ORAL ARGUMENT NOT YET SCHEDULED

No. 22-5339

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

CAMPAIGN LEGAL CENTER, 

Plaintiff-Appellant, 

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

On Appeal from the United States District Court

for the District of Columbia, No. 1:22-cv-01976-JEB

Before the Honorable James E. Boasberg

APPELLANT’S OPENING BRIEF

Megan P. McAllen (DC Bar No. 1020509)

Erin Chlopak (DC Bar No. 496370) 

Allison Walter (DC Bar No. 90008637)

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Suite 400

Washington, DC 20005

(202) 736-2200

Email: mmcallen@campaignlegalcenter.org

Email: echlopak@campaignlegalcenter.org

Email: awalter@campaignlegalcenter.org 

Counsel for Plaintiff-Appellant

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CERTIFICATE AS TO PARTIES, 

RULINGS, AND RELATED CASES

Pursuant to Circuit Rule 28(a)(1), Plaintiff-Appellant Campaign Legal Center 

hereby certifies as follows:

(A) Parties and Amici. Campaign Legal Center is the plaintiff in the district 

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

corporation that has no parent companies, does not issue stock, and in which no 

publicly held corporation has any form of ownership interest. Campaign Legal 

Center 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 (“FEC”) is the defendant in the district 

court and appellee in this Court. 

(B) Rulings Under Review. Plaintiff-appellant Campaign Legal Center

appeals the December 8, 2022 memorandum opinion (ECF No. 18) and order (ECF 

No. 17) of the United States District Court for the District of Columbia (Boasberg, 

J.) granting Defendant Federal Election Commission’s Motion to Dismiss. The 

December 8, 2022 opinion is not published in the federal reporter but is available at 

2022 WL 17496211 and reproduced in the Joint Appendix at JA 32-49. 

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(C) Related Cases. The appealed ruling has not previously been before this 

Court or any other court. There are no related cases pending in this Court or any 

other court of which counsel are aware. 

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TABLE OF CONTENTS

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

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

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

GLOSSARY OF ABBREVIATIONS......................................................................ix

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

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

ISSUES PRESENTED............................................................................................... 5 

STATUTES AND REGULATIONS......................................................................... 6 

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

I. Statutory and Regulatory Framework................................................................... 6 

A. FECA disclosure provisions............................................................................ 6 

B. FEC administrative complaint and enforcement process................................ 8 

II. Factual Background ............................................................................................10

A. Plaintiff files an administrative complaint and supplement alleging 

violations of the Act.......................................................................................10

B. The FEC’s Office of General Counsel recommends finding reason to 

believe and opening an investigation ............................................................12

C. The Commissioners reject the General Counsel’s reason-to-believe 

recommendation, decline to dismiss as a matter of prosecutorial 

discretion, dismiss the complaint, and issue Statements of Reasons............14

III. Proceedings Below ............................................................................................17

SUMMARY OF ARGUMENT...............................................................................19

STANDING .............................................................................................................23

STANDARD OF REVIEW .....................................................................................24

ARGUMENT...........................................................................................................25

I. The district court erred in holding the dismissal of plaintiff’s administrative 

complaint unreviewable......................................................................................25

A. Neither Commission on Hope nor New Models bars review of FEC 

dismissals premised on legal interpretation...................................................26

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B. The dismissal here is reviewable because the Commissioners’ 

purported exercise of prosecutorial discretion cannot be disentangled 

from their legal conclusions on the merits ....................................................29

1. The dismissal rested on substantive legal and factual analysis.............30

2. The district court erred in presuming that the Commissioners’ 

invocation of prosecutorial discretion would stand independently 

of their merits judgments.......................................................................33

II. The district court relied on rulings that are contrary to fixed law and should 

not be followed ...................................................................................................36

CONCLUSION........................................................................................................42

CERTIFICATE OF COMPLIANCE.......................................................................43

CERTIFICATE OF SERVICE ................................................................................44

ADDENDUM ..........................................................................................................45

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TABLE OF AUTHORITIES

*Authorities upon which appellants principally rely are marked with an asterisk

Cases: Page

Akins v. FEC, 

101 F.3d 731 (D.C. Cir. 1996) (en banc)................................................21, 22, 39

Ashcroft v. Iqbal, 

556 U.S. 662 (2009)............................................................................................24

Buckley v. Valeo, 

424 U.S. 1 (1976).................................................................................................. 6

Campaign Legal Center v. FEC, 

31 F.4th 781 (D.C. Cir. 2022) .......................................................................23, 24

Campaign Legal Center & Democracy 21 v. FEC, 

952 F.3d 352 (D.C. Cir. 2020)....................................................22, 23, 39, 40, 41

Chamber of Commerce v. FEC, 

69 F.3d 600 (D.C. Cir. 1995)........................................................................22, 38

Citizens United v. FEC, 

558 U.S. 310 (2010) .............................................................................................. 6 

Common Cause v. FEC, 

842 F.2d 436 (D.C. Cir. 1988).............................................................................. 9

CREW v. American Action Network, 

590 F. Supp. 3d 164 (D.D.C. 2022) ....................................................................39

CREW v. FEC, 

316 F. Supp. 3d 349 (D.D.C. 2018) ....................................................................39

*CREW v. FEC, 993 F.3d 880 

(D.C. Cir. 2021) (“New Models”) ............................ 2-5, 20-22, 25, 27, 30, 37, 40

CREW v. FEC, 55 F.4th 918 

(D.C. Cir. 2022) (“New Models II”) .............................. 20, 21, 28, 29, 33, 36, 40

*CREW v. FEC, 892 F.3d 434 

(D.C. Cir. 2018) (“Commission on Hope”) ................... 2, 3, 5, 25, 27, 29, 37, 41

CREW v. FEC, 923 F.3d 1141 

(D.C. Cir. 2019) (“Commission on Hope II”) .............................22, 25, 38, 40, 41

Democratic Congressional Campaign Committee v. FEC, 

831 F.2d 1131 (D.C. Cir. 1987) (“DCCC”)..................................................22, 38

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FEC v. Democratic Senatorial Campaign Committee, 

454 U.S. 27 (1981) ..............................................................................................27

*FEC v. Akins, 

524 U.S. 11 (1998)........................................................... 3, 21, 22, 24, 27, 33, 37

Heckler v. Chaney, 

470 U.S. 821 (1985)............................................................ 2, 3, 14, 22, 27, 36-40

International Union, United Mine Workers v. Dep’t of Labor, 

358 F.3d 40 (D.C. Cir. 2004)..............................................................................35

Lieu v. FEC, 

370 F. Supp. 3d 175 (D.D.C. 2019) ....................................................................39

Mach Mining, LLC v. EEOC, 

575 U.S. 480 (2015)............................................................................................25

Orloski v. FEC, 

795 F.2d 156 (D.C. Cir. 1986)..................................................................9, 22, 38

Public Citizen v. FEC, 

547 F. Supp. 3d 51 (D.D.C. 2021) ......................................................................40

Sierra Club v. Jackson, 

648 F.3d 848 (D.C. Cir. 2011)......................................................4, 23, 24, 37, 41

Stop This Insanity Inc. Emp. Leadership Fund v. FEC, 

761 F.3d 10 (D.C. Cir. 2014)..............................................................................24

Statutes:

28 U.S.C. § 1291........................................................................................................ 5 

28 U.S.C. § 1331........................................................................................................ 5 

52 U.S.C. § 30104(a)(1)............................................................................................. 6

52 U.S.C. § 30104(b)...........................................................................................7, 10

52 U.S.C. § 30104(b)(5) ............................................................................................ 6

52 U.S.C. § 30104(b)(5)(A)...............................................................................12, 14

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

52 U.S.C. § 30109(a)(1)............................................................................................. 8 

52 U.S.C. § 30109(a)(2) ............................................................................................. 8 

52 U.S.C. § 30109(a)(3)............................................................................................. 9 

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52 U.S.C. § 30109(a)(4)(A)....................................................................................... 9 

52 U.S.C. § 30109(a)(5)............................................................................................. 9 

52 U.S.C. § 30109(a)(6)(A)....................................................................................... 9 

52 U.S.C. § 30109(a)(8).........................................................................20, 25, 38, 40

52 U.S.C. § 30109(a)(8)(A).........................................................................3, 5, 9, 17

52 U.S.C. § 30109(a)(8)(C) ...........................................................................9, 10, 38

52 U.S.C. § 30109(a)(9)............................................................................................. 5 

Regulations and Rulemaking Documents:

11 C.F.R. § 104.3(b) ..........................................................................................12, 14

11 C.F.R. § 104.3(b)(3)(i).......................................................................................... 7 

11 C.F.R. § 104.3(b)(3)(i)(A) .................................................................................... 7 

11 C.F.R. § 104.3(b)(4)(i).......................................................................................... 7 

11 C.F.R. § 104.3(b)(4)(i)(A) .................................................................................... 7 

11 C.F.R. § 111.4(b) .................................................................................................. 8 

11 C.F.R. § 111.4(d) .................................................................................................. 8 

Other Materials:

Conciliation Agreement, MUR 4872 (Jenkins for Senate 1996) (Feb. 15, 

2002) .................................................................................................................... 7 

Factual and Legal Analysis, MUR 6724 (Bachmann for President) (July 

13, 2017) .......................................................................................................... 7, 8

Factual and Legal Analysis, MUR 6818 (Allen Weh for Senate) (June 15, 

2017) .................................................................................................................... 8 

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

Initial Stage in the Enforcement Process, 72 Fed. Reg. 12545 (Mar. 16, 

2007) .................................................................................................................... 8 

FEC, Statement of Policy: “Purpose of Disbursement” Entries for Filings 

with the Commission, 72 Fed. Reg. 887 (Jan. 9, 2007) ...................................... 7 

General Counsel’s Brief, MUR 3847 (Stockman) (Sept. 15, 1997) .......................... 7 

Statement of Reasons of Chair Lee Goodman & Comm’rs Caroline C. 

Hunter & Matthew S. Petersen, MUR 6396 (Crossroads GPS) (Jan. 8, 

2014), https://www.fec.gov/files/legal/murs/6396/14044350970.pdf ......................40

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GLOSSARY OF ABBREVIATIONS

CREW Citizens for Responsibility and Ethics in Washington

DNC Democratic National Committee

FEC Federal Election Commission

FECA Federal Election Campaign Act

Trump MAGA 

Committee Trump Make America Great Again Committee

MUR (FEC) Matter Under Review

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INTRODUCTION

This case challenges the Federal Election Commission’s (“FEC” or 

“Commission”) unlawful dismissal of an administrative complaint filed by plaintiffappellant Campaign Legal Center against former 2020 presidential candidate Donald 

J. Trump’s authorized campaign committee, Donald J. Trump for President, Inc. 

(“Campaign”), and one of his authorized joint fundraising committees, Trump Make 

America Great Again Committee (“Trump MAGA Committee”; collectively, 

“Committees” or “Trump Committees”) for violations of the Federal Election 

Campaign Act (“FECA” or “Act”).1

 

The disclosure violations alleged in the administrative complaint were

egregious and clear-cut. The complaint documented, in meticulous detail, how the 

Trump Committees had unlawfully concealed upwards of three quarters of a billion

dollars in 2020 campaign spending—amounting to the lion’s share of their spending

for the entire presidential election cycle—by routing payments to campaign vendors 

and staff through affiliated firms without reporting their ultimate payees as required 

by FECA and FEC authorities. All told, the potential amount in violation, 

$781,584,527, would have been the largest in the Commission’s history. See JA 243. 

