IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CAMPAIGN LEGAL CENTER and

DEMOCRACY 21,

 Plaintiffs,

v.

FEDERAL ELECTION COMMISSION,

 Defendant,

RIGHT TO RISE SUPER PAC, INC. 

 Proposed Intervenor-Defendant.

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

Case No. 1:20-cv-00730

Hon. Christopher R. Cooper

/

DEFENDANT INTERVENOR RIGHT TO RISE SUPER PAC, INC.’S RESPONSE TO 

PLAINTIFFS’ SUPPLEMENTAL BRIEF

Case 1:20-cv-00730-CRC Document 30 Filed 05/21/21 Page 1 of 17
TABLE OF CONTENTS

Page

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

I. INTRODUCTION...................................................................................................................... 1

II. THIS INQUIRY IS DRIVEN BY FECA’S DISCLOSURE STANDARDS, NOT BY 

WHAT PLAINTIFFS WISH THOSE STANDARDS WERE.......................................... 1

III. PLAINTIFFS’ SINGLE ADDITIONAL “EXAMPLE” OF INFORMATIONAL 

DEPRIVATION DOES NOT ESTABLISH AN INJURY ............................................... 3

IV. COURTS IN THIS CIRCUIT DO REQUIRE SHOWING OF A SPECIFIC 

INFORMATIONAL INJURY........................................................................................... 6

V. PLAINTIFFS’ RUMINATIONS ABOUT WHEN GOVERNOR BUSH BECAME A 

CANDIDATE DO NOT SOLVE THEIR STANDING PROBLEM ................................ 8

VI. CONCLUSION...................................................................................................................... 11

Case 1:20-cv-00730-CRC Document 30 Filed 05/21/21 Page 2 of 17
ii

TABLE OF AUTHORITIES

Cases

Alliance for Democracy v. FEC, 362 F.Supp.2d 138 (D.D.C. 2005) ............................................ 2

Campaign Legal Ctr. & Democracy 21 v. Fed. Election Comm’n, 952 F.3d 352 (D.C. Cir. 

2020) ........................................................................................................................................ 7

Campaign Legal Ctr. v. Fed. Election Comm’n, 245 F. Supp. 3d 119 (D.D.C. 2017).................. 7

Citizens for Resp. & Ethics in Washington v. Am. Action Network, 410 F. Supp. 3d 1 

(D.D.C.) ................................................................................................................................... 8

CREW v. FEC, 401 F.Supp.2d 115 n.2 (D.D.C. 2005) aff’d, 475 F.3d 337 (D.C. Cir. 2007)

........................................................................................................................................ 2, 8

Erby v. United States, 424 F. Supp. 2d 180 (D.D.C. 2006)........................................................... 3

Federal Election Comm’n v. Akins, 524 U.S. 11 (1998) ..................................................... 6, 8, 10

Free Speech for People v. Fed. Election Comm’n, 442 F. Supp. 3d 335 (D.D.C. 2020) .............. 2

Friends of Animals v. Jewell, 828 F.3d 989 (D.C. Cir. 2016) ....................................................... 2

Hamilton v. United States, __ F.Supp.3d __, No. CV 19-1105 (RDM), 2020 WL 6709758 

(D.D.C. Nov. 16, 2020)............................................................................................................ 2

Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114 (1982)...................................... 2

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 114 S.Ct. 1673 (1994) ...................... 3

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .................................................................... 3

Nader v. FEC, 725 F.3d 226 (D.C. Cir. 2013)............................................................................... 2

Public Citizen v. Department of Justice, 491 U.S. 440, 109 S.Ct. 2558 (1989)............................ 1

Schmidt v. U.S. Capitol Police Bd., 826 F. Supp. 2d 59 (D.D.C. 2011)........................................ 3

Wertheimer v. Fed. Election Comm’n, 268 F.3d 1070 (D.C. Cir. 2001)............................. 1, 9, 10

Statutes & Regulations

11 C.F.R. § 100.131(a)................................................................................................................. 10

