UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CAMPAIGN LEGAL CENTER

1101 14TH St., NW, Ste. 400

Washington, D.C. 20005

CATHERINE HINCKLEY KELLEY

1101 14TH St., NW, Ste. 400

Washington, D.C. 20005

Plaintiffs,

v.

FEDERAL ELECTION COMMISSION

1050 First St., NE

Washington, D.C. 20463

Defendant

and

HILLARY FOR AMERICA

P.O. Box 5256

New York, NY 10185-5256

CORRECT THE RECORD

455 Massachusetts Ave., NW

Ste. 600

Washington, D.C. 20001

Proposed 

Defendant-Intervenors.

Civil Action No. 1:19-cv-02336-JEB

DEFENDANT-INTERVENORS’ SUPPLEMENTAL MEMORANDUM IN FURTHER 

SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

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TABLE OF CONTENTS

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

BACKGROUND ............................................................................................................................ 2

LEGAL STANDARD..................................................................................................................... 3

ARGUMENT.................................................................................................................................. 4

I. FECA provides the exclusive avenue for Plaintiffs to seek review of the FEC’s decision 

to dismiss the administrative complaint in MUR 7146. ...................................................... 4

II. Plaintiffs lack standing to bring their APA claim................................................................ 5

A. The APA does not confer independent subject-matter jurisdiction............................. 5

B. Plaintiffs lack standing to bring an “as-applied” APA claim because they lack 

standing under FECA. ................................................................................................. 6

C. Plaintiffs lack standing to bring a “facial” APA challenge. ........................................ 8

1. Plaintiffs have failed to prove, or even allege, a “broader informational 

injury.”.................................................................................................................. 9

2. Plaintiffs’ contemplated injury is based entirely on conjecture and 

speculation.......................................................................................................... 10

III. Plaintiffs have not proven that they have suffered or will suffer a cognizable or imminent 

harm to support their standalone APA claim..................................................................... 15

A. Plaintiff Catherine Hinckley Kelley .......................................................................... 15

B. Plaintiff CLC ............................................................................................................. 16

CONCLUSION............................................................................................................................. 16

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TABLE OF AUTHORITIES

Page(s)

ii

Cases

American Farm Bureau v. EPA,

121 F. Supp. 2d 84 (D.D.C. 2000).........................................................................................3, 7

Arpaio v. Obama,

27 F. Supp. 3d 185 (D.D.C. 2014), aff’d, 797 F.3d 11 (D.C. Cir. 2015)...................................8

Califano v. Sanders,

430 U.S. 99 (1977).................................................................................................................3, 5

Center for Biological Diversity v. Bernhardt,

442 F. Supp. 3d 97 (D.D.C. 2020).........................................................................................6, 8

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013)...........................................................................................................11, 14

Common Cause v. FEC,

108 F.3d 413 (D.C. Cir. 1997)...................................................................................................3

CREW v. FEC,

243 F. Supp. 3d 91 (D.D.C. 2017).........................................................................................4, 5

CREW v. FEC,

363 F. Supp. 3d 33 (D.D.C. 2018).............................................................................................5

Electronic Privacy Information Center v. Presidential Advisory Commission on 

Election Integrity,

878 F.3d 371 (D.C. Cir. 2017).........................................................................................6, 7, 15

EMILY’s List v. FEC,

2008 U.S. Dist. LEXIS 58046 (D.D.C. July 31, 2008)............................................................10

FEC v. Akins,

524 U.S. 11 (1998).............................................................................................................12, 13

Food & Water Watch, Inc. v. Vilsack,

808 F.3d 905 (D.C. Cir. 2015)...........................................................................................11, 16

Free Speech for People v. FEC,

442 F. Supp. 3d 335 (D.D.C. 2020)...........................................................................................7

Friends of Animals v. Jewell,

828 F.3d 989 (D.C. Cir. 2016).................................................................................................15

Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc.,

528 U.S. 1671 (2000).................................................................................................................3

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Judicial Watch v. FEC,

293 F. Supp. 2d 41 (D.D.C. 2003)...........................................................................................11

Kansas City Power & Light Co. v. McKay,

225 F.2d 924 (D.C. Cir. 1955)...................................................................................................6

Lance v. Coffman,

549 U.S. 437 (2007)...................................................................................................................8

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992).....................................................................................................10, 11, 15

People for the Ethical Treatment of Animals v. U.S. Dept. of Agric.,

797 F.3d 108 (D.C. Cir. 2015).................................................................................................10

Rasmussen v. United States,

421 F.2d 776 (8th Cir. 1970) .....................................................................................................5

Shays v. FEC,

528 F.3d 914 (D.C. Cir. 2008).................................................................................................13

