USCA Case #22-5140 Document #1975627 Filed: 11/30/2022 Page 1 of 92 

ORAL ARGUMENT SCHEDULED FOR JANUARY 20, 2023 

Nos. 22-5140, 22-5167 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

CAMPAIGN LEGAL CENTER, 

Plaintiff-Appellee, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant. 

HERITAGE ACTION FOR AMERICA, 

Movant-Appellant. 

On Appeal from the United States District Court 

for the District of Columbia, No. 1:21-cv-406-TJK 

Before the Honorable Timothy J. Kelly 

BRIEF FOR PLAINTIFF-APPELLEE CAMPAIGN LEGAL CENTER 

Adav Noti 

Kevin P. Hancock 

Molly E. Danahy 

Hayden Johnson 

CAMPAIGN LEGAL CENTER 

1101 14th St. NW, Suite 400 

Washington, DC 20005 

(202) 736-2200 

mdanahy@campaignlegalcenter.org 

Counsel for Plaintiff-Appellee 
 

 

 

 

 

 

USCA Case #22-5140 Document #1975627 Filed: 11/30/2022 Page 2 of 92 

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

(A) Parties and Amici 

Campaign Legal Center (“Campaign Legal”) is the plaintiff in the district 

court and Appellee in this Court. Campaign Legal is a nonpartisan, nonprofit 

corporation that works to protect and strengthen the U.S. democratic process across 

all levels of government, including by supporting campaign finance reform through 

litigation, policy analysis, and public education. 

The Federal Election Commission (“Commission”) is the defendant in the 

district court but defaulted and has not appeared in the district court or in this Court. 

Heritage Action for America (“Heritage Action”) is a movant but not a party 

in the district court and is the Appellant in this Court. 

Heritage Action and the Institute for Free Speech appeared as amici curiae in 

the district court. The Institute for Free Speech has appeared as amicus curiae in this 

Court. 

(B) Rulings Under Review 

In case No. 22-5140, Heritage Action noticed an appeal of the May 3, 2022 

order of the U.S. District Court for the District of Columbia (Kelly, J.) declaring that 

the Commission failed to conform to the district court’s March 25, 2022 order 

granting Campaign Legal’s motion for default judgment against the Commission. 

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JA283. The May 3, 2022 order is not published in the federal reporter, but is 

reproduced at JA245. 

In case No. 22-5167, Heritage Action noticed an appeal of the June 6, 2022 

order and memorandum opinion of the U.S. District Court for the District of 

Columbia (Kelly, J.) denying Heritage Action’s motion to intervene. JA314. The 

June 6, 2022 memorandum opinion is not published in the federal reporter but is 

reproduced at JA307 and is available at 2022 WL 1978727. 

On June 10, 2022, the Court consolidated case Nos. 22-5140 and 22-5167. 

(C) Related Cases 

The case on review was previously before this Court pursuant to Heritage 

Action’s motion for an abeyance and Campaign Legal’s motion for summary 

affirmance, both of which were denied in an Order dated September 14, 2022. There 

are three related cases pending before the U.S. District Court for the District of 

Columbia: (1) Campaign Legal’s citizen suit against Heritage Action under the 

Federal Election Campaign Act (“FECA”), see Campaign Legal Ctr. v. Heritage 

Action, No. 1:22-cv-1248-CJN (D.D.C); (2) Heritage Action’s Administrative 

Procedure Act (“APA”) lawsuit against the Commission, Heritage Action v. FEC, 

No. 1:22-cv-1422-CJN (D.D.C); and (3) Campaign Legal’s citizen suit against 

45Committee, Inc. under FECA, see Campaign Legal Ctr. v. 45Committee, Inc., No. 

1:22-cv-1115-APM (D.D.C.). 

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CORPORATE DISCLOSURE STATEMENT 

Pursuant to Fed. R. App. P. 26.1 and D.C. Circuit Rule 26.1, Appellee 

Campaign Legal makes the following disclosure: Campaign Legal is a 501(c)(3) 

nonpartisan, nonprofit organization, that has no parent corporation, does not issue 

stock, and in which no publicly held corporation has any form of ownership interest. 

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USCA Case #22-5140 Document #1975627 Filed: 11/30/2022 Page 5 of 92 

TABLE OF CONTENTS 

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES ...............i 

CORPORATE DISCLOSURE STATEMENT ....................................................... iii 

TABLE OF CONTENTS..........................................................................................iv 

TABLE OF AUTHORITIES ....................................................................................vi 

GLOSSARY OF ABBREVIATIONS ......................................................................xi 

INTRODUCTION .....................................................................................................1 

JURISDICTIONAL STATEMENT ..........................................................................5 

STATEMENT OF THE CASE..................................................................................6 

I. Statutory and Regulatory Background .......................................................6 

A. FECA’s Contributor Reporting Requirements for Non-Political 

Committees Making Independent Expenditures ...................................7 

B. The Federal Election Commission ........................................................7 

1. The Commission’s Bipartisan Structure ..........................................7 

2. The Commission’s Enforcement Process ........................................7 

3. Termination of Commission Enforcement Proceedings..................8 

4. The Effect of Commission Deadlocks .............................................9 

5. Challenges to Commission Delay..................................................10 

II. Factual Background..................................................................................12 

III. Procedural History....................................................................................13 

A. The October 2018 Administrative Complaint.....................................13 

B. The February 2021 Failure-to-Act Suit ...............................................13 

C. The Intervention Motion......................................................................16 

SUMMARY OF ARGUMENT ...............................................................................17 

LEGAL STANDARDS ...........................................................................................19 

ARGUMENT ...........................................................................................................20 

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USCA Case #22-5140 Document #1975627 Filed: 11/30/2022 Page 6 of 92 

I. The District Court Did Not Abuse Its Discretion by Finding That 

Heritage Action’s Attempt to Intervene After Judgment 

Was Untimely...........................................................................................20 

A. Heritage Action’s Delay in Intervening Was Unjustified ........................21 

1. Heritage Action Passed Up Clear Opportunities for Pre-Judgment 

Intervention .........................................................................................21 

2. Heritage Action Failed to Justify Its Delay..........................................24 

3. The FEC’s May 6, 2022 FOIA Response Cannot Justify Heritage 

Action’s Untimely Motion ..................................................................29 

B. Heritage Action Will Not Be Prejudiced if It Cannot Intervene After 

Judgment in this Case...............................................................................33 

C. Intervention Would Prejudice Campaign Legal and the Public...............35 

1. Heritage Action’s “Preferred Aim” of Seeking Reconsideration 

Would Prejudice Campaign Legal ......................................................36 

a. Undue Delay ....................................................................................36 

b. Duplicative Litigation of the Merits................................................38 

2. Heritage Action’s Secondary Purpose of Solely Seeking Appeal 

Will Also Cause Prejudice ..................................................................39 

a. Delay................................................................................................40 

b. Sandbagging ....................................................................................41 

II. The Court Should Dismiss Heritage Action’s Purported Merits 

Appeal.......................................................................................................42 

A. The Court Lacks Appellate Jurisdiction Because Heritage Action Is 

Not a Party................................................................................................42 

B. This Case Should Be Remanded if the Court Determines That 

Heritage Action’s Intervention Motion Was Timely ...............................42 

III. The Court Should Affirm the District Court’s Merits Ruling ...............44 

A. The District Court Did Not Abuse its Discretion by Concluding that 

the FEC’s Failure to Act Was Contrary to Law ......................................44 

B. Heritage Action’s Automatic-Dismissal Theory Has No Basis in Law 

or Fact ......................................................................................................47 

CONCLUSION........................................................................................................54 

CERTIFICATE OF COMPLIANCE.......................................................................56 

CERTIFICATE OF SERVICE ................................................................................57 

STATUTORY ADDENDUM .................................................................................58 

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TABLE OF AUTHORITIES 

*Authorities upon which appellee principally relies are marked with an asterisk 

Cases Page 

Amador County, California v. U.S. Department of the Interior, 

772 F.3d 901 (D.C. Cir. 2014)......................................................................36, 40 

Associated Builders & Contractors, Inc. v. Herman, 

166 F.3d 1248 (D.C. Cir. 1999)........................................................20, 21, 24, 41 

Cameron v. EMW Women's Surgical Center, P.S.C., 

142 S. Ct. 1002 (2022)................................................................21, 24, 25, 26, 41 

Campaign Legal Center v. FEC, No. 22-5164, 2022 WL 4280689 (D.C. 

Cir. Sept. 14, 2022).............................................................................................40 

Campaign Legal Center v. FEC, No. CV 20-0809 (ABJ), 2021 WL 

5178968 (D.D.C. Nov. 8, 2021) ...................................................................44, 46 

Campaign Legal Center v. FEC, No. CV 20-0809 (ABJ), 2022 WL 

2111560 (D.D.C. May 13, 2022)........................................................................40 

Citizens for Percy ’84 v. FEC, No. 84-cv-2653, 1984 WL 6601 (D.D.C. 

Nov. 19, 1984) ..............................................................................................11, 47 

Citizens for Responsibility & Ethics in Washington v. American Action Network, 

410 F. Supp. 3d 1 (D.D.C. 2019)..................................................................12, 31 

Citizens for Responsibility & Ethics in Washington v. American Action Network, 

No. 18-cv-945-CRC, 2022 WL 612655 (D.D.C. Mar. 2, 2022) ........................12 

Citizens for Responsibility and Ethics in Washington v. FEC, 

236 F. Supp. 3d 378 (D.D.C. 2017)....................................................................51 

Citizens for Responsibility and Ethics in Washington v. FEC, 

892 F.3d 434 (D.C. Cir. 2018)............................................................................51 

Citizens for Responsibility and Ethics in Washington v. FEC, 

316 F. Supp. 3d 349 (D.D.C. 2018)......................................................................6 

Citizens for Responsibility and Ethics in Washington v. FEC, 

971 F.3d 340 (D.C. Cir. 2020)............................................................................51 

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Citizens for Responsibility and Ethics in Washington v. FEC, 

993 F.3d 880 (D.C. Cir. 2021)......................................................................52, 53 

Combat Veterans for Congress Political Action Comm. v. FEC, 

795 F.3d 151 (D.C. Cir. 2015)..............................................................................7 

Common Cause v. FEC, 489 F. Supp. 738 (D.D.C. 1980)..............11, 19, 44, 45, 46 

Crossroads Grassroots Policy Strategies v. FEC, 

788 F.3d 312 (D.C. Cir. 2015)......................................................................22, 23 

Day v. Apoliona, 505 F.3d 963 (9th Cir. 2007) .......................................................29 

Defenders of Wildlife v. Perciasepe, 714 F.3d 1317 (D.C. Cir. 2013)....................42 

Defenders of Wildlife v. Salazar, No. 12-cv-1833 (ABJ), 2013 WL 12316848 

(D.D.C. July 17, 2013)........................................................................................22 

Doe v. FEC, 920 F.3d 866 (D.C. Cir. 2019)........................................................8, 51 

Democratic Senatorial Campaign Committee v. FEC, No. Civ.A. 95-

0349 (JHG), 1996 WL 34301203 (D.D.C. Apr. 17, 1996).................................47 

Estate of Doe v. Islamic Republic of Iran, No. CV 08-540 (JDB), 2013 WL 

12453353 (D.D.C. July 22, 2013).......................................................................36 

FEC v. National Republican Senatorial Commission, 966 F.2d 1471 

(D.C. Cir. 1992) ..................................................................................................53 

FEC v. Rose, 806 F.2d 1081 (D.C. Cir. 1986).........................................7, 11, 19, 44 

Fox v. Government of District of Columbia, 794 F.3d 25 (D.C. Cir. 2015)............45 

Gordon v. Holder, 632 F.3d 722 (D.C. Cir. 2011) ..................................................43 

Gupta v. Mercedes-Benz USA, LLC, No. 20-cv-9295-GW-JEMX, 2020 WL 

7423111 (C.D. Cal. Dec. 10, 2020) ....................................................................38 

Karsner v. Lothian, 532 F.3d 876 (D.C. Cir. 2008) ..........................................20, 21 

In re Carter-Mondale Reelection Committee, Inc., 

642 F.2d 538 (D.C. Cir. 1980)............................................................................11 

In re Sealed Case, 552 F.3d 841 (D.C. Cir. 2009) ..................................................41 

Jordan v. FEC, 68 F.3d 518 (D.C. Cir. 1995) .........................................................51 

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Love v. Vilsack, 304 F.R.D. 85 (D.D.C. 2014) ............................................33, 34, 36 

Love v. Vilsack, No. 14-5185, 2014 WL 6725758 (D.C. Cir. Nov. 18, 2014) ........33 

Marino v. Ortiz, 484 U.S. 301 (1988)....................................................................484 

Massachusetts School of Law at Andover, Inc. v. United States, 

118 F.3d 776 (D.C. Cir. 1997)............................................................................39 

Moten v. Bricklayers, Masons & Plasterers, International Union of America, 

543 F.2d 224 (D.C. Cir. 1976)............................................................................34 

NAACP v. New York, 413 U.S. 345 (1973)............................................19, 27, 39, 43 

Paisley v. C.I.A., 724 F.2d 201 (D.C. Cir. 1984).....................................................20 

Public Citizen, Inc v. FERC, 839 F.3d 1165 (D.C. Cir. 2015) ................................53 

Roane v. Leonhart, 741 F.3d 147 (D.C. Cir. 2014) .....................................35, 36, 40 

Roeder v. Islamic Republic of Iran, 333 F.3d 228 (D.C. Cir. 2003) .......................21 

Smoke v. Norton, 252 F.3d 468 (D.C. Cir. 2001) ....................................................43 

Smuck v. Hobson, 408 F.2d 175 (D.C. Cir. 1969) ...................................................33 

Spannaus v, FEC, 990 F.2d 643 (D.C. Cir. 1993)...................................................51 

Telecommunications Research & Action Center v. FCC, 750 F.2d 70 

(D.C. Cir. 1984) ................................................................................11, 19, 45, 46 

United States v. American Telephone & Telegraph Company, 

642 F.2d 1285 (D.C. Cir. 1980)....................................................................36, 40 

United States v. Bonadio, No. 3:13 CV 591 JBA, 2014 WL 3747303 

(D. Conn. July 17, 2014).....................................................................................41 

United States v. British American Tobacco Australia Services, Ltd., 437 

F.3d 1235 (D.C. Cir. 2006)...................................................................................9 

Statutes 

52 U.S.C. § 30104(c)(1).......................................................................................6, 12 

52 U.S.C. § 30104(c)(2).......................................................................................6, 12 

52 U.S.C. § 30104(c)(2)(C) .................................................................................6, 12 

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52 U.S.C. § 30104(g) .................................................................................................6 

52 U.S.C. § 30106......................................................................................................7 

52 U.S.C. § 30106(a)(1).............................................................................................7 

52 U.S.C. § 30106(c) .............................................................................................7, 8 

52 U.S.C. § 30107(a)(6)...........................................................................................31 

52 U.S.C. § 30109(a)(1).......................................................................................7, 48 

52 U.S.C. § 30109(a)(2).............................................................................8, 9, 10, 48 

52 U.S.C. § 30109(a)(8)(A) .........................................................................10, 11, 13 

52 U.S.C. § 30109(a)(8)(B) .................................................................................9, 51 

52 U.S.C. § 30109(a)(8)(C) ...................................................... 11, 12, 13, 22, 28, 48 

52 U.S.C. § 30109(a)(12).........................................................................................14 

Regulations, Rules, and Rulemaking Documents 

11 C.F.R. § 5.4(a)(4)........................................................................................8, 9, 48 

11 C.F.R. § 111.9(b) ..................................................................................................9 

11 C.F.R. § 111.20 .....................................................................................................7 

11 C.F.R. § 111.20(a).............................................................................................8, 9 

11 C.F.R. § 111.21 .....................................................................................................7 

Fed. R. Civ. P. 24(a).................................................................................................20 

Fed. R. Civ. P. 24(b) ................................................................................................20 

Fed. R. Civ. P. 56(d) ................................................................................................38 

Other Authorities 

Amended Certification, MURs 6391 & 6471 (Commission on Hope, Growth and 

Opportunity) (Sept. 16, 2014), 

https://eqs.fec.gov/eqsdocsMUR/15044380338.pdf...........................................51 

Certification, Agenda Doc. No. 21-21-A (Apr. 22, 2021), 

https://www.fec.gov/resources/cms-content/documents/Vote-Draft-Statementof-Policy-Initial-Stage-in-the-Enforcement-Process-4-22-21.pdf......................50 

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Certification, MUR 6872 (New Models) (Nov. 14. 2017), 

https://www.fec.gov/files/legal/murs/6872/17044432619.pdf...........................53 

Certification, MUR 7516 (Heritage Action) (Apr. 7, 2022), 

https://www.fec.gov/files/legal/murs/7516/7516_17.pdf...................................50 

Certification, MURs 6391 & 6471 (Commission on Hope, Growth and 

Opportunity) (Oct. 1, 2015), 

https://www.fec.gov/files/legal/murs/6391/15044380175.pdf.....................10, 51 

Draft Statement of Policy Regarding Closing the File at the Initial Stage in the 

Enforcement Process (Apr. 1, 2021), https://www.fec.gov/resources/cmscontent/documents/mtgdoc-21-21-A.pdf............................................................50 

FEC, Disclosure of Certain Documents in Enforcement and Other Matters, 

81 Fed. Reg. 50,702, 50,703 (Aug. 2, 2016) ........................................................9 

FEC, Statement of Policy Regarding Commission Action in Matters at the Initial 

Stage in the Enforcement Process, 

72 Fed. Reg. 12,545, 12,545 (Mar. 16, 2007) ......................................................8 

MUR 7516 Summary (Heritage Action), https://www.fec.gov/data/legal/ 

matter-under-review/7516/ .................................................................................49 

Nihal Krishan, Elections Commission Chief Uses the “Nuclear Option” To Rescue 

the Agency From Gridlock, Mother Jones (Feb. 20, 2019), 

https://bit.ly/3EE3y68.........................................................................................27 

Notice of Consent, MUR 7516 (Heritage Acton) (Mar. 31, 2022), 

https://www.fec.gov/files/legal/murs/7516/7516_08.pdf...................................14 

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GLOSSARY OF ABBREVIATIONS 

APA Administrative Procedure Act 

APA Suit Heritage Action v. FEC, No. 1:22-cv-1422-

CJN (D.D.C.) 