11 C.F.R. § 100.3(a)..................................................................................................................... 10

Case 1:20-cv-00730-CRC Document 30 Filed 05/21/21 Page 3 of 17
iii

11 C.F.R. § 100.72(a)................................................................................................................... 10

28 U.S.C. § 1292(b)..................................................................................................................... 11

52 U.S.C. § 30101(2)................................................................................................................... 10

52 U.S.C. § 30109(a)(8)................................................................................................................. 6

52 U.S.C. § 30122.......................................................................................................................... 7

Rules

Fed. R. Civ. P. 12(b)(1).................................................................................................................. 2

Miscellaneous

Allison King & Allison Sonfist, Jeb Bush Returns to New Hampshire, NECN (May 20, 

2015), https://www.necn.com/news/politics/jeb-bush-returns-to-nh/175490/?amp................ 4

C-SPAN, WMUR-TV Interview with Jeb Bush (May 21, 2015), https://www.cspan.org/video/?326488-1/wmur-tv-interview-jeb-bush ......................................................... 4

Explanation and Justification for Final Rules of Payments Received for Testing the Waters 

Activities, 50 Fed. Reg. 9592 (Mar. 13 1985) ....................................................................... 10

Jeb 2016, Inc. 2015 July Quarterly Report, 

https://docquery.fec.gov/pdf/887/201507159000159887/201507159000159887.pdf............. 5

Jeb 2016, Inc., 2015 July Quarterly Report, Schedule B-P at pgs. 1675-1678, 1689-1690, 

1694-1695, 

https://docquery.fec.gov/pdf/182/201507319000507182/201507319000507182.pdf............. 5

Jeb 2016, Inc., 2015 July Quarterly Report, Schedule B-P at pgs. 1676-1678, 1695, 

https://docquery.fec.gov/pdf/182/201507319000507182/201507319000507182.pdf............. 6

Leslie Larson, Jeb Bush says there’s ‘not a shred of evidence’ NSA surveillance violated 

civil liberties, Business Insider (May 21, 2015), https://www.businessinsider.com/jebbush-not-a-shred-of-evidence-nsa-violated-rights-2015-5 ...................................................... 4

Marc Caputo, Jeb Bush to form leadership PAC for fundraising, The Miami Herald (Jan. 

6, 2015), https://www.miamiherald.com/news/state/florida/article5491587.html .................. 4

Right to Rise PAC, Inc. 2015 Mid-Year Report, 

https://docquery.fec.gov/pdf/182/201507319000507182/201507319000507182.pdf............. 5

Right to Rise PAC, Inc., 2015 Mid-Year Report, Schedule B at pgs. 730-736, 776-779, 

1085-1089, 

https://docquery.fec.gov/pdf/182/201507319000507182/201507319000507182.pdf......... 5, 6

Case 1:20-cv-00730-CRC Document 30 Filed 05/21/21 Page 4 of 17
iv

Right to Rise USA 2015 Mid-Year Report, 

https://docquery.fec.gov/pdf/819/201507319000471819/201507319000471819.pdf............. 5

Case 1:20-cv-00730-CRC Document 30 Filed 05/21/21 Page 5 of 17
I. INTRODUCTION

Plaintiffs fail to identify any expenditure that was not disclosed in violation of a specific 

FECA requirement. Right to Rise’s supplemental brief rebutted the first five “examples” that 

Plaintiffs provided at oral argument on the reconsideration motion. And this brief rebuts the only 

additional “example” Plaintiffs identified in their own supplemental brief. Plaintiffs therefore lack 

informational standing.

What that leaves is Plaintiffs’ actual request—that this Court (1) make a legal 

determination about when Governor Bush became a candidate, and (2) force Bush and Right to 

Rise to redisclose the same expenditures under different legal labels. But that’s not an information 

injury, it is a demand for a legal conclusion. And the theory is squarely foreclosed by Wertheimer 

v. Fed. Election Comm’n, 268 F.3d 1070 (D.C. Cir. 2001). Accordingly, Plaintiffs’ complaint 

should be dismissed.