Trudeau v. Fed. Trade Comm’n,

456 F.3d 178 (D.C. Cir. 2006)...................................................................................................5

United States v. Students Challenging Regul. Agency Procs.,

412 U.S. 669 (1973).................................................................................................................14

STATUTES

5 U.S.C. § 702..................................................................................................................................6

5 U.S.C. § 704..................................................................................................................................4

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

52 U.S.C. § 30121(a)(1).................................................................................................................14

30125(a), (e)...................................................................................................................................14

OTHER AUTHORITIES

11 C.F.R. § 100.26...........................................................................................................................1

11 C.F.R. § 109.20...........................................................................................................................1

11 C.F.R. § 109.21...........................................................................................................................1

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Fed. R. Civ. P. 56.............................................................................................................................9

MUR 7146 ............................................................................................................................. passim

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TABLE OF ABBREVIATIONS

AIPAC American Israel Public Affairs Committee

APA Administrative Procedure Act

BCRA Bipartisan Campaign Reform Act

CLC Campaign Legal Center

CTR Correct the Record

FEC Federal Election Commission

FECA Federal Election Campaign Act of 1971

HFA Hillary for America

MUR Matter Under Review

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INTRODUCTION

Defendant-Intervenors Hillary for America (“HFA”) and Correct the Record (“CTR”) 

hereby respectfully submit this supplemental memorandum in further support of their motion for 

summary judgment. This Court should grant summary judgment in favor of Defendant-Intervenors 

because Plaintiffs do not have standing under the Administrative Procedure Act (“APA”) to bring 

“as-applied” or “facial” challenges to the FEC’s longstanding interpretation of 11 C.F.R. §§ 

100.26, 109.20, and 109.21 (collectively, the “Coordination Regulations”) related to the treatment 

of input costs for internet activity.

With respect to their as-applied challenge, Plaintiffs have conceded, as they must, that their 

“standing to bring their APA claim . . . rests on the same theories of standing as the FECA [Federal 

Election Campaign Act of 1971, as amended] claim.” Pls. MTD Opp. at 15 n.6. This Court has 

already held that the “theories of standing” underlying Plaintiffs’ FECA claim are insufficient. See 

ECF Nos. 45, 46. Moreover, the APA provides no independent basis for jurisdiction and thus 

cannot supply the elements that were missing from Plaintiffs’ Article III standing to bring a FECA 

claim. Just as Plaintiffs lack the constitutionally-required injury to bring their FECA claim, they 

lack standing to bring an APA claim, too. 

Plaintiffs’ “facial” APA claim asks this Court to invalidate the Commission’s longstanding 

interpretation of the Coordination Regulations on a conjectured theory of injury that assumes 

Plaintiffs’ worst-case scenarios will eventually come to pass. This Court should reject Plaintiffs’ 

claim, because there is no evidence in the record of any actual or imminent injury, only factually 

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unsupported speculation. Plaintiffs clearly lack Article III standing, and this Court should grant 

Defendant-Intervenors’ motion for summary judgment in full.1

BACKGROUND

On December 2, this Court granted Defendant-Intervenors’ motion for summary judgment 

on Count I of Plaintiffs’ Amended Complaint, which alleged that the FEC’s decision to dismiss 

Plaintiffs’ administrative complaint in Matter Under Review (“MUR”) 7146 was arbitrary, 

capricious, and contrary to law in violation of 52 U.S.C. § 30109(a)(8)(A). The Court found that 

Plaintiffs lacked standing to bring the FECA claim alleged in Count I. See ECF Nos. 45, 46. 

Now under scrutiny is Count II of Plaintiffs’ Amended Complaint, which, according to 

Plaintiffs, contains two types of claims under the APA: (1) a “facial” APA claim, alleging that the 

FEC’s construction of the Coordination Regulations as applied to internet communications is 

arbitrary, capricious, an abuse of discretion, and contrary to law, see Am. Compl. ¶ 112; and (2) 

an as-applied challenge, in which Plaintiffs claim that the controlling Commissioners’ reliance on 

the same construction of the Coordination Regulations to find no “reason to believe” in MUR 7146 

is arbitrary, capricious, an abuse of discretion, and contrary to law. Id. ¶ 113. Because Plaintiffs 

lack standing to bring these claims, too, this Court should grant Defendant-Intervenors’ motion for 

summary judgment in full. 

 1 Given the limited scope of the supplemental briefing ordered by the Court, see ECF No. 46, this 

memorandum does not address the merits of Plaintiffs’ APA claim. If the Court reaches the merits 

of that claim—and it should not, because Plaintiffs lack standing—it should grant summary 

judgment in favor of Defendant-Intervenors for the reasons set forth in Defendant-Intervenors’ 

summary judgment briefing. See ECF Nos. 38-1 at 27-55, 44 at 11-29.