 

1 In February 2021, the Campaign changed its name to Make America Great Again 

PAC and converted to a multicandidate committee. See Joint Appendix (“JA”) 224. 

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Nevertheless, the Commission, contrary to the recommendations of its Office 

of General Counsel, dismissed the complaint after deadlocking 3-3 on two separate 

votes: first, on whether to find “reason to believe” FECA had been violated, and 

second, on whether to exercise the Commission’s prosecutorial discretion and 

dismiss the complaint under Heckler v. Chaney, 470 U.S. 821 (1985). See JA 221-

23. 

The three Commissioners who voted against finding reason to believe, and 

whose rationale is therefore treated as “controlling” for purposes of judicial review,

later invoked prosecutorial discretion in a Statement of Reasons justifying their 

votes. But, as plaintiff explained in opposing the FEC’s motion to dismiss below, 

the Commissioners explicitly rested that supposed exercise of prosecutorial 

discretion on their legal analysis of the complaint’s merits—and an FEC dismissal 

premised on interpretations of law is not shielded from judicial scrutiny simply 

because it is accompanied by a contingent invocation of prosecutorial discretion. 

The district court incorrectly found otherwise, however, and granted the 

FEC’s motion to dismiss. In so holding, the court relied on Citizens for 

Responsibility and Ethics in Washington (CREW) v. FEC, 993 F.3d 880 (D.C. Cir. 

2021) (“New Models”), and CREW v. FEC, 892 F.3d 434 (D.C. Cir. 2018) 

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(“Commission on Hope”),2 two recent divided panel rulings by this Court holding

that certain FEC dismissals premised on prosecutorial discretion are unreviewable. 

But the lower court’s reliance on these decisions, which conflict with controlling 

Supreme Court and prior Circuit precedent, was in error. 

Even under Commission on Hope and New Models, administrative complaints 

dismissed on the basis of the Commission’s interpretations of law—including where, 

as here, the Commission invokes prosecutorial discretion based on its substantive 

legal analysis rather than as a “distinct ground[]” for dismissal, New Models, 993 

F.3d at 884—remain subject to the judicial review that FECA expressly provides. 

See Commission on Hope, 892 F.3d at 441 n.11 (“The interpretation an agency gives 

to a statute is not committed to the agency’s unreviewable discretion.”) (citing 

Heckler, 470 U.S. at 833 n.4; FEC v. Akins, 524 U.S. 11, 26 (1998)); 52 U.S.C. 

§ 30109(a)(8).

Here, the linchpin of the controlling Commissioners’ decision to dismiss 

plaintiff’s complaint was their determination that there was no “reason to believe” 

the Trump Committees violated FECA. While the Commissioners characterized 

their decision—and the FEC has defended it—as an exercise of prosecutorial 

discretion, their Statement of Reasons belies that assertion. Instead, it makes clear 

 

2 To differentiate between cases brought by CREW, this brief refers to each by the 

name of the administrative respondent, and to the Commission on Hope and New 

Models decisions collectively as the “CREW” cases.

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that the Commissioners’ invocation of prosecutorial discretion was merely an 

endpoint of their legal reasoning: each “discretionary” justification they put forward 

was firmly premised on an underlying assessment of the legal merits. Far from 

suggesting that discretion was an alternative or “distinct” basis for the

Commissioners’ decision, as in New Models, 993 F.3d at 884, their Statement 

indicates that prosecutorial discretion was simply an expedient framing device in

which to package their dispositive assessments of fact and law. The district court 

thus erred by presuming what path the agency would take on remand in the event

the Commissioners’ underlying legal errors were corrected or modified through 

judicial review. And, contrary to the ruling below, the CREW decisions do not shield 

those legal errors from scrutiny.

Nor could they. Even if the holdings in New Models and Commission on Hope

did apply to FEC dismissals like this one, where the agency’s claimed discretionary 

concerns are indistinguishable from its substantive legal judgments, this Court 

should not follow those decisions because they contradict Supreme Court and prior 

Circuit precedent that is directly controlling here. See Sierra Club v. Jackson, 648 

F.3d 848, 854 (D.C. Cir. 2011). Either way, the dismissal of plaintiff’s 

administrative complaint remains reviewable under FECA’s contrary-to-law 

standard, and the district court’s finding otherwise was in error. 

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Accordingly, the decision below should be reversed, and the case remanded 

for consideration of whether the dismissal was contrary to law. 

JURISDICTIONAL STATEMENT

This Court has jurisdiction over this timely appeal from a final order in the 

U.S. District Court for the District of Columbia under 28 U.S.C. § 1291 and 52 

U.S.C. § 30109(a)(9). The district court had subject-matter jurisdiction over the case 

under 28 U.S.C. § 1331 and 52 U.S.C. § 30109(a)(8)(A). Appeal was timely taken 

on December 21, 2022, within sixty days of the district court’s memorandum opinion

and order, entered December 8, 2022, granting defendant’s motion to dismiss and

disposing of all claims in this action. 

ISSUES PRESENTED

1. Whether the district court erred by holding the dismissal of Campaign 

Legal Center’s administrative complaint unreviewable as based on an exercise of 

prosecutorial discretion, where the Commissioners’ purported exercise of 

prosecutorial discretion was dependent upon erroneous interpretations of law. 

2. Whether the district court erred in finding nonreviewability 

“foreordained” by the divided panel decisions in Commission on Hope, 892 F.3d 

434, and New Models, 993 F.3d 880, notwithstanding that those decisions 

contravene Supreme Court and prior D.C. Circuit precedent. 

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STATUTES AND REGULATIONS

All applicable statutory and regulatory provisions are reproduced in the 

Addendum to this brief.

STATEMENT OF THE CASE

I. Statutory and Regulatory Framework

A. FECA disclosure provisions

A core purpose of federal campaign finance law is to serve the electorate’s 

interest in knowing “where political campaign money comes from and how it is 

spent,” Buckley v. Valeo, 424 U.S. 1, 66 (1976) (per curiam) (quoting H.R. Rep. No. 

92-564, at 4 (1971)), and thereby “enable[] the electorate to make informed 

decisions,” Citizens United v. FEC, 558 U.S. 310, 371 (2010). Toward that end, 

FECA contains numerous provisions designed to ensure accurate reporting from

those who give and spend money to influence elections. 

One such provision requires that “[e]ach treasurer of a political 

committee . . . file reports of receipts and disbursements” with the Commission. 52 

U.S.C. § 30104(a)(1). These reports must disclose “the name and address” of each 

person to whom the committee has made operating expenditures or other 

disbursements of over $200, “together with the date[s], amount[s], and purpose[s]” 

of those expenditures or disbursements. Id. § 30104(b)(5), (6). 

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FEC regulations similarly require that political committees disclose the dates, 

amounts, and purposes of expenditures and disbursements in excess of $200. 11 

C.F.R. § 104.3(b)(3)(i), (4)(i). These regulations define “purpose” to mean “a brief 

statement or description of why the disbursement was made.” Id.

§ 104.3(b)(3)(i)(A), (4)(i)(A). A Commission policy statement further provides that 

the “purpose” description, together with the recipient’s name, should enable “a 

person not associated with the committee [to] easily discern why the disbursement 

was made.” FEC, Statement of Policy: “Purpose of Disbursement” Entries for 

Filings with the Commission, 72 Fed. Reg. 887, 888 (Jan. 9, 2007). 

Commission precedent further makes clear that a federal political committee 

must itemize payments to a subvendor if (1) the immediate vendor receiving the 

disbursement does not have an arm’s-length relationship with the committee, (2) the 

payments to the subvendor are unrelated to the services provided pursuant to the 

immediate vendor’s contract with the committee, or (3) the immediate vendor is 

merely acting as a “conduit” for disbursements to subvendors. See, e.g., General 

Counsel’s Brief 33-37, MUR 3847 (Stockman) (Sept. 15, 1997); Conciliation 

Agreement at 2-4, MUR 4872 (Jenkins for Senate 1996) (Feb. 15, 2002); Factual 

and Legal Analysis at 8-10, MUR 6724 (Bachmann for President) (July 13, 2017). 

Under these circumstances, failing to itemize disbursements to the ultimate payee 

violates 52 U.S.C. § 30104(b). 

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In addition, Commission precedent specifically indicates that political 

committees must itemize and individually report salary payments to committee 

staffers, even when those staffers are paid through an outside firm. See Factual and 

Legal Analysis at 4-6, MUR 6818 (Allen Weh for Senate) (June 15, 2017); see also

Factual and Legal Analysis at 8-10, MUR 6724 (Bachmann for President) (July 13, 

2017). 

B. FEC administrative complaint and enforcement process

Any person may file a complaint with the FEC alleging a violation of FECA. 

52 U.S.C. § 30109(a)(1). Commission regulations specify, in relevant part, that a 

complaint must identify the complainants and be sworn and signed, and that any 

allegations in a complaint “not based upon personal knowledge” should identify the 

source of the information that “gives rise to the complainant’s belief in the truth of 

such.” 11 C.F.R. § 111.4(b), (d).

The Commission, after reviewing the complaint, any responses, and the Office 

of General Counsel’s recommendation, then votes on whether there is “reason to 

believe” a violation has occurred. 52 U.S.C. § 30109(a)(2). The Commission will 

find “reason to believe” where a complaint “credibly alleges” that a FECA violation 

“may have occurred.” FEC, Statement of Policy Regarding Commission Action in 

Matters at the Initial Stage in the Enforcement Process, 72 Fed. Reg. 12545, 12545 

(Mar. 16, 2007). 

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After any investigation, if the Commission finds probable cause to believe a 

FECA violation occurred, 52 U.S.C. § 30109(a)(3), it seeks a conciliation agreement 

with the respondent, which may include civil penalties, id. § 30109(a)(4)(A), (a)(5). 

If the Commission is unable to correct the violation and enter a conciliation 

agreement, it may institute a civil enforcement action in federal district court. Id.

§ 30109(a)(6)(A). All of these decisions require four affirmative votes. If, at any of 

these decision-making junctures, fewer than four Commissioners vote to proceed, 

the Commission may vote to dismiss the complaint and the controlling group of 

Commissioners who voted not to proceed must issue a Statement of Reasons to serve 

as the basis for any judicial review. Common Cause v. FEC, 842 F.2d 436, 449 (D.C. 

