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

MOTION TO INTERVENE AS DEFENDANTS

For the reasons stated in the attached memorandum of points and authorities, Hillary for 

America (“HFA”) and Correct the Record (“CTR”) respectfully request that the Court permit their

intervention as a matter of right in this action under Federal Rule of Civil Procedure 24(a)(2) or, 

in the alternative, permit them to intervene under Rule 24(b). If granted permission to intervene 

under either provision, HFA and CTR have attached a proposed motion to dismiss for filing.

Counsel for HFA and CTR have conferred with counsel to Plaintiffs Campaign Legal 

Center and Ms. Kelley (collectively “CLC”), who indicated that, at this time, CLC neither opposes 

Case 1:19-cv-02336-JEB Document 10 Filed 10/01/19 Page 1 of 20
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nor consents to the motion to intervene. Counsel for HFA and CTR have attempted to confer with 

counsel to Defendant Federal Election Commission (“FEC”). As of the filing of this motion, 

counsel for HFA and CTR have been unable to determine the FEC’s position.

October 1, 2019 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

Attorneys for Proposed Defendant-Intervenor

Case 1:19-cv-02336-JEB Document 10 Filed 10/01/19 Page 2 of 20
CERTIFICATE OF SERVICE

I hereby certify that on October 1, 2019, 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 600

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 10 Filed 10/01/19 Page 3 of 20
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

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF HILLARY FOR 

AMERICA’S AND CORRECT THE RECORD’S MOTION TO INTERVENE

Case 1:19-cv-02336-JEB Document 10 Filed 10/01/19 Page 4 of 20
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TABLE OF CONTENTS 

PAGES

 

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

FACTUAL AND PROCEDURAL BACKGROUND................................................................ 1

ARGUMENT................................................................................................................................. 3

1. HFA and CTR are Entitled to Intervene as a Matter of Right...................................... 4

a. HFA and CTR Have Standing ...................................................................................... 4

b. The Motion is Timely ..................................................................................................... 6

c. HFA and CTR Have a Legally Protected Interest in this Litigation......................... 6

d. HFA’s and CTR’s Interests Would be Impeded As A Practical Matter if Plaintiffs 

Prevail .................................................................................................................................... 7

e. The FEC Does Not Adequately Represent HFA’s or CTR’s Interests...................... 7

2. In the Alternative, HFA and CTR Request Permission to Intervene ......................... 10

CONCLUSION ........................................................................................................................... 10

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TABLE OF AUTHORITIES 

CASES PAGES

Carey v. FEC,

1:11-cv-259-RMC (D.D.C. Aug. 19, 2011)...............................................................................2

*Crossroads Grassroots Policy Strategies v. Fed. Election Comm’n,

788 F.3d 312 (D.C. Cir. 2015)......................................................................................... passim

Ctr. for Biological Diversity v. Jewell,

No. 15-cv-00019, 2015 WL 13037049 (D. Ariz. May 12, 2015)............................................11

Forest Cty. Potawatomi Cmty. v. United States,

317 F.R.D. 6 (D.D.C. 2016)...................................................................................................6, 7

Fund For Animals, Inc. v. Norton,

322 F.3d 728 (D.C. Cir. 2003)...................................................................................................6

Jones v. Prince George’s Cty., Maryland,

348 F.3d 1014 (D.C. Cir. 2003).................................................................................................7

Karsner v. Lothian,

532 F.3d 876 (D.C. Cir. 2008)...............................................................................................4, 6

Massachusetts v. Microsoft Corp.,

373 F.3d 1199 (D.C. Cir. 2004)...............................................................................................11

Natural Res. Def. Council v. Costle,

561 F.2d 904 (D.C. Cir. 1977)...................................................................................................8

New Century Bank v. Open Solutions, Inc.,

No. 10-6537, 2011 WL 1666926 (E.D. Pa. May 2, 2011).......................................................11

STATUTES

52 U.S.C. § 30101............................................................................................................................2