II. THIS INQUIRY IS DRIVEN BY FECA’S DISCLOSURE STANDARDS, NOT BY 

WHAT PLAINTIFFS WISH THOSE STANDARDS WERE.

Plaintiffs have alleged that the Commission’s handling of their administrative complaints 

has deprived them “of full disclosure about the activities undertaken by Bush and his agents to 

establish [Right to Rise], as well as the nature of the ongoing relationship between [Right to Rise] 

and the Bush campaign.” Compl., ECF No. 1, at ¶¶ 9, 37. This informational injury requires

Plaintiffs to show a specific instance where a statutory provision has explicitly created a right to 

information, and Plaintiffs have failed to obtain the information that must be publicly disclosed.

E.g., Public Citizen v. Department of Justice, 491 U.S. 440, 449, 109 S.Ct. 2558, 2564 (1989)

(failure to obtain information subject to disclosure under Federal Advisory Committee Act 

“constitutes a sufficiently distinct injury to provide standing”); Havens Realty Corp. v. Coleman,

Case 1:20-cv-00730-CRC Document 30 Filed 05/21/21 Page 6 of 17
2

455 U.S. 363, 373–374, 102 S.Ct. 1114, 1121–1122 (1982) (deprivation of information required 

to be disclosed under the Fair Housing Act constitutes “specific injury” sufficient for standing).

Of course, “[n]ot every unrequited demand for information from the FEC is sufficient to 

establish Article III standing[.]” Free Speech for People v. Fed. Election Comm’n, 442 F. Supp. 

3d 335, 342–43 (D.D.C. 2020). “Only if the statute grants a plaintiff a concrete interest in the 

information sought will he be able to assert an injury in fact.” Nader v. FEC, 725 F.3d 226, 229 

(D.C. Cir. 2013); see also Friends of Animals v. Jewell, 828 F.3d 989, 992 (D.C. Cir. 2016) (“the 

existence and scope of an injury for informational standing purposes is defined by Congress”).

Conversely, a plaintiff has suffered no injury in fact if it seeks information that a statute 

does not require to be disclosed. CREW v. FEC, 401 F.Supp.2d 115, 121 n.2 (D.D.C. 2005) aff’d, 

475 F.3d 337 (D.C. Cir. 2007) (plaintiffs seeking exact value of contact list did not suffer an

informational injury because FECA “does not require the FEC to value an in-kind contribution in 

the form of a contact list”); Alliance for Democracy v. FEC, 362 F.Supp.2d 138, 145 (D.D.C. 

2005) (rejecting claim to quantify the value of a mailing list where the Act did not require it).

So the questions here are straightforward: (1) whether the information Plaintiffs seek is 

required to be disclosed under FECA, and (2) if so, whether Plaintiffs have proven by a 

preponderance of the evidence that the information sought has not been disclosed. Because Right 

to Rise’s dismissal motion poses a “factual” challenge to the Court’s subject-matter jurisdiction 

under Rule 12(b)(1), the Court “may not deny the motion to dismiss merely by assuming the truth 

of the facts alleged by the plaintiff and disputed by the defendant, but must go beyond the pleadings 

and resolve any disputed issues of fact the resolution of which is necessary to a ruling upon the 

motion to dismiss.” Hamilton v. United States, __ F.Supp.3d __, No. CV 19-1105 (RDM), 2020 

WL 6709758, at *3 (D.D.C. Nov. 16, 2020). “[T]he factual allegations of the complaint are not

Case 1:20-cv-00730-CRC Document 30 Filed 05/21/21 Page 7 of 17
3

entitled to a presumption of validity, and the Court is required to resolve factual disputes between 

the parties. Id. (citing Erby v. United States, 424 F. Supp. 2d 180, 183 (D.D.C. 2006)). In doing 

so, “[t]he Court may consider the complaint, any undisputed facts, and the [C]ourt’s resolution of 

disputed facts.” Id. (cleaned up). It is Plaintiffs’ burden to establish jurisdiction, Kokkonen v. 