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LEGAL STANDARD

To demonstrate Article III standing, a plaintiff bears the burden of specifically establishing

that: “(1) [the plaintiff] has suffered an ‘injury in fact’ that is (a) concrete and particularized and 

(b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the 

challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the 

injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs.

(TOC), Inc., 528 U.S. 167, 180–81 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 

560–61 (1992)). “Further, in order to secure judicial review under the APA, the plaintiff must 

satisfy the additional requirement of prudential standing.” American Farm Bureau v. EPA, 121 F. 

Supp. 2d 84, 95 (D.D.C. 2000). The D.C. Circuit has cautioned that, in cases like this one, where 

the plaintiffs’ “asserted injury arises from the government’s allegedly unlawful regulation (or lack 

of regulation) of someone else,” standing is “substantially more difficult” to prove. Common Cause

v. FEC, 108 F.3d 413, 417 (D.C. Cir. 1997) (quoting Lujan, 504 U.S. at 562) (emphasis in original).

A “deficiency on any one of the three prongs suffices to defeat standing.” Citizens for Resp. and 

Ethics in Wash. (“CREW”) v. FEC, 799 F. Supp. 2d 78, 85 (D.D.C. 2011) (quoting U.S. Ecology, 

Inc. v. U.S. Dept. of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000)).

The APA grants no independent subject-matter jurisdiction over challenges to final agency 

action; plaintiffs bringing such claims must still rely on a separate substantive statute to establish 

jurisdiction, and they must still have Article III standing. See Califano v. Sanders, 430 U.S. 99, 

107 (1977). Because Plaintiffs in this case claim an injury resulting from the deprivation of 

information allegedly required to be disclosed under FECA, they must prove standing under FECA 

in order to have standing to sustain their APA claim on summary judgment. 

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ARGUMENT

Plaintiffs lack standing to bring their APA claims for several reasons. First, Plaintiffs

cannot use the APA simply to make an end-run around FECA and obtain the same relief they 

sought from FECA’s judicial review provisions. See 5 U.S.C. § 704; CREW v. FEC, 243 F. Supp. 

3d 91, 104 (D.D.C. 2017). Second, Plaintiffs must establish an informational injury under FECA 

to have standing to sue under the APA, and they have utterly failed to do so. With respect to their 

as-applied APA claim, this Court has already found that Plaintiffs failed to establish informational 

injury in the context of MUR 7146. They do not lack any factual information; they seek only to 

have the law enforced. Plaintiffs’ facial APA challenge—which still requires them to prove that 

they have suffered or will suffer a concrete, imminent informational injury under FECA—must be 

dismissed because it is far too speculative to be cognizable. Each of these arguments is discussed 

in further detail below. 

I. FECA provides the exclusive avenue for Plaintiffs to seek review of the FEC’s 

decision to dismiss the administrative complaint in MUR 7146. 

To the extent Plaintiffs’ APA claim seeks the same relief as their FECA claim—that the 

Court review and reverse the FEC’s dismissal of their administrative complaint because of the 

Plaintiffs’ contention that the Commissioners’ interpretation of the Coordination Regulations as 

applied in MUR 7146 was arbitrary, capricious, or contrary to law—it is barred by FECA. See 

Pls.’ Mot. for Summ. J. at 51, ECF No. 35. 

As discussed extensively in Defendant-Intervenors’ prior briefing, judicial review of final 

agency action is available under the APA only where such action is “made reviewable by statute” 

and there is “no other adequate remedy in a court.” 5 U.S.C. § 704.2 Courts in this Circuit have 

 2 See also, e.g., Def.-Int. Mot. for Summ. J., ECF No. 38-1 at 53-55.

Case 1:19-cv-02336-JEB Document 47 Filed 12/23/20 Page 10 of 24
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repeatedly held that FECA provides an adequate remedy at law and is the exclusive vehicle for 

challenging the FEC’s decision to dismiss an administrative complaint. See ECF No. 38-1 at 43-

45; see also CREW, 243 F. Supp. 3d at 104 (dismissing counts seeking relief under the APA 

because the relief sought was “precisely the relief sought by the plaintiffs [under FECA],” and “the 

APA is not intended to ‘duplicate existing procedures for review of agency action’”) (quoting 

Bowen v. Massachusetts, 487 U.S. 879, 903 (1988)). 

When, as here, Plaintiffs lack standing to challenge the FEC’s dismissal under FECA, they 

cannot simply “make an end run around the [FECA] scheme established by Congress” by bringing 

a duplicative claim under the APA. CREW v. FEC, 363 F. Supp. 3d 33, 44 (D.D.C. 2018). To the 

extent their APA claim seeks the same relief as their FECA claim (which is precisely the case 

here), it is precluded as a matter of law and should be dismissed. See CREW, 243 F. Supp. 3d at 

104-105 (dismissing “the portions” of two counts “seeking relief under the APA”). 

