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Case 1:22-cv-00035-CRC Document 25 Filed 02/09/24 Page 1 of 12 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

) 

CITIZENS FOR RESPONSIBILITY ) 

AND ETHICS IN WASHINGTON, ) 

) Civil Action No. 22-35-CRC 

Plaintiff, ) 

)

 v. )

 ) 

FEDERAL ELECTION COMMISSION, )

 )

 Defendant. ) 

) 

PLAINTIFF CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON’S 

REPLY IN SUPPORT OF THE MOTION TO COMPEL PRODUCTION 

The D.C. Circuit has expressed “concern” about “the actions of some commissioners” of 

the Federal Election Commission (“FEC”) to “conceal[] the basis for Commission action or 

inaction.” CREW v. FEC, 55 F.4th 918, 921 (D.C. Cir. 2022) (Rao, J., concurring). While the 

Federal Election Campaign Act (“FECA”) requires the FEC to keep its activities confidential 

until a majority of the Commission votes to close the file, withholding the FEC’s investigatory 

file after that vote indeed raises concerns. 

The withholding of these documents frustrates Congress’s admittedly “unusual statutory 

provision which permits a complainant to bring to federal court [the FEC’s] refusal to institute 

enforcement proceedings.” End Citizens United, PAC v. FEC, 90 F.4th 1172, 1189 (D.C. Cir. 

2024) (Pillard, J., concurring) (quoting Akins v. FEC, 101 F.3d 731, 734 (D.C. Cir. 1996) (en 

banc)). To “intelligently determine whether the Commission is acting ‘contrary to law,’” 

Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131, 1132 (D.C. Cir. 1987), a plaintiff 

must have access to the “whole record” that was “before the [FEC] at the time [the Commission] 

made [their] decision,” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 
Case 1:22-cv-00035-CRC Document 25 Filed 02/09/24 Page 2 of 12 

(1971), and, in particular, the record that reveals “the grounds that the agency invoked when it 

took the action,” End Citizens United PAC v. FEC, 69 F.4th 916, 921 (D.C. Cir. 2023) (quoting 

Dep’t of Homeland Security v. Regents of Univ. of Cal., 140 S. Ct. 1891, 1907 (2020)). 

In this case, it appears the FEC has attempted to withhold materials gathered during a rare 

investigation into a dark money organization: records that not only reveal its dismissal of this 

matter was contrary to law, but also would likely expose brazen legal violations occurring inside 

a dark money organization that the FEC has to-date given a free pass. Only after this Court 

ordered the FEC to respond—more than a year after its appearance was due and after CREW 

served on it requests for production—has the FEC produced any materials. Yet the FEC 

continues to withhold relevant documents including those reflecting the “grounds that the agency 

invoked when it [dismissed] the action.” End Citizens United PAC, 69 F.4th at 921. 

The FEC has offered no explanation for its failure to respond to CREW’s requests for 

production. It has offered no justification for its decision to wait more than a year to produce 

even part of the administrative record. And it has failed to offer any reason why it is not 

obligated to produce the whole record in this matter and documents responsive to CREW’s 

requests for production. Accordingly, CREW respectfully requests this Court grant its motion to 

compel so CREW may proceed to expeditiously resolve this matter which has been unjustifiably 

delayed by the FEC’s obfuscation. 

BACKGROUND 

Given the length of time this motion has been pending, CREW briefly recounts the 

background of this matter. CREW brought this action in 2022 after learning the FEC had closed 

its proceedings involving CREW’s complaint against a dark money operation called Freedom 

Vote. See Compl., ECF No. 1. The FEC had engaged in a rare investigation after the 

Commission agreed, unanimously, that CREW’s complaint raised a reason to believe Freedom 

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Vote violated the law. Cert., MUR 7465 (Freedom Vote), July 25, 2019, 

https://perma.cc/YW4X-JQTY. The FEC’s limited public disclosures after it closed the file 

revealed the investigation not only confirmed CREW’s allegations, but expanded on them, 

showing that at least 71% of the group’s $3.4 million expenditures went to federal campaign 

activity. General Counsel’s Brief 1, MUR 7465 (Freedom Vote), Sept. 20, 2021, 

https://perma.cc/4AAV-M9MJ. It also revealed Freedom Vote unlawfully accepted “an 

Anonymous donation for the reelection of Rob Portman” in the amount of $500,000. Id. at 16. 