Campaign Legal Campaign Legal Center 

Citizen Suit Campaign Legal Ctr. v. Heritage Action, No. 

1:22-cv-1248-CJN (D.D.C.) 

Commission or FEC Federal Election Commission 

FECA Federal Election Campaign Act 

FOIA Freedom of Information Act 

Heritage Action Heritage Action for America 

New Models Citizens for Responsibility and Ethics in 

Washington v. FEC, 993 F.3d 880 (D.C. Cir. 

2021) 

NRSC FEC v. National Republican Senatorial 

Commission, 966 F.2d 1471 (D.C. Cir. 1992) 

TRAC Telecommunications Research & Action Center 

v. FCC, 750 F.2d 70 (D.C. Cir. 1984) 

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INTRODUCTION 

This appeal involves the straightforward question of whether the district court 

abused its discretion in finding that non-party Heritage Action’s post-judgment 

motion to intervene was untimely. 

For more than four years, Campaign Legal has sought to hold Heritage Action 

accountable for violating federal campaign finance laws when it spent hundreds of 

thousands of dollars supporting congressional candidates in 2018 without disclosing 

the sources of its funding. After its administrative complaint sat before the 

Commission for more than two years without any action being taken, Campaign 

Legal filed suit seeking to compel the Commission to act, failing which Campaign 

Legal would be statutorily entitled to file a citizen suit against Heritage Action for 

violating FECA. The Commission failed to appear and defend the lawsuit. More than 

a year later, Campaign Legal won default judgment against the agency after the 

district court determined on the merits that the agency’s years-long failure to act on 

the administrative complaint was unreasonable and thus contrary to law. Six weeks 

later, after the Commission failed to comply with the district court’s order to act 

within 30 days, the suit was terminated and Campaign Legal exercised its right to 

file a citizen suit against Heritage Action. 

All the while, Heritage Action sat on the sidelines. Five days after Campaign 

Legal filed its citizen suit, Heritage Action belatedly moved to intervene seeking to 

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reopen the merits of the settled judgment based on an unfounded theory about the 

Commission’s procedure for dismissing administrative matters, which it could have 

raised at least a year earlier. 

The district court did not abuse its discretion in denying the post-judgment 

motion, which Heritage Action filed more than 15 months from the outset of the case 

and long after it had become clear that Heritage Action’s interests would not be 

protected by the absent Commission. The denial of the belated motion caused 

Heritage Action no prejudice: Heritage Action’s status as a non-party to the 

judgment has enabled it to advance the arguments it seeks to make here in related 

ongoing litigation. But allowing intervention at this late date to reopen the issues 

settled by the district court would significantly prejudice Campaign Legal with 

further undue delay and duplicative litigation. The Court should affirm the denial of 

intervention and dismiss the merits appeal for lack of appellate jurisdiction. 

But even if the Court did have jurisdiction, it should nevertheless remand to 

the district court for consideration in the first instance of whether Heritage Action 

can satisfy the remaining intervention factors, and, if necessary, Heritage Action’s 

claim that the Commission did not fail to act contrary to law. 

There is therefore no reason for the Court to reach Heritage Action’s appeal 

of the merits, but even if the Court does so, it should affirm. The district court did 

not abuse its discretion in finding that the Commission failed to act on Campaign 

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Legal’s administrative complaint within 120 days; that, on the merits, the agency’s 

years-long failure to act was unreasonable and thus contrary to law; and that the 

Commission failed to conform with the district court’s order to act on the complaint 

within 30 days. 

Indeed, Heritage Action does not dispute that the Commission did not act on 

Campaign Legal’s October 2018 administrative complaint for more than 900 days 

after it was filed. Neither does it address the relevant test for analyzing the agency’s 

failure to act nor find fault with the district court’s application of the same. Instead, 

Heritage Action erroneously asserts that the Commission—which cannot act without 

a majority vote by the Commissioners—automatically dismissed the administrative 

complaint in April 2021 when it deadlocked 3-3 on whether to initiate an 

enforcement investigation. But as the Commission itself has recently explained, it is 

the agency’s official policy and decades-long practice to dismiss matters only 

through successful, majority votes to close the enforcement matter’s file. The Court 

should therefore reject Heritage Action’s accusations that the Commission “acted” 

in April 2021 by holding an unsuccessful vote, and then “concealed” from the courts 

that it had dismissed the matter; instead, the agency simply followed FECA’s 

command that information relating to a pending enforcement action must remain 

confidential until the matter is in fact dismissed. 

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In sum, the Court should affirm the district court’s denial of Heritage Action’s 

post-judgment motion to intervene and dismiss the remainder of this appeal for lack 

of appellate jurisdiction. 

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JURISDICTIONAL STATEMENT 

Campaign Legal disputes that the Court has jurisdiction over Heritage 

Action’s appeal of the Court’s merits ruling below. See infra p. 42. 

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STATEMENT OF THE CASE 

I. Statutory and Regulatory Background 

A. FECA’s Contributor Reporting Requirements for Non-Political 

Committees Making Independent Expenditures 

FECA regulates “federal political campaign financing, inter alia, by imposing 

limitations on contributions and requiring disclosure of persons contributing money 

for expenditures to influence federal elections.” CREW v. FEC, 316 F. Supp. 3d 349, 

367-68 (D.D.C. 2018). In enacting FECA, Congress “recognized the value of 

disclosure as a means of enabling the electorate to make informed decisions about 

candidates, to evaluate political messaging, to deter actual, or the appearance of, 

corruption, and to aid in enforcement of the ban on foreign contributions, which may 

result in undue influence on American politicians.” Id. at 355. 

FECA imposes event-driven disclosure requirements on individuals and 

entities other than political committees who spend non-trivial amounts on 

“independent expenditures”—communications expressly advocating the election or 

defeat of federal candidates. See 52 U.S.C. § 30104(c)(1)-(2). Such spending must 

be disclosed to the Commission in periodic public reports, see 52 U.S.C. 

§ 30104(c)(2), (g), along with the contributions the spender received during the 

relevant reporting period and the identities of the spender’s contributors. See 52 

U.S.C. § 30104(c)(1), (c)(2), (c)(2)(C). 

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B. The Federal Election Commission 

1. The Commission’s Bipartisan Structure 

The Commission administers FECA. See 52 U.S.C. § 30106. By structuring 

the Commission to have six Commissioners, no more than three of whom may be 

affiliated with the same political party, id. § 30106(a)(1), “Congress designed the 

Commission to ensure that every important action it takes is bipartisan,” Combat 

Veterans for Cong. Pol. Action Comm. v. FEC, 795 F.3d 151, 153 (D.C. Cir. 2015). 

Thus, “[a]ll decisions of the Commission with respect to the exercise of its duties 

and powers under [FECA] shall be made by a majority vote . . . except that the 

affirmative vote of 4 members” is always required—regardless of vacancies or 

abstentions—for certain actions. 52 U.S.C. § 30106(c). 

2. The Commission’s Enforcement Process 

Any person may file an administrative complaint with the Commission 

alleging a violation of FECA. 52 U.S.C. § 30109(a)(1). Absent waiver by the 

respondent, the Commission’s handling of such complaints is confidential, 52 

U.S.C. § 30109(a)(12), 11 C.F.R. § 111.21, until it “terminates its proceedings,” 11 

C.F.R. § 111.20. 

During the initial stage of the enforcement process the Commission generally 

can take the following “actions” on an administrative complaint, but only if at least 

four members agree: “(1) Find ‘reason to believe’ a respondent has violated the Act; 

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(2) dismiss the matter; (3) dismiss the matter with admonishment; or (4) find ‘no 

reason to believe’ a respondent has violated the Act.” See FEC, Statement of Policy 

Regarding Commission Action in Matters at the Initial Stage in the Enforcement 

Process, 72 Fed. Reg. 12,545, 12,545 (Mar. 16, 2007). If the Commission 

“determines, by an affirmative vote of 4 of its members,” that there is “reason to 

believe” a respondent violated FECA, the agency must notify the respondent and 

“make an investigation of such alleged violation.” 52 U.S.C. § 30109(a)(2). 

3. Termination of Commission Enforcement Proceedings 

At any point, the Commission may terminate its enforcement proceedings 

with a “vote[] to close [the] enforcement file,” 11 C.F.R. § 5.4(a)(4), which requires 

majority support to pass, see 52 U.S.C. § 30106(c); see also Doe v. FEC, 920 F.3d 

866, 871 n.9 (D.C. Cir. 2019) (“When the Commission ended its investigation and 

closed the file, it ‘terminate[d] its proceedings’ within the meaning of 11 C.F.R. 

§ 111.20(a).”). The Commission has had a “long-standing practice of terminating 

matters only through successful votes to close the file,” and it has adhered to that 

policy and practice for “decades.” FEC Opp. to Heritage Action Mot. for Summ. J. 

at 24, 30, Heritage Action v. FEC, No. 1:22-cv-1422-CJN (D.D.C. Aug. 26, 2022) 

(“APA Suit”), ECF 26 (describing this practice as “clearly the agency’s ‘official 

position’”). 

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When the Commission “terminates its proceedings” it must “advise both 

complainant and respondent by letter,” 11 C.F.R. § 111.9(b), and make public 

documents integral to its decision-making process, including certifications of 

Commission votes and Statements of Reasons by the Commissioners explaining the 

basis for their decisions, see FEC, Disclosure of Certain Documents in Enforcement 

and Other Matters, 81 Fed. Reg. 50,702, 50,703 (Aug. 2, 2016). Because FECA 

requires a complainant to challenge the dismissal of its administrative complaint 

within 60 days, 52 U.S.C. § 30109(a)(8)(B), the Commission notifies the 

administrative parties of the termination of the matter within two days and releases 

the administrative file, including any Statements of Reasons, within 30 days of the 

closing of the file. FEC, Office of General Counsel Enforcement Manual at 107 

(2013), https://www.fec.gov/resources/updates/agendas/2013/mtgdoc_13-21.pdf; 

FEC, Disclosure of Certain Documents in Enforcement and Other Matters, 81 Fed. 

Reg. 50,702, 50,703 (Aug. 2, 2016); 11 C.F.R. §§ 5.4(a)(4), 111.20(a)). 

4. The Effect of Commission Deadlocks 

Because a majority vote to close the enforcement file is required for any 

Commission decision, including the decision to terminate a matter, votes to find 

“reason to believe” that fail to gain support from at least four Commissioners do not 

“immediately terminate an administrative enforcement proceeding.” FEC Opp’n to 

Heritage Action MSJ at 23-24, APA Suit ECF 26; see also 52 U.S.C. § 30109(a)(2) 

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(requiring four votes for reason to believe but stating nothing about termination or 

dismissal); id. § 30109(a)(2) (referencing a “vote to dismiss” distinct from a vote to 

find “reason to believe”). Instead, after a deadlocked vote, an administrative matter 

remains pending before the Commission for further deliberation until bipartisan 

consensus either to proceed (through an investigation and subsequent probable cause 

determination) or terminate (through a vote to close the file) is achieved. See FEC 

Opp’n to Heritage Action Mot. for Disc. at 22-23, APA Suit (D.D.C. Sept. 16, 2022), 

ECF 30. Indeed, “the Commission has often held one reason-to-believe or probablecause-to-believe vote that does not pass, only to determine in a later vote that there 

was in fact reason to believe or probable cause to believe on the same claim.” FEC 

Opp’n to Heritage Action MSJ at 27, APA Suit ECF 26; see also FEC Opp’n to 

Heritage Action Mot. for Disc. at 23, APA Suit ECF 30 (identifying at least “98 

matters that had some additional majority votes after a deadlock before a close-thefile vote just since December 2020”). 

5. Challenges to Commission Delay 

Under FECA, any administrative complainant “aggrieved . . . by a failure of 

the Commission to act on such complaint during the 120-day period beginning on 

the date the complaint is filed” may seek review in United States District Court for 

the District of Columbia. 52 U.S.C. § 30109(a)(8)(A). The district court hearing the 

suit “may declare that . . . the failure to act is contrary to law” and “direct the 

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USCA Case #22-5140 Document #1975627 Filed: 11/30/2022 Page 23 of 92 

Commission to conform with such declaration within 30 days.” 52 U.S.C. § 

30109(a)(8)(C). 

Although section 30109(a)(8)(A) “does not impose a deadline for final action” 

on the Commission, its “120 day period is jurisdictional.” Citizens for Percy ’84 v. 

FEC, No. 84-cv-2653, 1984 WL 6601 at *2 (D.D.C. Nov. 19, 1984). It thus “allows 

the Commission a maximum period of 120 days, beginning from the date the 

complaint is filed, in which to conduct its investigation without judicial intrusion.” 

In re Carter-Mondale Reelection Committee, Inc., 642 F.2d 538, 543 (D.C. Cir. 

1980). 

Once the Commission fails to act on an administrative complaint for 120 days 

and a complainant files suit to remedy the delay, the issue on the merits before the 

district court is whether “the failure of [the Commission] to take final action as of 

the time this suit was filed” was contrary to law. Citizens for Percy ’84, 1984 WL 

6601 at *2; see also Common Cause v. FEC, 489 F. Supp. 738, 744 (D.D.C. 1980) 

(explaining that “the Court must determine whether the Commission has acted 

‘expeditiously’”). The inquiry into the agency’s failure to act is conducted under 

“the factors set forth in Common Cause v. FEC, 489 F. Supp. 738, 744 (D.D.C. 

1980), and Telecommunications Research & Action Center v. FCC (TRAC), 750 

F.2d 70, 80 (D.C. Cir. 1984).” FEC v. Rose, 806 F.2d 1081, 1084 (D.C. Cir. 1986). 

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If the Commission’s failure to act is declared contrary to law, and the 

Commission fails to conform within 30 days as ordered by the district court, “the 

complainant may bring, in the name of such complainant, a civil action to remedy 

the violation involved in the original complaint.” 52 U.S.C. § 30109(a)(8)(C). 