Guardian Life Ins. Co. of Am., 511 U.S. 375, 114 S.Ct. 1673 (1994), and they must do so by a 

preponderance. Schmidt v. U.S. Capitol Police Bd., 826 F. Supp. 2d 59, 69 (D.D.C. 2011) (citing

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).

III. PLAINTIFFS’ SINGLE ADDITIONAL “EXAMPLE” OF INFORMATIONAL 

DEPRIVATION DOES NOT ESTABLISH AN INJURY

The purpose of the supplemental briefing was to give Plaintiffs a chance to show the

specific information they didn’t receive but which FECA required to be disclosed. (Tr. 3:11 – 15, 

the Court stating, “[a]nd so what I’d like to do now is to make sure that we're all on the same page 

with respect to what [the disclosures] actually say and what time period they cover and where they 

report the information that the plaintiffs allege they have been deprived of.”). Indeed, during the 

motion hearing, Plaintiffs identified five events that Bush attended for which they professed that 

they could not “discernably designate” any payments related to the activities. (Tr. 14:14 – 25).

Right to Rise addressed and rebutted each of those examples in its supplemental brief by 

specifically identifying where each of the activities in question that was required to be reported 

has been reported in accordance with FECA. RTR’s Supp’l Br., ECF No. 28 at 12 – 17. Plaintiffs 

do not seriously contest that rebuttal but instead proffer one additional example that pertains to 

events in New Hampshire in May 2015, Pl.’s Supp’l. Br., ECF No. 29, at 14. Former Governor 

Bush was in New Hampshire and, according to news reports and social media posts, he stayed at 

the Hilton Garden Inn Manchester, attended a house party in Bedford, taped a TV interview with 

WMUR, and participated in a local Chamber of Commerce event in Concord. At each event, Bush 

Case 1:20-cv-00730-CRC Document 30 Filed 05/21/21 Page 8 of 17
4

discussed policy issues furthering the mission of Right to Rise Leadership PAC, which was formed 

to support both conservative candidates and conservative policies.1 For example, at Portsmouth,

Bush criticized both former President George W. Bush and President Obama for foreign-policy 

decisions. Allison King & Allison Sonfist, Jeb Bush Returns to New Hampshire, NECN (May 20, 

2015), https://www.necn.com/news/politics/jeb-bush-returns-to-nh/175490/?amp.

Bush made the same criticisms during the WMUR interview. C-SPAN, WMUR-TV 

Interview with Jeb Bush (May 21, 2015), https://www.c-span.org/video/?326488-1/wmur-tvinterview-jeb-bush. At the Concord Chamber of Commerce breakfast, Bush disagreed with critics 

of the National Security Agency’s policies on surveillance, stating there’s “not a shred of 

evidence” that the NSA’s policies had violated civil liberties. Leslie Larson, Jeb Bush says there’s 

‘not a shred of evidence’ NSA surveillance violated civil liberties, Business Insider (May 21, 

2015), https://www.businessinsider.com/jeb-bush-not-a-shred-of-evidence-nsa-violated-rights2015-5. Right to Rise Leadership PAC even issued a press advisory prior to the trip indicating 

Bush would be traveling on their behalf. Jeb Bush to Visit New Hampshire on Wednesday, May 

20, 2015, https://blog.4president.org/2016/2015/05/jeb-bush-to-visit-new-hampshire-onwednesday-may-20-2015.html. It was appropriate for Right to Rise Leadership PAC to sponsor 

Bush’s travel because his travel benefitted the organization.