Notwithstanding this conclusive evidence, the FEC returned to form, deadlocked on further 

proceedings and then, by majority vote, closed the file on CREW’s complaint. Cert., MUR 7465 

(Freedom Vote), Nov. 9, 2021, https://perma.cc/74XH-Z4EE. 

The FEC failed to appear in this action, leading the Clerk to enter default against it on 

March 29, 2022. Default, ECF No. 5. The FEC also failed to produce the administrative record 

as required by this court’s rules. D.D.C. LCvR 7(n)(1). Nonetheless, given CREW’s obligation 

to “establis[h] [its] claim or right to relief by evidence that satisfies the court,” Fed. R. Civ. P. 

55(d), CREW sought evidence from the FEC that demonstrates its dismissal of CREW’s 

complaint was “contrary to law,” 52 U.S.C. § 30109(a)(8)(C). Eventually, CREW served 

requests for production on the FEC on April 18, 2022, with a response due within 30 days, for 

“[a]ll documents in the FEC’s file, including both public and nonpublic files, for Matter Under 

Review 7465” and “[a]ll communications within and among the FEC regarding Matter Under 

Review 7465, including records, recordings, or transcripts of any meetings of the Commission 

and executive sessions of the Commission.” See Mot. to Compel Ex. A at 6–7, ECF No. 6-1; id. 

Ex. C, Aff. of Service, ECF No. 6-3; see also Cmty. for Creative Non-Violence v. Lujan, 908 

F.2d 992, 997 (D.C. Cir. 1990) (discovery against agency available where “record is so bare as to 

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frustrate effective judicial review”). The FEC failed to respond to either the requests for 

production or to CREW’s counsel’s various entreaties. Accordingly, on June 8, 2022, CREW 

filed a motion to compel and served it on the FEC via First Class Mail. ECF No. 6. The FEC 

failed to respond to CREW’s motion, and CREW filed a notice of that failure on July 20, 2022. 

ECF No. 7. 

Approximately eight months after CREW filed its motion to compel, this Court denied 

the motion without prejudice and asked for briefing on its jurisdiction given the belated 

publication of a statement of reasons of a subset of commissioners who invoked prosecutorial 

discretion as a basis to terminate part of this matter. Minute Order, Feb. 8, 2023. Eventually, 

after the Court was assured of its jurisdiction and its ability to review this matter because the 

statement was a “post hoc rationalization” that could not preclude review, the Court vacated its 

order denying the motion to compel and gave the FEC until November 13, 2023 to oppose 

CREW’s motion. Minute Order, Oct. 30, 2023. 

The Court’s order apparently proved the stimulant to rouse the FEC from its slumber. It 

agreed to produce many of the documents in its administrative record but, inexplicably, it still 

refused to produce over three-hundred pages of documents it received from Freedom Vote. The 

FEC’s counsel admitted the documents were relied on by FEC counsel in its reports to the 

Commission before their votes to close, see, e.g., General Counsel’s Brief 10 n.46, and were not 

privileged—even suggesting that CREW seek them through FOIA—but stated the FEC would 

not produce them in this case. Shortly before its opposition to the Motion to Compel was due, the 

FEC admitted that it had no basis to withhold these documents and agreed they are part of the 

administrative record. 

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The documents reveal the FEC uncovered far more evidence of wrongdoing than was 

summarized in the General Counsel’s Brief. For example, it reveals the “Anonymous donation” 

was not a single occurrence, but that Freedom Vote accepted other funds contributed to assist 

Freedom Vote’s electioneering without disclosing the sources of the funds on any public report. 

See, e.g., Ex. A (AR2074, AR2076, AR2082). Other funds were apparently accepted from 

corporate donors, including a $1 million contribution supporting Freedom Vote’s work “in the 

Senate race” in Ohio. See Ex. A (AR1500–01; AR2110 (contribution from entity regulated by 

Physicians Payment Sunshine Act)). Freedom Vote made a $1 million independent expenditure 

around the time of this contribution to influence that election and made a $500,000 contribution 

to an Ohio-focused super PAC, Fighting for Ohio Fund. And it also appears Freedom Vote 

laundered expenditures for another dark money organization, American Action Network 

(“AAN”), creating and distributing a door hanger supporting John Boehner that was apparently 

created and approved by AAN. Ex. See Ex. A (AR1406, AR1988–89, AR1997, AR2032–33). 

AAN was at that time the subject of FEC proceedings over its excessive campaign spending. 