Cir. 1988). 

Any “party aggrieved” by the Commission’s dismissal or failure to act upon 

an administrative complaint may seek judicial review in the U.S. District Court for 

the District of Columbia. 52 U.S.C. § 30109(a)(8)(A). The court “may declare that 

the dismissal . . . is contrary to law, and may direct the Commission to conform with 

such declaration within 30 days.” Id. § 30109(a)(8)(C). A dismissal is contrary to 

law “if (1) the FEC dismissed the complaint as a result of an impermissible 

interpretation of the Act, or (2) if the FEC’s dismissal of the complaint, under a 

permissible interpretation of the statute, was arbitrary or capricious, or an abuse of 

discretion.” Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986) (citations omitted).

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Should the agency fail to comply with an order directing it to conform, “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).

II. Factual Background 

A. Plaintiff files an FEC administrative complaint and supplement 

alleging violations of the Act.

On July 24, 2020, Campaign Legal Center and Margaret Christ, an individual, 

filed an administrative complaint with the FEC alleging that the Trump Committees 

had violated 52 U.S.C. § 30104(b) by routing payments to vendors and staff through 

two firms—American Made Media Consultants, LLC (“American Made”), a 

corporation apparently created and controlled by Campaign officials, and Parscale 

Strategy, LLC, the consulting firm of former Campaign manager Bradley J. 

Parscale—without itemizing those disbursements or properly reporting them to the 

FEC. See JA 12; JA 77-90. 

In a supplement to the administrative complaint filed on January 28, 2021, 

complainants detailed how the Committees had continued to route payments through 

American Made and Parscale Strategy in the six months since the original 

administrative complaint was filed, and provided further evidence that American 

Made was an extension of the Trump Campaign used to conceal the Campaign’s 

spending, such as reporting that senior Campaign officials had approved American 

Made’s creation and served on its board. JA 13; JA 121-26. 

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Collectively, the administrative complaint and its supplement—drawing on 

publicly available information including media reports, public statements by Trump 

Campaign officials and contractors, FEC disclosure reports, and filings with other 

state and federal agencies—alleged that the Committees violated FECA by failing 

to itemize and accurately describe the purposes of payments to subvendors paid 

through American Made and Parscale Strategy even though (1) neither firm had an

arm’s-length relationship with the Committees and (2) both firms were used by the 

Committees as conduits for disbursements to subvendors and staff that were 

effectively working directly for the Committees. JA 6, 13, 18. 

Responses to the administrative complaint filed by American Made, its parent 

corporation, and the Committees did not dispute any of complainants’ factual 

assertions; for example, respondents “acknowledged that [American Made] has been 

run by individuals known and trusted by the Campaign,” JA 20-21, JA 169, and did 

not deny that the Trump Campaign’s disbursements to Parscale Strategies included 

undisclosed salary payments for individuals who were in fact working for the 

Campaign directly, JA 191. See also JA 133-35; JA 146-51. Instead, the respondents 

generally asserted that the complaint failed to state a violation of FECA, arguing, 

inter alia, that the law only requires committees to report disbursements to 

immediate vendors, JA 136-39; that American Made was technically a “separate and 

distinct legal entit[y]” from the Campaign operating pursuant to a non-exclusive

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contract, JA 148; and that some past campaigns had allegedly similarly contracted 

with clearinghouse vendors, JA 130-32, JA 149-51. 

B. The FEC’s Office of General Counsel recommends finding reason to 

believe and opening an investigation. 

Upon reviewing the administrative complaint, its supplement, and the 

responses, the General Counsel recommended that the Commission find reason to 

believe that (1) the Trump Campaign “violated 52 U.S.C. § 30104(b)(5)(A) and 11 

C.F.R. § 104.3(b) by misreporting the payees of payments made to [American Made] 

and Parscale Strategy,” (2) the Trump MAGA Committee “violated 52 U.S.C. 

§ 30104(b)(5)(A) and 11 C.F.R. § 104.3(b) by misreporting the payees of payments 

made to [American Made],” and (3) the Trump Campaign “violated 52 U.S.C. 

§ 30104(b)(5)(A) and 11 C.F.R. § 104.3(b) by misreporting the purpose of payments 

made to Parscale Strategy.” JA 197; see also JA 21-23. 

In its written report accompanying this recommendation, the General Counsel

first explained that there was reason to believe the Committees “improperly failed 

to itemize[] [American Made]’s payments to subvendors in connection with their 

disclosures of more than three quarters of a billion dollars ($781,584,527.57) in 

disbursements.” JA 186; JA 182-92. The General Counsel determined that the 

Committees’ lack of an arm’s-length relationship with American Made and use of 

the firm as a conduit for subvendor payments required the Committees to report the 

ultimate payees of those disbursements, emphasizing that American Made received 

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significant shares of the Committees’ overall disbursements, was created and run by 

Campaign staff, and appeared to have been “created to serve the needs of the Trump 

[Campaign],” JA 186-87; moreover, the Committees and the Republican National 

Committee (a participant in the Trump MAGA joint-fundraising committee, JA 

187), appeared to be American Made’s only clients, and several of the supposed 

subvendors paid through American Made appeared in fact to have been hired or 

controlled by the Campaign, JA 187-88. The General Counsel also considered and 

rejected the Committees’ arguments that they were not required to report their 

ultimate payees because their use of American Made assertedly followed historical 

practice and because American Made was a distinct legal entity. JA 188-190. 

In recommending that the Commission find reason to believe that the Trump 

Campaign misreported the payees of disbursements to Parscale Strategy, the General 

Counsel cited FEC precedent that “a committee should disclose salary payments to 

specific, individually identified employees” and that, regardless, a committee must 

report payments to subvendors when the initial recipient of the funds is “merely a 

conduit for the intended recipient.” JA 190. Moreover, the record indicated that 

“Parscale Strategy was used [as] a pass-through to conceal” salary payments to 

Campaign staff, including Kimberly Guilfoyle and Lara Trump, that “should have 

been reported as salary payments to the ultimate individual payees.” JA 191. See 

also JA 19, 22-23. 

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Finally, the General Counsel’s report explained that the record established 

reason to believe that the Trump Campaign failed to accurately disclose the purposes 

of disbursements to Parscale Strategy, further noting that these facts were closely 

analogous to those in a matter involving the Democratic National Committee

(“DNC”) recently investigated and settled by the Commission. JA 192-96. 

C. The Commissioners reject the General Counsel’s reason-to-believe 

recommendation, decline to dismiss as a matter of prosecutorial 

discretion, dismiss the complaint, and issue Statements of Reasons. 

On May 10, 2022, by a deadlocked vote of 3-3, the Commission failed to 

approve the General Counsel’s recommendations, falling short of the four 

affirmative votes required to find reason to believe that the Committees had violated 

52 U.S.C. § 30104(b)(5)(A) and 11 C.F.R. § 104.3(b). See JA 221-22. Also on May 

10, the Commission failed by 3-3 votes to dismiss the allegations as an exercise of 

prosecutorial discretion under Heckler, see JA 222, and to find reason to believe that 

the Trump Campaign and its treasurer had “violated 52 U.S.C. § 30104(b)(5)(A) and 

11 C.F.R. § 104.3(b) by misreporting the purpose of payments made to Parscale 

Strategy,” JA 223. Finally, again on May 10, the Commission voted by a 4-2 margin 

to “[c]lose the file,” thereby dismissing the matter. JA 223. By letter dated May 16, 

2022, the Commission notified plaintiff that it had closed the file and dismissed 

plaintiff’s complaint. JA 24. 

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On June 9, 2022, the three Commissioners who voted against finding reason 

to believe issued a Statement of Reasons explaining the basis for their votes. See JA

224-36. These Commissioners justified their decision as compelled by their analyses 

of the complaint’s legal and factual merits, which in turn depended on the imposition 

of an impermissibly stringent legal and evidentiary standard. 

In particular, the Commissioners summarily rejected the General Counsel’s

conclusion that the Committees were required to disclose the ultimate payees of 

disbursements made through American Made and Parscale Strategy, eschewing the 

careful analysis dictated by FEC precedent and broadly declining to credit the 

available evidence. See, e.g., JA 24-25 (noting Commissioners’ determinations that 

subvendor reporting would not be required absent proof “the committee has 

previously instructed the payee to pass payments along to a third party that was not 

involved in the provision of services by the payee” and/or that the reported vendor 

was deliberately used as a conduit “only out of a desire to conceal payments” to the 

ultimate subvendor). The Commissioners also concluded that use of a single 

clearinghouse vendor like American Made was “unremarkable” and consistent with 

the “historical practice” of past campaigns, arguing that the Commission had silently 

“acquiesce[d]” in the practice. JA 230-31. 

The Commissioners then purported to reframe the same legal and factual 

analyses as an exercise of prosecutorial discretion. In particular, the Commissioners 

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reiterated their views of the complaint’s merits and stated that because “the law does 

not require” subvendor reporting on these facts and there was “insufficient factual 

or legal support for [the General Counsel]’s theory of enforcement,” pursuing the 

matter was unwarranted. JA 235. They also characterized the FEC’s own regulations 

as “uncertain,” JA 235, again referencing past campaigns’ use of supposedly similar 

vendor arrangements and citing an inapposite rulemaking petition filed by Campaign 

Legal Center, which seeks to expand current subvendor reporting requirements to 

apply to a broader range of vendor relationships than those at issue here, JA 27.

Two of the three Commissioners who voted to approve the General Counsel’s 

reason-to-believe recommendation also issued a Statement of Reasons explaining 

their votes. See JA 237-41. These Commissioners found that the “meticulously 

documented” administrative complaint alleged the concealment of “exactly the type 

of information the FECA is intended to expose to the sunlight of disclosure.” JA 

240. They rejected the no-voting Commissioners’ “attempt to discredit news reports 

as appropriate sources of information for complaints,” JA 240, and further noted that 

the dismissal continued former President Trump’s “remarkable win streak before 

th[e] Commission,” during which “the FEC has received more than 40 complaints 

involving Donald Trump or his committee” but conducted “a grand total of zero” 

investigations, departing from the General Counsel’s recommended reason-tobelieve finding in “at least 24” of those matters, JA 237. 

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As the dissenting Commissioners further highlighted, “the dismissal came 

shortly after the Commission did” pursue enforcement against another respondent

based on analogous but “less egregious” subvendor reporting violations, raising 

concerns about fairness and consistent treatment under the law. JA 239, 241 (“The 

major difference, excluding the parties, is that the DNC case involved a tiny fraction 

of the amount of money at issue in this matter.”). The Commissioners concluded that 

the complaint’s dismissal would “damag[e] . . . the integrity of America’s 

campaign-finance process.” JA 241. 