Plaintiffs claim that the New Hampshire activities were not sufficiently disclosed because 

none of Right to Rise Leadership PAC’s “disbursement entries mention Bush or indicate the 

travelers, destination(s), or event(s) to which the payments corresponded.” ECF No. 29 at 16. But

FEC filings show the vendor paid, date, and purpose: not travelers, destinations, or events tied to 

 1 Marc Caputo, Jeb Bush to form leadership PAC for fundraising, The Miami Herald (Jan. 6, 2015), 

https://www.miamiherald.com/news/state/florida/article5491587.html.

Case 1:20-cv-00730-CRC Document 30 Filed 05/21/21 Page 9 of 17
5

specific payments. Plaintiffs fail to cite any FECA provision requiring the reporting of such 

information—which, again, is the key element to satisfying their burden of proving an 

informational injury. Rather, the information that FECA requires to be disclosed was disclosed.2

Aside from New Hampshire, there are no other specific examples of information to which 

Plaintiffs claim they have been deprived despite a FECA disclosure obligation—even though 

Plaintiffs represented during the motion hearing that they had 50 such examples. (Tr. 13: 1-14). 

Instead, Plaintiffs make the generic, non-specific allegation that “they have been deprived of full 

disclosure of all reportable campaign spending from May 2014 to June 2015.” ECF No. 29 at 18

(emphasis added). And Plaintiffs try to shift their burden, complaining that Right to Rise “has not 

provided any evidence whatsoever to substantiate [their assertion that the activities in question 

were disclosed].”

Even Plaintiffs’ generic, non-specific allegations miss the mark. For example, Plaintiffs 

assert that Bush must have needed “staff to handle the logistics and substantive work” surrounding 

events he attended, apparently implying that such disclosures were not made. ECF No. 29 at 7. 

But Right to Rise Leadership PAC did disclose disbursements for such staffing,3 and, separately, 

Governor Bush did disclose over $48,000 in payments to individuals (Sally Bradshaw & Kristy 

Campbell) who supported him while he was testing the waters.4 Plaintiffs even acknowledge so 

 2 See Right to Rise PAC, Inc. 2015 Mid-Year Report, 

https://docquery.fec.gov/pdf/182/201507319000507182/201507319000507182.pdf; Right to Rise 

USA 2015 Mid-Year Report, 

https://docquery.fec.gov/pdf/819/201507319000471819/201507319000471819.pdf; and Jeb 

2016, Inc. 2015 July Quarterly Report, 

https://docquery.fec.gov/pdf/887/201507159000159887/201507159000159887.pdf

3 Right to Rise PAC, Inc., 2015 Mid-Year Report, Schedule B at pgs. 730-736, 776-779, 1085-

1089, https://docquery.fec.gov/pdf/182/201507319000507182/201507319000507182.pdf. 4 Jeb 2016, Inc., 2015 July Quarterly Report, Schedule B-P at pgs. 1675-1678, 1689-1690, 1694-

1695, https://docquery.fec.gov/pdf/182/201507319000507182/201507319000507182.pdf.

Case 1:20-cv-00730-CRC Document 30 Filed 05/21/21 Page 10 of 17
6

in their supplemental brief. See ECF No. 29 at 7. Ms. Campbell specifically supported Governor 

Bush as Communications Director for his role as Chairman of Right to Rise Leadership PAC,

5 and 

then separately and subsequently as Jeb 2016, Inc.’s National Press Secretary.

6

 See Declaration 

of Kristy Campbell, attached hereto as Exhibit 1 (explaining Ms. Campbell’s separate roles with 

Right to Rise Leadership PAC and Governor Bush’s testing the waters efforts).

It is impossible for Right to Rise to prove a negative (i.e., that no disclosable information 

has been withheld), and the law does not require it to do so. By pointing the Court to six, specific

events—all of which have been linked to disclosures by Right to Rise in its supplemental 

briefing—Plaintiffs have failed to satisfy their own burden of establishing an informational injury. 

Instead, they seem to be complaining that they dislike the way in which disclosures were made. Id. 

at 18-19.