Cert., MUR 6589 (AAN), June 24, 2014, https://perma.cc/68BM-RBX3. AAN had disclosed a 

$150,000 “general support” grant to Freedom Vote around the time of these emails but did not 

disclose its involvement in these independent expenditures. See AAN, 2014 Form 990, Schedule 

I (May 15, 2015), https://projects.propublica.org/nonprofits/display_990/270730508/ 

2015_06_EO%2F27-0730508_990O_201406. Freedom Vote would eventually report the door 

hanger and associated campaigning costs as independent expenditures totaling $174,607. 

Freedom Vote, July 15 Quarterly Report at 3 (July 15, 2014), https://perma.cc/XQ7E-PF8A. 

The FEC continues to withhold, however, documents reflecting the discussions of the 

Commission in considering this matter, including those discussions reflecting the reasons 

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adopted by the FEC in its decision to vote to close the file on CREW’s case. The FEC asserts all 

of the materials CREW seeks are protected by the deliberative process privilege and some are 

protected by attorney-client privilege. 

ARGUMENT 

A. The FEC’s Failure to Timely Respond or Object Waived Its Defenses and 

Privileges 

“[T]he failure to timely file an objection to a request for production of documents may be 

deemed a waiver.” Fonville v. District of Columbia, 230 F.R.D. 38, 42 (D.D.C. 2005) (collecting 

cases). CREW served its requests for production on the FEC on April 18, 2022, yet the FEC did 

not respond to CREW’s requests until November 13, 2023, 574 days later (and even then only to 

seek an extension to produce documents). Indeed, the FEC only responded to CREW once it 

became clear that an attempt to evade judicial review through impermissible post-hoc 

rationalizations failed. See Minute Order (D.D.C. Oct. 30, 2023). The FEC’s complete failure to 

respond within the time provided constitutes a waiver of all objections and privileges it could 

assert to CREW’s request. See, e.g., Fonville, 230 F.R.D. at 42 (defendant “waived all of its 

objections” to production); see also Imperati v. Semple, 2020 WL 4013304, at *1 (D. Conn. July 

16, 2020) (inexcusable delay waived “attorney-client privilege, deliberative process privilege, 

[and] work product protection”); D.L. v. District of Columbia, 274 F.R.D. 320, 323 (D.D.C. 

2011) (discussing prior imposition of waiver, including of deliberative process privilege, as 

discovery sanction). 

The FEC’s opposition offers no justification for its delayed response—it barely 

acknowledges it occurred. The FEC does not claim it lacked notice of this lawsuit or CREW’s 

requests or that some event beyond its control excused its delayed response. While it discusses 

the FECA’s bar on publication, see FEC Opp. 2 (citing 52 U.S.C. § 30109(a)(12); 11 C.F.R. 

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§111.20), it admits those provisions cease when the Commission “terminates it proceedings,” id. 

(citing 11 C.F.R. § 111.20), as happened here on November 9, 2021 when the Commission voted 

to close the file on this matter. Cert., MUR 7465 (Freedom Vote), Nov. 9, 2021. The FEC also 

notes that it did not receive the approval of four commissioners to “authorize defense of this 

case.” FEC Opp. 6 (citing 52 U.S.C. §§ 30106(c), 30107(a)(6)). That the FEC must obtain four 

votes to “defend ... any civil action under section 30109(a)(8),” 52 U.S.C. § 30107(a)(6), has no 

bearing on whether it may respond to requests for production, and the FEC provides nothing to 

connect the two choices. Nevertheless, that the FEC affirmatively chose to default hardly 

constitutes an excuse. 

The FEC’s failure to offer any timely objection to CREW’s requests, even if it did not 

otherwise seek to defend this action, constitutes a waiver of all of its objections and privileges. 

B. The FEC Failed to Establish Deliberative Process Privilege Applies to The 

Documents Responsive to CREW’s Requests 

Putting aside the untimeliness of the FEC’s response, it still fails to adequately establish a 

claim to deliberative process privilege that it asserts “[p]revents [d]islcosure of the [d]ocuments 

CREW [s]eeks” in its requests for production. FEC Opp. 13. “To assert the deliberative process 

privilege, a party must submit: (1) a formal claim of privilege by the head of the relevant 

department; (2) based on actual personal consideration by that official; and (3) a detailed 

specification of the information for which the privilege was claimed and why it properly falls 

within the scope of the privilege.” Landry v. FDIC, 204 F.3d 1125, 1135 (D.C. Cir. 2000) (citing 

Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 399 (D.C. Cir. 1984)). Accordingly, 

“[t]o avoid waiving the privilege, the defendant agency must ‘make a detailed argument, 

including affidavits from the proper governmental authorities, in support of the privilege.’” Doe 

v. District of Columbia, 230 F.R.D. 47, 51 (D.D.C. 2005). 