One dissenting Commissioner issued a supplemental Statement of Reasons on 

July 14, 2022, further explaining why, in her view, the invocation of prosecutorial 

discretion in the controlling Statement was ineffective; in it, she stated that those 

Commissioners not only lacked the authority to invoke discretion because the full 

Commission had expressly voted not to do so, but also based their assertion of 

discretion entirely on a legal analysis of the complaint’s merits. JA 242-46. 

III. Proceedings Below

On March 29, 2022, after the FEC had failed to act on the administrative 

complaint for over twenty months (and its supplement for over fourteen months), 

Campaign Legal Center filed suit in the district court to challenge the Commission’s 

inaction as unlawful under the Act. See Compl., Campaign Legal Ctr. v. FEC, No. 

1:22-cv-838 (D.D.C. Mar. 29, 2022); see also 52 U.S.C. § 30109(a)(8)(A) 

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(authorizing suit by administrative complainant to challenge FEC delay). Only after 

Campaign Legal Center took the agency to court did the Commission finally act on 

the administrative complaint. See JA 223. Campaign Legal Center voluntarily 

dismissed the delay suit on May 19, 2022, after receiving notice that the Commission 

had dismissed its administrative complaint. See Minute Order, Campaign Legal Ctr.

v. FEC, No. 1:22-cv-838 (D.D.C. May 19, 2022).

Thereafter, Campaign Legal Center filed this action in the district court on 

July 8, 2022, challenging the dismissal of its administrative complaint as contrary to 

law. JA 5-30. On September 12, 2022, Defendant FEC moved to dismiss under 

Federal Rule of Civil Procedure 12(b)(6), asserting that judicial review is 

unavailable where the Commission exercises prosecutorial discretion and that, in 

this case, the Commission effectively did so. Likewise on September 12, 2022, the 

FEC sought and was granted leave to defer transmission of the administrative record 

and filing of the certified list of its contents pending resolution of its motion to 

dismiss. 

In opposing the FEC’s motion to dismiss, plaintiff argued that the dismissal 

is reviewable for at least three reasons: first, the Commission expressly voted against 

authorizing any exercise of prosecutorial discretion, and the three Commissioners 

on the losing side of that vote had no authority to invoke discretion as a basis for 

dismissal; second, the dismissal was exclusively founded upon legal analysis; and 

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third, the FEC had offered no other basis to preempt judicial review, and its motion 

relied on decisions that are inconsistent with prior Supreme Court and Circuit 

precedent. See Pl.’s Opp’n to Def.’s Mot. to Dismiss at 14-28 (D.D.C. Sept. 26, 

2022) (ECF No. 15). Plaintiff further argued that cutting off all review at the 

pleadings stage, when the FEC had yet to produce the full administrative record, was

inappropriate. See id. at 26-27. 

On December 8, 2022, the district court issued a memorandum opinion and 

order granting the FEC’s motion to dismiss and dismissing the case without 

prejudice. JA 31-49. This appeal timely followed. JA 50. 

SUMMARY OF ARGUMENT

 The district court’s determination that judicial review is precluded in this case 

was wrong for at least two independent reasons. First, the district court erroneously 

concluded that Commission on Hope and New Models preclude judicial review here. 

Neither of those decisions bars the review of FEC dismissals, like the one challenged 

here, that are premised on the Commission’s substantive legal determinations. 

Second, even if the holdings in those decisions were applicable in this case, they still 

should not be followed because they conflict with controlling precedent from the

Supreme Court and this Circuit. The dismissal of plaintiff’s administrative complaint 

against the Trump Committees is thus reviewable in either event. 

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1. As both New Models and Commission on Hope recognized, the mere 

invocation of prosecutorial discretion does not “shield the Commission’s decision 

from judicial review . . . [where] the Commission ha[s] not relied on it,” New 

Models, 993 F.3d at 893-94, nor where the controlling Commissioners “reference[d] 

their merits analysis as a ground for exercising prosecutorial discretion,” CREW v. 

FEC, 55 F.4th 918, 920-21 (D.C. Cir. 2022) (“New Models II”) (Rao, J., concurring 

in denial of rehearing en banc) (citation omitted). 

So too here. Following the path of the controlling Commissioners’ reasoning 

as provided in their Statement of Reasons admits but one conclusion: the dismissal 

was based on their assessments of the law and evidence, not discretion. The 

Commissioners in no way “relied on” discretionary factors to dismiss plaintiff’s 

administrative complaint, but rather simply characterized their conclusive legal 

determinations on the merits as an exercise of “prosecutorial discretion.” The district 

court all but acknowledged as much. See JA 47 (“[T]he controlling Commissioners’ 

invocation of prosecutorial discretion is closely intertwined with—if not dependent 

on—[their] legal analysis.”).

That the Commissioners framed their legal conclusions in terms of 

“prosecutorial discretion” is not sufficient to negate FECA’s express provision for 

judicial review. See 52 U.S.C. § 30109(a)(8). Even on their own terms, the 

Commissioners’ stated concerns about the factual record or the prospects for any 

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investigation cannot be disentangled from the Commissioners’ underlying reliance 

on an impermissible and unduly exacting substantive standard. The district court

thus erred in presuming that the Commissioners’ supposed discretionary concerns 

would stand apart from their legal analysis in the event of a contrary-to-law ruling 

and remand to the agency.

In New Models, by contrast, “prosecutorial discretion [was] exercised in 

addition to the legal grounds,” 993 F.3d at 887 (emphasis in original); the decision 

thus provides no basis to hold this dismissal unreviewable. Indeed, since the ruling 

below, four members of this Court, including the author of the New Models majority 

opinion, again confirmed that under New Models an FEC dismissal is unreviewable 

where the controlling Commissioners “relied on an independent ground of 

prosecutorial discretion,” and not where their asserted exercise of prosecutorial 

discretion depends on or “reference[s] their merits analysis.” New Models II, 55 

F.4th at 920-21 (Rao, J., concurring in denial of rehearing en banc) (emphasis added) 

(citation omitted). Even under the “quite capacious rule” articulated in New Models, 

JA 46, in other words, the dismissal here is reviewable. 

2. The district court’s incorrect holding to the contrary only further exposes 

the conflict between the CREW decisions and controlling Supreme Court and Circuit 

precedent, including FEC v. Akins, 524 U.S. 11 (1998); Akins v. FEC, 101 F.3d 731, 

734 (D.C. Cir. 1996) (en banc), vacated on other grounds, FEC v. Akins, 524 U.S. 

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11 (1998); Chamber of Commerce of U.S. v. FEC, 69 F.3d 600 (D.C. Cir. 1995); 

Democratic Congressional Campaign Committee v. FEC, 831 F.2d 1131 (D.C. Cir. 

1987) (“DCCC”); and Orloski, 795 F.2d 156. See also New Models, 993 F.3d at 900-

01 (Millett, J., dissenting); Campaign Legal Center & Democracy 21 v. FEC, 952 

F.3d 352, 363 (D.C. Cir. 2020) (Edwards, J. concurring); CREW v. FEC, 923 F.3d 

1141, 1145 (D.C. Cir. 2019) (“Commission on Hope II”) (Pillard, J., dissenting from 

denial of rehearing en banc). The general presumption of unreviewability established 

in Heckler was premised on the fact that agency enforcement decisions have 

“traditionally” been committed to agency discretion. Here, however, FECA’s 

judicial review provision “explicitly indicates the contrary.” Akins, 524 U.S. at 26. 

As the Supreme Court’s decision in Akins and the well-established law of this 

Circuit thus make clear, FEC Commissioners cannot simply dress their legal 

determinations in “discretionary” garb and thereby defeat all scrutiny. New Models

and Commission on Hope provide no authority for negating judicial review in this 

manner where—as recognized repeatedly in the decisions of the Supreme Court and 

this Circuit—Congress expressly overrode any presumption of unreviewability. See

Akins, 524 U.S. at 26; Akins, 101 F.3d at 734; Chamber of Commerce, 69 F.3d at

603 (“[FECA] is unusual in that it permits a private party to challenge the FEC’s 

decision not to enforce.”); DCCC, 831 F.2d at 1133-34 (finding decision not to 

enforce based on “prosecutorial discretion” reviewable). 

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Accordingly, even insofar as New Models and Commission on Hope could be 

construed to hold that judicial review is preempted here, those decisions still cannot 

supersede Supreme Court and prior Circuit precedent directing the opposite—

authorities to which Commission on Hope and New Models must either conform or 

yield. See Sierra Club, 648 F.3d at 854 (“[W]hen a decision of one panel is 

inconsistent with the decision of a prior panel, the norm is that the later decision, 

being in violation of that fixed law, cannot prevail.”). Either way, the dismissal of 

plaintiff’s administrative complaint is reviewable under FECA’s contrary-to-law 

standard, and the district court’s finding otherwise was in error. The decision below 

should be reversed.

STANDING

Plaintiff has standing to sue because it has suffered a “quintessential” 

informational injury and “set[ting] aside” the agency decision would “likely redress 

[its] injury in fact.” Campaign Legal Ctr. v. FEC, 31 F.4th 781, 784, 793 (D.C. Cir. 

2022). 

“The law is settled that a denial of access to information qualifies as an injury 

in fact where a statute (on the claimants’ reading) requires that the information be 

publicly disclosed and there is no reason to doubt their claim that the information 

would help them.” Democracy 21, 952 F.3d at 356 (citation omitted). The dismissal 

of Campaign Legal Center’s administrative complaint has deprived it of statutorily 

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required disclosure information under FECA—information upon which plaintiff 

depends to fulfill its mission and programmatic goals, see JA 9-10—regarding 

upwards of three-quarters of a billion dollars that the Trump Committees funneled 

through conduits to undisclosed subvendors and staff. JA 8, 16-18, 20.

And, were Campaign Legal Center to succeed on the merits of its claim, the 

Committees would be obligated to itemize their ultimate payees and accurately 

describe the purposes of those payments. Plaintiff’s informational injury is thus 

indistinguishable from that recognized in Akins—and as such, “easily satisf[ies] the 

causation and redressability requirements of Article III standing.” Campaign Legal 

Ctr., 31 F.4th at 784 (citing Akins, 524 U.S. at 21).

STANDARD OF REVIEW

This Court reviews “de novo the district court’s grant of a motion to dismiss 

for failure to state a claim.” Stop This Insanity Inc. Emp. Leadership Fund v. FEC, 

761 F.3d 10, 13 (D.C. Cir. 2014); Sierra Club, 648 F.3d at 854-55. A complaint 

should not be dismissed if it “contain[s] sufficient factual matter, accepted as true, 

to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 

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ARGUMENT

I. The district court erred in holding the dismissal of plaintiff’s administrative 

complaint unreviewable. 

There is a “‘strong presumption’ favoring judicial review of administrative 

action.” Mach Mining, LLC v. EEOC, 575 U.S. 480, 486 (2015) (quoting Bowen v. 

Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986)). That imperative 

applies with even more force in statutory settings, such as this one, where Congress 

has expressed its “clear intent” to make judicial review available. Commission on 

Hope II, 923 F.3d at 1142 (Griffith, J., concurring in denial of rehearing en banc). 