Congress created this private right of action (“citizen suit”) to “legislate[] a fix” for 

the fact “that partisan deadlocks were likely to result” from the “six-member 

Commission be[ing] split down party lines.” Citizens for Responsibility and Ethics 

in Washington v. Am. Action Network, 410 F. Supp. 3d 1, 6 (D.D.C. 2019), 

reconsidered on other grounds, No. 18-cv-945-CRC, 2022 WL 612655 (D.D.C. 

Mar. 2, 2022). 

II. Factual Background 

Defendant Heritage Action is a 501(c)(4) organization, JA19, and qualifies as 

a “person []other than a political committee,” subject to FECA’s contributorreporting requirements for non-political committees making independent 

expenditures. JA20; see also 52 U.S.C. § 30104(c)(1), (c)(2), (c)(2)(C). 

In September 2018, Heritage Action spent hundreds of thousands of dollars 

on independent expenditures supporting twelve candidates for the U.S. House of 

Representatives. JA14. On October 12, 2018, Heritage Action reported these 

independent expenditures to the Commission, but failed to disclose its received 

contributions and donors from the relevant reporting period. Id. 

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III. Procedural History 

A. The October 2018 Administrative Complaint 

On October 16, 2018, four days after Heritage Action failed to disclose its 

contributors, Campaign Legal filed an administrative complaint with the 

Commission alleging that Heritage Action violated FECA. JA17. The Commission 

did not act on the complaint within 120 days. JA145, JA198. 

B. The February 2021 Failure-to-Act Suit 

Two years after the jurisdictional 120-day period elapsed, the Commission 

had yet to act on Campaign Legal’s complaint. On February 16, 2021, Campaign 

Legal sued the Commission under 52 U.S.C. § 30109(a)(8)(A), alleging the agency’s 

failure to act was contrary to law. JA06. 

Three months later, on May 10, 2021, the Clerk entered default against the 

Commission due to its failure to answer the complaint or otherwise appear in this 

lawsuit. JA03, JA121. Two weeks later, Campaign Legal moved for default 

judgment. JA122. Another 10 months passed. On March 25, 2022, after finding that 

Campaign Legal’s allegations against Heritage Action were credible and outlined a 

legitimate threat to the health of the electoral process, the district court entered 

default judgment against the Commission. JA198-99. The Court found that the 

Commission’s failure to act was contrary to law; ordered “that, pursuant to 52 U.S.C. 

§ 30109(a)(8)(C), the FEC conform to this Court’s Order within 30 days by acting 

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on CLC’s administrative complaint”; and ordered that the court “shall retain 

jurisdiction over this matter until the FEC takes final agency action with respect to 

CLC’s administrative complaint.” JA200. 

One month later, on April 25, 2022—the same day as the Commission’s 

deadline to conform, see JA201—Heritage Action appeared in the action for the first 

time seeking leave to file an amicus curiae brief. JA04, ECF 17. Attached to the 

brief was a Freedom of Information Act (“FOIA”) request filed by Heritage Action 

with the Commission on March 25—the same day the district court entered default 

judgment. JA234, JA198-200. The request sought “[a]ny vote certifications 

reflecting votes” held on the administrative complaint, as well as any Statements of 

Reasons issued by Commissioners. JA325.1 Heritage Action’s amicus brief argued 

that if the FOIA request produced records showing the agency had deadlocked on 

whether to find “reason to believe,” at any point during the pendency of the 

administrative complaint, it would allegedly demonstrate that the agency had taken 

“action terminating the complaint.” ECF 22 at 3.2 The district court granted Heritage 

Action leave to appear as amicus but noted that Heritage Action “is not a party to 

1 FECA prohibits the Commission from making public any information about 

a pending enforcement matter absent the respondent’s consent. 52 U.S.C. 

§ 30109(a)(12). Heritage Action waived its right to confidentiality under 

§ 30109(a)(12) on March 31, 2022. Notice of Consent, MUR 7516 (Heritage Acton) 

(Mar. 31, 2022), https://www.fec.gov/files/legal/murs/7516/7516_08.pdf. 

2 Citations to documents in the record below that are not included in the Joint 

Appendix are designated by ECF number. 

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this case,” and that the court “has already decided the issue the brief addresses— 

whether the FEC acted ‘contrary to law’ under FECA—and no motion to reconsider 

that determination is pending.” Id. JA04. 

More than a week later, on May 3, 2022, “with no other word from Heritage 

Action,” JA308, the district court declared that the Commission had failed to 

conform with the court’s March 25 default judgment order. JA245. The court 

terminated the suit the next day. JA04. On May 5, Campaign Legal filed a citizen 

suit against Heritage Action. See Campaign Legal Ctr. v. Heritage Action, No. 1:22-

cv-1248 (D.D.C. May 5, 2022) (“Citizen Suit”). 

Five days later, on May 10, 2022, Heritage Action emailed Commission 

litigation counsel asking if the agency intended to file an appeal. JA261. A few hours 

later, Heritage Action moved to intervene for purposes of seeking reconsideration 

of, or appealing, the May 3 Order. JA04; ECF 24. Three days later, the Commission 

concluded its response to Heritage Action’s FOIA request and produced three 

heavily redacted pages of vote certifications, which did not reveal the nature or result 

of any votes. JA272-75. Heritage Action appealed the agency’s redactions and on 

June 2, the Commission produced three partially redacted pages of vote certifications 

indicating that on April 6, 2021, the agency deadlocked 3-3 on whether to find reason 

to believe Heritage Action violated the act, whether to dismiss the matter under 

Heckler v. Chaney, and whether to close the file. JA298-302. The production also 

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indicated that on January 11, 2022, the Commission again deadlocked 3-3 on 

whether to close the file. JA302. 

C. The Intervention Motion 

After a status conference at which Heritage Action claimed a motion for 

reconsideration was its preferred course, the district court denied the motion to 

intervene as untimely. JA306. The court concluded that there was “no reason to 

depart from what usually happens when a party moves to intervene after passing on 

a clear opportunity for pre-judgment intervention.” JA309 (internal quotation marks 

and citations omitted). In particular, the court found that Heritage Action failed to 

intervene “as soon as it became clear that its interests would no longer be protected 

by the parties in this case.” JA309-10. The district court further found that Heritage 

Action’s primary purpose for intervening—reconsideration of settled issues in the 

case—also weighed against the timeliness of its motion. JA310-11. Moreover, the 

court found that Heritage Action had not shown a clear need for intervention. JA311-

12. Finally, the district court found that allowing post-judgment intervention would 

prejudice Campaign Legal with further unjustified delay. JA312-13. 

Two days later, Heritage Action noticed its appeal of the denial of 

intervention, JA314, which was docketed as Case No. 22-5167 and consolidated 

with its earlier appeal (No. 22-5140) of the district court’s May 3, 2022 Order, 

JA283. 

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SUMMARY OF ARGUMENT 

The district court did not abuse its discretion in denying Heritage Action’s 

post-judgment motion to intervene as untimely because Heritage Action waited to 

move until long after it had become clear that its interests were unprotected. Heritage 

Action contends that it only understood that the Commission would not represent its 

interest in not being sued for campaign finance violations once it became clear the 

Commission would not appeal the final judgment below. But this assertion is 

contradicted by Heritage Action’s contention that the Commission would be 

incapable of representing Heritage Action’s interests, even had it appeared. 

Regardless, the district court did not abuse its discretion in finding that Heritage 

Action passed up multiple opportunities for intervention before the case terminated, 

including soon after Campaign Legal filed suit, when the Commission defaulted by 

failing to appear and defend the suit, when default judgment was entered, and when 

the Commission failed to appear and comply with the district court’s order to act. 

The district court also did not abuse its discretion in finding that Heritage 

Action failed to show it would suffer any prejudice from being denied post-judgment 

intervention. Rather than identifying any actual prejudice, Heritage Action merely 

complains of the predictable results of its own dilatoriness. Nor did the district court 

abuse its discretion in concluding that allowing Heritage Action to intervene would 

impose substantial prejudice on Campaign Legal through further undue delay. 

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Because the district court did not abuse its discretion in denying intervention, 

the Court should affirm the ruling below and dismiss the appeal for lack of 

jurisdiction. Even if this Court were to reverse the district court with respect to the 

timeliness of Heritage Action’s motion, it should remand for consideration of the 

remaining intervention factors, and, if necessary, for consideration of Heritage 

Action’s claim that the Commission did not fail to act contrary to law. Both analyses 

require a district court to exercise its discretion in applying a fact-sensitive, multifactored test, which is then reviewed on appeal for abuse of discretion. 

If the Court does reach Heritage Action’s appeal of the district court’s ruling 

that the Commission failed to act and failed to conform, the Court should affirm. 

Heritage Action’s appeal of the merits concedes that the Commission failed to act 

during the jurisdictional time-period set forth by statute and does not address, much 

less dispute, the district court’s application of the relevant test for whether that 

failure to act was contrary to law. Further, Heritage Action’s sole argument on 

appeal—that any administrative complaint before the Commission is automatically 

dismissed when the Commission deadlocks on whether to proceed to enforcement— 

lacks any basis in FECA’s text, Commission regulations and practice, judicial 

precedent, or the administrative record in this matter. The Court should reject 

Heritage Action’s baseless automatic-dismissal theory and affirm the merits below. 

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LEGAL STANDARDS 

This Court reviews a “District Court’s denial of intervention for untimeliness 

under the abuse of discretion standard.” United States v. British Am. Tobacco 

Australia Servs., Ltd., 437 F.3d 1235, 1238 (D.C. Cir. 2006) (citing NAACP v. New 

York, 413 U.S. 345, 366 (1973) (“[Timeliness under Rule 24] is to be determined by 

the [district] court in the exercise of its sound discretion; unless that discretion is 

abused, the court’s ruling will not be disturbed on review.”)). 

To determine whether the Commission’s failure to act was contrary to law, 

district courts apply the Common Cause and TRAC factors. FEC v. Rose, 806 F.2d 

1081, 1091 (D.C. Cir. 1986). This is a fact-specific test, the application of which this 

Court reviews for “abuse of discretion.” Id. 

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ARGUMENT 

I. The District Court Did Not Abuse Its Discretion by Finding That 

Heritage Action’s Attempt to Intervene After Judgment Was Untimely 

Intervention requires a “timely motion.” Fed. R. Civ. P. 24(a)-(b). In deciding 

whether a motion to intervene is timely, a district court must examine “all the 

circumstances, especially weighing the factors of time elapsed since the inception of 

the suit, the purpose for which intervention is sought, the need for intervention as a 

means of preserving the applicant’s rights, and the probability of prejudice to those 

already parties in the case.” Karsner v. Lothian, 532 F.3d 876, 886 (D.C. Cir. 2008) 

(citations omitted). In addition, this Court has warned of the “evils of permitting 

post-judgment intervention,” Paisley v. C.I.A., 724 F.2d 201, 203 (D.C. Cir. 1984), 

and has adopted a presumption that “[a] motion for ‘intervention after judgment will 

usually be denied where a clear opportunity for pre-judgment intervention was not 

taken,’” Associated Builders & Contractors, Inc. v. Herman, 166 F.3d 1248, 1257 

(D.C. Cir. 1999). 

Weighing these factors, the district court acted well within its discretion to 

deny intervention. First, Heritage Action waited until after judgment and more than 

fifteen months from the outset of the case to intervene, which was long after it had 

become clear that its interests were unprotected. Second, Heritage Action has not 

shown a clear need to intervene here given that its failure to intervene pre-judgment 

enabled it to collaterally attack the judgment below in the ongoing citizen suit. 

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Finally, Heritage Action’s sandbagging tactics have prejudiced Campaign Legal 

with undue delay and duplicative litigation. The Court should affirm. 

A. Heritage Action’s Delay in Intervening Was Unjustified 

1. Heritage Action Passed Up Clear Opportunities for PreJudgment Intervention 

The district court did not abuse its discretion by finding that Heritage Action’s 

failure to take clear opportunities to intervene before judgment weighed against its 

timeliness. In evaluating the timing factor, courts may consider not only how long 

the motion was filed after “the inception of the suit,” Karsner, 532 F.3d at 886, but 

also when the prospective intervenor “knew or should have known that any of its 

rights would be directly affected by the litigation,” Roeder v. Islamic Republic of 

Iran, 333 F.3d 228, 233 (D.C. Cir. 2003), whether the motion was filed “as soon as 

it became clear” that the movant’s “interests would no longer be protected by the 

parties in the case,” Cameron v. EMW Women's Surgical Ctr., P.S.C., 142 S. Ct. 

1002, 1012 (2022) (citation omitted), and whether the motion was filed after 

judgment, see Associated Builders, 166 F.3d at 1257. Measured by any or all of these 

standards, Heritage Action’s dilatoriness was unjustified. 

First, as the district court observed, “Heritage Action did not move to 

intervene until more than a year after CLC filed suit.” JA309. Notably, Heritage 

Action does not claim it was unaware of the filing of this case, and its 15-month 

delay in moving to intervene is substantially longer than delays courts in this Circuit 

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have declined to excuse. See, e.g., Defs. of Wildlife v. Salazar, No. 12-cv-1833 

(ABJ), 2013 WL 12316848, at *2 (D.D.C. July 17, 2013) (denying motion due to 

“nearly eight month[]” delay). 

Second, Heritage Action knew or should have known that its rights would be 

directly affected by this litigation from the day it was filed. Citing FECA, Campaign 

Legal’s February 16, 2021 complaint states that if the district court were to grant 

Campaign Legal its requested relief, “FECA [would] authorize[] [Campaign Legal] 

to commence a civil action against Heritage Action to enforce federal campaign 

finance laws. See [52 U.S.C.] § 30109(a)(8)(C).” JA006-07. In a similar suit, this 

Court found the intervening respondents had protectable interests just two months 

after the complaint was filed because the suit could result in their being “subject to 

enforcement proceedings before a federal agency” and “exposure to civil liability.” 

Crossroads Grassroots Policy Strategies v. FEC, 788 F.3d 312, 317 (D.C. Cir. 

2015). 

As a result, Heritage Action’s rights were, in the words of the district court, 

“obviously implicated” by this lawsuit. JA311. Indeed, when it moved to intervene 

after judgment was entered, Heritage Action itself asserted that it had an interest in 

the case in part because “the Plaintiff seeks potential direct regulation of Heritage 

Action under FECA.” Mot. to Intervene at 9, ECF 24-1. But that was as true at the 

inception of the suit as it was fifteen months later. Heritage Action’s failure to take 

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steps to protect these interests until after an adverse judgment was entered against 

the Commission rendered its motion untimely. 

Third, Heritage Action moved to intervene long after it became clear that its 

interests would not be protected by the Commission. In fact, Heritage Action itself 

contends that the Commission could never protect its interests in this suit. In its 

motion to intervene below, Heritage Action states that “the FEC cannot adequately 

represent Heritage Action’s interests, either for purposes of seeking reconsideration 

or on appeal,” in part because “the Commission is a regulatory agency in a position 

to regulate and sanction Heritage Action—a dynamic that precludes a finding of 

adequate representation under Rule 24(a).” ECF 24-1 at 17-18; see also id. at 19 

(arguing that the Commission “is actively opposed to Heritage Action’s interests” 

and “ill-suited to represent Heritage Action’s interests because Heritage Action 

remains subject to FEC regulation”); cf. Crossroads, 788 F. 3d at 321 (describing 

the Commission as a “doubtful friend to represent [a respondent’s] interests”). 

In any event, even if the Commission could have protected Heritage Action’s 

interests, the agency never appeared in the case. Accordingly, as the district court 

found, “both the clerk’s entry of default and CLC’s motion for default judgment 

made clear by May 2021”—a full year before Heritage Action moved to intervene— 

“that no party would be protecting Heritage Action’s interests.” JA310 (citing 

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Campaign Legal Ctr., 334 F.R.D. at 6 (“[T]here can be no question that a defaulting 

defendant [FEC] will not adequately represent [the respondents’] interests.”)). 

Campaign Legal’s subsequent motion for default judgment was pending 

before the district court for ten months. Even if that motion, somehow, did not place 

Heritage Action on notice that its interests were unprotected, “[a]t the very least,” 

the district court found, this would have been clear when the court entered default 

judgment in March 2022. JA310. Yet Heritage Action still chose to wait to seek 

intervention until after the case terminated more than a month and a half later, 

JA310, notwithstanding the district court’s earlier warning that its appearance as 

amicus would not afford Heritage Acton the relief it sought to protect its asserted 

interests. JA04. 

