Case 1:22-cv-00502-ABJ Document 23 Filed 08/26/22 Page 1 of 15 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

45COMMITTEE, INC., 

Plaintiff, 

v. Civil Action No. 1:22-cv-00502 

FEDERAL ELECTION COMMISSION 

Defendant. 

REPLY IN SUPPORT OF PLAINTIFF’S 

CROSS-MOTION FOR SUMMARY JUDGMENT 
Case 1:22-cv-00502-ABJ Document 23 Filed 08/26/22 Page 2 of 15 

TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES .........................................................................................ii 

I. FOIA REQUIRES DISCLOSURE OF THE RESPONSIVE RECORDS ............ 1 

II. EXEMPTION 5 IS INAPPLICABLE ................................................................... 5 

CONCLUSION .............................................................................................................. 9 

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TABLE OF AUTHORITIES 

Page(s) 

CASES 

Campaign Legal Ctr. v. FEC, 

31 F.4th 781 (D.C. Cir. 2022) ................................................................................... 3 

CREW v. DOJ, 

No. 21-5113, 2022 WL 3569241 (D.C. Cir. Aug. 19, 2022) .................................. 6, 7 

Dep’t of the Air Force v. Rose, 

425 U.S. 352 (1976) .................................................................................................. 7 

FBI v. Abramson, 

456 U.S. 615 (1982) .................................................................................................. 5 

In re Sealed Case, 

121 F.3d 729 (D.C. Cir. 1997) .................................................................................. 5 

Khatchadourian v. Def. Intel. Agency, 

No. 16-cv-311, 2022 WL 971206 (D.D.C. Mar. 31, 2022) .................................... 7, 8 

King v. DOJ, 

830 F.2d 210 (D.C. Cir. 1987) .................................................................................. 8 

Nat’l Env’t Dev. Assoc.’s Clean Air Project v. EPA, 

752 F.3d 999 (D.C. Cir. 2014) .................................................................................. 4 

Nat’l Sec. Couns. v. CIA, 

960 F. Supp. 2d 101 (D.D.C. 2013) .......................................................................... 8 

NLRB v. Sears, Roebuck & Co., 

421 U.S. 132 (1975) ...................................................................................... 3, 4, 5, 6 

Petroleum Info. Corp. v. U.S. Dep’t of the Interior, 

976 F.2d 1429 (D.C. Cir. 1992) ................................................................................ 6 

Reporters Comm. for Freedom of the Press v. FBI, 

3 F.4th 350 (D.C. Cir. 2021) ..................................................................................... 9 

Sackett v. EPA, 

566 U.S. 120 (2012) .................................................................................................. 4 

U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., 

141 S. Ct. 777 (2021) ........................................................................................ 2, 3, 4 

STATUTES 

5 U.S.C. § 552 ................................................................................................................. 6 

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TABLE OF AUTHORITIES 

(continued) 

Page(s) 

OTHER AUTHORITIES 

11 C.F.R § 111.20 ........................................................................................................... 2 

FEC, Amendments to FECA; Regulations Transmitted to Congress, 

45 Fed. Reg. 15,089 (Mar. 7, 1980) .......................................................................... 2 

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As explained in Plaintiff’s opening brief, FOIA, FEC regulations, and Supreme 

Court and D.C. Circuit precedent all require disclosure of records memorializing FEC 

decisions not to take enforcement actions. Pl.’s Mem. of P. & A. in Supp. of Pl.’s CrossMot. for Summ. J. and Opp’n to Def.’s Mot. for Summ. J., Dkt. No. 19-1 (“Cross-Mot.”). 

The FEC does not dispute that the withheld records here reflect decisions not to take 

enforcement actions, but merely contends that the potential for the Commission to 

decide to reconsider those decisions at some hypothetical point in the future permits 

withholding under Exemption 5. That argument is both incorrect and beside the 

point. First, that Exemption is unavailable for final votes and opinions, which FOIA 

affirmatively requires to be disclosed. Second, the mere potential for subsequent 

decisions does not render past decisions non-final—if it did, there would be no such 

thing as a final agency decision. And third, in all events, the FEC has failed to meet 

its burden to establish the predecisional and deliberative nature of the specific 

records at issue, as well as to establish foreseeable harm from their release. 

I. FOIA REQUIRES DISCLOSURE OF THE RESPONSIVE RECORDS. 

The FEC’s brief fails to meaningfully engage with the FOIA provisions 

requiring disclosure of the vote certifications and statement of reasons at issue. See 

FEC Opp’n to Pl.’s Mot. for Summ. J. & Reply in Support of Mot. for Summ. J., Dkt. 