52 U.S.C. § 30104(b)...................................................................................................................2, 7

52 U.S.C. § 30106(c) .......................................................................................................................1

52 U.S.C. § 30107(a)(6)...................................................................................................................1

Case 1:19-cv-02336-JEB Document 10 Filed 10/01/19 Page 6 of 20
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52 U.S.C. § 30109(a)(8)...............................................................................................................1, 3

52 U.S.C. § 30116(a)(1)...............................................................................................................2, 7

52 U.S.C. § 30118(a) .......................................................................................................................7

52 U.S.C. § 30116(f)........................................................................................................................7

OTHER AUTHORITIES

Federal Rule of Civil Procedure 24(b)(1)(B).................................................................................10

Federal Rule of Civil Procedure 24(a)(2) ..........................................................................1, 4, 7, 11

Federal Rule of Civil Procedure Rule 24(a) ............................................................................4, 6, 7

Federal Rule of Civil Procedure Rule 24(c) ..................................................................................11

Case 1:19-cv-02336-JEB Document 10 Filed 10/01/19 Page 7 of 20
INTRODUCTION

Hillary for America (“HFA”) and Correct the Record (“CTR”) seek to participate as 

intervening defendants in the above-captioned lawsuit challenging as contrary to law the Federal 

Election Commission’s (“FEC”) decision to dismiss the administrative complaint filed by 

Plaintiffs Campaign Legal Center and Ms. Catherine Hinckley Kelley (collectively, “CLC”) 

against CTR and HFA. HFA and CFR are entitled to intervene in this case as a matter of right 

under Federal Rule of Civil Procedure 24(a)(2). Intervention is particularly necessary given that 

the Federal Election Commission’s Office of General Counsel (“OGC”), who typically serve as

counsel to the Defendant in similar actions, previously sided with the Plaintiffs in the underlying 

administrative complaint alleging that HFA and CTR violated various provisions of federal 

campaign finance law.1 The named Defendant plainly does not adequately represent the interests 

of either HFA or CTR, and circuit precedent is clear that allowing intervention is necessary under 

these circumstances. In the alternative, HFA and CTR request permissive intervention pursuant to 

Rule 24(b). 

Counsel for HFA and CTR have conferred with counsel to CLC, who indicated that, at this 

time, CLC neither opposes nor consents to the motion to intervene. Counsel for HFA and CTR

have attempted to confer with counsel to Defendant FEC. As of the filing of this motion, counsel 

for HFA and CTR have been unable to determine the FEC’s position. 

FACTUAL AND PROCEDURAL BACKGROUND

HFA is the principal campaign committee of former United States Secretary of State 

Hillary Clinton, who was the nominee of the Democratic Party for the office of President in the 

2016 election. CTR is a strategic research and rapid response team that was designed to defend 

Hillary Clinton from baseless attacks. CTR is a nonprofit corporation registered in Washington 

D.C. and has registered with the FEC as a “hybrid” political action committee permitted under 

 1 In addition, it appears that the FEC may not defend this action at all. Federal law requires four 

commissioners to vote affirmatively for the FEC to defend itself in any civil case brought against 

the FEC pursuant to 52 U.S.C. § 30109(a)(8). See 52 U.S.C. §§ 30106(c), 30107(a)(6). As of 

August 30, 2019, the FEC no longer has four Commissioners.

Case 1:19-cv-02336-JEB Document 10 Filed 10/01/19 Page 8 of 20
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FEC policy and precedent to solicit and accept unlimited contributions into one bank account, and 

to maintain a separate bank account subject to statutory amount limitations and source prohibitions 

for making contributions to Federal candidates. See Stipulated Order and Consent Judgment, ECF 

No. 28, Carey v. FEC, 1:11-cv-259-RMC (D.D.C. Aug. 19, 2011); Fed. Election Comm’n, FEC 

statement on Carey v. FEC (2011) (Oct. 6, 2011), https://www.fec.gov/updates/fec-statement-oncarey-v-fec/. Both HFA and CTR are subject to the Federal Election Campaign Act (“FECA” or 

“Act”), 52 U.S.C. § 30101 et seq., and FEC regulations. 