II. Plaintiffs lack standing to bring their APA claim.

A. The APA does not confer independent subject-matter jurisdiction. 

As the Supreme Court held over forty years ago, the APA does not independently grant 

federal courts subject-matter jurisdiction over challenges to final agency action. See Califano, 430 

U.S. at 107; Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 183 (D.C. Cir. 2006) (explaining the 

APA “is not a jurisdiction-conferring statute”); Rasmussen v. United States, 421 F.2d 776, 779 

(8th Cir. 1970) (“It is quite clear from the text of the APA that it alone will not supply standing to 

obtain judicial review.”). Plaintiffs alleging a violation of the APA must accordingly rely on a 

separate substantive statute to establish jurisdiction. See, e.g., Trudeau, 456 F.3d. at 185 

(“[B]ecause the APA neither confers nor restricts jurisdiction, we must still determine whether 

some other statute provides it.”). This mandate comes from the text of the APA itself, which states: 

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“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by 

agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 

U.S.C. § 702 (emphasis added). Notably, the D.C. Circuit has firmly rejected attempts to “in effect 

delete” that precise phrase from the APA when plaintiffs have sought to anchor jurisdiction under 

the APA alone. Kansas City Power & Light Co. v. McKay, 225 F.2d 924, 932 (D.C. Cir. 1955). 

For that reason, when plaintiffs allege violations of the APA and claim jurisdiction based 

on informational standing, courts turn to the substantive underlying statute the plaintiffs claim has 

been violated to determine whether it confers a right to the information plaintiffs allegedly seek. 

In Center for Biological Diversity v. Bernhardt, 442 F. Supp. 3d 97 (D.D.C. 2020), for example, 

the plaintiffs alleged violations of both the Endangered Species Act and the APA and claimed an 

informational injury. Because the Court found the substance of the Endangered Species Act did 

not support Plaintiffs’ alleged informational injury, and the plaintiffs had alleged no unique harm 

arising from the claimed violation of the APA, the court found the plaintiffs lacked standing to 

pursue either of their claims, dismissing both. Id. at 107, 114. Similarly, in Electronic Privacy 

Information Center (“EPIC”) v. Presidential Advisory Commission on Election Integrity, 878 

F.3d 371 (D.C. Cir. 2017), the plaintiffs alleged a violation of the APA, but the underlying statute 

plaintiffs alleged was violated was Section 208 of the E-Government Act of 2002. Id. at 397. 

Because the Court ultimately found that Section 208 of the E-Government Act did not provide a 

basis for the plaintiffs’ alleged informational injury, the court found the plaintiffs lacked standing 

to pursue their APA claim. Id. at 378. 

B. Plaintiffs lack standing to bring an “as-applied” APA claim because they lack 

standing under FECA. 

Plaintiffs’ alleged informational injury must be considered in the specific context of 

FECA—the statute from which Plaintiffs’ alleged lack of information arises. Plaintiffs themselves 

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acknowledge this fact, as they concede that their “standing to bring their APA claim . . . rests on 

the same theories of standing as the FECA claim.” Pl. Mot. for Summ. J. Reply at 5. This Court

has already held that Plaintiffs’ alleged informational injury under FECA is insufficient to state an

injury-in-fact in the context of MUR 7146, and thus insufficient to establish standing. See Op. on 

Mot. for Summ. J. And for good reason: to prove informational injury under Article III, a “plaintiff 

must show that (1) it has been deprived of information that, on its interpretation, a statute requires 

the government or a third party to disclose to it, and (2) it suffers, by being denied access to that 

information, the type of harm Congress sought to prevent by requiring disclosure. EPIC, 878 F.3d 

at 378. Courts do not permit plaintiffs to allege and establish informational injuries as a matter of 

course; rather, “[i]nformational standing arises ‘only in very specific statutory contexts’ where a 

statutory provision has ‘explicitly created a right to information.’” Am. Farm Bureau v. EPA, 121 

F. Supp. 2d 84, 97 (D.D.C. 2000) (quoting Animal Legal Def. Fund, Inc. v. Espy, 23 F.3d 496, 502 

(D.C. Cir. 1994)). Because Plaintiffs do not have standing merely to learn whether a violation of 

the law has occurred, which is what they seek here, they plainly lack standing under both FECA

and the APA as applied to this case. 