Plaintiffs’ true claim of injury is legally deficient and dictates that their complaint be 

dismissed for lack of standing. Federal Election Comm’n v. Akins, 524 U.S. 11, 22 (1998) (FECA 

seeks to protect individuals from “failing to receive particular information about campaign-related 

activities.”) (emphasis added; cleaned up).

IV. COURTS IN THIS CIRCUIT DO REQUIRE SHOWING OF A SPECIFIC 

INFORMATIONAL INJURY

Recognizing the glaring hole in their standing theory, Plaintiffs pivot and argue that “it 

cannot be plaintiffs’ burden to identify in granular detail each and every campaign expenditure 

they allege a respondent has not reported under FECA in order to establish informational standing 

in an action under Section 30109(a)(8).” Pl.’s Supp’l. Br., ECF No. 29, at 8. That’s not what Right 

 5 Right to Rise PAC, Inc., 2015 Mid-Year Report, Schedule B at pgs. 734-736, 

https://docquery.fec.gov/pdf/182/201507319000507182/201507319000507182.pdf. 6 Jeb 2016, Inc., 2015 July Quarterly Report, Schedule B-P at pgs. 1676-1678, 1695, 

https://docquery.fec.gov/pdf/182/201507319000507182/201507319000507182.pdf. 

Case 1:20-cv-00730-CRC Document 30 Filed 05/21/21 Page 11 of 17
7

to Rise is arguing. As explained above, Plaintiffs do have the burden of showing specifically what 

information they’ve been deprived of despite a FECA disclosure obligation. And while Plaintiffs 

say that courts in this Circuit have “never required such a showing to sustain informational 

standing under Section 30109(a)(8),” id., even the cases Plaintiffs cite show otherwise.

For example, in Campaign Legal Ctr. v. Fed. Election Comm’n, 245 F. Supp. 3d 119 

(D.D.C. 2017), the plaintiffs alleged they had been denied access to information concerning 

campaign contributions. This Court rejected an FEC dismissal motion for lack of standing based 

on the absence of an informational injury because the plaintiffs had shown they had been deprived 

of information regarding specific “$1 million contributions made to the super PAC Restore Our 

Future in the names of F8 LLC and Eli Publishing LC,” information that FECA required be 

disclosed. Id. at 26 (plaintiffs had standing to seek disclosure of the true names of individuals who 

had contributed to super PACs through corporate straw donors because FECA required that 

information to be disclosed).

Likewise, in Campaign Legal Ctr. & Democracy 21 v. Fed. Election Comm’n, 952 F.3d 

352, 356 (D.C. Cir. 2020), the same plaintiffs as those here alleged that “individuals made political 

contributions to Super PACs by using closely held corporations and limited liability companies 

(LLCs) as straw donors, thereby violating § 30122,” which ensures accurate disclosure of 

contributor information by prohibiting the making of a contribution in the name of another. The 

court concluded that the plaintiffs had sustained an informational injury stemming from the 

deprivation of specific information—that being the public disclosure of campaign contributor 

information, or, said another way, the identity of who made the specific contributions at issue. Id. 

at 356.

Case 1:20-cv-00730-CRC Document 30 Filed 05/21/21 Page 12 of 17
8

The same can be said of the remaining FECA cases Plaintiffs cite in their supplemental 

brief. See Citizens for Resp. & Ethics in Washington v. Am. Action Network, 410 F. Supp. 3d 1, 

13-14 (D.D.C.), motion to certify appeal denied, 415 F. Supp. 3d 143 (D.D.C. 2019) (“Because 

FECA requires the disclosure of the information CREW seeks [i.e., donor information] and 

because CREW has suffered a cognizable informational injury, it has established injury in fact.”); 

Akins, 524 U.S. at 21-22 (“The ‘injury in fact’ that respondents have suffered consists of their 

inability to obtain information—lists of AIPAC donors . . . and campaign-related contributions 

and expenditures” that must be disclosed under FECA).