Under these circumstances, the district court did not abuse its discretion in 

finding “no reason to depart from what usually happens when a party moves to 

intervene after passing on a ‘clear opportunity for pre-judgment intervention.’” 

JA309 (quoting Associated Builders, 166 F.3d at 1257). 

2. Heritage Action Failed to Justify Its Delay 

The district court also did not abuse its discretion in rejecting Heritage 

Action’s primary justification for its delay: quoting Cameron, Heritage Action 

argued that, “‘[h]ere, the most important circumstance relating to timeliness is that 

[Heritage Action] sought to intervene as soon as it became clear’ that the 

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Commission would not appeal the Court’s May 3[, 2022] order.” ECF 24-1 at 10 

(quoting Cameron, 142 S. Ct. at 1012) (second alteration in original). According to 

Heritage Action, the need for intervention was not apparent from the Commission’s 

failure to appear and defend the lawsuit, but only became clear when the agency 

failed to respond to an email from Heritage Action inquiring whether the agency 

planned to appeal, which Heritage Action sent just hours before moving to intervene. 

See ECF 24-1 at 10, 14; JA262. 

But the district court correctly found that Heritage Action’s reliance on 

Cameron was misplaced: in Cameron, the intervenor’s need to protect its interests 

became clear only after the government decided it “would not continue to defend” 

that case. 142 S. Ct. at 1012 (emphasis added). In contrast, the government’s failure 

ever to appear in this case made clear that it would not defend Heritage Action’s 

interests “long before appeal was even an option,” and so “whether the Commission 

would appeal that order does not really matter here.” JA310. 

On appeal, Heritage Action has wisely abandoned this argument, but now 

claims that the district court erred by applying Cameron at all, despite urging the 

court to do so in the first place. See Appellants’ Brief at 39-40 (“Br.”). Relying on 

out-of-circuit precedent pre-dating Cameron, Heritage Action asserts that the district 

court should have ignored Cameron in lieu of measuring the timing of the motion 

from an alleged “change of circumstances.” Br. at 40. This argument fails on its own 

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terms, see infra pp. 29-33, but as a threshold matter, this Court should reject Heritage 

Action’s attempt to bait-and-switch the district court, which correctly applied 

Cameron’s standard 

Heritage Action makes several other meritless assertions in support of 

intervention. First, Heritage Action’s claim that there “was still a chance” that the 

Commission might appear in the case after defaulting in May 2021, see Br. at 45, 

does not demonstrate that the district court abused its discretion. At issue is when it 

became “clear” Heritage Action’s interests would go unprotected, Cameron, 142 S. 

Ct. at 1012, and, as discussed supra pp. 24-25, the district court did not abuse its 

discretion in applying this standard. See also JA310. 

Second, the basic facts of this case belie Heritage Action’s assertion that it 

was unclear whether the agency would appear after defaulting because “the 

government is sometimes slow to respond to a complaint in light of bureaucratic 

realities.” Br. at 45-46 (cleaned up). Under FECA, four of the agency’s six members 

must vote to authorize the defense of a suit challenging its failure to act. See supra 

pp. 7-8. As Heritage Action acknowledges, the agency has failed to appear in 

numerous lawsuits like this one because it lacks the votes to defend its inaction. See 

Br. at 12. In fact, Heritage Action admits being aware of media reports dating back 

to February 2019, see Br. at 47—a full year before this case was filed—that certain 

Commissioners were voting against “allow[ing] FEC lawyers to defend the 

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government when the FEC has been sued for not enforcing the law” due to their 

“frustrat[ion] by the FEC’s lack of enforcement of the law.” See Nihal Krishan, 

Elections Commission Chief Uses the “Nuclear Option” To Rescue the Agency 

From Gridlock, Mother Jones (Feb. 20, 2019), https://bit.ly/3EE3y68; see also Br. 

at 10-11 (citing a June 8, 2021 New York Times article reporting the same). Yet 

Heritage Action responded to the Commission’s May 2021 default by taking no 

action and instead waiting another year to move for intervention. Cf. NAACP, 413 

U.S. at 366-67 (denying intervention in part because movant should have known of 

the need to intervene sooner “because of an informative February article in the New 

York Times”). 

Third, the Court should reject Heritage Action’s claim that it “was reasonable 

to presume” the Commission would conform to the March 25 Order, Br. at 46, 

because Heritage Action itself did not so presume: In April 2022, Heritage Action 

asserted that “it became clear that the FEC would likely never appear to defend this 

case” when the district court entered default judgment on March 25. Amicus Curiae 

Brief at 1, ECF 17-3. And Heritage Action’s presumption that the Commission 

would not conform was certainly reasonable, given that by the end of 2021, the 

Commission had failed to conform in three analogous cases in this District. See 

Order, Campaign Legal Ctr. v. FEC, No. 20-cv-1778-RCL (D.D.C. Feb. 11, 2021), 

ECF 24 (“Defendant [FEC] has failed to conform to this Court’s Order entered on 

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October 14, 2020.”); See Order Giffords v. FEC, No. 19-cv-1192-EGS (D.D.C. Nov. 

1, 2021), ECF 75 (“Defendant FEC has failed to conform to this Court’s Order 

entered September 30, 2021”); Order, Campaign Legal Ctr. v. FEC, No. 20-cv-809-

ABJ (D.D.C. Apr. 21, 2022), ECF 32 (granting order “declaring that the FEC had 

failed to comply with its November 8[, 2021] Order”).3 

Finally, even assuming arguendo that it was unclear if the Commission would 

appear up until default judgment was entered on March 25, it is inexcusable that 

Heritage Action waited another 46 days, until after the case closed, to move to 

intervene. Contra Br. 47. The March 25 Order gave the Commission thirty days to 

conform failing which Campaign Legal was automatically entitled to sue Heritage 

Action. JA199 (citing 52 U.S.C. § 30109(a)(8)(C)). Heritage Action was clearly 

aware of the resulting threat to its interests because it sought leave to file an amicus 

brief on the deadline for the Commission to conform requesting an abeyance to 

forestall the citizen suit. JA04; ECF 17. 

Nonetheless, Heritage Action claims that the district court should not have 

faulted it for waiting until after judgment to move to intervene because “there is 

Heritage Action ignores these analogous precedents while citing one case 

involving the Commission, see Br. at 46, that is distinguishable because the agency 

initially failed to appear only because it lacked a quorum. See FEC’s Response to 

Order to Show Cause at 2-3, Campaign Legal Ctr. v. FEC, No. 20-cv-588-BAH 

(D.D.C. July 20, 2020), ECF No. 19. Here, the Commission has had a quorum since 

Campaign Legal filed its suit on February 16, 2021. See Br. at 15, ¶ 2. 

28 

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USCA Case #22-5140 Document #1975627 Filed: 11/30/2022 Page 41 of 92 

nothing talismanic about the entry of judgment per se.” Br. at 47. And Heritage 

Action claims that it “did what it could” at that time by filing an amicus brief, which 

purportedly demonstrates it “did not ignore the litigation or h[o]ld back from 

participation to gain tactical advantage,” Br. at 44 (citing Day v. Apoliona, 505 F.3d 

963, 966 (9th Cir. 2007)). But, unlike the movant in Day, Heritage Action has never 

explained why it thought participating as amicus after default judgment was entered 

would be sufficient to protect its interests in seeking reconsideration or appeal. Cf. 

505 F.3d at 965-966; JA04. And unlike in Day, Heritage Action did not even appear 

as amicus, much less intervene, until after default judgment was entered, at which 

point it appeared solely for the purpose of “interject[ing] new issues into the 

litigation.” 505 F.3d at 966. This is precisely the type of intervention Day found 

inappropriate. Id. The Court should reject Heritage Action’s assertion that its belated 

appearance as amicus excuses its failure to intervene. 

3. The FEC’s May 6, 2022 FOIA Response Cannot Justify 

Heritage Action’s Untimely Motion 

Unable to justify its failure to intervene as soon it was clear no party would 

protect its interests, Heritage Action falls back on claiming its motion was timely as 

measured from an alleged “change in circumstances.” Br. at 40. That change in 

circumstances, Heritage Action asserts, was an email the Commission’s FOIA 

Service Center sent to Heritage Action on May 6, 2022 stating that it “ha[d] 

conducted a search and located documents responsive to your [March 25, 2022 

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FOIA] request,” and that three pages of responsive records would be provided in the 

future. Br. at 41; JA259. Without this email, Heritage Action claims, it “could not 

have defended the agency’s alleged failure to act,” and had Heritage Action 

intervened sooner, it would have been a mere “superfluous spectator.” Br. at 41 

(citations omitted). The Court should reject this claim. 

First, as the district court pointed out, “there is no reason to believe that 

Heritage Action could not have brought the voting records it has now to the Court 

before it entered judgment.” JA311. Heritage Action did not receive confirmation 

that responsive records existed until May 6, 2022 because did not file “a FOIA 

request until after the Court granted default judgment” on March 25, 2022. JA310 

(emphasis in original). Not only that, but instead of resorting to a FOIA request, 

Heritage Action could have timely intervened in the case and sought records from 

the Commission through discovery. Heritage Action claims that it needed the 

Commission records it sought before intervening, but parties to civil litigation rarely 

have all the evidence they need before a suit is filed and so they seek such evidence 

in discovery. Further, the Commission has, in other cases, disclosed evidence 

relating to an ongoing enforcement matter under seal that it cannot disclose via 

FOIA. See, e.g., FEC’s Unopposed Mot. for Protective Order, Giffords v. FEC, No. 

19-cv-1192-EGS (D.D.C. June 20, 2019) (seeking protective order against public 

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disclosure of agency’s confidential enforcement information offered in defense of 

delay suit). 

In response, Heritage Action implausibly claims that until the district court’s 

default judgment order it had no reason to suspect it was necessary to discover if the 

agency had deadlocked on whether to proceed with enforcement. Br. at 43. But 

deadlocked enforcement votes are neither new nor rare; indeed, the risk of deadlock 

is inherent in the agency’s structure. See Citizens for Responsibility & Ethics in 

Washington, 410 F. Supp. 3d at 6 (“[W]hen Congress mandated that the six-member 

Commission be split down party lines, it anticipated that partisan deadlocks were 

likely to result.”). Here, the Commission’s failure to appear accurately signaled an 

enforcement deadlock—unsurprisingly given that FECA requires at least four 

Commissioners to authorize the defense of the suit, 52 U.S.C. §§ 30106(c), 

30107(a)(6), just as FECA requires four Commissioners to agree to pursue 

enforcement action, id. § 30109(a)(2). Further, Heritage Action itself relies on media 

reports from February 2019 and June 2021 (just one month after the agency’s 

default) that the Commission lacked the votes to defend inaction arising out of 

deadlocks in court. See Br. at 10-11, 47. Yet Heritage Action did not file its FOIA 

request, nor intervene and seek discovery against the Commission, when it failed to 

appear. Instead, Heritage Action waited more than a year—until after default 

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judgment was entered—to seek voting records that existed when the Commission 

defaulted. JA311. 

Finally, Heritage Action’s contention that its post-judgment intervention was 

justified based on newly obtained “proof” of the Commission’s deadlock, see Br. at 

41, 51, fails because Heritage Action did not have such proof when it moved to 

intervene on May 10. The May 6 FOIA response relied on by Heritage Action 

acknowledged the existence of responsive documents, but the Commission did not 

produce unredacted copies of the responsive documents until June 2. JA247, JA298-

302. The May 6 FOIA response did not impliedly confirm the nature or result of any 

agency vote given that Heritage Action’s FOIA request broadly sought “[a]ny vote 

certifications reflecting votes . . . on the complaint,” not just votes on whether to 

move forward with enforcement. JA235, JA248. Thus, when Heritage Action moved 

to intervene, it did not know whether the responsive documents reflected deadlocked 

enforcement votes or other types of votes, such as on whether to defend the lawsuit 

or merely to send a letter to the respondent. See, e.g., MUR 6798 (David Vitter for 

U.S. Senate).4 Instead, it had the same “evidence” of a potential deadlock when it 

moved to intervene on May 10 that had existed since April 2021: the Commission’s 

failure to appear and defend itself. That Heritage Action lacked the “proof” it 

Certification, MUR 6798 (David Vitter for U.S. Senate, et al.) (Dec. 5, 2017) 

(4-1 vote to send letter to respondents), https://www.fec.gov/files/legal/ 

murs/6798/19044463470.pdf. 

32 

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USCA Case #22-5140 Document #1975627 Filed: 11/30/2022 Page 45 of 92 

purported to rely on when it moved to intervene undermines its claim that the 

Commission’s May 6 email constituted a “change in circumstances” justifying its 

motion. 

* * * 

In sum, the district court did not abuse its discretion by finding that Heritage 

Action’s choice to move for intervention after judgment and long after it was clear 

no party would be protecting its interests weighed against the motion’s timeliness. 

B. Heritage Action Will Not Be Prejudiced if It Cannot Intervene 

After Judgment in this Case 

The district court also did not abuse its discretion in finding that Heritage 

Action did not demonstrate a clear “need to intervene,” which weighed against 

finding the motion timely. JA311-12; see also Smuck v. Hobson, 408 F.2d 175, 181 

(D.C. Cir. 1969) (intervenors must make a “strong” showing to overcome 

presumption against post-judgment intervention). The district court found that, as a 

non-party Heritage Action is not precluded from “rais[ing] its arguments in some 

later litigation,” which, though not dispositive, is relevant to the “degree of harm it 

will suffer without intervention.” JA312 (citing Love v. Vilsack, 304 F.R.D. 85, 91 

(D.D.C. 2014), summarily aff’d, No. 14-5185, 2014 WL 6725758 (D.C. Cir. Nov. 

18, 2014)). Indeed, the purported harm asserted by Heritage Action—that its ability 

to raise its merits arguments would be “irretrievably lost” absent intervention, Br. at 

37-38—is belied by the fact that Heritage Action is advancing the arguments it seeks 

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to make here in a pending motion to dismiss the citizen suit. See Def.’s Mem. of 

Points and Authorities in Supp’t of Mot. to Dismiss at 27, Campaign Legal v. 

Heritage Action, No. 22-cv-1248-CJN (July 8, 2022), Citizen Suit ECF 20-1 

(arguing the district court there should redecide the merits of this case and find that 

the Commission did not fail to act, while stressing that “Judge Kelly’s ruling is ‘not 

preclusive’ because Heritage Action was not a party to the default judgment in that 

case.”). 

Given these circumstances, it is hard to understand Heritage Action’s choice 

not to intervene before judgment as anything other than “a strategic choice to instead 

participate in [a] parallel . . . litigation” that should “weigh[] against intervention.” 

Love, 304 F.R.D. at 91; see also Moten v. Bricklayers, Masons & Plasterers, Int'l 

Union of Am., 543 F.2d 224, 228 (D.C. Cir. 1976) (affirming denial of intervention 

where movant’s “decision not to seek intervention much earlier may have been an 

informed, tactical one”). Having made and benefited from this strategic choice, 

Heritage Action should not now be heard to complain, as it does, that it will suffer a 

“significant injury” if it must bear the costs of its choice. Br. at 36. Heritage Action 

complains that it is “more burdensome” for it to litigate the merits of this case before 

the citizen suit court. But this contention is belied by the fact that Heritage Action 

sought to hold this appeal in abeyance while it litigated that suit. See Mot. for 

Abeyance, No. 22-5140 (D.C. Cir. June 23, 2022). Heritage Action also complains 

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that there “is no guarantee” that the citizen-suit court will “see things Heritage 

Action’s way,” Br. at 37, but cites no authority stating that intervention must be 

allowed if the intervenor is not guaranteed success in advancing its interests 

elsewhere. In any event, Heritage Action cannot complain of alleged prejudice that 

is wholly the result of its own actions. 

At bottom, Heritage Action’s allegations of prejudice amount to a claim that 

it will be harmed unless it can require Campaign Legal to convince two district 

courts three different times that the Commission’s failure to act was contrary to law. 

Instead of avoiding prejudice to Heritage Action, that result would prejudice 

Campaign Legal. 

C. Intervention Would Prejudice Campaign Legal and the Public 

Finally, the district court did not abuse its discretion in finding that Heritage 

Action’s “delay in moving for intervention will prejudice” Campaign Legal. JA312. 