Beginning in May 2015, various complainants filed administrative complaints with the 

FEC against HFA and CTR and other entities. On October 6, 2016, CLC filed an administrative 

complaint that the FEC designated as Matter Under Review (“MUR”) 7146, alleging there was 

reason to believe that CTR and the HFA had violated FECA’s contribution limits, 52 U.S.C. § 

30116(a)(1), its prohibition on contributions to a candidate from union or corporate funds, id. § 

30118(a) and (b)(2), and its requirement that candidate committees and non-connected political 

committees report and disclose all in-kind contributions made and accepted, id. § 30104(b).

Compl., ECF No. 1, at ¶ 3. 

In fact, and as discussed in greater detail in the proposed Motion to Dismiss attached to 

this motion, CLC’s allegations stemmed from a fundamental misreading of the Act and its 

accompanying regulations, as interpreted by the FEC. Both HFA and CTR maintained an 

aggressive compliance program, and at all times adhered to their federal campaign finance law 

obligations. All of the activities discussed in CLC’s administrative complaint either did not qualify 

as “contributions” or were paid for by HFA according to their fair market value. As a result, CTR 

did not make, and HFA did not receive, any prohibited in-kind contributions in the form of 

coordinated communications or otherwise from CTR. CTR and HFA also satisfied their reporting

obligations.

The OGC recommends to the Commission whether or not there is “reason to believe” the 

respondent has committed or is about to commit a violation of the law. This report, called the First 

General Counsel’s Report, is circulated to the Commissioners for a vote on whether to approve the 

Case 1:19-cv-02336-JEB Document 10 Filed 10/01/19 Page 9 of 20
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General Counsel’s recommendation or to seek an alternate disposition of the matter. After 

reviewing the various administrative complaints, the OGC recommended dismissing or taking no 

action as to most of the allegations contained therein. However, the OGC recommended that the 

Commissioners should find reason to believe that CTR and HFA violated FECA by making and 

accepting, respectively, “unreported excessive and prohibited in-kind contributions” in the form 

of coordinated expenditures, and recommended that the Commissioners authorize an investigation 

to determine “the extent” of the unreported in-kind contributions. Compl., ECF No. 1, at ¶ 4. 

However, the Commissioners did not adopt the OGC’s recommendation. On June 4, 2019, 

OGC’s recommendation failed to obtain the four affirmative votes needed to find “reason to 

believe” and to proceed with an investigation into the alleged violations. The Commissioners

subsequently voted 4-0 to dismiss the complaint. Compl., ECF No. 1, at ¶ 5. In their Statement of 

Reasons, issued on August 21, 2019, several weeks after CLC filed the complaint in this action, 

Commissioners Petersen and Hunter explained that they correctly voted against finding reason to 

believe that CTR or HFA violated the law because (1) CTR’s “internet communications in support 

of HFA were not in-kind contributions even if they were coordinated with Hillary for America”

because they were not “public communications” under the law; and (2) “speculative information 

and materials stolen by Russian intelligence operatives and published by Wikileaks does not 

provide reason to believe that Correct the Record’s expenditures for other activities were excessive 

or prohibited in-kind contributions to Hillary for America.” Ex. 1, Statement of Reasons, at 2.

If a complainant disagrees with the Commission’s dismissal of a complaint, or any

allegations contained therein, he or she may file a petition in the U.S. District Court for the District 

of Columbia within 60 days after the date of the dismissal. 52 U.S.C. § 30109(a)(8). On August 2, 

2019, CLC filed the Complaint against the FEC. ECF No. 1.