And, as FECA and this Court’s precedents firmly establish, the FEC’s dismissal of 

an enforcement complaint—unlike the nonenforcement decisions of many other 

administrative agencies—is subject to review for legal error under 52 U.S.C. 

§ 30109(a)(8). 

The district court’s holding to the contrary relied on the recent divided panel 

decisions in Commission on Hope, 892 F.3d at 440-42, and New Models, 993 F.3d 

at 884-85, but its reliance was misplaced. Neither New Models nor Commission on 

Hope requires departing from those principles here. Although these cases held that 

certain FEC dismissals premised on prosecutorial discretion are unreviewable, they 

clarified that the mere invocation of prosecutorial discretion will not “shield the 

Commission’s decision from judicial review . . . [where] the Commission has not 

relied on it.” New Models, 993 F.3d at 893-94. 

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And here, the controlling Commissioners in no way “relied on” prosecutorial 

discretion; every rationale provided in their Statement of Reasons is bound up with

their reviewable legal conclusions regarding FECA, agency authority, and the 

evidentiary record. The district court was thus wrong in concluding that it could not 

review the FEC’s decision. That conclusion was based on a misreading of this 

Court’s precedents and should be corrected. 

A. Neither Commission on Hope nor New Models bars review of FEC

dismissals premised on legal interpretation. 

Contrary to the district court’s view that Commission on Hope and New 

Models “foreordained” its finding of nonreviewability, JA 45, the CREW cases do 

not preclude judicial review of the legal errors in the FEC dismissal challenged here. 

Instead, those decisions specifically distinguished dismissals based on independent

discretionary grounds from those based on legal interpretation, reaffirming that the 

latter—including dismissals that ground a supposed exercise of prosecutorial 

discretion on merits analysis—remain reviewable. In contrast to Commission on 

Hope and New Models, which involved matters where Commissioners had invoked 

discretion irrespective of any merits judgments, here the Commissioners’ references 

to prosecutorial discretion were directly founded upon, and are inseparable from, 

their erroneous legal conclusions. 

Commission on Hope states clearly that “[t]he interpretation an agency gives 

to a statute is not committed to the agency’s unreviewable discretion.” 892 F.3d at

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441 n.11 (citing Heckler, 470 U.S. at 833 n.4 and Akins, 524 U.S. at 26). “Thus, if 

the Commission declines to bring an enforcement action on the basis of its 

interpretation of FECA, the Commission’s decision is subject to judicial review to 

determine whether it is ‘contrary to law.’” Id. (citing FEC v. Democratic Senatorial 

Campaign Committee, 454 U.S. 27 (1981)). In this way, Commission on Hope drew

an important distinction between dismissals for purely discretionary reasons, as to

which the majority reasoned there would be no standards by which to judge the 

agency action, and dismissals grounded in legal interpretation, the review of which 

goes to the core of the judicial function. The FEC dismissal in Commission on Hope 

fell squarely in the former camp; the panel majority determined that it was 

unreviewable because the controlling rationale rested entirely on discretionary 

grounds, including that the entity named in the complaint no longer existed, had no 

money or counsel, and was effectively “defunct” so it could not be legally bound. 

See 892 F.3d at 438. 

New Models, too, even as it extended the holding in Commission on Hope, 

affirmed the reviewability of cases in which there was no exercise of discretion 

independent of the Commissioners’ legal analysis. 993 F.3d at 884 (noting that a 

dismissal is reviewable if it “rests solely on legal interpretation”). Unlike here, in

New Models, “[t]he Commission’s decision to dismiss CREW’s complaint against 

New Models rested on two distinct grounds: the Commission’s interpretation of 

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FECA and its ‘exercise of . . . prosecutorial discretion.’” Id. (emphasis added). In 

dismissing CREW’s administrative complaint against New Models, the 

Commissioners had cited the “fact that the organization appears no longer active” as 

a distinct basis to decline enforcement, irrespective of their legal conclusions 

regarding the FECA violations at issue. Id. at 883. Because that invocation of 

discretion, while perfunctory, was also fully disconnected from the Commissioners’ 

legal analysis, the New Models majority concluded that it lacked any standards by 

which to review the decision.

The district court here was nevertheless “not persuaded that the Statement in 

New Models clearly invoked prosecutorial discretion as an independent ground for 

dismissal.” JA 48. But only days after the district court’s ruling below, four members 

of this Court, including the author of the New Models majority opinion, removed any 

lingering doubt on that question. In an opinion concurring in the denial of a petition 

to rehear New Models en banc, Judge Rao again confirmed that the FEC dismissal 

at issue in New Models was unreviewable because the controlling Commissioners 

“relied on an independent ground of prosecutorial discretion,” New Models II, 55 

F.4th at 921 (emphasis added)—and that the Commissioners’ asserted exercise of 

prosecutorial discretion had not rested on or “reference[d] their merits analysis,” id. 

at 920 (citation omitted). 

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Here, in contrast, the Commissioners’ references to prosecutorial discretion

were expressly linked to their erroneous legal conclusions. Both CREW decisions

specifically affirmed the reviewability of FEC dismissals justified based on 

interpretations of law, Commission on Hope, 892 F.3d at 441 n.11—including 

instances where the Commissioners invoke prosecutorial discretion but “reference[] 

their merits analysis as a ground for exercising” it, New Models II, 55 F.4th at 920

(Rao, J., concurring in denial of rehearing en banc) (citation omitted). Far from 

resting on prudential considerations beyond the courts’ capacity to judge, therefore, 

this dismissal hinged on the kind of legal decisionmaking that forms the heartland 

of judicially reviewable agency action—and neither CREW decision insulates it from 

scrutiny. 

B. The dismissal here is reviewable because the Commissioners’ purported 

exercise of prosecutorial discretion cannot be disentangled from their 

legal conclusions on the merits. 

The supposed invocation of discretion here is materially different from those

in the CREW cases. Commission on Hope and New Models involved FEC dismissals 

justified on discretionary grounds independent of any legal analysis—namely,

conclusions that enforcement would be futile because the respondent groups had 

become defunct during the matters’ pendency—thus furnishing an independent and 

alternative rationale for dismissal irrespective of any merits analysis. Indeed, the 

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statement in Commission on Hope “provided no legal analysis at all.” New Models, 

993 F.3d at 905 (Millett, J., dissenting). 

The same cannot be said here. In this case, the naysaying Commissioners did 

not exercise discretion independently of their legal conclusions about the scope of 

FECA disclosure requirements or their authority to consider credible and unrebutted 

record evidence; rather, they simply characterized as an exercise of discretion their 

decision not to proceed because of those legal conclusions. Their decision is thus 

readily distinguishable from the CREW cases, and not entitled to the exception from 

FECA’s judicial review provision those cases recognized. 

1. The dismissal rested on substantive legal and factual analysis. 

The dismissal here is reviewable because each of the putative discretionary 

justifications asserted by the controlling Commissioners was expressly dependent 

upon legal and factual judgments about the allegations in the complaint. Although 

the Commissioners couched their rationale in superficially prudential terms, such 

“magic words” cannot manifest independent discretionary justifications where none 

exist. Any “practical” considerations the Commissioners ultimately cited to justify 

the dismissal—and the district court credited as sufficient to preclude review of their 

legal reasoning, JA 47-48—cannot be construed as anything but an endpoint of the

Commissioners’ merits analysis.

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This conclusion follows inexorably from the Commissioners’ own words. The 

controlling Commissioners repeatedly stated that they were exercising “discretion” 

to dismiss the complaint because of their reason-to-believe analysis. See JA 224, 

235-36. Indeed, in explaining their decision to reject the General Counsel’s finding 

that the Trump Campaign failed to adequately describe the purpose of payments 

made through Parscale Strategy, the Commissioners did not even attempt to 

characterize their reasoning as resting on anything other than a legal judgment about 

whether enforcement was legally permissible, concluding: “in the purpose-reporting 

context, the Commission may enforce where a ‘person reading the Committee’s 

disclosure reports could not have discerned [why] the Committee was disbursing 

funds,’ which is plainly not the case here.” JA 235. As with their supposed “exercise 

of prosecutorial discretion” in general, the Commissioners just recapitulated their 

merits conclusion and then claimed to employ discretion on that basis. The CREW

decisions do not shield those underlying merits conclusions from review for legal 

error. 

And while the controlling Commissioners’ rationale was indeed plagued by 

legal error, this Court need only decide the threshold question of whether those errors

can be subjected to contrary-to-law review under FECA at all. The Statement of 

Reasons confirms that they can. In it, the Commissioners opined at length about why 

they believed the record showed an “absence of support for enforcement,” JA 235, 

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and why they thought the General Counsel’s reason-to-believe recommendation 

should be rejected because it was based on what they viewed as a “flaw[ed]” or 

“tenuous legal theory,” JA 224, 234—legal conclusions that explicitly turned on the 

Commissioners’ own contrary analyses of statutory and regulatory reporting 

requirements, prior FEC precedent, and the standard of proof required at the very 

earliest stage of FEC enforcement proceedings, see JA 227-34. Indeed, the

Commissioners found definitively that the Trump Committees were not required to 

disclose the ultimate payees of any disbursements routed through American Made 

and Parscale Strategy, see JA 232-33, and then stated in conclusory fashion: “For 

the reasons given above, we find insufficient factual or legal support for [the General 

Counsel]’s theory of enforcement and do not believe the Commission would 

ultimately be successful in pursuing it.” JA 235. See also, e.g., JA 224 (opining that 

“the legal support for enforcement here is remarkably thin”). 

The controlling Commissioners thus made clear that their asserted exercise of 

prosecutorial discretion rested on their dispositive legal assessment of the complaint 

on the merits. And, rather than providing a distinct basis for this purported 

“discretionary” exercise, the Commissioners merely reiterated their legal 

conclusions as the reason they felt compelled to invoke discretion and dismiss the 

complaint. Of course, having already (erroneously) decided that “the law does not 

require” subvendor reporting on the facts presented in the administrative complaint, 

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JA 235, the Commissioners had little choice but to conclude that further enforcement 

action was unwarranted. Their resort to a “discretionary” rationale that was the 

logical endpoint of their merits analysis does not immunize the Commissioners’

legal errors from scrutiny. Instead, as even New Models confirmed, an FEC dismissal 

citing prosecutorial discretion remains reviewable where, as here, the controlling 

Commissioners “reference[d] their merits analysis as a ground for exercising” it. 

New Models II, 55 F.4th at 920 (Rao, J., concurring in denial of rehearing en banc)

(citation omitted).

2. The district court erred in presuming that the Commissioners’ 

invocation of prosecutorial discretion would stand independently of

their merits judgments. 