Allowing Heritage Action to intervene belatedly—either for its preferred aim of 

moving for reconsideration or solely to appeal—would “unduly disrupt[] [this] 

litigation, to the unfair detriment of” Campaign Legal and the public. Roane v. 

Leonhart, 741 F.3d 147, 151 (D.C. Cir. 2014). 

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USCA Case #22-5140 Document #1975627 Filed: 11/30/2022 Page 48 of 92 

1. Heritage Action’s “Preferred Aim” of Seeking 

Reconsideration Would Prejudice Campaign Legal 

a. Undue Delay 

The district court correctly found that Heritage Action’s “preferred aim” of 

seeking reconsideration “would mean further delay on the adjudication of claims 

that have been pending since [Campaign Legal] first filed in its administrative 

complaint in 2018 and are now the subject of the new lawsuit.” JA311-12. And 

further delay would exacerbate the harms already arising from what the district court 

described as the “legitimate ‘threat[] to the health of our electoral process’” posed 

by Heritage Action’s alleged campaign finance violations. JA199 (citation omitted). 

This Court has repeatedly explained that intervention prejudices the existing 

parties where it would require “revisit[ing] issues that ha[ve] already been decided.” 

Amador Cnty., Cal. v. U.S. Dep’t of the Interior, 772 F.3d 901, 905 (D.C. Cir. 2014); 

see also Roane, 741 F.3d at 152 (identifying “discovery” and “seek[ing] to revisit 

issues that had already been decided” as sources of prejudice in evaluating 

timeliness) (citing United States v. Am. Tel. & Tel. Co., 642 F.2d 1285, 1294 (D.C. 

Cir. 1980) (explaining that an intervention motion would have been untimely if made 

for the purpose of “presenting evidence or argument”)); Love, 304 F.R.D. at 91 

(finding prejudice where intervention would “serve only to delay further the 

conclusion of [a] long-running case”); Est. of Doe v. Islamic Republic of Iran, No. 

CV 08-540 (JDB), 2013 WL 12453353, at *2 (D.D.C. July 22, 2013) (denying post36 
 

 

 

 

USCA Case #22-5140 Document #1975627 Filed: 11/30/2022 Page 49 of 92 

judgment intervention that would “excessively delay[] proceedings and lead[] to 

duplicative factual work”). The district court was thus well within its discretion to 

conclude that prejudicial delay would result because Heritage Action “is looking to 

reopen this Court’s finding[s]” with a reconsideration motion, which “would likely 

require factfinding and argument.” JA312. 

Heritage Action admits (as it must) that its preferred aim of seeking 

reconsideration would reopen and revisit the case’s settled issues. Br. at 28-29. And 

it does not deny (nor could it) that this purpose would require further argument 

before the district court. See Br. at 29. Given that a motion for reconsideration 

asserting any theory would require additional argument, Heritage Action’s claim that 

it seeks only to raise a jurisdictional argument is beside the point. See, e.g., JA311 

(“[T]he Circuit has rejected the idea, advanced by Heritage Action, that seeking to 

make a jurisdictional argument should be a sort of thumb on the scale for 

intervention.”). 

But in any event, because Heritage Action’s arguments actually go to the 

merits of this case, see supra pp. 10-12, the district court was correct that factfinding 

would likely be necessary, significantly adding to the delay. Indeed, Heritage Action 

has not attempted to justify its alleged need to seek reconsideration on any 

intervening case law or other legal authority, but instead points to alleged “newlydiscovered evidence.” Br. at 41. To the extent Heritage Action seeks to reopen this 

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USCA Case #22-5140 Document #1975627 Filed: 11/30/2022 Page 50 of 92 

case and move for judgment based on purported new evidence, Campaign Legal 

would be entitled to probe that evidence and take its own discovery. See, e.g., Fed. 

R. Civ. P. 56(d). 

Finally, the Court should reject Heritage Action’s attempt to justify its 

untimely intervention by pointing to the ramifications of its own untimeliness. See 

Br. at 29-30. The district court’s entry of default judgment and denial of Heritage 

Action’s improper attempt to seek an abeyance as a non-party are direct results of 

Heritage Action’s delay, not reasons to excuse it. And neither mitigates the 

additional delay to Campaign Legal that reconsideration would cause. 

b. Duplicative Litigation of the Merits 

The delay described above is enough to establish prejudice, but Heritage 

Action’s intervention would prejudice Campaign Legal in an additional way: it 

would allow Heritage Action to sidestep collateral estoppel and require Campaign 

Legal to litigate whether the Commission’s failure to act was contrary to law before 

two different district courts, three different times. Cf. Gupta v. Mercedes-Benz USA, 

LLC, No. 20-cv-9295-GW-JEMX, 2020 WL 7423111, at *6 (C.D. Cal. Dec. 10, 

2020) (“The need for duplicative litigation would prejudice Plaintiff and violate 

principles of judicial economy, requiring two courts in different jurisdictions to 

address largely-overlapping facts and risk conflicting verdicts.”). 

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Campaign Legal has already been required to respond to not only Heritage 

Action’s untimely intervention and merits appeal here, but also its collateral attack 

in the citizen suit, as well as motions to both stay the citizen suit pending this appeal 

and to hold this appeal in abeyance pending resolution of the citizen suit. See Motion 

to Stay, Citizen Suit, ECF 10 withdrawn June 10, 2022, ECF 17; Mot. for Abeyance, 

No. 22-5140 (D.C. Cir. June 23, 2022). Denying intervention would remedy this 

ongoing prejudice to Campaign Legal and avoid the further prejudice of requiring 

Campaign Legal to litigate the merits of this case for a third time in opposition to a 

motion for reconsideration below or on appeal solely because Heritage Action 

“inexcusably neglect[ed] to try to enter the proceedings before judgment, at a time 

when notice of their arguments would have enabled the district court to” address the 

issues before appeal. Mass. Sch. of Law at Andover, Inc. v. United States, 118 F.3d 

776, 783 n.5 (D.C. Cir. 1997) (citing NAACP, 413 U.S. at 366-68). 

2. Heritage Action’s Secondary Purpose of Solely Seeking 

Appeal Will Also Cause Prejudice 

Because Heritage Action represented to the district court that its “preferred 

aim” was to seek reconsideration if allowed to intervene, the district court did not 

have occasion to evaluate whether Campaign Legal would suffer prejudice “if 

Heritage Action had sought intervention solely to take the FEC’s place in pursuing 

an appeal.” Br. at 28. As such, Heritage Action’s claim that the district court “did 

not deny” that no prejudice would result is misleading. Id. On the contrary, 

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Campaign Legal would suffer prejudice in at least two ways if intervention were 

allowed only for appeal. 

a. Delay 

First, as with a motion for reconsideration, an appeal by Heritage Action 

would cause prejudicial delay. This Court has explained that additional argument 

and proceedings on already decided issues resulting from untimely intervention can 

cause prejudice by unduly delaying the conclusion of a case. See, e.g., Amador Cnty., 

Cal., 772 F.3d at 905; Roane, 741 F.3d at 152; AT&T, 642 F.2d at 1294. Indeed, just 

two months ago, this Court summarily affirmed the denial of a post-judgment motion 

to intervene effectively identical to that here, except that the movant sought only to 

appeal. Campaign Legal Ctr. v. FEC, No. CV 20-0809 (ABJ), 2022 WL 2111560, 

at *5 (D.D.C. May 13, 2022), summarily aff'd, No. 22-5164, 2022 WL 4280689 

(D.C. Cir. Sept. 14, 2022) (“A motion for intervention after judgment will usually 

be denied where a clear opportunity for pre-judgment intervention was not taken.” 

(citation omitted)). Despite the movant’s appeal-only plan, the district court found 

that intervention would “seriously prejudice[]” Campaign Legal with further delay 

and a lack of “finality” given that its administrative complaint had been pending 

since 2018. Campaign Legal Ctr., 2022 WL 2111560, at *5. The same is true here. 

Heritage Action proves too much by contending that no existing party could 

ever be prejudiced by a post-judgment intervenor’s appeal, see Br. at 26-28, even if 

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the intervenor could have “intervened at the outset of th[e] case,” id. at 28. That 

sweeping position is directly at odds with this Circuit’s presumption against postjudgment intervention where the movant passed up chances to join sooner, see 

Associated Builders, 166 F.3d at 1257, which is precisely what happened here. 

b. Sandbagging 

Second, allowing Heritage Action to intervene to introduce new argument and 

new evidence for the first time on appeal—after waiting on the sidelines for 15 

months and informing the district court it planned to seek reconsideration before 

appeal—would sanction impermissible sandbagging. See, e.g., In re Sealed Case, 

552 F.3d 841, 852 (D.C. Cir. 2009) (explaining that a party must typically raise 

issues before the trial court first “to prevent one party from sandbagging another by 

raising new claims on appeal”); see also United States v. Bonadio, No. 3:13 CV 591 

JBA, 2014 WL 3747303, at *3 (D. Conn. July 17, 2014) (“Plaintiff is quite correct 

that it will suffer prejudice if this new evidence is permitted, without plaintiff having 

had a prior opportunity to analyze or oppose it, this would be in, in plaintiff’s words, 

‘classic sandbagging.’”). Heritage Action’s automatic-dismissal theory—which was 

not raised below and has been disclaimed by the FEC—is the only argument it seeks 

to advance in its post-intervention appeal. See Br. at 50. This distinguishes Cameron, 

where the Court found a lack of prejudice because the intervenor’s new argument 

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“was not the only argument advanced” and would not necessarily have been 

entertained by the appellate court. 142 S. Ct. at 1013. 

* * * 

The district court did not abuse its discretion by denying Heritage Action’s 

post-judgment motion to intervene as untimely. 

II. The Court Should Dismiss Heritage Action’s Purported Merits Appeal 

A. The Court Lacks Appellate Jurisdiction Because Heritage Action 

Is Not a Party 

“The rule that only parties to a lawsuit, or those that properly become parties, 

may appeal an adverse judgment, is well settled.” Marino v. Ortiz, 484 U.S. 301, 

304 (1988) (per curiam) (citations omitted). Because the district court correctly 

denied its motion to intervene, Heritage Action is not entitled to an appeal of the 

merits judgment below, and the appeal docketed as No. 22-5140 should be dismissed 

for lack of appellate jurisdiction. See Defs. of Wildlife v. Perciasepe, 714 F.3d 1317, 

1328 (D.C. Cir. 2013) (“Because a party unsuccessfully appealing a denial of 

intervention is not a ‘party,’ it may not obtain review of any district court holding 

other than the denial of intervention.”). 

B. This Case Should Be Remanded if the Court Determines That 

Heritage Action’s Intervention Motion Was Timely 

As demonstrated above, the district court did not abuse its discretion by 

concluding that Heritage Action’s motion to intervene was untimely. But if this 

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Court disagrees, it should decline Heritage Action’s invitation to prematurely 

evaluate, in the first instance, whether Heritage Action can satisfy the remainder of 

Rule 24’s intervention test and, if necessary, Heritage Action’s arguments on the 

merits. Instead, the Court should remand those tasks to the district court and hold 

Heritage Action to its representation that its preferred aim was to move for 

reconsideration before appeal. 

This Court has said that “we must remand to allow the district court the 

opportunity to weigh the factors” of a fact-specific test requiring the district court to 

exercise its discretion. Gordon v. Holder, 632 F.3d 722, 725 (D.C. Cir. 2011) 

(emphasis added). Otherwise, the Court is “unable to proceed” to review for abuse 

of discretion unless the district court has had a chance to exercise that discretion in 

the first place. Id. Rule 24 requires a district court to exercise its discretion in 

weighing a series of factors. See NAACP, 413 U.S. at 366 (reviewing Rule 24 ruling 

for abuse of discretion). Accordingly, when this Court has reversed a district court’s 

denial of intervention for untimeliness, it has then remanded to the district court “for 

it to address in the first instance the other requirements for intervention as of right.” 

Smoke v. Norton, 252 F.3d 468, 471 (D.C. Cir. 2001). Heritage Action provides no 

reason why this Court should rule differently here, where the district court did not 

address any of the intervention factors other than timeliness, see JA309-13, 

including whether Heritage Action had standing, see ECF 30 at 27. 

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Similarly, the issue of whether the Commission’s delay was contrary to law 

under the Common Cause/TRAC factors is also a fact-specific test, the application 

of which this Court reviews for “abuse of discretion.” FEC v. Rose, 806 F.2d 1081, 

1091 (D.C. Cir. 1986). Indeed, Common Cause/TRAC requires a district court to 

evaluate eleven distinct factors. See, e.g., Campaign Legal Ctr. v. FEC, No. CV 20-

0809 (ABJ), 2021 WL 5178968, at *5-6 (D.D.C. Nov. 8, 2021). Even assuming the 

Commission “acted” on April 6, 2021, as Heritage Action incorrectly claims, the 

district court must have the opportunity to exercise its discretion in weighing 

whether the agency’s preceding 904-day delay was contrary to law given the 

circumstances before this Court exercises “abuse of discretion” review. 

III. The Court Should Affirm the District Court’s Merits Ruling 

If this Court does reach the merits, it should affirm. The district court did not 

abuse its discretion in finding that the Commission failed to act on Campaign Legal’s 

administrative complaint within 120 days, that the agency’s failure to act was 

contrary to law, and that the Commission failed to conform with the district court’s 

order to act on the complaint within 30 days. JA198-200, JA245-46. 

A. The District Court Did Not Abuse its Discretion by Concluding that 

the FEC’s Failure to Act Was Contrary to Law 

As explained above, in a failure-to-act suit against the Commission, the 

district court has jurisdiction if the Commission failed to act within 120 days of the 

filing of the administrative complaint. See supra pp. 10-12. On the merits, the district 

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court must then consider whether the agency’s failure to take final action as of the 

time of the filing of suit was contrary to law by applying the Common Cause and 

TRAC factors. Id. 

Heritage Action does not dispute that the Commission failed to act on 

Campaign Legal’s administrative complaint within 120 days of its filing on October 

16, 2018. Nor does Heritage Action dispute that the Commission failed to take any 

action whatsoever on Campaign Legal’s administrative complaint during the more 

than 850 days it was pending before this suit was filed. JA06. Further, Heritage 

Action does not dispute that the district court correctly applied the Common Cause 

and TRAC factors in determining that the Commission’s failure to act on the 

complaint by the time Campaign Legal filed suit was contrary to law. Indeed, 

Heritage Action makes no effort to demonstrate that the Commission’s April 2021 

deadlocked votes somehow rendered the agency’s undisputed delay in acting on the 

administrative complaint lawful under Common Cause and TRAC. As such, Heritage 

Action has forfeited any claim that the district court abused its discretion in applying 

the relevant test, or that the April 2021 votes render the Commission’s failure to act 

reasonable. See Fox v. Government of District of Columbia, 794 F.3d 25, 29 (D.C. 

Cir. 2015). 

Nonetheless, Heritage Action erroneously contends that “there was no ‘failure 

to act’ in the first place” because the administrative complaint was allegedly 

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terminated in April 2021 when the Commission’s deadlocked vote on whether to 

find reason to believe in April 2021. See Br. at 51, 53-54. For reasons discussed 

below, the agency’s deadlocked votes did not dismiss the complaint, which could 

only be accomplished by a majority vote to close the file. See supra pp.8-10; infra 

pp. 47-54. Instead of showing that the Commission dismissed the administrative 

complaint, the voting records relied on by Heritage Action merely show that two 

months after Campaign Legal filed suit, the Commission held a series of votes that 

neither initiated an investigation nor terminated the complaint, see supra pp. 15-16; 

JA301-02; see also Certification, FEC MUR 7516 (Heritage Action) (Apr. 7, 2022), 

https://www.fec.gov/files/legal/murs/7516/7516_17.pdf (showing the FEC 

continued to hold votes on the merits of the administrative complaint a year after the 

purported “deadlock dismissal,” but failed to obtain the four votes necessary to act). 

Even were the Court to consider the effect of the April 2021 votes under the 

Common Cause and TRAC factors, those votes would not render the Commission’s 

failure to act lawful. Courts have repeatedly held that merely taking “some action” 

on an administrative complaint does not render the Commission’s delay in taking 

final action reasonable under Common Cause and TRAC. Campaign Legal Ctr. v. 

