosland (D.C. Bar No. 1005353) 

JONES DAY 

51 Louisiana Avenue, N.W. 

Washington, D.C. 20001 

Telephone: (202) 879-3939 

Facsimile: (202) 626-1700 

Attorneys for Proposed Intervenor-Defendant 
 

Case 1:21-cv-00406-TJK Document 25 Filed 05/16/22 Page 5 of 5 

CERTIFICATE OF SERVICE 

I hereby certify that on May 16, 2022, I electronically transmitted the attached document 

to the Clerk’s Office using the CM/ECF System for filing and distribution to all registered 

participants of the CM/ECF System. Attorneys for Plaintiff are registered users of the CM/ECF 

System of this Court. Defendant was served a paper copy of this filing via regular United States 

mail at its address: 

Federal Election Commission 

1050 First Street NE 

Washington, DC 20463 

/s/ Brett A. Shumate 

Brett A. Shumate