In stark contrast here, Plaintiffs point to six examples of informational injury. Each 

example involves (1) information that was publicly disclosed, (2) information that FECA does not 

require to be disclosed, or (3) both these things. Given Plaintiffs’ failure to satisfy their burden of 

showing by a preponderance that they have suffered a specific informational injury under a specific 

statutory requirement, Right to Rise’s motion to dismiss should be granted on reconsideration.

V. PLAINTIFFS’ RUMINATIONS ABOUT WHEN GOVERNOR BUSH BECAME A 

CANDIDATE DO NOT SOLVE THEIR STANDING PROBLEM

In a vacuum, it may seem curious why Plaintiffs keep focusing on the timing of Bush’s 

candidacy. E.g. Pl.’s Supp’l. Br., ECF No. 29, at 2 (asserting that Right to Rise claimed it paid for 

all “of Bush’s unreported pre-candidacy activities,” which Plaintiffs characterize as a “potential 

admission” of violations of FECA’s soft-money ban). This focus is irrelevant to the supplemental 

brief’s purpose of showing a specific informational injury. And it ignores that Right to Rise paid 

for Bush’s activities on behalf of Right to Rise as the law required because the benefit of those

Case 1:20-cv-00730-CRC Document 30 Filed 05/21/21 Page 13 of 17
9

activities ran to Right to Rise. All of Bush’s pre-candidacy activities were paid for by the 

appropriate entity and reported – if legally required – by such entity.7

So why even bring it up? Plaintiffs’ theory is that Right to Rise’s payment for Governor 

Bush’s activities on behalf of Right to Rise could be a violation of FECA’s soft-money ban if there 

was a legal determination that such activities were Bush campaign activities rather than Right to 

Rise activities. This is why Plaintiffs keep calling Bush activities “campaign” activities. What 

Plaintiffs desire is a court ruling about when Bush’s pre-candidacy activities became candidate 

activities. Their problem is that’s not an actionable claim for undisclosed expenditures.

In the same vein is Plaintiffs’ confusing emphasis on the fact that neither Right to Rise nor 

Bush reported any payments from Right to Rise to Bush, ECF No. 29, at 12, even while 

acknowledging that such reporting would constitute illegal in-kind contributions. Plaintiffs then 

restate their unfounded allegation that all costs incurred (and disclosed) in connection with Bush’s 

pre-June 2015 activities were in fact expenditures of his campaign. Id. But that’s not a failure of 

anyone to disclose expenditures; it is a request for a legal determination that certain transactions 

were mislabeled because of a legal conclusion about Bush’s candidate status. And Plaintiffs have 

no right to such a legal determination.

The D.C. Circuit made that exact point in Wertheimer v. Fed. Election Comm’n, 268 F.3d 

1070 (D.C. Cir. 2001). There, the plaintiffs alleged standing based on several injuries, one being 

that “the FEC's failure [to act] deprived them of required information about the source and amount 

of candidates’ financing.” Id. at 1073. Like Plaintiffs here, the Wertheimer plaintiffs relied on FEC 

 7 Right to Rise’s counsel could have been more precise at the hearing and, instead of explaining 

that every single activity is fully reported either by the campaign on their testing-the-waters 

disbursements “or by Right to Rise Super PAC,” should have said “or by the appropriate entity 

benefiting from such activity,” which was usually Right to Rise Leadership PAC.

Case 1:20-cv-00730-CRC Document 30 Filed 05/21/21 Page 14 of 17
10

v. Akins, 524 U.S. 11 (1998), for the notion that a claimant suffers cognizable injury under FECA 

when deprived of information that the Act requires be disclosed. Id. at 1074.

But the Wertheimer court held that plaintiffs “failed to show . . . that they are directly being 

deprived of any information.” 268 F.3d at 1074-75. Central to that conclusion, the Court reasoned

“[d]uring oral argument, counsel for appellants was asked what facts, specifically, were not being 

disclosed. Counsel responded that the ‘fact’ of ‘coordination’ was being withheld. But 

‘coordination’ appears to us to be a legal conclusion that carries certain law enforcement 

consequences.” Id. at 1074-75. “As far as we can determine,” the court continued, “appellants do 

not really seek additional facts but only the legal determination that certain transactions constitute 

coordinated expenditures.” Id. at 1075 (emphasis added).