FEC, No. 1:20-cv-0809-ABJ, 2021 WL 5178968 at *7 (D.D.C. Nov. 8, 2021). 

Indeed, courts have held that even a successful Commission vote to find reason to 

believe can be insufficient to render the agency’s delay in taking final action lawful 

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where the agency has otherwise failed to act expeditiously. See, e.g., Democratic 

Senatorial Campaign Comm., No. Civ.A. 95-0349 (JHG), 1996 WL 34301203 

(D.D.C. Apr. 17, 1996), at *4, *9 (finding the FEC’s two-year failure to act contrary 

to law even though the agency voted to find reason to believe six months after the 

delay suit was filed); Citizens for Percy ’84, 1984 WL 6601, at *4 (finding the FEC’s 

delay contrary to law even though the agency voted to find reason to believe two 

months after the delay suit was filed). Here, the Commission waited more than two 

years—and almost two months after Campaign Legal filed suit—to vote on the 

complaint, and then merely deadlocked in those votes, leaving the complaint 

unresolved. As such, it was not an abuse of discretion for the district court to find 

the Commission’s failure to act contrary to law, notwithstanding the agency’s April 

2021 deadlocked votes. 

B. Heritage Action’s Automatic-Dismissal Theory Has No Basis in 

Law or Fact 

Heritage Action’s unfounded automatic-dismissal theory conflicts with 

FECA’s text, agency policy and practice, and judicial precedent. As the agency itself 

has recently and repeatedly reaffirmed—including in litigation against Heritage 

Action—an administrative matter is not terminated until there is a successful vote to 

close the enforcement file. See supra pp. 8-10. Indeed, the Commission’s official 

position in ongoing related litigation against Heritage Action is that the agency’s 

April 6, 2021 votes did not terminate Campaign Legal’s administrative complaint 

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because the agency’s vote to close the file “did not succeed.” FEC Opp’n to Heritage 

Action Mot. for Summ. J. at 5, APA Suit ECF 26. 

Notably, Heritage Action does not point to any provision of FECA supporting 

its automatic-dismissal theory, and, indeed, there is none. Instead, FECA specifically 

precludes the Commission from acting absent a majority vote. 52 U.S.C. § 

3010(6)(c). And, FECA specifically contemplates the existence of a distinct “vote 

to dismiss” a complaint, 52 U.S.C. § 30109(a)(1), separate from a vote to find 

reason-to-believe, id. § 30109(a)(2). Both provisions preclude Heritage Action’s 

theory that the Commission “acted” to dismiss the complaint by 3-3 vote on reasonto-believe. Br. at 51. Finally, Congress has demonstrated that when it intends a 

particular consequence to occur by operation of law, it includes that consequence in 

the text of the statute. See, e.g., 52 U.S.C. § 30109(a)(8)(C) (imposing deadline for 

FEC to conform and specifying consequence for inaction: “failing which the 

complainant may bring . . . a civil action to remedy the violation”). But although 

FECA specifies that four Commissioner votes are required for the agency to find 

“reason to believe,” it does not state that the agency’s failure to find reason to believe 

constitutes a dismissal or obviates the need for a vote to dismiss. See id. 30109(a)(2). 

Commission regulations similarly do not provide any support for Heritage 

Action’s automatic dismissal theory, as they specifically reference a “vote to close . 

. . enforcement file[s].” 11 C.F.R. § 5.4(a)(4). Moreover, agency regulations require 

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the Commission to quickly inform the administrative parties and the public of a 

dismissal to facilitate judicial review. See supra p. 9. But here, the Commission did 

not notify the parties of any dismissal after the deadlocked April 2021 votes. Instead, 

the Commission did so fourteen months later, right after successfully voting to close 

the file in June 2022. See Heritage Action Mem. in Support of Mot. to Dismiss at 22 

n.4, Citizen Suit ECF 20-1. Further, although Heritage Action points to a Statement 

of Reason entered by the three Commissioners who voted against finding “reason to 

believe” as evidence the matter was dismissed in April 2021, the Statement was not 

issued until more than a year later, on May 13, 2022. See Br. at 15-16; MUR 7516 

Summary (Heritage Action), https://www.fec.gov/data/legal/matter-underreview/7516/. Heritage Action offers no explanation for why these Commissioners 

would wait more than a year after purportedly dismissing the complaint to issue their 

Statement of Reasons, but the timing is noteworthy: the Statement was issued six 

weeks after the district court entered default judgment, JA198-200, ten days after the 

court declared the Commission had failed to conform, JA245-46, five days after 

Campaign Legal filed its citizen suit against Heritage Action, and the same day that 

Heritage Action’s first FOIA request to the agency failed to turn up any such 

Statements related to the administrative complaint, JA271. 

The Commission’s formal statement of enforcement policy further rebuts 

Defendant’s automatic-dismissal theory. That policy states that four Commissioner 

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votes are required for agency “action” and makes no mention of automatic dismissal 

due to enforcement deadlock. See 72 Fed. Reg. at 12,545-46. Not only that, but 

immediately after the April 2021 deadlock in this matter, the Commission rejected 

the dissenting Commissioners’ proposal to amend the agency’s policy to adopt an 

automatic-dismissal approach. See Draft Statement of Policy Regarding Closing the 

File at the Initial Stage in the Enforcement Process at 1 (Apr. 1, 2021), 

https://www.fec.gov/resources/cms-content/documents/mtgdoc-21-21-A.pdf 

(proposing that upon a failed reason-to-believe vote the “file will be closed unless 

the Commission votes to keep the file open”); Certification, Agenda Doc. No. 21-

21-A (Apr. 22, 2021), https://www.fec.gov/resources/cms-content/documents/VoteDraft-Statement-of-Policy-Initial-Stage-in-the-Enforcement-Process-4-22-21.pdf 

(noting proposal was not adopted). 

The automatic-dismissal theory is also belied by the Commission’s votes on 

the administrative complaint in this matter. The Commission held at least seven 

votes on the administrative complaint after Heritage Action contends the matter was 

automatically terminated. See JA300-02; Certification, MUR 7516 (Heritage 

Action) (Apr. 7, 2022). Heritage Action offers no explanation why the Commission 

would continue to hold votes on the complaint for more than a year after it was 

purportedly dismissed. 

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Moreover, numerous courts have recognized that the Commission dismisses 

matters by holding a distinct vote to close the file. See, e.g., Citizens for 

Responsibility and Ethics in Washington v. FEC, 971 F.3d 340, 346 (D.C. Cir. 2020); 

Doe v. FEC, 920 F.3d 866, 871 n.9 (D.C. Cir. 2019); Citizens for Responsibility and 

Ethics in Washington v. FEC, 892 F.3d 434, 441 n.13 (D.C. Cir. 2018); Citizens for 

Responsibility and Ethics in Washington v. FEC, 236 F. Supp. 3d 378, 388 (D.D.C. 

2017). And this Court has treated the date the Commission closed the file—not the 

date of any previous reason-to-believe votes—as “the date of the dismissal” that 

triggers section 30109(a)(8)(B)’s jurisdictional 60-day deadline for a complainant to 

sue the agency to challenge the dismissal. See Citizens for Responsibility and Ethics 

in Washington, 892 F.3d at 436 (finding that the FEC dismissed in 2015, when the 

agency closed the file, rather than September 2014, when the first reason-to-believe 

vote failed);5 Jordan v. FEC, 68 F.3d 518, 519 (D.C. Cir. 1995); Spannaus v, FEC, 

990 F.2d 643, 644 (D.C. Cir. 1993) (per curiam). 

Against this weight of authority, Heritage Action does not point to any 

caselaw holding that a failed reason-to-believe vote automatically dismisses a 

See also Am. Certification, MURs 6391 & 6471 (Comm’n on Hope, Growth 

and Opportunity (“CHGO”)) (Sept. 16, 2014) 

https://eqs.fec.gov/eqsdocsMUR/15044380338.pdf (reflecting multiple failed 3-3 

reason-to-believe votes); Certification, MURs 6391 & 6471 (CHGO) (Oct. 1, 2015) 

ttps://www.fec.gov/files/legal/murs/6391/15044380175.pdf (reflecting a failed 3-3 

reason to believe vote, and a successful 5-1 vote to close the file) h. 

51 

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USCA Case #22-5140 Document #1975627 Filed: 11/30/2022 Page 64 of 92 

complaint without a majority of the Commission also voting to close the file, and 

Appellee is aware of no such case. Heritage Action cites only dicta linking a 

deadlocked reason-to-believe vote with a vote to dismiss a complaint by closing the 

file in contexts where one followed the other and the distinction made no difference. 

See, e.g., Br. at 6-8, 51-52. 

For example, Heritage Action selectively quotes this Court’s opinion in 

Citizens for Responsibility and Ethics in Washington v. FEC, 993 F.3d 880 (D.C. 

Cir. 2021) (“New Models”) for the proposition that “‘the “result[]’ of ‘the failure to 

get four votes to proceed with an enforcement action’ here was a ‘‘deadlock 

dismissal[].’’” Br. at 52 (quoting New Models, 993 F.3d at 891). But New Models 

merely acknowledges “the possibility of ‘deadlock dismissals’—namely dismissals 

resulting from the failure to get four votes to proceed with an enforcement action.” 

993 F.3d at 891 (emphasis added). New Models does not suggest—nor even 

contemplate—that such a dismissal is “automatic” upon the failure to get four votes 

to enforce, merely that it is a possible result when the Commission deadlocks. On 

the contrary, the New Models court acknowledged that agency dismissals are distinct 

actions, see id. at 883, and that “the Commission must make decisions by majority 

vote,” id. at 891.

6 

The administrative record in New Models confirms that the deadlocked 

reason-to-believe vote and the dismissal by vote to close the file were two separate 

52 

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The remaining cases on which Heritage Action relies are similarly inapposite. 

In FEC v. National Republican Senatorial Commission, this Court merely affirmed 

that when the Commission dismisses a complaint after deadlocking, that dismissal 

“like any other, is judicially reviewable.” 966 F.2d 1471, 1476 (D.C. Cir. 1992) 

(“NRSC”); see id. (referring to “situations in which the Commission deadlocks and 

dismisses”) (emphasis added); cf. Br. at 8 (citing NRSC). And the court in Public 

Citizen, Inc v. FERC, held that a deadlock, on its own, does not constitute action and 

thus is not judicially reviewable. See 839 F.3d 1165, 1169-70 (D.C. Cir. 2015); id. 

at 1170 (holding that FERC “neither reached a collective decision nor engaged in an 

‘action’ of any kind” when it deadlocked over the fairness of rates); see also id. at 

1171 (noting that “the deadlock does not reflect an agency decision that fully 

resolved the issue or completed the process . . . In fact, it did quite the opposite, 

leaving FERC mired in indecision and impasse.”). 

The legal fiction that the views of the Commission are represented by the 

Commissioners “who voted against enforcement,” New Models, 993 F.3d at 883 n.3 

merely allows the Court to review the agency’s decision to dismiss after an 

intractable Commission deadlock or deadlocks. See NRSC, 966 F.2d at 1476 

actions. See Certification, MUR 6872 (New Models) (Nov. 14. 2017), 

https://www.fec.gov/files/legal/murs/6872/17044432619.pdf. 

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USCA Case #22-5140 Document #1975627 Filed: 11/30/2022 Page 66 of 92 

(describing this mechanism as adopted by the court “to make judicial review a 

meaningful exercise”). But it does not transform the deadlock itself into a dismissal. 

* * * 

In sum, the district court did not abuse its discretion by entering default 

judgment against the Commission. The administrative records relied on by Heritage 

Action merely confirm the Commission’s continued inaction during the pendency 

of this suit, and thus support rather than undermine the district court’s determinations 

below. Furthermore, Heritage Action’s automatic-dismissal theory has no basis in 

law or fact. If this Court reaches the merits, it should affirm. 

CONCLUSION 

For the foregoing reasons, the district court’s ruling should be affirmed. 

Date: November 30, 2022 Respectfully submitted, 

/s/ Molly E. Danahy 

CAMPAIGN LEGAL CENTER 

Adav Noti 

Kevin P. Hancock 

Molly E. Danahy 

Hayden Johnson 

1101 14th Street, NW, St. 400 

Washington, D.C. 20005 

(202) 736-2000 

anoti@campaignlegalcenter.org 

khancock@campaignlegalcenter.org 

mdanahy@campaignlegalcenter.org 

hjohnson@campaignlegalcenter.org 

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USCA Case #22-5140 Document #1975627 Filed: 11/30/2022 Page 67 of 92 

Counsel for Plaintiff-Appellee 

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USCA Case #22-5140 Document #1975627 Filed: 11/30/2022 Page 68 of 92 

CERTIFICATE OF COMPLIANCE 

1. This document complies with the word limit of Fed. R. App. P. 32(a)(7) 

because, excluding the portions of the brief exempted by Fed. R. App. P. 32(f) and 

D.C. Cir. Rule 32(e)(1), this document contains 12,189 words. 

2. This document complies with the typeface and type-style requirements 

of Fed. R. App. P. 32(a)(5) and (a)(6) because this document has been prepared in a 

proportionally spaced typeface using Microsoft Word in 14-point Times New 

Roman typeface. 

/s/ Molly E. Danahy 

Molly E. Danahy 

56 
USCA Case #22-5140 Document #1975627 Filed: 11/30/2022 Page 69 of 92 

CERTIFICATE OF SERVICE 

The undersigned certifies that I filed the foregoing document using this 

Court’s CM/ECF system, which effected service on all parties, on November 30, 

2022. 

/s/ Molly E. Danahy 

Molly E. Danahy 

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USCA Case #22-5140 Document #1975627 Filed: 11/30/2022 Page 70 of 92 

STATUTORY ADDENDUM 

CLC incorporates by reference the statutory addendum contained in Heritage 

Action’s opening brief. See Heritage Action Br. at 61. In addition, CLC provides the 

following statutes and regulations pursuant to D.C. Cir. Rule 28(a)(5). 

Statutes and Regulations: Page 

52 U.S.C. § 30104....................................................................................................59 

11 C.F.R. § 111.21 ...................................................................................................80 

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52 U.S.C. § 30104 

Reporting requirements 

(a) Receipts and disbursements by treasurers of political committees; filing 

requirements 

(1) Each treasurer of a political committee shall file reports of receipts and 

disbursements in accordance with the provisions of this subsection. The treasurer 

shall sign each such report. 

(2) If the political committee is the principal campaign committee of a candidate for 

the House of Representatives or for the Senate--

(A) in any calendar year during which there is1 regularly scheduled election for 

which such candidate is seeking election, or nomination for election, the treasurer 

shall file the following reports: 

(i) a pre-election report, which shall be filed no later than the 12th day before 

(or posted by any of the following: registered mail, certified mail, priority mail 

having a delivery confirmation, or express mail having a delivery 

confirmation, or delivered to an overnight delivery service with an on-line 

tracking system, if posted or delivered no later than the 15th day before) any 

election in which such candidate is seeking election, or nomination for 

election, and which shall be complete as of the 20th day before such election; 

(ii) a post-general election report, which shall be filed no later than the 30th 

day after any general election in which such candidate has sought election, 

and which shall be complete as of the 20th day after such general election; 

and 

(iii) additional quarterly reports, which shall be filed no later than the 15th day 

after the last day of each calendar quarter, and which shall be complete as of 

the last day of each calendar quarter: except that the report for the quarter 

ending December 31 shall be filed no later than January 31 of the following 

calendar year; and 

(B) in any other calendar year the treasurer shall file quarterly reports, which shall 

be filed not later than the 15th day after the last day of each calendar quarter, and 

which shall be complete as of the last day of each calendar quarter, except that the 

report for the quarter ending December 31 shall be filed not later than January 31 of 

the following calendar year. 