Both substantively and procedurally, this case is remarkably similar to Free Speech for 

People v. FEC, in which the plaintiffs challenged the FEC’s dismissal of their administrative 

complaint under FECA and the APA. There, the court, after finding that the plaintiffs had not 

suffered an informational injury under FECA, properly concluded it “need not reach” the 

plaintiffs’ arguments on their APA claim because the plaintiffs simply lacked standing to proceed. 

442 F. Supp. 3d 335, 341 n. 6 (D.D.C. 2020). Here, too, because Plaintiffs conclusively failed to 

establish an informational injury under FECA, and because Plaintiffs alleged no other injury 

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uniquely attributable to their claimed violation of the APA, their claim under the APA must be 

dismissed.

At bottom, what Plaintiffs want is for their interpretation of FECA to be enforced. 

However, it is black-letter law that a general interest in seeing the law followed is insufficient to 

establish Article III standing. See, e.g., Lance v. Coffman, 549 U.S. 437, 442 (2007) (explaining 

that a claim that a law “has not been followed” is “precisely the kind of undifferentiated, 

generalized grievance about the conduct of government that we have refused to countenance in the 

past”); Arpaio v. Obama, 27 F. Supp. 3d 185, 202 (D.D.C. 2014) (explaining a plaintiff’s 

disagreement with a law which “causes [him] to expend resources in a manner that he deems 

suboptimal” does not state an injury-in-fact), aff’d, 797 F.3d 11 (D.C. Cir. 2015). Plaintiffs’

“informational challenge is tantamount to an abstract interest in enforcement of the law—which 

does not create standing—and not an information-based, particularized injury created by 

Defendant's alleged conduct—which can, where properly statutorily authorized, create standing.” 

Bernhardt, 442 F. Supp. 3d at 111. 

C. Plaintiffs lack standing to bring a “facial” APA challenge.

Plaintiffs also bring a “facial” challenge under the APA, alleging that they will suffer a 

“broader informational injury” presumably “because, in their opinion, the Commissioners’ 

announced view of the law could affect their right to disclosure outside the context of this particular 

administrative proceeding.” Op. at 21 (emphasis added). As with their FECA claim, Plaintiffs fail 

to establish that they have suffered or will imminently suffer an informational injury-in-fact. Their 

supposed “broader informational injury” suffers from at least two defects. First, Plaintiffs have 

failed to provide any evidence of such an injury, or even allege it with any specificity in their 

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complaint. Second, Plaintiffs’ “broader informational injury” is not imminent and is instead too 

speculative to be cognizable under Article III. 

1. Plaintiffs have failed to prove, or even allege, a “broader informational 

injury.”

At summary judgment, Plaintiffs must carry the heavy burden of setting forth specific 

evidence that establishes each element of Article III standing and disposes of any remaining 

genuine issues of material dispute. See Fed. R. Civ. P. 56. Plaintiffs have utterly failed to carry 

that burden. There is not a single statement in the Amended Complaint alleging that Plaintiffs will 

suffer any informational injury outside the scope of MUR 7146 as a result of the Commissioners’ 

interpretation of the Coordination Regulations. Plaintiffs’ Amended Complaint never once 

articulates what Plaintiffs’ “broader informational injury” might be: when it will occur, how it will 

occur, or how and to what extent it will cause a concrete harm to Plaintiffs Kelley and CLC.

Instead, the Amended Complaint focuses entirely on the meritless informational injury 

Plaintiffs claimed to have suffered as a result of the Commission’s dismissal of their administrative 

complaint against HFA and CTR:

Plaintiffs have suffered as a result, because they, as well as the 

public, have been deprived of disclosure about the scale and scope 

of CTR’s expenditures coordinated with the Clinton campaign—

which, in turn, has deprived plaintiffs of key information about the 

sources of the Clinton campaign’s financial support, as well as the 

size and purposes of the campaign’s expenditures”). 

Am. Compl. ¶ 11.

Plaintiffs’ inability to obtain required disclosure information about 

the extent and character of the coordination between CTR and the 

Clinton campaign, “transaction by transaction,” is a central element 

of the relief sought here—not a justification for dismissal. 

Id. ¶ 95. In fact, only four of the 113 paragraphs in Plaintiffs’ Amended Complaint relate to their 

“facial” APA claim, and none articulate the broader injury Plaintiffs now claim they will suffer as 

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a result of the FEC’s longstanding interpretation of the Coordination Regulations. See id. ¶¶109-

112. Defendant-Intervenors should be granted summary judgment on this basis alone.

2. Plaintiffs’ contemplated injury is based entirely on conjecture and 

speculation.

Even if this Court were to find that Plaintiffs have alleged an informational injury to 

support their facial APA challenge, the injury would be far too speculative to be cognizable. A 

hallmark principle of Article III standing is that a plaintiff must have suffered (or imminently will 

suffer) an “injury in fact” which is concrete, particularized, and actual or imminent, not conjectural, 

speculative, or hypothetical. Lujan, 504 U.S. at 562. 