No. 22 (“FEC Reply”). While the FEC claims that the lack of a ministerial vote to 

close the file leaves enforcement matters open indefinitely because Commissioners 

may, hypothetically, “change their minds,” that argument runs headlong into both 
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FEC regulations and controlling case law. Id. at 2-7 (quoting U.S. Fish & Wildlife 

Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 786 (2021)). 

First, nowhere does the FEC acknowledge—let alone explain how its argument 

complies with—its own regulations, which establish that “[i]f the Commission makes 

a finding of no reason to believe,” that vote “terminates its proceedings” and requires 

public disclosure of agency votes and any statement of reasons. 11 C.F.R § 111.20(a). 

The Commission’s unsupported assertions regarding “the agency’s policy” or 

“practice” cannot overcome that clear regulatory text. See FEC Reply 2-3.1 In any 

event, those assertions are inapposite because they rely on dissimilar MURs where 

the FEC proceeded piecemeal in addressing various allegations in a single 

administrative complaint and therefore held multiple reason-to-believe votes. And 

none involved a situation where three current Commissioners have publicly 

supported disclosure. Dkt. No. 20-2 (“FOIA Statement”). If anything, the 

abnormality of the withholdings here confirms how unprecedented the FEC’s 

withholdings under the circumstances in this MUR are. 

Relatedly, the FEC fails to engage with the substance of the threeCommissioner statements saying the FEC should lose this specific case because the 

FEC’s withholdings are not predecisional (i.e., they follow a final decision or 

1 When it originally promulgated 11 C.F.R. § 111.20(a), the FEC summarized the 

section as requiring “that final Commission action on all compliance matters shall be 

made public....” FEC, Amendments to FECA; Regulations Transmitted to Congress, 

45 Fed. Reg. 15,089 (Mar. 7, 1980). Thus, from the beginning, the Commission has 

considered “mak[ing] a finding of no reason to believe” as both explicitly final agency 

action and action requiring public disclosure. 

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adjudication, FOIA Statement), and further supporting 45Committee’s arguments 

regarding finality, Dkt. No. 20-3. Again, if this Court has any doubt about whether 

MUR 7486 is one of the eight concluded enforcement matters addressed by the 

Statement Regarding Concluded Enforcement Matters or whether the FEC has taken 

a reason-to-believe vote, it can and should review the responsive records in camera. 

See Cross-Mot. 6 n.1. And the FEC further fails to acknowledge the weight of D.C. 

Circuit precedent, on which those Commissioner statements relied, treating failed 

reason-to-believe votes and the resultant deadlock dismissals as final. See CrossMot. 6-7; Campaign Legal Ctr. v. FEC, 31 F.4th 781, 785 (D.C. Cir. 2022) (“If at least 

four Commissioners vote yes, the Commission will investigate; otherwise, the 

complaint is dismissed.”). 

Second, turning to Supreme Court precedent, the FEC overreads Sierra Club 

and underreads Sears. The documents in Sierra Club were drafts that, in fact, left 

decisionmakers free to change their minds before the documents constituted or 

reflected any agency decision. 141 S. Ct. at 786. By contrast, the memoranda in 

Sears explained “decisions ... not to file a complaint” in response to a private party’s 

charge. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153, 155-59 (1975). That 

distinction drives the correct result here: The withheld vote certifications and 

Statement of Reasons are not drafts that can be revised or modified at will and they 

almost certainly reflect a failed reason-to-believe vote and the underlying reasons 

because they memorialize Commission actions that took place in the past. Indeed, 

the FEC itself does not argue the withheld records are drafts or that they do not 

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contain a reason-to-believe vote. Instead, the Commission contends that the matter 

as a whole “remain[s] open with the potential for deliberations and further decisions.” 

FEC Reply 3 (emphasis added). Not only does that phrasing suggest the records 

reflect Commission decisions already made (disqualifying the documents from 

Exemption 5 because they cannot be predecisional to decisions already made), but its 

focus on the overall matter rather than the particular documents and decisions at 

issue confirms its fallacy. See Sears, 421 U.S. at 138 (emphasizing the Court’s focus 

on “the function of the documents in issue”). 

Moreover, the mere potential for reconsideration does not un-finalize decisions 

already made. “The mere possibility that an agency might reconsider in light of 

‘informal discussion’ and invited contentions of inaccuracy does not suffice to make 

an otherwise final agency action nonfinal.” Sackett v. EPA, 566 U.S. 120, 127 (2012); 

see Nat’l Env’t Dev. Assoc.’s Clean Air Project v. EPA, 752 F.3d 999, 1006 (D.C. Cir. 