Because the controlling Commissioners’ supposed exercise of prosecutorial 

discretion expressly hinged upon and was “entwined with” their merits analysis, the 

district court erred in presuming the agency would exercise discretion to dismiss the 

administrative complaint even if their legal conclusions were to be corrected or 

altered through judicial review. Consistent with the Supreme Court’s holding in 

Akins, the dismissal remains reviewable—for “we cannot know,” given the 

contingency of the Commissioners’ reasoning, “that the FEC would have exercised 

its prosecutorial discretion in this way” if the Commissioners’ dispositive legal 

conclusions were held contrary to law. 524 U.S. at 25. The role of the courts is to 

“correct[] a legal error—if error is committed—in the agency decision,” provided 

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34

the error is “one upon which the agency decision rests.” Akins, 101 F.3d at 738 

(citing SEC v. Chenery Corp., 332 U.S. 194, 196-97 (1947)). The asserted exercise 

of prosecutorial discretion here was by no means sufficiently “independent of pure 

legal inquiry” to preclude the district court from performing that role. JA 47. 

Indeed, the district court’s characterization that any of the Commissioners’ 

stated grounds for exercising discretion were “independent of pure legal inquiry,” 

JA 47, ignores what they actually said. In particular, the lower court placed heavy 

emphasis on the Commissioners’ claim that “‘the size and scope of the proposed 

investigation’ . . . could consume a disproportionate amount of FEC resources.” JA 

47. But the court’s assumption that this “practical” concern “stands apart from” the 

Commissioners’ underlying legal analysis, JA 47-48, was erroneous and improper. 

The Commissioners’ asserted agency resource concerns are impossible to 

separate from their underlying judgment that there was “insufficient factual or legal 

support” to move forward, JA 235—a conclusion they likewise only reached after

applying an impermissibly strict substantive legal standard and improperly 

disregarding much of the existing factual record. Specifically, the Commissioners

refused to consider undisputed evidence derived from published news reports 

drawing on unnamed sources, see JA 231-32, and interpreted the relevant statutory 

and regulatory disclosure provisions as requiring subvendor itemization only upon a 

showing that the named vendor served exclusively as a pass-through for the 

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35

Committees’ disbursements to subvendors, JA 229-32, “in an attempt to disguise the 

intended recipient of the funds,” JA 230. But that invented “attempt to disguise” 

standard is not an actual legal requirement; indeed, it is contrary to the relevant 

statutory and regulatory standards, and wholly at odds with the transparency interests 

underlying FECA’s disclosure provisions. Likewise, the Commissioners’ assertion

that FEC regulations are “uncertain,” JA 235, ignores the FEC’s own precedent, and

relies on a mischaracterization of a pending rulemaking petition that specifically

seeks to expand the FEC’s current subvendor reporting requirements so they apply 

beyond the circumstances of this case, see supra at 16; JA 27. 

Absent the Commissioners’ application of those improper legal and 

evidentiary tests, it is impossible to know whether their stated concerns about “the

size and scope of the proposed investigation” would still obtain, JA 235—and the 

district court erred by presuming it knew the answer to that question. See Int’l Union, 

United Mine Workers v. Dep’t of Labor, 358 F.3d 40, 44-45 (D.C. Cir. 2004) 

(holding agency action arbitrary and capricious where two of its three stated reasons

were invalid and the Court did “not know—nor [was it] free to guess—what the 

agency would have done had it realized that it could not justify its decision” on those 

two grounds). “Whether [the Commissioners] would have chosen to rest” on their 

asserted discretionary grounds “if their legal basis for dismissal had been deemed 

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36

invalid is an open question for the Commission to answer on remand.” New Models 

II, 55 F.4th at 929 (Millett, J., dissenting from denial of rehearing en banc). 

Indeed, contrary to the Commissioners’ generalizations about the necessary 

scope of any investigation, the Office of General Counsel had proposed a “targeted 

investigation” and characterized the existing, pre-investigatory record as already

“strongly indicative of the type of direct subvendor relationship that the Commission 

has previously found a committee is required to disclose.” JA 189, 197. Like the rest

of the Commissioners’ supposedly discretionary justifications for dismissal, 

therefore, the “practical” concerns highlighted below were not independent of the 

Commissioners’ faulty legal determinations, but a direct result of them.

3 The district 

court thus erred in concluding that “some, even if not all, of the controlling 

Commissioners’ invocation of Heckler” rested on purely prudential considerations 

both separable from their legal analysis and sufficient to cut off all review. JA 47. 

II. The district court relied on decisions that are contrary to fixed law and 

should not be followed. 

As explained above, the dismissal here is reviewable for the reasons reserved 

by the panel majorities in Commission on Hope and New Models: because the 

 

3 The Commissioners also failed to address other significant and uncontested factual 

allegations—for example, the evidence that Campaign staff created American Made 

to benefit the Campaign, that the firm existed solely to benefit the Committees, and

that the Committees directly worked with and supervised subvendors and staff paid 

through American Made and Parscale Strategy. See JA 78-80, 88-89. 

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37

controlling Commissioners rested their decision on conclusions of law, Commission 

on Hope, 892 F.3d at 439, and their invocation of discretion was not “distinct” from 

those conclusions, New Models, 993 F.3d at 884. But if the Court finds that the 

CREW decisions do apply here, the decisions should not be followed because they 

conflict with directly applicable Supreme Court and prior Circuit precedent. Under 

the law of this Circuit, “when a decision of one panel is inconsistent with the decision 

of a prior panel, the norm is that the later decision, being in violation of that fixed 

law, cannot prevail.” Sierra Club, 648 F.3d at 854.

Indeed, Commission on Hope and New Models both relied on the premise that 

FEC nonenforcement decisions are “control[led]” by Heckler and its presumption 

that agency nonenforcement decisions are unreviewable. Commission on Hope, 892 

F.3d at 439. But that premise was flatly rejected by the Supreme Court in Akins and 

is contrary to the long-established law of this Circuit. As the Supreme Court 

recognized in Akins, FECA “explicitly indicates the contrary.” 524 U.S. at 26. By 

providing for judicial review and a limited private right of action, Congress 

specifically intended to move FEC nonenforcement decisions out of the Heckler

framework and subject them to judicial oversight. Therefore, as Akins held, the

“traditional[]” presumption that nonenforcement decisions are “committed to 

agency discretion” is squarely rebutted by FECA. Id. at 26. 

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38

Decades of Circuit precedent reviewing FEC dismissals under FECA 

§ 30109(a)(8) confirm this understanding. See Akins, 101 F.3d at 734 (distinguishing 

Heckler and noting that FECA Section 30109(a)(8) “is an unusual statutory 

provision which permits a complainant to bring to federal court an agency’s refusal 

to institute enforcement proceedings”); Chamber of Commerce, 69 F.3d at 603 

(“[FECA] is unusual in that it permits a private party to challenge the FEC’s decision 

not to enforce.”); DCCC, 831 F.2d at 1133-35 & n.5 (recognizing both 6-0 and 3-2-

1 decisions not to enforce based on “prosecutorial discretion” as reviewable, and 

declining to “confin[e] the judicial check [in § 30109(a)(8)(C)] to cases in 

which . . . the Commission acts on the merits”); Orloski, 795 F.2d 156 (recognizing 

FEC dismissals can be contrary to law either because they rest on impermissible 

interpretations of law or are otherwise arbitrary, capricious, or an abuse of 

discretion). Indeed, under this Court’s longstanding FECA precedents predating the 

CREW cases, “a decision dismissing a complaint ‘is contrary to law’ even ‘under a 

permissible interpretation of the statute’ if it involves ‘an abuse of discretion.’”

Commission on Hope II, 923 F.3d at 1147 (Pillard, J., dissenting from denial of 

rehearing en banc) (quoting Orloski, 795 F.2d at 161). 

Given this clear authority, even the FEC itself—at least before Commission 

on Hope—had recognized “that when FEC Commissioners purport to invoke 

prosecutorial discretion in dismissing a complaint, the matter in dispute is subject to 

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39

judicial review.” Democracy 21, 952 F.3d at 361 (Edwards, J., concurring) (citing 

the FEC’s briefing in Commission on Hope). But the agency has since retreated from 

that position on reviewability, arguing instead, as it has in this case, for an automatic 

and all-encompassing immunity under Heckler that it had previously and correctly 

“eschewed.” Id. at 362 (admonishing the FEC for “ignor[ing] Akins and 

abandon[ing] (without explanation) the position that it presented to the court in 

[Commission on Hope]”). 

Predictably, the CREW cases’ radical departure from Circuit precedent has 

already generated significant confusion, inconsistency, and conflict since the first 

panel ruling in Commission on Hope. Compare, e.g., Democracy 21, 952 F.3d at 356 

(declining to decide whether to follow Commission on Hope and proceeding to 

consider the merits of a “discretionary” dismissal), Lieu v. FEC, 370 F. Supp. 3d 

175, 183 (D.D.C. 2019) (noting that “FECA’s express provision for the judicial 

review of FEC dismissal decisions” rendered Heckler “inapposite”), and CREW v. 

FEC, 316 F. Supp. 3d 349, 421-22 (D.D.C. 2018) (same), aff’d, 971 F.3d 340 (D.C. 

Cir. 2020), with CREW v. Am. Action Network, 590 F. Supp. 3d 164, 173 (D.D.C. 

2022) (dismissing citizen suit on reconsideration of defendant’s motion to dismiss

following New Models, reversing initial ruling that “FEC dismissals based on 

[prosecutorial] discretion rooted entirely in legal conclusions are reviewable” under 

Commission on Hope), appeal docketed, No. 22-7038 (D.C. Cir. Mar. 31, 2022); 

USCA Case #22-5339 Document #1992413 Filed: 03/29/2023 Page 48 of 69
40

Pub. Citizen v. FEC, 547 F. Supp. 3d 51, 54-55 (D.D.C. 2021) (declining to review 

FEC dismissal where a single footnote in the controlling Statement4 merely “note[d] 

that the Commission maintains broad discretion” that it “could” have applied). 

This history belies the suggestion in New Models that “Commission on Hope

readily conforms with [the Court’s] earlier cases.” 993 F.3d at 893. Instead, as 

multiple members of this Court have now noted in concurrence and dissent, the

expansive nonreviewability rule articulated in both CREW cases is contrary to 

Congress’s mandate in Section 30109(a)(8), “opens the door to the dangerously easy 

evasion of judicial review and is contrary to law.” Id. at 905 (Millett, J., dissenting); 

see also New Models II, 55 F.4th at 926 (Millett, J., dissenting from denial of 

rehearing en banc) (“As Judge Griffith worried, Judge Pillard predicted, and Judge 

Edwards has since echoed, the Commission on Hope chickens have come home to 

roost. The court’s decision in this case renders for naught statutorily mandated 

judicial review.”); Democracy 21, 952 F.3d at 360 (Edwards, J., concurring) (“[T]he 

Supreme Court has made it clear that the commands of Heckler v. Chaney . . . do not 

apply to matters in which a complainant seeks review of Commission actions under 

[FECA].”); Commission on Hope II, 923 F.3d at 1142 (Griffith, J., concurring in 

 

4 See Statement of Reasons of Chair Lee Goodman & Comm’rs Caroline C. Hunter 

and Matthew S. Petersen, MUR 6396 (Crossroads GPS) (Jan. 8, 2014), 

https://www.fec.gov/files/legal/murs/6396/14044350970.pdf. 