In Lujan, the seminal case on this issue, the Supreme Court held that the respondents lacked 

standing because the injuries they articulated—that administrative action might deprive them of 

the opportunity to see endangered species in other countries in the future—was too conjectural and 

hypothetical to satisfy Article III’s concrete and particularized injury-in-fact requirement. Id.

Consistent with this, and in the specific context of facial challenges to regulations, courts have 

rejected claims founded on purely speculative harm. See, e.g., EMILY’s List v. FEC, 2008 U.S. 

Dist. LEXIS 58046, *84 (D.D.C. July 31, 2008) (stating “[i]n the context of considering a 

challenge to a state election law on its face, rather than in the context of an actual election, the 

Supreme Court has recently noted that ‘[i]n determining whether a law is facially invalid, [the 

Court] must be careful not to go beyond the statute’s facial requirements and speculate about 

‘hypothetical’ or ‘imaginary’ cases.’”). Facial challenges must be supported by concrete evidence 

of injury—not speculative, worst-case assumptions premised on third-party actions. 

Future injury can sometimes serve as a basis for standing, but it must be concrete, 

particularized, and imminent. “An actual or imminent injury is certainly impending and 

immediate—not remote, speculative, conjectural, or hypothetical.” People for the Ethical 

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Treatment of Animals v. U.S. Dept. of Agric., 797 F.3d 108 (D.C. Cir. 2015). To have standing 

based on a future injury, “threatened injury must be certainly impending to constitute injury in 

fact” or there must be a “substantial risk that the harm will occur.” Clapper v. Amnesty Int’l USA, 

568 U.S. 398, 414 n.5 (2013). Courts in this Circuit have routinely rejected as insufficient 

allegations of standing similar to those articulated by Plaintiffs here, on the grounds that they are 

“overly speculative” because they are based on “links which are predictions of future events 

(especially future actions to be taken by third parties).” Food & Water Watch, Inc. v. Vilsack, 808 

F.3d 905, 913 (D.C. Cir. 2015) (citation and quotation marks omitted). For example, in Judicial 

Watch v. FEC, 293 F. Supp. 2d 41, 48 (D.D.C. 2003), the plaintiff argued that he suffered an 

informational injury because he was unable to use information from an FEC investigation to amass 

a defense against a possible future enforcement action. The court found that this purported injury 

was “speculative at best” because the plaintiff had “put forth no evidence that an investigation of 

his contributions is ongoing; he merely state[d] that one [wa]s possible. Future, speculative injury 

does not satisfy the test for standing as articulated by the Supreme Court in Lujan.” Id. at 48.

As in Judicial Watch, Plaintiffs’ contemplated injury falls short of this clear line. In all of 

the extensive briefing in this case, Plaintiffs have barely mentioned any broader informational 

injury that might underpin their facial APA claim. In the few instances where Plaintiffs have done 

so, the asserted injury is clearly neither concrete nor imminent. It is instead based entirely on 

hypothetical circumstances that depend on the actions of third parties over which Plaintiffs have 

no control. For example, Plaintiffs’ opposition to the motion to dismiss uses the following 

example: 

Indeed, the abuses sanctioned by this construction of the rules go far 

beyond even the egregious scheme alleged here. For example, it 

would appear to permit a “dark money” nonprofit, even one 

funded by foreign nationals, to mount an undisclosed $100 

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million public relations campaign in full coordination with the 

federal candidate it seeks to elect—avoiding the FEC’s 

coordination rules on the pretext that some small portion of the effort 

will appear online.

ECF No. 27 at 45 (emphasis added). But to offer such a hypothetical is not the same as proving 

the occurrence, or the imminent occurrence, of any actual injury. Furthermore, there is no evidence 

that the injuries Plaintiffs have imagined in this case are “certainly impending” nor is there any

basis to conclude that there is a “substantial risk that harm will occur” to Plaintiffs. 

Notably, Plaintiffs’ facial APA claim acknowledges that the Commissioners’ interpretation

of the Coordination Regulations is longstanding and “has been the Commission’s consistent 

position since the 2006 internet rulemaking.” Am. Compl. ¶ 110. In other words, the 

Commissioners have interpreted the Coordination Regulations in a manner that allows for “gross 

abuse” of the campaign finance laws for the past fourteen years. Yet, the only example of “gross 

abuse” or concrete “harm” Plaintiffs can point to is MUR 7146, where Plaintiffs failed to prove an 

informational injury because every single expenditure CTR made had been disclosed, and 

Plaintiffs could not “seriously claim to be in the dark as to the relationship between CTR and HFA 

or unaware that CTR has made numerous coordinated expenditures on HFA’s behalf.” Op. at 13. 