So too here. In fact, this Court tracked Wertheimer’s logic when it asked Plaintiffs’ counsel 

at the reconsideration hearing, “Why is that not an end run around the seeking a legal conclusion? 

Why is that not an end run around Wertheimer?” (Tr. 21:22 –22:3). Plaintiffs’ answer—that 

“FECA is structured to shine the light of disclosure on all candidacies as soon as they form,” (Tr. 

22:15-16)—proves the point, as the issue of whether and when Governor Bush became a candidate 

as that term is defined by FECA8

, and whether Bush’s reported activities on behalf of other 

organizations should be treated as testing the waters activities,

9 is precisely the sort of legal 

conclusion that Wertheimer prohibits being characterized as an informational injury for purposes 

of establishing standing. Here as in Wertheimer, Plaintiffs’ true objective is “a legal 

 8 An individual becomes a candidate under FECA if he or she receives contributions or makes 

expenditures in excess of $5,000, or consents to another doing so on his or her behalf. 52 U.S.C. 

§§ 30101(2); 11 C.F.R. Sec. 100.3(a) 9 See 11 C.F.R. Sec. Sec. 100.72(a), 100.131(a); see also Explanation and Justification for Final 

Rules of Payments Received for Testing the Waters Activities, 50 Fed. Reg. 9592 (Mar. 13 1985).

Case 1:20-cv-00730-CRC Document 30 Filed 05/21/21 Page 15 of 17
11

characterization or duplicative reporting of information that under existing rules is already required 

to be disclosed.” 268 F.3d at 1075.

And that’s the gist of Plaintiffs’ entire action. They want this Court to make a legal 

determination that Bush was a candidate before he said he was. Such a ruling would not result in 

a single additional expenditure being disclosed; it would, at most, result in the duplicative reporting 

of information under a different legal label. Wertheimer forecloses that theory. And Plaintiffs’ 

inability to identify any expenditure disclosure that was not made and that FECA required 

forecloses their information-standing theory. Plaintiffs Complaint should be dismissed.

VI. CONCLUSION

Right to Rise respectfully requests that the Court reconsider that portion of its February 19, 

2021 Memorandum Opinion and Order holding that Plaintiffs have Article III standing to pursue 

the remainder of their FECA claim, or, in the alternative (or in addition to), certify the Order for 

interlocutory appeal under 28 U.S.C. § 1292(b). 

Dated: May 21, 2021 Respectfully Submitted, 

DICKINSON WRIGHT PLLC

/s/ Charles R. Spies

Charles R. Spies, Bar ID: 989020

Jessica G. Brouckaert

1825 Eye Street, N.W., Suite 900

Washington, D.C. 20006

Telephone: (202) 466-5964

Facsimile: (844) 670-6009

cspies@dickinsonwright.com

jbrouckaert@dickinsonwright.com

Robert L. Avers

350 S. Main Street, Ste 300

Ann Arbor, MI 48104

(734) 623-1672

ravers@dickinsonwright.com

Case 1:20-cv-00730-CRC Document 30 Filed 05/21/21 Page 16 of 17
12

John J. Bursch*

Bursch Law PLLC

9339 Cherry Valley Ave. SE, #78

Caledonia, MI 49316

(616) 450-4235

jbursch@burschlaw.com

Attorneys for Defendant-Intervenor

*Pending Admission

CERTIFICATE OF SERVICE

I hereby certify that on May 21, 2021, I caused a true and correct copy of the foregoing 

document to be served upon all counsel of record registered with the Court’s ECF system by 

electronic service via the Court’s ECF transmission facilities.

/s/ Robert L. Avers

Case 1:20-cv-00730-CRC Document 30 Filed 05/21/21 Page 17 of 17