2014) (“An agency action may be final even if the agency’s position is subject to 

change’ in the future. This is hardly surprising because many agency actions are 

subject to reconsideration.” (internal citations omitted)). The FEC does not even 

argue that the Commissioners may modify a past reason-to-believe finding or revise 

their votes; rather, it contends that the Commissioners may reconsider, overturn, or 

replace such a finding with a new, different one. Even if that were true, that 

distinction again highlights the difference between the draft documents in Sierra 

Club and the decisions not to pursue enforcement in Sears. See Sears, 421 U.S. at 

158 n.25 (explaining that the “possibility” of a decision being overturned “does not 

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affects its finality” for purposes of FOIA); Cross-Mot. 8-9 (collecting further cases). 

This case falls on the Sears side of the line. 

II. EXEMPTION 5 IS INAPPLICABLE. 

Even if Exemption 5 were available, FOIA exemptions must be “narrowly 

construed,” FBI v. Abramson, 456 U.S. 615, 630 (1982), and the FEC has not carried 

its burden regarding the withholdings at issue. The records are not predecisional, 

deliberative, or reasonably likely to cause the agency harm in their release. 

First, the FEC does not dispute that the withheld documents reflect past 

Commissioner decisions and their reasons for those decisions; rather, it merely 

disputes finality and argues that “further decisions” may come. FEC Reply 3. But 

“[t]he deliberative process privilege does not shield documents that simply state or 

explain a decision the government has already made or protect material that is purely 

factual, unless the material is so inextricably intertwined with the deliberative 

sections of documents that its disclosure would inevitably reveal the government’s 

deliberations.” In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997). The redacted 

vote certifications reflect that “the Commission took the following actions,” not what 

Commissioners deliberated. Dkt. No. 1-2 at 4; FOIA Statement 3 (“The vote 

certifications merely record Commission decisions.”). The purely factual information 

regarding the Commission’s deadlock decision not to defend another lawsuit that the 

FEC has released confirms as much. Dkt. No. 1-2 at 5. And the Statement of 

Reasons, whose author supports its release, reflects the reasons given by the 

controlling bloc for one of those votes. FOIA Statement 3. 

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Moreover, a record is predecisional only if it was “prepared in order to assist 

an agency decisionmaker in arriving at his decision, rather than to support a decision 

already made.” Petroleum Info. Corp. v. U.S. Dep’t of the Interior, 976 F.2d 1429, 

1434 (D.C. Cir. 1992). The FEC makes no such argument about the withholdings 

here, instead relying on “the potential for deliberations and further decisions” and 

“different results.” FEC Reply 3, 7.2 Such generalized speculation does not meet the 

government’s burden regarding the specific documents in issue. See CREW v. DOJ, 

No. 21-5113, 2022 WL 3569241, at *5-6 (D.C. Cir. Aug. 19, 2022). Indeed, those 

characterizations (further decisions and different results) highlight the decisional 

character of the vote records and Statement of Reasons here. Multimember agency 

votes cannot “reflect the agency’s group thinking” such that they automatically 

qualify for withholding, as the FEC appears to argue. FEC Reply 8 (quoting Sears, 

421 U.S. at 153). Otherwise, FOIA’s disclosure requirement for such agency votes 

would become a dead letter. 5 U.S.C. § 552(a)(5). The records here simply reflect 

“actions” resulting from votes, and the reasons for those votes. Dkt. No. 1-2 at 4; see 

Dkt. No. 18-2 (“Vaughn Index”). As explained in cases the FEC’s brief ignores, such 

minutes, votes, and supporting reasons are not predecisional. Mot. 9-11. 

2 While the FEC notes that it has not yet made public its actions on MUR No. 7486 

or notified 45Committee of having closed the matter, FEC Reply 3, that does not show 

that any substantive action remains. Rather, it merely confirms that three 

Commissioners are refusing to close the file, thereby preventing the FEC from 

disclosing its “actions.” Dkt. 1-2 at 4. That refusal provides no basis for continued 

unlawful concealment of the records in issue. 

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Second, the FEC similarly continues to inadequately explain the deliberative 

nature of the withheld records here. Tellingly, the FEC does not claim that these 

documents do play, did play, or will play any specific role in any deliberative process; 

instead, at most, the Commission asserts that these kinds of documents “can play” a 

deliberative role, “potentially.” FEC Reply 7. Aside from the irrelevance of that 

thought experiment to the Court’s inquiry as to whether these specific documents 

reflect deliberation, it is also incorrect on its own terms. If the rule were just that a 

past document or past decision might play a role helping decisionmakers reach 

further decisions, then the government could withhold virtually any document or 

decision, thereby defeating FOIA’s “basic policy that disclosure, not secrecy is the 

dominant objective of the Act.” CREW, 2022 WL 3569241, at *2 (quoting Dep’t of the 

Air Force v. Rose, 425 U.S. 352, 361 (1976)). In the end, there is no indication—and 

the FEC has offered no evidence—that any further deliberation or action on MUR 

7486 is a realistic possibility, let alone that these purely factual documents would 

play any role in that hypothetical. 