Simply put, Plaintiffs’ alleged “harm” amounts to nothing more than a series of worst-case 

assumptions that the record fails to support. 

When courts have found a valid informational injury under FECA, they have done so on 

facts entirely distinguishable from those involved in this case. In FEC v. Akins, 524 U.S. 11, 13

(1998), for example, the plaintiffs sought access to information about the AIPAC’s “membership, 

contributions, and expenditures”—information the plaintiffs would not have access to if the 

Commission determined that that AIPAC was not a “political committee.” Plaintiffs were unable 

to obtain concrete information such as “names and addresses of contributors” and “lists of donors 

Case 1:19-cv-02336-JEB Document 47 Filed 12/23/20 Page 18 of 24
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giving in excess of $200 per year,” among other actionable information. Id. at 14-15. Under these 

circumstances, the Supreme Court concluded the plaintiffs’ inability to obtain this information, 

and consequent inability to evaluate federal candidates for office who accepted contributions from 

AIPAC, amounted to a genuine injury-in-fact. Id. at 20-21.

Similarly, in Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008), a member of Congress 

challenged the FEC coordination regulation known as the “90/120-day rule” because it only 

prohibited coordinated advertisements referring to a clearly identified candidate from running in 

the candidate’s jurisdiction within 90 days (for House and Senate candidates) or 120 days (for 

Presidential and Vice Presidential candidates) of an election. Outside of the 90/120-day windows, 

the challenged regulation merely prohibited coordinated advertisements that distributed candidate 

materials or expressly advocated the election or defeat of a clearly identified candidate. Id. at 922. 

Shays argued that the rule should be stricter: the 90/120-day windows “were unsupported by the 

evidence, violating the APA, and that the lax standard applying outside the windows was both 

unexplained and contrary to BCRA’s purpose.” Id. The D.C. Circuit applied Akins to find that 

Shays had standing because the regulation he challenged meant that presidential candidates were 

not required to report certain expenditures as contributions, which resulted in a concrete “deni[al] 

[of] information” that would make it more difficult for him to “evaluate candidates for public 

office.” Id. at 923. In Shays though, it was certain, not merely speculative, that communications

were actually being distributed outside of the 90/120-day window that were not being reported as 

“contributions.” Id. at 922. Indeed, the FEC defended the 90/120-day windows on the ground that 

“the record showed that the vast majority of candidate advertising occurred within those periods 

[90 and 120 days before an election],” not that unreported communications outside of those 

windows were not occurring. Id. (emphasis added). 

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By contrast, Plaintiffs in this case have not proven that they have been deprived, or will 

imminently be deprived, of any information required to be disclosed by FECA. Plaintiffs merely 

speculate that such an injury could occur in a number of conjectural, doomsday scenarios that have 

no basis in the record.3 Plaintiffs’ reliance on the fact that non-profit organizations and individuals 

spend money to influence elections, see Pl. Mot. for Summ. J. at 54 n.7, only highlights the 

speculative nature of their injury. That spending has no bearing on such groups’ proclivity to use 

unpaid online activity to skirt the coordination rules. 

At this point, the record in this case is closed. The only remaining issue is a legal question 

about whether Plaintiffs have proven standing to bring their APA claim. Plaintiffs cannot rely on 

hypothetical scenarios in lieu of concrete evidence of injury at summary judgment. Yet, even after 

several rounds of briefing, Plaintiffs have proved nothing more than a “mere interest” in a 

completely speculative problem. See United States v. Students Challenging Regul. Agency Procs., 

412 U.S. 669, 689 n.14 (1973). Informational harm to plaintiffs is simply not “certainly 

impending.” Clapper, 568 U.S. 432. Plaintiffs have not proven the actual or imminent 

informational injury required for standing. 

 3 There are a number of regulatory provisions that block the march of Plaintiffs’ imagined parade 

of horribles. For example, Plaintiffs caution that foreign money will seep into U.S. elections, but 

there is a separate ban on foreign nationals, directly or indirectly, making expenditures. 52 U.S.C. 

§ 30121(a)(1). BCRA also prohibits federal candidates and political parties from “directing” or 

“controlling” soft money and soft money organizations. Id. § 30125(a), (e). Further, Plaintiffs act 

as if all spending will migrate online where it will be totally unregulated. In reality, the 

Commission subjects most Internet communications to the coordination regulations, not to 

mention all television and radio ads, and all other forms of “public communications,” which 

continue to occur. 

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III. Plaintiffs have not proven that they have suffered or will suffer a cognizable or 

imminent harm to support their standalone APA claim. 

