UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

CAMPAIGN )

LEGAL CENTER, )

)

Plaintiff, )

)

v. ) Civil Action No. 20-0809 (ABJ)

)

FEDERAL ELECTION )

COMMISSION, )

)

Defendant. )

____________________________________)

ORDER

On March 24, 2020, plaintiff Campaign Legal Center (“CLC”) sued to compel the Federal 

Election Commission (“FEC”) to respond to an administrative complaint plaintiff had filed more 

than eighteen months earlier. See Compl. [Dkt. # 1] at 1–2. Defendant did not appear in court or 

otherwise respond to the suit, and after providing the FEC more time to respond, see Order 

[Dkt. # 17] at 3–4, the Court entered default judgment on November 8, 2021. See Order

[Dkt. # 25]. The November 8 Order gave the FEC thirty days to act on the administrative 

complaint. Id. at 1. The FEC has not responded to the Order, and it has not taken any action on 

the complaint in the ensuing five months.

On December 9, 2021, plaintiff filed a motion seeking an order from the Court declaring 

that the FEC had failed to comply with its November 8 Order. Pl.’s Mot. for Order Declaring 

Failure to Conform to Default J. [Dkt. # 26] (“Pl.’s Mot.”). For the following reasons, plaintiff’s 

motion is GRANTED.

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LEGAL FRAMEWORK

Plaintiff brought its claim pursuant to the Federal Election Campaign Act (“FECA”), which

establishes a private right of action for “[a]ny party aggrieved” by the FEC’s failure to act on a

complaint within 120 days of its filing. See 52 U.S.C. § 30109(a)(8)(A); Compl. ¶ 1. The judicial 

review provision of FECA provides that the U.S. District Court for the District of Columbia may 

“declare that the dismissal of [a] complaint or the failure to act is contrary to law,” and, if the 

Commission fails to correct the illegality on remand, the “complainant may bring” a civil action 

directly against the alleged violator “to remedy the violation involved in the original 

[administrative] complaint.” 52 U.S.C. § 30109(a)(8)(C); see also Citizens for Responsibility and 

Ethics in Wash. v. FEC, 299 F. Supp. 3d 83, 101 (D.D.C. 2018).

While “the Federal Election Commission . . . ha[s] unreviewable prosecutorial discretion 

to determine whether to bring an enforcement action,” Citizens for Resp. and Ethics in Wash. v. 

FEC, 892 F.3d 434, 438 (D.C. Cir. 2018) (“CREW”), citing FEC v. Akins, 524 U.S. 11, 25 (1998), 

the agency must act on a complaint by holding a vote to decide whether it “has reason to believe 

that a person has committed, or is about to commit” a FECA violation. 52 U.S.C. § 30109(a)(2). 

If it votes to dismiss the complaint, “it shall make public such action and the basis therefor no later 

than thirty (30) days from the date on which the required notifications are sent to complainant and 

respondent.” 11 C.F.R. § 111.20(a); Common Cause v. FEC, 842 F.2d 436, 449 (D.C. Cir. 1988) 

(requiring that Commissioners who voted for dismissal provide a statement explaining their votes). 

The public explanation provided by the dismissing Commissioners is necessary for a reviewing 

court to determine if the dismissal was “contrary to law.” 52 U.S.C. § 30109(a)(8)(C); CREW, 

892 F.3d at 440 (reviewing statement of Commissioners who voted against enforcement 

proceeding and finding the dismissal unreviewable because they were based “squarely on the 

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grounds of prosecutorial discretion”); Citizens for Resp. and Ethics in Wash. v. Am. Action 

Network, No. 18-cv-945, 2022 WL 612655, at *6 (D.D.C. Mar. 2, 2022) (the legality of “a 

nonenforcement decision . . . depend[s] on the reasons given by the controlling Commissioners”).

BACKGROUND

The factual and procedural history of this case were detailed in the Court’s previous

Memorandum Opinion. See generally Mem. Op. [Dkt. # 24]. In that opinion, the Court found that 

the FEC’s failure to act on plaintiff’s administrative complaint was “contrary to law” and ordered

the agency to act on the complaint within thirty days. Mem. Op. at 18. The deadline for the FEC 

to act was December 8, 2021. See id.; Pl.’s Mot. at 2. In the time since then, the agency has not 

responded to the order or taken any action on the complaint. See Pl.’s Mot.

On December 8, 2021, the deadline for the FEC to comply with the court order, plaintiff 

notified the FEC’s General Counsel of its intention to file the present motion but received no 

response. Pl.’s Mot. at 3. On the following day, plaintiff filed this motion alleging that the 

agency’s continued inaction “indicated that the FEC has failed to conform to the mandate in the 

Default Judgment Order.” Id. at 4. Since that time, this Court granted leave for 45Committee, the 

entity against which plaintiff seeks FEC enforcement, to file an amicus brief. See Min. Order (Jan. 