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(3) If the committee is the principal campaign committee of a candidate for the office 

of President--

(A) in any calendar year during which a general election is held to fill such office--

(i) the treasurer shall file monthly reports if such committee has on January 1 

of such year, received contributions aggregating $100,000 or made 

expenditures aggregating $100,000 or anticipates receiving contributions 

aggregating $100,000 or more or making expenditures aggregating $100,000 

or more during such year: such monthly reports shall be filed no later than the 

20th day after the last day of each month and shall be complete as of the last 

day of the month, except that, in lieu of filing the report otherwise due in 

November and December, a pre-general election report shall be filed in 

accordance with paragraph (2)(A)(i), a post-general election report shall be 

filed in accordance with paragraph (2)(A)(ii), and a year end report shall be 

filed no later than January 31 of the following calendar year; 

(ii) the treasurer of the other principal campaign committees of a candidate 

for the office of President shall file a pre-election report or reports in 

accordance with paragraph (2)(A)(i), a post-general election report in 

accordance with paragraph (2)(A)(ii), and quarterly reports in accordance 

with paragraph (2)(A)(iii); and 

(iii) if at any time during the election year a committee filing under paragraph 

(3)(A)(ii) receives contributions in excess of $100,000 or makes expenditures 

in excess of $100,000, the treasurer shall begin filing monthly reports under 

paragraph (3)(A)(i) at the next reporting period; and 

(B) in any other calendar year, the treasurer shall file either--

(i) monthly reports, which shall be filed no later than the 20th day after the 

last day of each month and shall be complete as of the last day of the month; 

or 

(ii) quarterly reports, which shall be filed no later than the 15th day after the 

last day of each calendar quarter and which shall be complete as of the last 

day of each calendar quarter. 

(4) All political committees other than authorized committees of a candidate shall 

file either--

(A) 

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(i) quarterly reports, in a calendar year in which a regularly scheduled general 

election is held, which shall be filed no later than the 15th day after the last 

day of each calendar quarter: except that the report for the quarter ending on 

December 31 of such calendar year shall be filed no later than January 31 of 

the following calendar year; 

(ii) a pre-election report, which shall be filed no later than the 12th day before 

(or posted by any of the following: registered mail, certified mail, priority mail 

having a delivery confirmation, or express mail having a delivery 

confirmation, or delivered to an overnight delivery service with an on-line 

tracking system, if posted or delivered no later than the 15th day before) any 

election in which the committee makes a contribution to or expenditure on 

behalf of a candidate in such election, and which shall be complete as of the 

20th day before the election; 

(iii) a post-general election report, which shall be filed no later than the 30th 

day after the general election and which shall be complete as of the 20th day 

after such general election; and 

(iv) in any other calendar year, a report covering the period beginning January 

1 and ending June 30, which shall be filed no later than July 31 and a report 

covering the period beginning July 1 and ending December 31, which shall be 

filed no later than January 31 of the following calendar year; or 

(B) monthly reports in all calendar years which shall be filed no later than the 20th 

day after the last day of the month and shall be complete as of the last day of the 

month, except that, in lieu of filing the reports otherwise due in November and 

December of any year in which a regularly scheduled general election is held, a pregeneral election report shall be filed in accordance with paragraph (2)(A)(i), a postgeneral election report shall be filed in accordance with paragraph (2)(A)(ii), and a 

year end report shall be filed no later than January 31 of the following calendar year. 

Notwithstanding the preceding sentence, a national committee of a political party 

shall file the reports required under subparagraph (B). 

(5) If a designation, report, or statement filed pursuant to this Act (other than under 

paragraph (2)(A)(i) or (4)(A)(ii) or subsection (g)(1)) is sent by registered mail, 

certified mail, priority mail having a delivery confirmation, or express mail having 

a delivery confirmation, the United States postmark shall be considered the date of 

filing the designation, report or statement. If a designation, report or statement filed 

pursuant to this Act (other than under paragraph (2)(A)(i) or (4)(A)(ii), or subsection 

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(g)(1)) is sent by an overnight delivery service with an on-line tracking system, the 

date on the proof of delivery to the delivery service shall be considered the date of 

filing of the designation, report, or statement. 

(6)(A) The principal campaign committee of a candidate shall notify the Secretary 

or the Commission, and the Secretary of State, as appropriate, in writing, of any 

contribution of $1,000 or more received by any authorized committee of such 

candidate after the 20th day, but more than 48 hours before, any election. This 

notification shall be made within 48 hours after the receipt of such contribution and 

shall include the name of the candidate and the office sought by the candidate, the 

identification of the contributor, and the date of receipt and amount of the 

contribution. 

(B) Notification of expenditure from personal funds 

(i) Definition of expenditure from personal funds 

In this subparagraph, the term “expenditure from personal funds” means--

(I) an expenditure made by a candidate using personal funds; and 

(II) a contribution or loan made by a candidate using personal funds or 

a loan secured using such funds to the candidate's authorized 

committee. 

(ii) Declaration of intent 

Not later than the date that is 15 days after the date on which an individual 

becomes a candidate for the office of Senator, the candidate shall file a 

declaration stating the total amount of expenditures from personal funds that 

the candidate intends to make, or to obligate to make, with respect to the 

election that will exceed the State-by-State competitive and fair campaign 

formula with--

(I) the Commission; and 

(II) each candidate in the same election. 

(iii) Initial notification 

Not later than 24 hours after a candidate described in clause (ii) makes or 

obligates to make an aggregate amount of expenditures from personal funds 

in excess of 2 times the threshold amount in connection with any election, the 

candidate shall file a notification with--

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(I) the Commission; and 

(II) each candidate in the same election. 

(iv) Additional notification 

After a candidate files an initial notification under clause (iii), the candidate 

shall file an additional notification each time expenditures from personal 

funds are made or obligated to be made in an aggregate amount that exceed2 

$10,000 with--

(I) the Commission; and 

(II) each candidate in the same election. 

Such notification shall be filed not later than 24 hours after the expenditure is 

made. 

(v) Contents 

A notification under clause (iii) or (iv) shall include--

(I) the name of the candidate and the office sought by the candidate; 

(II) the date and amount of each expenditure; and 

(III) the total amount of expenditures from personal funds that the 

candidate has made, or obligated to make, with respect to an election as 

of the date of the expenditure that is the subject of the notification. 

(C) Notification of disposal of excess contributions 

In the next regularly scheduled report after the date of the election for which a 

candidate seeks nomination for election to, or election to, Federal office, the 

candidate or the candidate's authorized committee shall submit to the Commission a 

report indicating the source and amount of any excess contributions (as determined 

under paragraph (1) of section 30116(i) of this title) and the manner in which the 

candidate or the candidate's authorized committee used such funds. 

(D) Enforcement 

For provisions providing for the enforcement of the reporting requirements under 

this paragraph, see section 30109 of this title. 

(E) The notification required under this paragraph shall be in addition to all other 

reporting requirements under this Act. 

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(7) The reports required to be filed by this subsection shall be cumulative during the 

calendar year to which they relate, but where there has been no change in an item 

reported in a previous report during such year, only the amount need be carried 

forward. 

(8) The requirement for a political committee to file a quarterly report under 

paragraph (2)(A)(iii) or paragraph (4)(A)(i) shall be waived if such committee is 

required to file a pre-election report under paragraph (2)(A)(i), or paragraph 

(4)(A)(ii) during the period beginning on the 5th day after the close of the calendar 

quarter and ending on the 15th day after the close of the calendar quarter. 

(9) The Commission shall set filing dates for reports to be filed by principal 

campaign committees of candidates seeking election, or nomination for election, in 

special elections and political committees filing under paragraph (4)(A) which make 

contributions to or expenditures on behalf of a candidate or candidates in special 

elections. The Commission shall require no more than one pre-election report for 

each election and one post-election report for the election which fills the vacancy. 

The Commission may waive any reporting obligation of committees required to file 

for special elections if any report required by paragraph (2) or (4) is required to be 

filed within 10 days of a report required under this subsection. The Commission shall 

establish the reporting dates within 5 days of the setting of such election and shall 

publish such dates and notify the principal campaign committees of all candidates in 

such election of the reporting dates. 

(10) The treasurer of a committee supporting a candidate for the office of Vice 

President (other than the nominee of a political party) shall file reports in accordance 

with paragraph (3). 

(11)(A) The Commission shall promulgate a regulation under which a person 

required to file a designation, statement, or report under this Act--

(i) is required to maintain and file a designation, statement, or report for any 

calendar year in electronic form accessible by computers if the person has, or 

has reason to expect to have, aggregate contributions or expenditures in excess 

of a threshold amount determined by the Commission; and 

(ii) may maintain and file a designation, statement, or report in electronic form 

or an alternative form if not required to do so under the regulation 

promulgated under clause (i). 

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(B) The Commission shall make a designation, statement, report, or notification that 

is filed with the Commission under this Act available for inspection by the public in 

the offices of the Commission and accessible to the public on the Internet not later 

than 48 hours (or not later than 24 hours in the case of a designation, statement, 

report, or notification filed electronically) after receipt by the Commission. 

(C) In promulgating a regulation under this paragraph, the Commission shall provide 

methods (other than requiring a signature on the document being filed) for verifying 

designations, statements, and reports covered by the regulation. Any document 

verified under any of the methods shall be treated for all purposes (including 

penalties for perjury) in the same manner as a document verified by signature. 

(D) As used in this paragraph, the term “report” means, with respect to the 

Commission, a report, designation, or statement required by this Act to be filed with 

the Commission. 

(12) Software for filing of reports 

(A) In general 

The Commission shall--

(i) promulgate standards to be used by vendors to develop software that--

(I) permits candidates to easily record information concerning receipts 

and disbursements required to be reported under this Act at the time of 

the receipt or disbursement; 

(II) allows the information recorded under subclause (I) to be 

transmitted immediately to the Commission; and 

(III) allows the Commission to post the information on the Internet 

immediately upon receipt; and 

(ii) make a copy of software that meets the standards promulgated under 

clause (i) available to each person required to file a designation, statement, or 

report in electronic form under this Act. 

(B) Additional information 

To the extent feasible, the Commission shall require vendors to include in the 

software developed under the standards under subparagraph (A) the ability for any 

person to file any designation, statement, or report required under this Act in 

electronic form. 

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(C) Required use 

Notwithstanding any provision of this Act relating to times for filing reports, each 

candidate for Federal office (or that candidate's authorized committee) shall use 

software that meets the standards promulgated under this paragraph once such 

software is made available to such candidate. 

(D) Required posting 

The Commission shall, as soon as practicable, post on the Internet any information 

received under this paragraph. 

(b) Contents of reports 

Each report under this section shall disclose--

(1) the amount of cash on hand at the beginning of the reporting period; 

(2) for the reporting period and the calendar year (or election cycle, in the case of an 

authorized committee of a candidate for Federal office), the total amount of all 

receipts, and the total amount of all receipts in the following categories: 

(A) contributions from persons other than political committees; 

(B) for an authorized committee, contributions from the candidate; 

(C) contributions from political party committees; 

(D) contributions from other political committees; 

(E) for an authorized committee, transfers from other authorized committees of the 

same candidate; 

(F) transfers from affiliated committees and, where the reporting committee is a 

political party committee, transfers from other political party committees, regardless 

of whether such committees are affiliated; 

(G) for an authorized committee, loans made by or guaranteed by the candidate; 

(H) all other loans; 

(I) rebates, refunds, and other offsets to operating expenditures; 

(J) dividends, interest, and other forms of receipts; and 

(K) for an authorized committee of a candidate for the office of President, Federal 

funds received under chapter 95 and chapter 96 of Title 26; 

(3) the identification of each--

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(A) person (other than a political committee) who makes a contribution to the 

reporting committee during the reporting period, whose contribution or 

contributions have an aggregate amount or value in excess of $200 within the 

calendar year (or election cycle, in the case of an authorized committee of a 

candidate for Federal office), or in any lesser amount if the reporting committee 

should so elect, together with the date and amount of any such contribution; 

(B) political committee which makes a contribution to the reporting committee 

during the reporting period, together with the date and amount of any such 

contribution; 

(C) authorized committee which makes a transfer to the reporting committee; 

(D) affiliated committee which makes a transfer to the reporting committee during 

the reporting period and, where the reporting committee is a political party 

committee, each transfer of funds to the reporting committee from another political 

party committee, regardless of whether such committees are affiliated, together with 

the date and amount of such transfer; 

(E) person who makes a loan to the reporting committee during the reporting period, 

together with the identification of any endorser or guarantor of such loan, and the 

date and amount or value of such loan; 

(F) person who provides a rebate, refund, or other offset to operating expenditures 

to the reporting committee in an aggregate amount or value in excess of $200 within 

the calendar year (or election cycle, in the case of an authorized committee of a 

candidate for Federal office), together with the date and amount of such receipt; and 

(G) person who provides any dividend, interest, or other receipt to the reporting 

committee in an aggregate value or amount in excess of $200 within the calendar 

year (or election cycle, in the case of an authorized committee of a candidate for 

Federal office), together with the date and amount of any such receipt; 

(4) for the reporting period and the calendar year (or election cycle, in the case of an 

authorized committee of a candidate for Federal office), the total amount of all 

disbursements, and all disbursements in the following categories: 

(A) expenditures made to meet candidate or committee operating expenses; 

(B) for authorized committees, transfers to other committees authorized by the same 

candidate; 

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(C) transfers to affiliated committees and, where the reporting committee is a 

political party committee, transfers to other political party committees, regardless of 

whether they are affiliated; 

(D) for an authorized committee, repayment of loans made by or guaranteed by the 

candidate; 

(E) repayment of all other loans; 

(F) contribution refunds and other offsets to contributions; 

(G) for an authorized committee, any other disbursements; 

(H) for any political committee other than an authorized committee--

(i) contributions made to other political committees; 

(ii) loans made by the reporting committees; 

(iii) independent expenditures; 

(iv) expenditures made under section 30116(d) of this title; and 

(v) any other disbursements; and 

(I) for an authorized committee of a candidate for the office of President, 

disbursements not subject to the limitation of section 30116(b) of this title; 

(5) the name and address of each--

(A) person to whom an expenditure in an aggregate amount or value in excess of 

$200 within the calendar year is made by the reporting committee to meet a 

candidate or committee operating expense, together with the date, amount, and 

purpose of such operating expenditure; 

(B) authorized committee to which a transfer is made by the reporting committee; 

(C) affiliated committee to which a transfer is made by the reporting committee 

during the reporting period and, where the reporting committee is a political party 

committee, each transfer of funds by the reporting committee to another political 

party committee, regardless of whether such committees are affiliated, together with 

the date and amount of such transfers; 

(D) person who receives a loan repayment from the reporting committee during the 

reporting period, together with the date and amount of such loan repayment; and 

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(E) person who receives a contribution refund or other offset to contributions from 

the reporting committee where such contribution was reported under paragraph 

(3)(A) of this subsection, together with the date and amount of such disbursement; 

(6)(A) for an authorized committee, the name and address of each person who has 

received any disbursement not disclosed under paragraph (5) in an aggregate amount 

or value in excess of $200 within the calendar year (or election cycle, in the case of 

an authorized committee of a candidate for Federal office), together with the date 

and amount of any such disbursement; 

(B) for any other political committee, the name and address of each--

(i) political committee which has received a contribution from the reporting 

committee during the reporting period, together with the date and amount of any 

such contribution; 

(ii) person who has received a loan from the reporting committee during the 

reporting period, together with the date and amount of such loan; 

(iii) person who receives any disbursement during the reporting period in an 

aggregate amount or value in excess of $200 within the calendar year (or election 

cycle, in the case of an authorized committee of a candidate for Federal office), in 

connection with an independent expenditure by the reporting committee, together 

with the date, amount, and purpose of any such independent expenditure and a 

statement which indicates whether such independent expenditure is in support of, or 

in opposition to, a candidate, as well as the name and office sought by such 

candidate, and a certification, under penalty of perjury, whether such independent 

expenditure is made in cooperation, consultation, or concert, with, or at the request 

or suggestion of, any candidate or any authorized committee or agent of such 

committee; 

(iv) person who receives any expenditure from the reporting committee during the 

reporting period in connection with an expenditure under section 30116(d) of this 

title, together with the date, amount, and purpose of any such expenditure as well as 

the name of, and office sought by, the candidate on whose behalf the expenditure is 

made; and 

(v) person who has received any disbursement not otherwise disclosed in this 

paragraph or paragraph (5) in an aggregate amount or value in excess of $200 within 

the calendar year (or election cycle, in the case of an authorized committee of a 

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candidate for Federal office), from the reporting committee within the reporting 

period, together with the date, amount, and purpose of any such disbursement; 

(7) the total sum of all contributions to such political committee, together with the 

total contributions less offsets to contributions and the total sum of all operating 

expenditures made by such political committee, together with total operating 

expenditures less offsets to operating expenditures, for both the reporting period and 

the calendar year (or election cycle, in the case of an authorized committee of a 

candidate for Federal office); and 

(8) the amount and nature of outstanding debts and obligations owed by or to such 

political committee; and where such debts and obligations are settled for less than 

their reported amount or value, a statement as to the circumstances and conditions 

under which such debts or obligations were extinguished and the consideration 

therefor. 