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41

denial of rehearing en banc); Commission on Hope, 892 F.3d at 442 (Pillard, J., 

dissenting). 

* * * 

Reversal here avoids adding to this disharmony within the Court’s FECA 

precedents. The district court held the dismissal of plaintiff’s administrative 

complaint unreviewable based on decisions that conflict with governing Supreme 

Court and Circuit precedent and the carefully balanced statutory scheme devised by 

Congress. While the lower court felt “bound” to reach the result it did under “New 

Models’s quite capacious rule,” JA 46, 49, this Court need not. Because “[t]he law

of the circuit is clear . . . [and] was well established long before the decision in 

[Commission on Hope],” Democracy 21, 952 F.3d at 362 (Edwards, J., concurring) 

(citations omitted), it is that prior law that must be given effect, see Sierra Club, 648 

F.3d at 854. At a minimum, however, New Models’s “capacious” rule should not be 

further extended—nor its conflict with Circuit precedent deepened—to bar review 

of FEC dismissals where, as here, a purportedly discretionary rationale is “entwined” 

with legal analysis. JA 49. The dismissal of plaintiff’s administrative complaint 

against the Trump Committees is reviewable either way. 

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42

CONCLUSION

For the foregoing reasons, the district court’s December 8, 2022 memorandum 

opinion and ordershould be reversed, and the case remanded for further proceedings. 

Dated: March 29, 2023

Respectfully submitted,

/s/ Megan P. McAllen

Megan P. McAllen (DC Bar No. 1020509)

Erin Chlopak (DC Bar No. 496370) 

Allison Walter (DC Bar No. 90008637)

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Suite 400

Washington, DC 20005

(202) 736-2200

Email: mmcallen@campaignlegalcenter.org

Email: echlopak@campaignlegalcenter.org

Email: awalter@campaignlegalcenter.org 

Attorneys for Plaintiff-Appellant

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43

CERTIFICATE OF COMPLIANCE

This response complies with the word limit of Fed. R. App. P. 32(a)(7)(B)(i) 

because it contains 9,259 words, excluding the parts of the brief exempted by Fed. 

R. App. P. 32(f) and Circuit Rule 32(e)(1). 

This filing complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this 

response has been prepared using Microsoft Office Word 2016 in Times New 

Roman 14-point font.

/s/ Megan P. McAllen

Megan P. McAllen

USCA Case #22-5339 Document #1992413 Filed: 03/29/2023 Page 52 of 69
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CERTIFICATE OF SERVICE

I hereby certify that on March 29, 2023, I electronically filed this Brief with 

the Clerk of Court for the United States Court of Appeals for the District of Columbia 

Circuit by using the appellate CM/ECF system, thereby serving all persons required 

to be served. 

/s/ Megan P. McAllen

Megan P. McAllen

USCA Case #22-5339 Document #1992413 Filed: 03/29/2023 Page 53 of 69
ADDENDUM

USCA Case #22-5339 Document #1992413 Filed: 03/29/2023 Page 54 of 69
ADDENDUM – TABLE OF CONTENTS

Federal Statutes

52 U.S.C. § 30104(b)...............................................................................................1a

52 U.S.C. § 30109(a) ...............................................................................................5a

Federal Regulations

11 C.F.R. § 104.3(b) ..............................................................................................10a

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1a

UNITED STATES CODE

TITLE 52. VOTING AND ELECTIONS

Chapter 301—Federal Election Campaigns

Subchapter 1—Disclosure of Federal Campaign Funds

* * * 

§ 30104. Reporting requirements

(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— 

(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;

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2a

(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;

(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;

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(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

(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;

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4a

(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 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.

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5a

* * * 

§ 30109. Enforcement 

(a) Administrative and judicial practice and procedure

(1) Any person who believes a violation of this Act or of chapter 95 or 

chapter 96 of Title 26 has occurred, may file a complaint with the Commission. Such 

complaint shall be in writing, signed and sworn to by the person filing such 

complaint, shall be notarized, and shall be made under penalty of perjury and subject 

to the provisions of section 1001 of Title 18. Within 5 days after receipt of a 

complaint, the Commission shall notify, in writing, any person alleged in the 

complaint to have committed such a violation. Before the Commission conducts any 

vote on the complaint, other than a vote to dismiss, any person so notified shall have 

the opportunity to demonstrate, in writing, to the Commission within 15 days after 

notification that no action should be taken against such person on the basis of the 

complaint. The Commission may not conduct any investigation or take any other 

action under this section solely on the basis of a complaint of a person whose identity 

is not disclosed to the Commission.

(2) If the Commission, upon receiving a complaint under paragraph (1) or 

on the basis of information ascertained in the normal course of carrying out its 

supervisory responsibilities, determines, by an affirmative vote of 4 of its members, 

that it has reason to believe that a person has committed, or is about to commit, a 

violation of this Act or chapter 95 or chapter 96 of Title 26, the Commission shall, 

through its chairman or vice chairman, notify the person of the alleged violation. 

Such notification shall set forth the factual basis for such alleged violation. The 

Commission shall make an investigation of such alleged violation, which may 

include a field investigation or audit, in accordance with the provisions of this 

section.

(3) The general counsel of the Commission shall notify the respondent of 

any recommendation to the Commission by the general counsel to proceed to a vote 

on probable cause pursuant to paragraph (4)(A)(i). With such notification, the 

general counsel shall include a brief stating the position of the general counsel on 

the legal and factual issues of the case. Within 15 days of receipt of such brief,

respondent may submit a brief stating the position of such respondent on the legal 

and factual issues of the case, and replying to the brief of general counsel. Such 

briefs shall be filed with the Secretary of the Commission and shall be considered 

by the Commission before proceeding under paragraph (4).

(4) (A) (i) Except as provided in clauses (ii) and subparagraph (C), if the 

Commission determines, by an affirmative vote of 4 of its members, that there 

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6a

is probable cause to believe that any person has committed, or is about to 

commit, a violation of this Act or of chapter 95 or chapter 96 of Title 26, the 

Commission shall attempt, for a period of at least 30 days, to correct or prevent 

such violation by informal methods of conference, conciliation, and 

persuasion, and to enter into a conciliation agreement with any person 

involved. Such attempt by the Commission to correct or prevent such 

violation may continue for a period of not more than 90 days. The 

Commission may not enter into a conciliation agreement under this clause 

except pursuant to an affirmative vote of 4 of its members. A conciliation 

agreement, unless violated, is a complete bar to any further action by the 

Commission, including the bringing of a civil proceeding under paragraph 

(6)(A).

(ii) If any determination of the Commission under clause (i) 

occurs during the 45-day period immediately preceding any election, 

then the Commission shall attempt, for a period of at least 15 days, to 

correct or prevent the violation involved by the methods specified in 

clause (i).

(B) (i) No action by the Commission or any person, and no 

information derived, in connection with any conciliation attempt by the 

Commission under subparagraph (A) may be made public by the 

Commission without the written consent of the respondent and the 

Commission.

(ii) If a conciliation agreement is agreed upon by the Commission 

and the respondent, the Commission shall make public any conciliation 

agreement signed by both the Commission and the respondent. If the 

Commission makes a determination that a person has not violated this 

Act or chapter 95 or chapter 96 of Title 26, the Commission shall make 

public such determination.

* * * 

(5) (A) If the Commission believes that a violation of this Act or of 

chapter 95 or chapter 96 of Title 26 has been committed, a conciliation 

agreement entered into by the Commission under paragraph (4)(A) may 

include a requirement that the person involved in such conciliation agreement 

shall pay a civil penalty which does not exceed the greater of $5,000 or an 

amount equal to any contribution or expenditure involved in such violation.

(B) If the Commission believes that a knowing and willful violation 

of this Act or of chapter 95 or chapter 96 of Title 26 has been committed, a 

conciliation agreement entered into by the Commission under paragraph 

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(4)(A) may require that the person involved in such conciliation agreement 

shall pay a civil penalty which does not exceed the greater of $10,000 or an 

amount equal to 200 percent of any contribution or expenditure involved in 

such violation (or, in the case of a violation of section 30122 of this title, 

which is not less than 300 percent of the amount involved in the violation and 

is not more than the greater of $50,000 or 1,000 percent of the amount 

involved in the violation).

(C) If the Commission by an affirmative vote of 4 of its members, 

determines that there is probable cause to believe that a knowing and willful 

violation of this Act which is subject to subsection (d), or a knowing and 

willful violation of chapter 95 or chapter 96 of Title 26, has occurred or is 

about to occur, it may refer such apparent violation to the Attorney General 

of the United States without regard to any limitations set forth in paragraph 

(4)(A).

(D) In any case in which a person has entered into a conciliation 

agreement with the Commission under paragraph (4)(A), the Commission 

may institute a civil action for relief under paragraph (6)(A) if it believes that 

the person has violated any provision of such conciliation agreement. For the 

Commission to obtain relief in any civil action, the Commission need only 

establish that the person has violated, in whole or in part, any requirement of 

such conciliation agreement.

(6) (A) If the Commission is unable to correct or prevent any violation 

of this Act or of chapter 95 or chapter 96 of Title 26, by the methods specified 

in paragraph (4), the Commission may, upon an affirmative vote of 4 of its 

members, institute a civil action for relief, including a permanent or temporary 

injunction, restraining order, or any other appropriate order (including an 

order for a civil penalty which does not exceed the greater of $5,000 or an 

amount equal to any contribution or expenditure involved in such violation) 

in the district court of the United States for the district in which the person 

against whom such action is brought is found, resides, or transacts business.

(B) In any civil action instituted by the Commission under 

subparagraph (A), the court may grant a permanent or temporary injunction, 

restraining order, or other order, including a civil penalty which does not 

exceed the greater of $5,000 or an amount equal to any contribution or 

expenditure involved in such violation, upon a proper showing that the person 

involved has committed, or is about to commit (if the relief sought is a 

permanent or temporary injunction or a restraining order), a violation of this 

Act or chapter 95 or chapter 96 of Title 26.

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(C) In any civil action for relief instituted by the Commission under 

subparagraph (A), if the court determines that the Commission has established 

that the person involved in such civil action has committed a knowing and 

willful violation of this Act or of chapter 95 or chapter 96 of Title 26, the court 

may impose a civil penalty which does not exceed the greater of $10,000 or 

an amount equal to 200 percent of any contribution or expenditure involved 

in such violation (or, in the case of a violation of section 30122 of this title, 

which is not less than 300 percent of the amount involved in the violation and 

is not more than the greater of $50,000 or 1,000 percent of the amount 

involved in the violation).