24, 2022). The amicus brief discusses documents that it obtained from the FEC through a Freedom 

of Information Act (“FOIA”) request, claiming that the documents show that “the FEC voted on 

the underlying administrative complaint at issue in this case.” Amicus Br. [Dkt. # 31] at 1. 

ANALYSIS

45Committee argues that the newly obtained FOIA documents show that the FEC 

“reviewed, considered, and took action” on the initial administrative complaint nearly two years 

ago and therefore this Court’s November 8 Order should be vacated, and this case dismissed as 

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moot. Amicus Br. at 1–2. Alternatively, 45Committee asks that the case be held in abeyance 

pending the Court’s review of an unredacted version of the document. Id. at 2.

The document 45Committee has attached to its brief reports a vote cast by the FEC on 

June 23, 2020; the vote was whether to authorize the Office of General Counsel to defend the 

Commission in this lawsuit. Ex. 2 to Amicus Br. [Dkt. # 31-1] at 4. The vote deadlocked, resulting 

in a failure to authorize an appearance to defend itself in this court. See id. 45Committee alleges 

that the agency’s vote on whether to defend itself in court indicates that the FEC “took action” on 

the underlying complaint and “likely voted against enforcement action.” Amicus Br. at 1. But 

that is pure speculation on the part of 45Committee, and the Court will not draw an inference that 

has no basis in the material it has received. The vote revealed the ongoing stalemate at the agency, 

and it led to the default judgment in this case, but it said nothing about what action was taken on 

the underlying administrative complaint. Amicus Br. at 4.

45Committee points out that its FOIA request was for:

Any vote certifications reflecting votes taken by the Federal Election 

Commission on the complaint against 45Committee in MUR 7486; and 

Any Statements of Reasons or other Commissioner opinions concerning the 

complaint against 45Committee in MUR 7486.

Ex. 1 to Amicus Br. [Dkt. # 31-1] at 1. Therefore, it posits that document would only have been 

responsive to its request if the redacted portions of the document relate to votes on the underlying 

administrative request.

Once again, 45Committee is speculating: it is equally possible that the agency construed 

the request for records “concerning” the complaint in MUR 7486 broadly, and produced records 

that reflected the Commissioner’s vote on defending this lawsuit “concerning” the complaint in 

MUR 7486. 

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The documents 45Committee received in response to its request provide no evidence that 

the FEC ever “took action” on the initial administrative complaint, much less that it voted to 

dismiss the complaint. The document makes no mention of taking action on the underlying 

administrative complaint. And though some portions of the document are redacted, the assumption 

that the redacted portions must therefore “reflect[] votes taken by the Federal Election Commission 

on the complaint against 45Committee,” Amicus Br. at 4, is unwarranted when one considers the 

statutory framework. When the FEC takes a vote on an administrative complaint, the results are 

publicly announced; it does not take a FOIA request to learn what transpired. If the agency decides 

to proceed with a complaint, it must “notify the person of the alleged violation” before initiating 

an investigation. 52 U.S.C. § 30109(a)(2). When the agency votes to dismiss a complaint, “it 

shall make public such action and the basis therefor no later than thirty (30) days from the date on 

which the required notifications are sent to complainant and respondent.” 11 C.F.R. § 111.20(a). 

Each commissioner voting in favor of dismissal must provide a statement explaining their rationale 

for dismissal, which then becomes the basis for a reviewing court to determine whether dismissal 

was “contrary to law” in the event of a citizen suit challenging dismissal. See e.g., Common Cause 

v. FEC, 842 F.2d at 449; CREW, 892 F.3d at 440. Neither 45Committee nor CLC has claimed to 

have received the notification that would accompany a dismissal, nor has the FEC made its vote 

and rationale for the vote public. Thus, there is no reason for the Court to assume that the redacted 

portions of an otherwise unrelated document could report a vote that should have been publicly 

reported but was not. 

CONCLUSION

The FEC, consistent with its ongoing failure to defend this action, has not opposed 

plaintiff’s motion, and the objections contained in the brief submitted by 45Committee are not 

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convincing and do not justify further delay. As the agency has not complied with the Court’s 

November 8, 2021 Order within the time specified, it is hereby ORDERED that plaintiff may 

bring an action to enforce the FECA against the alleged violator pursuant to 

52 U.S.C. § 30109(a)(8)(C). 

SO ORDERED. 

AMY BERMAN JACKSON

United States District Judge

DATE: April 21, 2022 

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