(c) Statements by other than political committees; filing; contents; indices of 

expenditures 

(1) Every person (other than a political committee) who makes independent 

expenditures in an aggregate amount or value in excess of $250 during a calendar 

year shall file a statement containing the information required under subsection 

(b)(3)(A) for all contributions received by such person. 

(2) Statements required to be filed by this subsection shall be filed in accordance 

with subsection (a)(2), and shall include--

(A) the information required by subsection (b)(6)(B)(iii), indicating whether the 

independent expenditure is in support of, or in opposition to, the candidate involved; 

(B) under penalty of perjury, a certification whether or not such independent 

expenditure is made in cooperation, consultation, or concert, with, or at the request 

or suggestion of, any candidate or any authorized committee or agent of such 

candidate; and 

(C) the identification of each person who made a contribution in excess of $200 to 

the person filing such statement which was made for the purpose of furthering an 

independent expenditure. 

(3) The Commission shall be responsible for expeditiously preparing indices which 

set forth, on a candidate-by-candidate basis, all independent expenditures separately, 

including those reported under subsection (b)(6)(B)(iii), made by or for each 

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candidate, as reported under this subsection, and for periodically publishing such 

indices on a timely pre-election basis. 

(d) Filing by facsimile device or electronic mail 

(1) Any person who is required to file a statement under subsection (c) or (g) of this 

section, except statements required to be filed electronically pursuant to subsection 

(a)(11)(A)(i) may file the statement by facsimile device or electronic mail, in 

accordance with such regulations as the Commission may promulgate. 

(2) The Commission shall make a document which is filed electronically with the 

Commission pursuant to this paragraph accessible to the public on the Internet not 

later than 24 hours after the document is received by the Commission. 

(3) In promulgating a regulation under this paragraph, the Commission shall provide 

methods (other than requiring a signature on the document being filed) for verifying 

the documents covered by the regulation. Any document verified under any of the 

methods shall be treated for all purposes (including penalties for perjury) in the same 

manner as a document verified by signature. 

(e) Political committees 

(1) National and congressional political committees 

The national committee of a political party, any national congressional campaign 

committee of a political party, and any subordinate committee of either, shall report 

all receipts and disbursements during the reporting period. 

(2) Other political committees to which section 30125 of this title applies 

(A) In general 

In addition to any other reporting requirements applicable under this Act, a political 

committee (not described in paragraph (1)) to which section 30125(b)(1) of this title 

applies shall report all receipts and disbursements made for activities described in 

section 30101(20)(A) of this title, unless the aggregate amount of such receipts and 

disbursements during the calendar year is less than $5,000. 

(B) Specific disclosure by State and local parties of certain non-Federal amounts 

permitted to be spent on Federal election activity 

Each report by a political committee under subparagraph (A) of receipts and 

disbursements made for activities described in section 30101(20)(A) of this title 

shall include a disclosure of all receipts and disbursements described in section 

30125(b)(2)(A) and (B) of this title. 

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(3) Itemization 

If a political committee has receipts or disbursements to which this subsection 

applies from or to any person aggregating in excess of $200 for any calendar year, 

the political committee shall separately itemize its reporting for such person in the 

same manner as required in paragraphs (3)(A), (5), and (6) of subsection (b). 

(4) Reporting periods 

Reports required to be filed under this subsection shall be filed for the same time 

periods required for political committees under subsection (a)(4)(B). 

(f) Disclosure of electioneering communications 

(1) Statement required 

Every person who makes a disbursement for the direct costs of producing and airing 

electioneering communications in an aggregate amount in excess of $10,000 during 

any calendar year shall, within 24 hours of each disclosure date, file with the 

Commission a statement containing the information described in paragraph (2). 

(2) Contents of statement 

Each statement required to be filed under this subsection shall be made under penalty 

of perjury and shall contain the following information: 

(A) The identification of the person making the disbursement, of any person sharing 

or exercising direction or control over the activities of such person, and of the 

custodian of the books and accounts of the person making the disbursement. 

(B) The principal place of business of the person making the disbursement, if not an 

individual. 

(C) The amount of each disbursement of more than $200 during the period covered 

by the statement and the identification of the person to whom the disbursement was 

made. 

(D) The elections to which the electioneering communications pertain and the names 

(if known) of the candidates identified or to be identified. 

(E) If the disbursements were paid out of a segregated bank account which consists 

of funds contributed solely by individuals who are United States citizens or nationals 

or lawfully admitted for permanent residence (as defined in section 1101(a)(20) of 

Title 8) directly to this account for electioneering communications, the names and 

addresses of all contributors who contributed an aggregate amount of $1,000 or more 

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to that account during the period beginning on the first day of the preceding calendar 

year and ending on the disclosure date. Nothing in this subparagraph is to be 

construed as a prohibition on the use of funds in such a segregated account for a 

purpose other than electioneering communications. 

(F) If the disbursements were paid out of funds not described in subparagraph (E), 

the names and addresses of all contributors who contributed an aggregate amount of 

$1,000 or more to the person making the disbursement during the period beginning 

on the first day of the preceding calendar year and ending on the disclosure date. 

(3) Electioneering communication 

For purposes of this subsection--

(A) In general 

(i) The term “electioneering communication” means any broadcast, cable, or 

satellite communication which--

(I) refers to a clearly identified candidate for Federal office; 

(II) is made within--

(aa) 60 days before a general, special, or runoff election for the 

office sought by the candidate; or 

(bb) 30 days before a primary or preference election, or a 

convention or caucus of a political party that has authority to 

nominate a candidate, for the office sought by the candidate; and 

(III) in the case of a communication which refers to a candidate for an 

office other than President or Vice President, is targeted to the relevant 

electorate. 

(ii) If clause (i) is held to be constitutionally insufficient by final judicial 

decision to support the regulation provided herein, then the term 

“electioneering communication” means any broadcast, cable, or satellite 

communication which promotes or supports a candidate for that office, or 

attacks or opposes a candidate for that office (regardless of whether the 

communication expressly advocates a vote for or against a candidate) and 

which also is suggestive of no plausible meaning other than an exhortation to 

vote for or against a specific candidate. Nothing in this subparagraph shall be 

construed to affect the interpretation or application of section 100.22(b) of 

title 11, Code of Federal Regulations. 

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(B) Exceptions 

The term “electioneering communication” does not include--

(i) a communication appearing in a news story, commentary, or editorial 

distributed through the facilities of any broadcasting station, unless such 

facilities are owned or controlled by any political party, political committee, 

or candidate; 

(ii) a communication which constitutes an expenditure or an independent 

expenditure under this Act; 

(iii) a communication which constitutes a candidate debate or forum 

conducted pursuant to regulations adopted by the Commission, or which 

solely promotes such a debate or forum and is made by or on behalf of the 

person sponsoring the debate or forum; or 

(iv) any other communication exempted under such regulations as the 

Commission may promulgate (consistent with the requirements of this 

paragraph) to ensure the appropriate implementation of this paragraph, except 

that under any such regulation a communication may not be exempted if it 

meets the requirements of this paragraph and is described in section 

30101(20)(A)(iii) of this title. 

(C) Targeting to relevant electorate 

For purposes of this paragraph, a communication which refers to a clearly identified 

candidate for Federal office is “targeted to the relevant electorate” if the 

communication can be received by 50,000 or more persons--

(i) in the district the candidate seeks to represent, in the case of a candidate 

for Representative in, or Delegate or Resident Commissioner to, the Congress; 

or 

(ii) in the State the candidate seeks to represent, in the case of a candidate for 

Senator. 

(4) Disclosure date 

For purposes of this subsection, the term “disclosure date” means--

(A) the first date during any calendar year by which a person has made 

disbursements for the direct costs of producing or airing electioneering 

communications aggregating in excess of $10,000; and 

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(B) any other date during such calendar year by which a person has made 

disbursements for the direct costs of producing or airing electioneering 

communications aggregating in excess of $10,000 since the most recent disclosure 

date for such calendar year. 

(5) Contracts to disburse 

For purposes of this subsection, a person shall be treated as having made a 

disbursement if the person has executed a contract to make the disbursement. 

(6) Coordination with other requirements 

Any requirement to report under this subsection shall be in addition to any other 

reporting requirement under this Act. 

(7) Coordination with Title 26 

Nothing in this subsection may be construed to establish, modify, or otherwise affect 

the definition of political activities or electioneering activities (including the 

definition of participating in, intervening in, or influencing or attempting to 

influence a political campaign on behalf of or in opposition to any candidate for 

public office) for purposes of Title 26. 

(g) Time for reporting certain expenditures 

(1) Expenditures aggregating $1,000 

(A) Initial report 

A person (including a political committee) that makes or contracts to make 

independent expenditures aggregating $1,000 or more after the 20th day, but more 

than 24 hours, before the date of an election shall file a report describing the 

expenditures within 24 hours. 

(B) Additional reports 

After a person files a report under subparagraph (A), the person shall file an 

additional report within 24 hours after each time the person makes or contracts to 

make independent expenditures aggregating an additional $1,000 with respect to the 

same election as that to which the initial report relates. 

(2) Expenditures aggregating $10,000 

(A) Initial report 

A person (including a political committee) that makes or contracts to make 

independent expenditures aggregating $10,000 or more at any time up to and 

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including the 20th day before the date of an election shall file a report describing the 

expenditures within 48 hours. 

(B) Additional reports 

After a person files a report under subparagraph (A), the person shall file an 

additional report within 48 hours after each time the person makes or contracts to 

make independent expenditures aggregating an additional $10,000 with respect to 

the same election as that to which the initial report relates. 

(3) Place of filing; contents 

A report under this subsection--

(A) shall be filed with the Commission; and 

(B) shall contain the information required by subsection (b)(6)(B)(iii), including the 

name of each candidate whom an expenditure is intended to support or oppose. 

(4) Time of filing for expenditures aggregating $1,000 

Notwithstanding subsection (a)(5), the time at which the statement under paragraph 

(1) is received by the Commission or any other recipient to whom the notification is 

required to be sent shall be considered the time of filing of the statement with the 

recipient. 

(h) Reports from Inaugural Committees 

The Federal Election Commission shall make any report filed by an Inaugural 

Committee under section 510 of Title 36 accessible to the public at the offices of the 

Commission and on the Internet not later than 48 hours after the report is received 

by the Commission. 

(i) Disclosure of bundled contributions 

(1) Required disclosure 

Each committee described in paragraph (6) shall include in the first report required 

to be filed under this section after each covered period (as defined in paragraph (2)) 

a separate schedule setting forth the name, address, and employer of each person 

reasonably known by the committee to be a person described in paragraph (7) who 

provided 2 or more bundled contributions to the committee in an aggregate amount 

greater than the applicable threshold (as defined in paragraph (3)) during the covered 

period, and the aggregate amount of the bundled contributions provided by each such 

person during the covered period. 

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(2) Covered period 

In this subsection, a “covered period” means, with respect to a committee--

(A) the period beginning January 1 and ending June 30 of each year; 

(B) the period beginning July 1 and ending December 31 of each year; and 

(C) any reporting period applicable to the committee under this section during which 

any person described in paragraph (7) provided 2 or more bundled contributions to 

the committee in an aggregate amount greater than the applicable threshold. 

(3) Applicable threshold 

(A) In general 

In this subsection, the “applicable threshold” is $15,000, except that in determining 

whether the amount of bundled contributions provided to a committee by a person 

described in paragraph (7) exceeds the applicable threshold, there shall be excluded 

any contribution made to the committee by the person or the person's spouse. 

(B) Indexing 

In any calendar year after 2007, section 30116(c)(1)(B) of this title shall apply to the 

amount applicable under subparagraph (A) in the same manner as such section 

applies to the limitations established under subsections (a)(1)(A), (a)(1)(B), (a)(3), 

and (h) of such section, except that for purposes of applying such section to the 

amount applicable under subparagraph (A), the “base period” shall be 2006. 

(4) Public availability 

The Commission shall ensure that, to the greatest extent practicable--

(A) information required to be disclosed under this subsection is publicly available 

through the Commission website in a manner that is searchable, sortable, and 

downloadable; and 

(B) the Commission's public database containing information disclosed under this 

subsection is linked electronically to the websites maintained by the Secretary of the 

Senate and the Clerk of the House of Representatives containing information filed 

pursuant to the Lobbying Disclosure Act of 1995. 

(5) Regulations 

Not later than 6 months after September 14, 2007, the Commission shall promulgate 

regulations to implement this subsection. Under such regulations, the Commission-

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(A) may, notwithstanding paragraphs (1) and (2), provide for quarterly filing of the 

schedule described in paragraph (1) by a committee which files reports under this 

section more frequently than on a quarterly basis; 

(B) shall provide guidance to committees with respect to whether a person is 

reasonably known by a committee to be a person described in paragraph (7), which 

shall include a requirement that committees consult the websites maintained by the 

Secretary of the Senate and the Clerk of the House of Representatives containing 

information filed pursuant to the Lobbying Disclosure Act of 1995; 

(C) may not exempt the activity of a person described in paragraph (7) from 

disclosure under this subsection on the grounds that the person is authorized to 

engage in fundraising for the committee or any other similar grounds; and 

(D) shall provide for the broadest possible disclosure of activities described in this 

subsection by persons described in paragraph (7) that is consistent with this 

subsection. 

(6) Committees described 

A committee described in this paragraph is an authorized committee of a candidate, 

a leadership PAC, or a political party committee. 

(7) Persons described 

A person described in this paragraph is any person, who, at the time a contribution 

is forwarded to a committee as described in paragraph (8)(A)(i) or is received by a 

committee as described in paragraph (8)(A)(ii), is--

(A) a current registrant under section 4(a) of the Lobbying Disclosure Act of 1995; 

(B) an individual who is listed on a current registration filed under section 4(b)(6) 

of such Act or a current report under section 5(b)(2)(C) of such Act; or 

(C) a political committee established or controlled by such a registrant or individual. 

(8) Definitions 

For purposes of this subsection, the following definitions apply: 

(A) Bundled contribution 

The term “bundled contribution” means, with respect to a committee described in 

paragraph (6) and a person described in paragraph (7), a contribution (subject to the 

applicable threshold) which is--

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(i) forwarded from the contributor or contributors to the committee by the 

person; or 

(ii) received by the committee from a contributor or contributors, but credited 

by the committee or candidate involved (or, in the case of a leadership PAC, 

by the individual referred to in subparagraph (B) involved) to the person 

through records, designations, or other means of recognizing that a certain 

amount of money has been raised by the person. 

(B) Leadership PAC 

The term “leadership PAC” means, with respect to a candidate for election to Federal 

office or an individual holding Federal office, a political committee that is directly 

or indirectly established, financed, maintained or controlled by the candidate or the 

individual but which is not an authorized committee of the candidate or individual 

and which is not affiliated with an authorized committee of the candidate or 

individual, except that such term does not include a political committee of a political 

party. 

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11 C.F.R. § 111.21 

Confidentiality 

(a) Except as provided in 11 CFR 111.20, no complaint filed with the 

Commission, nor any notification sent by the Commission, nor any 

investigation conducted by the Commission, nor any findings made by the 

Commission shall be made public by the Commission or by any person or 

entity without the written consent of the respondent with respect to whom the 

complaint was filed, the notification sent, the investigation conducted, or the 

finding made. 

(b) Except as provided in 11 CFR 111.20(b), no action by the Commission or 

by any person, and no information derived in connection with conciliation 

efforts pursuant to 11 CFR 111.18, may be made public by the Commission 

except upon a written request by respondent and approval thereof by the 

Commission. 

(c) Nothing in these regulations shall be construed to prevent the introduction 

of evidence in the courts of the United States which could properly be 

introduced pursuant to the Federal Rules of Evidence or Federal Rules of Civil 

Procedure. 

80