And the FEC’s continued reliance on Khatchadourian for its arguments about 

the deliberative element is misplaced. See FEC Reply 7 (quoting Khatchadourian v. 

Def. Intel. Agency, No. 16-cv-311, 2022 WL 971206, at *10 (D.D.C. Mar. 31, 2022)). 

That case actually proves Plaintiff’s point. Khatchadourian involved several 

categories of documents the court found deliberative, but none of them is comparable 

to vote records or a decisionmaker’s explanation of their vote. 2022 WL 971206, at 

*11. Those categories included documents from subordinates to superior offices 

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“updating” and presenting “assessments” and “interim assessments.” Id. Others 

included records reflecting “interim assessments” or requesting “further 

information,” responding to the same, and “draft talking points.” Id. Crucially, the 

Khatchadourian court emphasized that the documents at issue there “went from 

subordinate officers, who lack decisionmaking authority, to superiors.” Id. at *12. 

The opposite is true here, because the withheld materials reflect the “actions” taken 

by “the Commission” itself and the reasoning for taking those actions as explained by 

the Commission’s Vice Chair. Dkt. 1-2 at 4; see Vaughn Index.3 

Third, the FEC’s belated attempt to bolster its litigation counsel’s generalized 

assertions about foreseeable harm also falls short of the agency’s burden. To begin, 

“[t]he significance of agency affidavits in a FOIA case cannot be underestimated,” 

King v. DOJ, 830 F.2d 210, 218 (D.C. Cir. 1987), yet the FEC’s lone declaration makes 

no mention of harm. See Dkt. No. 18-1. Nor does its Vaughn Index. See Nat’l Sec. 

Couns. v. CIA, 960 F. Supp. 2d 101, 188 (D.D.C. 2013) (explaining the need for detail 

in the agency’s declaration and index). 

And even if the Court were to consider the arguments of litigation counsel 

regarding foreseeable harm, unsupported by an agency affidavit, they too come up 

short. The Commission’s continued reliance on cases about draft documents remains 

3 The FEC’s argument that the Statement of Reasons “has even clearer potential to 

alter the course of the deliberative process,” FEC Reply 8, is belied by the fact that 

the statement’s author has said that the withholdings here “are neither predecisional 

nor deliberative” and that 45Committee “deserve[s] to prevail under the law.” Dkt. 

No. 20-2 at 1. The author also placed the Statement of Reasons in the matter file. 

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inapposite here where the withheld materials memorialize past actions, past 

decisions, and reasons therefore. As explained by three Commissioners, releasing 

their votes and Statement of Reasons in no way threatens their ability or that of their 

staff to candidly communicate among themselves. Mot. 13-14. 4 And here, any 

potential for public confusion is caused by the Commission’s concealment of its past 

actions, rather than by their disclosure. At bottom, the Commission continues to offer 

only conclusory, generalized statements about foreseeable harm, not the 

“thoroughgoing and detailed pages of explanation as to the importance and 

deliberative value of the specific information in those records in the particular 

decisional context in which they arose, as well as the precise damage to the relevant 

agency operations that would result from their release.” Reporters Comm. for 

Freedom of the Press v. FBI, 3 F.4th 350, 371-72 (D.C. Cir. 2021). 

CONCLUSION 

The Court should deny the FEC’s motion for summary judgment, grant 

Plaintiff’s cross-motion, and order the FEC to disclose the responsive records. 

4 The single-Commissioner statement cited for the first time in the FEC’s opposition 

does not address MUR 7486 or even FOIA at all, and as such has no bearing on 

whether the agency has met its foreseeable harm burden as to these specific 

documents. See FEC Reply 10. Even if it did, that statement’s arguments about the 

finality of reason-to-believe votes fail for the reasons Plaintiff has explained. 

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Dated: August 26, 2022 Respectfully submitted, 

/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 

Counsel for Plaintiff 

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CERTIFICATE OF SERVICE 

I hereby certify that on August 26, 2022, I electronically transmitted the 

foregoing document to the Clerk’s Office using the Court’s CM/ECF System for filing 

and distribution to all registered participants of the CM/ECF System, which will 

serve all counsel of record. 

/s/ Brett A. Shumate 

Brett A. Shumate 

Counsel for Plaintiff