ARGUMENT

Circuit precedent all but compels the conclusion that HFA and CTR should be permitted 

to intervene as a matter of right as a defendant in this challenge of the FEC’s dismissal of CLC’s 

administrative complaint against HFA and CTR. In a case concerning a procedurally identical 

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appeal of a dismissal of an FEC administrative complaint to the U.S. District Court of the District 

of Columbia, the D.C. Circuit held that the district court erred as a matter of law when it denied a 

motion for intervention as a matter of right filed by the proposed intervenor-defendant against 

whom the FEC administrative complaint had been dismissed. See Crossroads Grassroots Policy 

Strategies v. Fed. Election Comm’n, 788 F.3d 312, 316 (D.C. Cir. 2015). The same result should 

obtain here. In the alternative, HFA and CTR also meet the requirements for permissive 

intervention, and the Court should exercise its discretion to permit HFA and CTR to intervene to 

defend their interests. 

1. HFA and CTR are Entitled to Intervene as a Matter of Right

Rule 24(a) of the Federal Rules of Civil Procedure governs intervention as a matter of right. 

That provision provides, in relevant part, that “[o]n timely motion, the court must permit anyone 

to intervene who ... claims an interest relating to the property or transaction that is the subject of 

the action, and is so situated that disposing of the action may as a practical matter impair or impede 

the movant’s ability to protect its interest, unless existing parties adequately represent that 

interest.” Fed. R. Civ. P. 24(a)(2). Consistent with this language, the D.C. Circuit has identified 

four requirements for intervention as a matter of right. First, an application to intervene in a 

pending action must be timely. Karsner v. Lothian, 532 F.3d 876, 885 (D.C. Cir. 2008). Second, 

the putative intervenor must have a “legally protected” interest in the action. Id. at 855. Third, the 

action must threaten to impair the putative intervenor’s proffered interest in the action. Id. Fourth, 

and finally, no existing party to the action may adequately represent the putative intervenor’s 

interests. In addition to these four requirements, which emanate from the text of Rule 24(a) itself, 

a putative intervenor defendant must further establish that it has standing under Article III of the 

Constitution. See Crossroads, 788 F.3d at 316. 

As set forth below, HFA and CTR easily meet each of these requirements. 

a. HFA and CTR Have Standing

Just like the proposed defendant-intervenor in Crossroads, HFA and CTR have a 

significant and direct interest in the favorable FEC dismissal order shielding them from further 

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litigation and liability, and the threatened loss of that favorable action constitutes a concrete and 

imminent injury sufficient to establish their standing. Although Article III standing is not a 

threshold determination that courts normally make before allowing a defendant to enter a case, the 

D.C. Circuit has required such a showing of proposed defendant-intervenors. Crossroads, 788 F.3d 

at 316. The standing inquiry for an intervening defendant is the same as for a plaintiff: the 

intervenor must show injury in fact, causation, and redressability. Id. In the specific context of an 

appeal of a dismissal of an FEC administrative complaint to the U.S. District Court of the District 

of Columbia, the D.C. Circuit has held that if the party against whom the FEC administrative 

complaint was dismissed can prove injury, then it can establish causation and redressability. See 

id. (citing Roeder v. Islamic Republic of Iran, 333 F.3d 228, 233-34 (D.C. Cir. 2003)). As a result, 

standing turns on whether HFA and CTR can allege a sufficient injury in fact. Id.

HFA and CTR are indeed threatened with a sufficient injury in fact: losing the favorable 

FEC dismissal order. HFA and CTR will suffer the exact type of injury that the D.C. Circuit in 

Crossroads recognized as “even greater than the injuries we found sufficient in our previous 

cases.” See id. at 318. Here, as in Crossroads, HFA and CTR currently claim a significant benefit 

from the FEC’s dismissal order: as long as it stays in place, HFA and CTR face no further exposure 

to enforcement proceedings before the FEC, nor are they exposed to civil liability via private 

lawsuit. See id. Losing the favorable order would be a significant injury in fact. See id. at 317 

(discussing cases finding sufficient injury in fact where a party benefits from agency action, the 

action is then challenged in court, and an unfavorable decision would remove the party’s benefit). 