The second prong of the informational injury test turns the Court’s attention to the 

relationship between the plaintiff’s asserted informational injury and “type of harm Congress 

sought to prevent by requiring disclosure.” Elec. Privacy Info. Ctr. v. Presidential Advisory 

Comm’n on Election Integrity, 878 F.3d 371, 378 (D.C. Cir. 2017); Friends of Animals v. Jewell, 

828 F.3d 989, 992 (D.C. Cir. 2016). At summary judgment, plaintiffs must prove particularized 

harm by affidavit or with “specific facts” in the record. Lujan, 504 U.S. at 561. This test spells 

doom for Plaintiffs, because even if Plaintiffs had proven a concrete, identifiable informational 

injury to support their standalone APA claim—and they have not—they would still lack standing 

because they have not proven a concrete, cognizable Article III harm as a result of any 

informational injury.

Plaintiffs did not submit any affidavits in support of their motion for summary judgment, 

See ECF No. 35, and the declarations they submitted in response to Defendant-Intervenors’ motion 

to dismiss are woefully inadequate to prove standing to bring a standalone facial APA claim. See 

ECF Nos. 27-1, 27-2. As with Plaintiffs’ complaint, neither declaration provides any specificity 

about the informational injury Plaintiffs would suffer outside of the denial of their complaint in 

MUR 7146. 

A. Plaintiff Catherine Hinckley Kelley 

Plaintiff Kelley’s declaration contains one vague sentence about the informational injury 

she could suffer: she believes that the FEC’s failure to investigate MUR 7146 has “created a 

roadmap for other campaigns and political committees to evade disclosure laws in a similar 

fashion.” ECF No. 27-1 at ¶ 9. This unsupported conjecture suffers from numerous flaws. First, 

Kelley’s declaration does not state that she is likely to suffer an injury as a result of the FEC’s 

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interpretation of the Coordination Regulations, only that she could suffer injury as a result of the 

“FEC’s failure to investigate the allegations in [MUR 7146].” Id. These allegations support an asapplied challenge (which Kelley also lacks standing to bring), not a facial challenge. Second, 

Kelley’s declaration never states that her injury is imminent or that she will be deprived of 

information that would inform how she would cast her vote. 

B. Plaintiff CLC 

Plaintiff CLC is required to demonstrate that its alleged deprivation of information has 

caused or will imminently cause a concrete and particularized harm to the organization. The D.C. 

Circuit “has distinguished between organizations that allege that their activities have been impeded 

from those that merely allege that their mission has been compromised.” Food & Water Watch, 

Inc., 808 F.3d at 919. To that end, “an organization does not suffer an injury in fact where it 

‘expend[s] resources to educate its members and others’ unless doing so subjects the organization 

to ‘operational costs beyond those normally expended.’” Id. at 920 (alteration in original) (quoting 

Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1434 (D.C. Cir. 1995). Just as CLC’s 

informational injury is completely speculative, so too is the notion that it would be required to 

divert resources to counteract any such injury. As explained in Defendant-Intervenors’ prior 

briefing, CLC has not offered any proof that researching information about an organization’s or 

candidate’s unreported activity would be outside of the scope of its routine activities or create 

additional operational costs that would divert resources from other activities. See, e.g., ECF No. 

38-1 at 23-26.

CONCLUSION

For the foregoing reasons, the Court should grant Defendant-Intervenors’ Motion for 

Summary Judgment in full and deny Plaintiffs’ Motion for Summary Judgment. 

Case 1:19-cv-02336-JEB Document 47 Filed 12/23/20 Page 22 of 24
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December 23, 2020 Respectfully submitted,

PERKINS COIE LLP

By: /s/ Marc Erik Elias

Marc Erik Elias, Bar No. 442007

Aria C. Branch, Bar No. 1014541

MElias@perkinscoie.com

ABranch@perkinscoie.com

700 Thirteenth Street, N.W., Suite 600

Washington, D.C. 20005-3960

Telephone: 202.654.6200

Facsimile: 202.654.6211

Counsel for Defendant-Intervenors

Case 1:19-cv-02336-JEB Document 47 Filed 12/23/20 Page 23 of 24
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CERTIFICATE OF SERVICE

I hereby certify that on December 23, 2020, I caused a true and correct copy of the 

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

system, by electronic service via the Court’s ECF transmission facilities. 

By: /s/ Marc Erik Elias 

Marc Erik Elias

Aria C. Branch

PERKINS COIE LLP

700 Thirteenth Street, N.W., Suite 800

Washington, D.C. 20005-3960

Telephone: 202.654.6200

Facsimile: 202.654.6211

Email: MElias@perkinscoie.com

Email: ABranch@perkinscoie.com

Case 1:19-cv-02336-JEB Document 47 Filed 12/23/20 Page 24 of 24