(7) In any action brought under paragraph (5) or (6), subpoenas for 

witnesses who are required to attend a United States district court may run into any 

other district.

(8) (A) Any party aggrieved by an order of the Commission dismissing 

a complaint filed by such party under paragraph (1), or 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 file a petition with the United States 

District Court for the District of Columbia.

(B) Any petition under subparagraph (A) shall be filed, in the case of 

a dismissal of a complaint by the Commission, within 60 days after the date 

of the dismissal.

(C) In any proceeding under this paragraph the court may declare that 

the dismissal of the complaint or the failure to act is contrary to law, and may 

direct the Commission to conform with such declaration within 30 days, 

failing which the complainant may bring, in the name of such complainant, a 

civil action to remedy the violation involved in the original complaint.

(9) Any judgment of a district court under this subsection may be appealed 

to the court of appeals, and the judgment of the court of appeals affirming or setting 

aside, in whole or in part, any such order of the district court shall be final, subject 

to review by the Supreme Court of the United States upon certiorari or certification 

as provided in section 1254 of Title 28.

(10) Repealed. Pub.L. 98-620, Title IV, § 402(1)(A), Nov. 8, 1984, 98 Stat. 

3357

(11) If the Commission determines after an investigation that any person has 

violated an order of the court entered in a proceeding brought under paragraph (6), 

it may petition the court for an order to hold such person in civil contempt, but if it 

believes the violation to be knowing and willful it may petition the court for an order 

to hold such person in criminal contempt.

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(12) (A) Any notification or investigation made under this section shall 

not be made public by the Commission or by any person without the written 

consent of the person receiving such notification or the person with respect to 

whom such investigation is made.

(B) Any member or employee of the Commission, or any other 

person, who violates the provisions of subparagraph (A) shall be fined not 

more than $2,000. Any such member, employee, or other person who 

knowingly and willfully violates the provisions of subparagraph (A) shall be 

fined not more than $5,000.

* * * 

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CODE OF FEDERAL REGULATIONS 

Title 11—FEDERAL ELECTIONS

Chapter I—Federal Election Commission 

Subchapter A—General

§ 104.3 Disclosure of receipt and consumption of in-kind contributions.

* * * 

(b) Reporting of disbursements. Each report filed under § 104.1 shall disclose 

the total amount of all disbursements for the reporting period and for the calendar 

year (or for the election cycle, in the case of an authorized committees) and shall 

disclose the information set forth at paragraphs (b)(1) through (b)(4) of this section. 

The first report filed by a political committee shall also include all amounts 

disbursed prior to becoming a political committee under § 100.5 of this chapter, even 

if such amounts were not disbursed during the current reporting period. 

(1) Categories of disbursements for political committees other than authorized 

committees. All political committees other than authorized committees shall report 

the total amount of disbursements made during the reporting period and, except for 

itemized and unitemized breakdowns, during the calendar year in each of the 

following categories:

(i) Operating expenditures;

(A) Itemized operating expenditures;

(B) Unitemized operating expenditures;

(C) Total operating expenditures;

(ii) Transfers to affiliated committees or organizations and, where the reporting 

committee is a political party committee, transfers to other political party committees 

regardless of whether they are affiliated;

(iii) Repayment of all loans;

(iv) Offsets;

(A) Itemized offsets to contributions (including contribution refunds);

(B) Unitemized offsets to contributions (including contribution refunds);

(C) Total offsets to contributions;

(v) Contributions made to other political committees;

(vi) Loans made by the reporting committee;

(vii) Independent expenditures made by the reporting committee;

(viii) Expenditures made under 11 CFR part 109, subpart D (52 U.S.C. 

30116(d)), See 11 CFR 104.3(a)(3)(iii);

(ix) Other disbursements;

(A) Itemized other disbursements;

(B) Unitemized other disbursements;

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(C) Total other disbursements;

(x) Total disbursements.

(2) Categories of disbursements for authorized committees. An authorized 

committee of a candidate for Federal office shall report the total amount of 

disbursements made during the reporting period and, except for itemized and 

unitemized breakdowns, during the election cycle in each of the following 

categories:

(i) Operating expenditures;

(A) Itemized operating expenditures;

(B) Unitemized operating expenditures;

(C) Total operating expenditures;

(ii) Transfers to other committees authorized by the same candidate;

(iii) Repayment of loans;

(A) Repayment of loans made, guaranteed, or endorsed by the candidate to his 

or her authorized committee including loans derived from a bank loan to the 

candidate or from an advance on a candidate’s brokerage account, credit card, home 

equity line of credit, or other lines of credit described in 11 CFR 100.83 and 100.143; 

(B) Repayment of all other loans;

(C) Total loan repayments;

(iv) For an authorized committee of a candidate for the office of President, 

disbursements not subject to the limitations of 11 CFR 110.8 (52 U.S.C. 30116(b));

(v) Offsets;

(A) Itemized offsets to contributions (including contribution refunds);

(B) Unitemized offsets to contributions (including contribution refunds);

(C) Total offsets to contributions;

(vi) Other disbursements;

(A) Itemized other disbursements;

(B) Unitemized other disbursements;

(C) Total other disbursements;

(vii) Total disbursements.

(3) Itemization of disbursements by political committees other than authorized 

committees. Each political committee, other than an authorized committee, shall 

report the full name and address of each person in each of the following categories, 

as well as the information required by each category;

(i) Each 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 

the committee’s operating expenses, together with the date, amount, and purpose of 

such operating expenditure;

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(A) As used in 11 CFR 104.3(b)(3), purpose means a brief statement or 

description of why the disbursement was made.

(B) Examples of statements or descriptions which meet the requirements of 11 

CFR 104.3(b)(3) include the following: dinner expenses, media, salary, polling, 

travel, party fees, phone banks, travel expenses, travel expense reimbursement, and 

catering costs. However, statements or descriptions such as advance, election day 

expenses, other expenses, expenses, expense reimbursement, miscellaneous, outside 

services, get-out-the-vote and voter registration would not meet the requirements of 

11 CFR 104.3(b)(3) for reporting the purpose of an expenditure.

(ii) Each 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 transfer;

(iii) Each person who receives a loan repayment from the reporting committee 

during the reporting period, together with the date and amount of such loan 

repayment;

(iv) Each person who receives a contribution refund or other offset to 

contributions from the reporting committee where such contribution refund was 

reported under 11 CFR 104.3(b)(1)(iv), together with the date and amount of such 

refund or offset;

(v) Each 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, and, in the case of a contribution to an authorized 

committee, the candidate’s name and office sought (including State and 

Congressional district, if applicable);

(vi) Each person who has received a loan from the reporting committee during 

the reporting period, together with the date and amount or value of such loan;

(vii) (A) Each person who receives any disbursement during the reporting period 

in an aggregate amount or value in excess of $200 within the calendar year in 

connection with an independent expenditure by the reporting committee, together 

with the date, amount, and purpose of any such independent expenditure(s);

(B) For each independent expenditure reported, the committee must also provide 

a statement which indicates whether such independent expenditure is in support of, 

or in opposition to a particular candidate, as well as the name of the candidate and 

the office sought by such candidate (including State and Congressional district, when 

applicable), and a certification, under penalty of perjury, as to whether such 

independent expenditure is made in cooperation, consultation or concert with, or at 

the request or suggestion of, any candidate or authorized committee or agent of such 

committee; and

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(C) For an independent expenditure that is made in support of or opposition to a 

presidential primary candidate and is publicly distributed or otherwise publicly 

disseminated in six or more states but does not refer to any particular state, the 

political committee must report the independent expenditure as a single 

expenditure—i.e., without allocating it among states—and must indicate the state 

with the next upcoming presidential primary among those states where the 

independent expenditure is distributed, as specified in § 104.4(f)(2). The political 

committee must use memo text to indicate the states in which the communication is 

distributed.

(D) The information required by paragraphs (b)(3)(vii)(A) through (C) of this 

section shall be reported on Schedule E as part of a report covering the reporting 

period in which the aggregate disbursements for any independent expenditure to any 

person exceed $200 per calendar year. Schedule E shall also include the total of all 

such expenditures of $200 or less made during the reporting period.

(viii) Each person who receives any expenditure from the reporting committee 

during the reporting period in connection with an expenditure under 11 CFR part 

109, subpart D (52 U.S.C. 30116(d)), together with the date, amount, and purpose 

of any such expenditure as well as the name of, and office sought by (including State 

and Congressional district, when applicable), the candidate on whose behalf the 

expenditure is made; and

(ix) Each person who has received any disbursement within the reporting period 

not otherwise disclosed in accordance with 11 CFR 104.3(b)(3) to whom the 

aggregate amount or value of disbursements made by the reporting committee 

exceeds $200 within the calendar year, together with the date, amount and purpose 

of any such disbursement.

(4) Itemization of disbursements by authorized committees. Each authorized 

committee shall report the full name and address of each person in each of the 

following categories, as well as the information required by each category.

(i) Each person to whom an expenditure in an aggregate amount or value in 

excess of $200 within the election cycle is made by the reporting authorized 

committee to meet the authorized committee’s operating expenses, together with the 

date, amount and purpose of each expenditure.

(A) As used in this paragraph, purpose means a brief statement or description of 

why the disbursement was made. Examples of statements or descriptions which meet 

the requirements of this paragraph include the following: dinner expenses, media, 

salary, polling, travel, party fees, phone banks, travel expenses, travel expense 

reimbursement, and catering costs. However, statements or descriptions such as 

advance, election day expenses, other expenses, expenses, expense reimbursement, 

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miscellaneous, outside services, get-out-the-vote and voter registration would not 

meet the requirements of this paragraph for reporting the purpose of an expenditure.

(B) In addition to reporting the purpose described in paragraph (b)(4)(i)(A) of 

this section, whenever an authorized committee itemizes a disbursement that is 

partially or entirely a personal use for which reimbursement is required under 11 

CFR 113.1(g)(1)(ii)(C) or (D), it shall provide a brief explanation of the activity for 

which reimbursement is required.

(ii) Each authorized committee of the same candidate to which a transfer is made 

by the reporting committee during the reporting period, together with the date and 

amount of such transfer;

(iii) Each person who receives a loan repayment, including a repayment of a loan 

of money derived from an advance on a candidate’s brokerage account, credit card, 

home equity line of credit, or other lines of credit described in 11 CFR 100.83 and

100.143, from the reporting committee during the reporting period, together with the 

date and amount of such loan repayment;

(iv) [Reserved]

(v) Each person who receives a contribution refund or other offset to 

contributions from the reporting committee where such contribution refund was 

reported under 11 CFR 104.3(b)(2)(v), together with the date and amount of such 

refund or offset.

(vi) Each person who has received any disbursement(s) not otherwise disclosed 

under paragraph (b)(4) of this section to whom the aggregate amount or value of 

such disbursements exceeds $200 within the election cycle, together with the date, 

amount, and purpose of any such disbursement.

* * * 

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