This is true even though this Court cannot command the precise enforcement route that the FEC 

must take on remand. “[I]nvalidating the dismissal order would extinguish the current barrier to 

enforcement and would limit the Commission’s discretion in the future. Whatever the ultimate 

outcome, [the proposed defendant-intervenor] has a concrete stake in the favorable agency action 

currently in place.” Id. at 319.

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b. The Motion is Timely

HFA and CTR’s motion to intervene, filed before the FEC filed a responsive pleading and 

before the Court has taken any action, is indisputably timely. Whether a given application is timely 

is a context-specific inquiry, and courts take into account (a) the time elapsed since the inception 

of the action, (b) the probability of prejudice to those already party to the proceedings, (c) the 

purpose for which intervention is sought, and (d) the need for intervention as a means for 

preserving the putative intervenor’s rights. See Forest Cty. Potawatomi Cmty. v. United States, 

317 F.R.D. 6, 10 (D.D.C. 2016) (citing Karsner, 532 F.3d at 886). Courts in this circuit, including 

the D.C. Circuit, have little trouble finding that motions to intervene are timely when they are filed 

before the defendant files a responsive pleading or before a court has taken any action in the matter. 

See Karsner, 532 F.3d at 886 (holding that motion to intervene filed before the district court took 

any action did not prejudice proceedings in that court); Crossroads, 788 F.3d at 320 (holding that 

timeliness factor could be dealt with summarily because proposed intervenor filed an intervention 

motion before the FEC had even entered an appearance); Fund For Animals, Inc. v. Norton, 322 

F.3d 728, 735 (D.C. Cir. 2003) (holding that intervention motion filed less than two months after 

the plaintiffs filed their complaint and before the defendants filed an answer was timely). Here too,

if HFA and CTR are permitted to intervene, there can be no prejudice to the existing parties, and 

no current or scheduled proceedings will be disrupted. Accordingly, intervention at this point in 

the litigation is timely.

c. HFA and CTR Have a Legally Protected Interest in this Litigation

For the same reasons that HFA and CTR have standing, they also have a legally protected 

interest in the litigation for purposes of Rule 24(a). The D.C. Circuit has repeatedly held that the 

conclusion that the proposed intervenor has constitutional standing is alone sufficient to establish 

that the proposed intervenor has “an interest relating to the property or transaction which is the 

subject of the action[.]” See Fund For Animals, Inc., 322 F.3d at 735 (citing Fed. R. Civ. P. 

24(a)(2)); accord Crossroads, 788 F.3d at 320; Jones v. Prince George’s Cty., Maryland, 348 F.3d 

Case 1:19-cv-02336-JEB Document 10 Filed 10/01/19 Page 13 of 20
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1014, 1018 (D.C. Cir. 2003). For the same reasons set forth above, HFA’s and CTR’s interest in 

preserving the favorable FEC dismissal order satisfies this factor of Rule 24(a).

d. HFA’s and CTR’s Interests Would be Impeded as a Practical Matter 

if Plaintiffs Prevail

Just like the proposed defendant-intervenor in Crossroads, HFA’s and CTR’s interest in 

preserving the favorable FEC dismissal order would be impeded by an adverse judgment by this 

Court. The inquiry is not a rigid one: consistent with the Rule’s reference to dispositions that may 

“as a practical matter” impair the putative intervenor’s interest, Fed. R. Civ. P. 24(a)(2), courts 

look to the “practical consequences” of denying intervention, Forest Cty., 317 F.R.D. at 10-11 

(citing Fund for Animals, Inc., 322 F.3d at 735). 