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The FEC has fulfilled none of its obligations to establish the documents CREW seeks 

through its requests for production are covered by the deliberative process privilege. It submits 

no affidavits nor claims to have reviewed any of the materials it asserts are privileged. Indeed, it 

refuses to acknowledge whether any responsive documents exist. Rather, it speaks only in 

hypotheticals: arguing “[a]ny documents meeting [CREW’s] descriptions” are protected. FEC 

Opp. 13. That is plainly insufficient to meet its obligation here, and the FEC has accordingly 

waived any claim to such privilege. Doe, 230 F.R.D. at 51; Brown v. District of Columbia, 2021 

WL 1439741, at *5-6 (D.D.C. Apr. 16, 2021) (defendant cannot evade obligations to establish 

deliberative process privilege through simple claim documents are “both pre-decisional and 

deliberative and therefore inherently protected by the deliberative process privilege” (internal 

quotation marks omitted)); Cobell v. Norton, 213 F.R.D. 1, 8 (D.D.C. 2003) (“Failure to submit 

an affidavit that conforms with these requirements on the date that defendants file an opposition 

brief will be deemed to constitute a waiver of defendants’ objection to production of the 

document on the basis of deliberative process privilege.”). 

C. Materials CREW Seeks Include Those Adopted By the FEC That Are No 

Longer Covered by the Deliberative Process Privilege 

The FEC objects to producing the documents CREW seeks that were indisputably 

“before the [FEC] at the time its decision was made” and thus part of the record, IMS P.C. v. 

Alvarez, 129 F.3d 618, 623 (D.C. Cir. 1997), because the FEC claims they pre-decisional, FEC 

Opp. 13. But, “even if the document is predecisional at the time it is prepared, it can lose that 

status if it is adopted, formally or informally, as the agency position on an issue.” Coastal States 

Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980); CREW v. U.S. G.S.A., 358 F. 

Supp. 3d 50, 53 (D.D.C. 2019) (authors’ “significant decision-making authority” cuts against 

conclusion document is predecisional and privileged). Here, the FEC indisputably made four 

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decisions: first, to find reason to believe Freedom Vote likely violated the FECA, second, to 

deadlock on whether there was probable cause to believe Freedom Vote violated the FECA, 

third, to decline to exercise prosecutorial discretion, and fourth, to close the file on CREW’s 

case. CREW seeks the rationale for each of those decisions: rationale reflected in the executive 

session discussions that were adopted through the prevailing vote. 

The FEC contends that these discussions were not adopted because commissioners 

remain “free to change their minds.” FEC Opp. 15. Yet the FEC’s explanation for its decisions is 

“limited to ‘the grounds the agency invoked when it took the action.’” End Citizens United PAC, 

69 F.4th 916 at 921 (quoting Regents, 140 S. Ct. at 1907). A purpose behind the rule against 

post-hoc rationalization is to prevent the agency from changing its mind and supplying a 

different rationale for its action—a “convenient litigating position” for example. Regents, 140 S. 

Ct. at 1909. Once the FEC votes, commissioners are no longer free to change their minds on the 

grounds for that vote. 

This rule is of particular significance for the FEC. To facilitate the “unusual statutory 

scheme” of judicial review of nonenforcement, courts have required the Commission to explain 

its enforcement decisions. End Citizens United, PAC, 90 F.4th at 1186, 1189 (Pillard, J., 

concurring). Where the Commission adopts the recommendation of the FEC’s general counsel— 

which, notably, necessarily predates the decision to adopt them—courts review the explanation 

contained in the general counsel’s analysis. FEC v. Democratic Cong. Campaign Comm., 454 

U.S. 27, 45 n. 19 (1981). Where they do not, however, the Commissioners must make public 

their own justification for departing from that analysis. Democratic Cong. Campaign Comm. v. 

FEC, 831 F.2d 1131, 1132 (D.C. Cir. 1987). And where only half the Commission departs from 

the recommendation, deadlocking the agency, and there is a subsequent dismissal through a 

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majority vote to close the file, courts have required the deadlocking commissioners publish their 

explanation. FEC v. Nat’l Republican Sen. Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992); see 

also Regents, 140 S. Ct. at 1907 (agency may, after action, offer a fuller explanation, but is still 

limited to memorializing the agency’s reasoning as it existed “at the time of the agency action”). 