Here, as in Crossroads, an adverse judgment in this Court would impair HFA’s and CTR’s

interests because a judicial pronouncement that the FEC’s dismissal was contrary to law would 

make the task of reestablishing the status quo more difficult and burdensome. 788 F.3d at 320 

(citing Fund For Animals, 322 F.3d at 735). CLC asks this Court to find that it was “contrary to 

law” for the FEC to fail to find “reason to believe” that HFA accepted excessive and prohibited 

in-kind contributions in violation of 52 U.S.C. §§ 30116(f) and 30118(a), and failed to report these 

contributions in violation of 52 U.S.C. § 30104(b). Compl., ECF No. 1, at 22. Similarly, CLC asks 

this Court to find that it was “contrary to law” for the FEC to fail to find that CTR made excessive 

and prohibited in-kind contributions in violation of 52 U.S.C. §§ 30116(a) and 30118(a), and failed 

to report these contributions in violation of 52 U.S.C. § 30104(b). Id. If the Court grants CLC’s 

request, the Court’s decision would, at minimum, have persuasive weight with both the FEC and 

any court that reviews a subsequent enforcement decision by the FEC. This is enough to establish 

a practical impairment of HFA’s and CTR’s interests. See Crossroads, 788 F.3d at 320 (citing 

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

e. The FEC Does Not Adequately Represent HFA’s or CTR’s Interests

Just as in Crossroads, HFA and CTR easily meet the minimal burden of showing that the

nominal Defendant FEC—whose Office of General Counsel took the same position as the 

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Plaintiffs in this case regarding HFA’s and CTR’s alleged violations of FECA—plainly does not 

adequately represent their interests. The D.C. Circuit has emphasized that this last requirement for 

intervention is “not onerous,” and that a movant “ordinarily should be allowed to intervene unless 

it is clear that the party will provide adequate representation,” See Crossroads, 788 F.3d at 321 

(citing Fund For Animals, 322 F.3d at 735; United States v. Am. Tel. & Tel. Co., 642 F.2d 1285, 

1293 (D.C. Cir. 1980)). In addition, the D.C. Circuit has expressed general skepticism of 

government entities serving as adequate advocates for private parties, and particular skepticism of 

the FEC serving as an adequate advocate for an entity like HFA or CTR, which the agency could 

seek to regulate directly and immediately after the dismissal order is revoked. See id. (citing Fund 

For Animals, 322 F.3d at 736; Natural Res. Def. Council v. Costle, 561 F.2d 904, 912–13 (D.C.

Cir. 1977). In Crossroads, the D.C. Circuit held that the district court erred as a matter of law when 

it concluded that the FEC could adequately represent the proposed defendant-intervenor’s interests 

because its interests were generally aligned with the FEC in defending the legality of the dismissal 

order. See id. (“Crossroads should not need to rely on a doubtful friend to represent its interests, 

when it can represent itself.”).

The D.C. Circuit’s reasoning in Crossroads applies with equal force here; indeed, it is hard 

to imagine a clearer case of a “doubtful friend.” HFA and CTR should not be forced to rely upon 

the FEC to defend their interests in litigation where the Plaintiffs ask this Court to adopt the precise 

legal conclusions previously reached by the FEC’s Office of General Counsel: that there was 

“reason to believe” that HFA and CTR violated certain provisions of FECA. Indeed, the Court 

need look no further than the Complaint’s summary of the FEC OGC’s First Report, and the Report 

itself. Not only did the FEC OGC expressly disagree with HFA and CTR on the merits of the 

central legal issues in dispute in this case, see, e.g., Compl, ECF No. 1, ¶¶ 70-77, but also expressly 

disagreed with HFA’s and CTR’s interpretation of the FEC’s past enforcement actions and their 

application to the facts of this case, see Ex. 3, Attachment 1 to OGC First General Counsel’s Report 

(Factual and Legal Analysis - Correct the Record), at 15-16; Ex. 3, Attachment 2 to First General 

Counsel’s Report (Factual and Legal Analysis - Hillary for America), at 14-15, 18. For example, 

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HFA argued that when the FEC wrote the internet rules in 2006, it reached a well-reasoned 

judgment that online activities were fundamentally different that television, radio, direct-mail, and 

other media that are specifically regulated by the current coordination rules. HFA pointed out that 

that CLC’s administrative complaint is an attempt to reverse this judgment through the back door, 

through enforcement, rather than through rulemaking through notice and comment, which would 

provide the regulated community fair notice of the prohibitions they seek to impose. See Ex. 2, 

HFA Response to MUR 7146, at 7. But OGC rejected HFA’s view of the FEC’s power to reverse 

its prior rulemaking through enforcement, opining that certain costs incurred by CTR to engage in

online activities fall outside of the applicable regulation’s definition of online activities. See Ex. 3, 

Attachment 2 to First General Counsel’s Report (Factual and Legal Analysis - Hillary for 

America), at 18.