What results—in tension with general administrative law, see Local 814, Int’l Broth. Of 

Teamster v. NLRB, 546 F.2d 989, 992 (D.C. Cir. 1976)—is a situation where an explanation 

from fewer than the full set of decisionmakers—the majority that closed the file—is offered to 

explain the majority’s action. That creates an opportunity for that minority to fabricate new 

“convenient litigating position[s],” Regents, 140 S. Ct. at 1909, that were not the motivation 

behind the majority’s decision to close the file. Indeed, it’s quite likely that occurred here as 

three commissioners claimed in a post-hoc rationalization that the majority closed the file in part 

due to prosecutorial discretion, Statement of Reasons of Chairman Allen Dickerson and 

Commissioners Sean J. Cooksey and James E. “Trey” Trainor, III, at 7, MUR 7465 (Freedom 

Vote), Mar. 7, 2022, https://perma.cc/7M7A-4UHJ, notwithstanding the fact the decisive 

commissioner who voted to close the file explicitly voted against exercising prosecutorial 

discretion, Cert., MUR 7465 (Freedom Vote) Nov. 9, 2021, and in her own statement explaining 

the dismissal did not mention prosecutorial discretion at all, Statement of Chair Shana M. 

Broussard and Commissioners Steven T. Walther and Ellen L. Weintraub, MUR 7465 (Freedom 

Vote), Dec. 16, 2021, https://bit.ly/3Ie0XRy. Rather, the grounds for that vote, and the earlier 

actions the FEC took, are to be found, if at all, in its executive session records, which grounds 

the FEC is not thereafter “free to change.” Cf. FEC Opp. 15. 

Accordingly, the FEC’s rationale for its decisions, if one exists at all, is limited to the 

grounds the Commission discussed and that won the day in the respective votes. Such discussion 

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was, by necessity, adopted as the FEC’s position on the issues at the time of the votes and is not 

protected by the deliberative process privilege. 

D. The FEC Fails to Establish Attorney-Client Privilege Precludes Production 

The FEC finally asserts that “several topics that would be addressed” in the documents 

CREW seeks in its requests for production “invade the realm of protected information in the 

attorney-client relationship.” FEC Opp. 18. Notably, the FEC does not claim that all of the 

sought-after materials are subject to either attorney-client or work product privileges. 

Accordingly, such privilege, even if it were timely and adequately asserted, would not preclude 

production of all responsive documents. 

Nevertheless, the FEC’s invocation is still inadequate. “[T]he party claiming the privilege 

bears the burden of proving that the communications are protected.” In re Lindsey, 158 F.3d 

1263, 1270 (D.C. Cir. 1998); see also Fed. R. Civ. P. 26(b)(5)(A)(ii) (party invoking privilege 

must “describe the nature of the documents, communications, or tangible things not produced or 

disclosed—and do so in a manner that, without revealing information itself privileged or 

protected, will enable parties to assess the claim”). As the invoking party, the FEC must 

“present the underlying facts demonstrating the existence of the privilege in order to meet its 

burden.” Lindsey, 158 F.3d at 1270 (internal quotation marks omitted). “A blanket assertion of 

the privilege will not suffice.” Id. 

The FEC presents no such underlying facts. It produced no privilege log. It does not even 

assert responsive privileged documents exist and rather speaks only in generalities. See FEC 

Opp. 20. The FEC has completely failed to adequately assert any claim to attorney-client 

privilege (notwithstanding having more than a year to do so), never mind a privilege that would 

preclude production of every responsive record. 

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CONCLUSION 

This matter has been pending for almost two years. More than six years have passed since 

CREW filed its initial complaint with the agency. The FEC’s attempts to further delay resolution 

of this case and to withhold relevant materials should not be countenanced. The FEC’s assertions 

of privilege are untimely and insufficient, and they cannot serve to cover up the agency’s 

rationale for its actions. 

Dated: February 9, 2024 

Respectfully submitted, 

/s/ Stuart McPhail____________ 

Stuart C. McPhail 

(D.C. Bar No. 1032529) 

Citizens for Responsibility and Ethics 

in Washington 

1331 F Street, N.W., Suite 900 

Washington, DC 20004 

Phone: (202) 408-5565 

Fax: (202) 588-5020 

smcphail@citizensforethics.org 

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