Further highlighting the divergence of interests between the FEC and HFA, the FEC 

OGC—over the objection of HFA—repeatedly and approvingly cited to unauthenticated

documents disseminated by Russian intelligence services in connection with its illegal hacking 

and theft of data from HFA and other entities affiliated with the Democratic Party. See, e.g., Ex. 

3, Attachment 2 to First General Counsel’s Report (Factual and Legal Analysis - Hillary for 

America), at 8-9. The FEC OGC’s demonstrated willingness to rely, at least in part, upon such 

purported evidence casts serious doubt upon whether it will now defend HFA’s ongoing interest

in preventing a hostile foreign intelligence service from accomplishing its goal of undermining

HFA through hacking and theft. 

As in Crossroads, these differences demonstrate the divergent interests of HFA and CTR 

on one hand, and the FEC on the other hand. See 788 F.3d at 321 (“It is apparent the Commission 

and Crossroads hold different interests, for they disagree about the extent of the Commission’s 

regulatory power, the scope of the administrative record, and post-judgment strategy.”).2 One need 

 2 The D.C. Circuit reached this conclusion in spite of the FEC’s argument that it had a 40-year 

history of zealously defending dismissal orders even when the Commissioners disregarded the 

advice of FEC counsel to investigate, and that the proposed defendant-intervenor had not 

identified any past representational deficiencies from such cases. Appellee Br., at 51-52, ECF 

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not question the professionalism and good faith of FEC counsel to have genuine concerns about 

how this case will be defended.

Finally, in the event that the FEC does not to defend this action at all, allowing 

intervention by HFA and CTR is essential to ensure basic due process of law. Indeed, there could 

be no clearer instance of a named defendant failing to provide adequate representation than an 

agency defendant electing not to appear or mount any defense of an agency action at all. Allowing 

HFA and CTR to intervene in this situation would not only enable HFA and CTR to defend their 

own interests, but would also ensure that the Court has the benefit of a full, adversarial presentation 

on the issues by parties with a concrete state in the outcome of the litigation.

2. In the Alternative, HFA and CTR Request Permission to Intervene

If the Court does not grant HFA’s and CTR’s motion to intervene as a matter of right, they

respectfully request that the Court exercise its discretion to allow them to intervene under Rule 

24(b). The Court has broad discretion to grant a motion for permissive intervention when the Court 

determines that (1) the intervenor’s claim or defense and the main action have a question of law 

or fact in common, and that (2) the intervention will not unduly delay or prejudice the adjudication 

of the original parties’ rights. See Fed. R. Civ. P. 24(b)(1)(B).

HFA and CTR easily meet the requirements for permissive intervention. First, HFA’s and 

CTR’s proposed defenses, set forth in the attached proposed Motion to Dismiss, have questions of 

law and fact in common with the original complaint. Second, for the reasons set forth above, the 

motion is timely and, given the early stage of this litigation, intervention will not unduly delay or 

prejudice the adjudication of the rights of the original parties.

CONCLUSION

For the reasons stated above, HFA and CTR respectfully request that the Court grant their

motion to intervene as a matter of right under Rule 24(a)(2) or, in the alternative, permit them to 

 

No. 1526606, Public Citizen et al v. Fed. Elec. Comm’n, No. 14-5199 (D.C. Cir. Dec. 10, 2014). 

The D.C. Circuit also reached this conclusion in spite of the FEC’s argument that judicial review 

of FEC dismissals is “extremely deferential” and concerns only the “limited question of the 

legality of an FEC dismissal decision.” See id. at 8, 48. 

Case 1:19-cv-02336-JEB Document 10 Filed 10/01/19 Page 17 of 20
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intervene under Rule 24(b). If granted permission to intervene under either provision, HFA and 

CTR have attached a proposed motion to dismiss for filing.

3

 3 The text of Rule 24(c) of the Federal Rules of Civil Procedure puts proposed defendantintervenors in an anomalous situation. Rule 24(c) requires that a proposed defendant-intervenor 

attach a proposed “pleading” to be attached to a motion to intervene. However, a motion to dismiss 

under Rule 12(b) is not among the “pleadings” set forth in Rule 7(a). As a result, even though a 

named defendant may file a motion to dismiss under rule 12(b) prior to serving one of the pleadings 

set forth in Rule 7(a), it is not clear from the text of the rule whether the same opportunity is 

available to a defendant-intervenor. However, courts have held that a proposed motion to dismiss 

satisfies Rule 24(c). See, e.g., Ctr. for Biological Diversity v. Jewell, No. 15-cv-00019, 2015 WL 

13037049, at *2 (D. Ariz. May 12, 2015) (“The Court finds that the stricken Motion to Dismiss 

would have complied with the substantive requirements of Rule 24(c); it puts the existing parties 

on sufficient notice of the State’s claim or defense, such that the procedural requirements of Rule 

24(c) would be met.”); New Century Bank v. Open Solutions, Inc., No. 10-6537, 2011 WL 

1666926, at *3 (E.D. Pa. May 2, 2011). In addition, the D.C. Circuit has held that “procedural 

defects in connection with intervention motions should generally be excused by a court.” 

Massachusetts v. Microsoft Corp., 373 F.3d 1199, 1236 (D.C. Cir. 2004) (citing McCarthy v. 

Kleindienst, 741 F.2d 1406, 1416 (D.C. Cir. 1984); see also Providence Baptist Church v. 

Hillandale Comm., Ltd., 425 F.3d 309, 314 (6th Cir. 2005) (surveying circuits’ approach to Rule 

24(c) and discussing D.C. Circuit’s “lenient” approach). Other members of this Court have 

routinely granted motions to intervene that attach motions to dismiss rather than answers. See, e.g.,

Order, ECF No. 33, Clean Water Action v. Pruitt, No. 1:17-cv-00817-DLF (D.D.C. Aug. 3, 2017); 

Minute Order, Macon-Bibb Cty. Econ. Opportunity Council, Inc. v. U.S. Dep’t of Health & Human 

Servs., No. 1:15-cv-01850-RBW (D.D.C. Nov. 13, 2015); Minute Order, Knapp Med. Ctr. v. 

Burwell, No. 1:15-cv-01663 (D.D.C. Mar. 8, 2016); Order, ECF No. 29, W. Org. of Res. Councils 

v. Jewell, No. 1:14-cv-01993-RBW (D.D.C. Feb. 26, 2015). In the event that the Court decides 

that HFA and CTR are nonetheless required to attach a proposed answer instead of a motion to 

dismiss in order to comply with Rule 24(c), HFA and CTR respectfully request: a) that the Court 

grant HFA and CTR leave to file a proposed answer, and b) that the Proposed Motion to Dismiss 

under Rule 12(b)(6) be construed and docketed as a Motion for Judgment on the Pleadings under

Rule 12(c).

Case 1:19-cv-02336-JEB Document 10 Filed 10/01/19 Page 18 of 20
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October 1, 2019 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

700 Thirteenth Street, N.W., Suite 600

Washington, D.C. 20005-3960

Telephone: 202.654.6200

Facsimile: 202.654.6211

Attorneys for Proposed Defendant-Intervenors

Case 1:19-cv-02336-JEB Document 10 Filed 10/01/19 Page 19 of 20
CERTIFICATE OF SERVICE

I hereby certify that on October 1, 2019, 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 600

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 10 Filed 10/01/19 Page 20 of 20