IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

GIFFORDS, 

 Plaintiff, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant. 

Civil Action No. 1:19-cv-1192 (EGS) 

REDACTED1

PLAINTIFF’S REDACTED CROSS-MOTION FOR SUMMARY JUDGMENT

 Pursuant to Federal Rule of Civil Procedure 56, Plaintiff hereby moves for summary 

judgment because the undisputed material facts reveal that Defendant’s failure to act on Plaintiff’s 

administrative complaints is contrary to law. See 52 U.S.C. § 30109(a)(8)(A). There are no 

material facts in genuine dispute and Plaintiff is entitled to judgment as a matter of law. A 

supporting memorandum of points and authorities, a statement of material facts not in genuine 

dispute, a counter-statement of facts as to which there is a genuine dispute, supporting exhibits, 

and a proposed order accompany this motion. 

 

 

1

 This Motion, the Memorandum of Points and Authorities in Support, and the accompanying 

exhibits contain information covered by the Protective Order in this case, Doc. 16, which Plaintiff 

has redacted, pursuant to this Court’s order, see Dec. 23, 2019 Minute Order. 

Case 1:19-cv-01192-EGS Document 50 Filed 01/08/20 Page 1 of 30
 

December 20, 2019 

J. ADAM SKAGGS* 

DAVID PUCINO* 

Giffords Law Center to 

Prevent Gun Violence 

223 West 38th St. #90 

New York, NY 10018 

(917) 680-3473 

askaggs@giffords.org 

dpucino@giffords.org 

* Admitted Pro Hac Vice 

Respectfully submitted, 

/s/ Adav Noti 

ADAV NOTI (DC Bar No. 490714) 

MARK P. GABER (DC Bar No. 988077) 

MOLLY E. DANAHY (DC Bar No. 

1643411) 

Campaign Legal Center Action 

1101 14th Street NW, Suite 400 

Washington, DC 20005 

(202) 736-2200 

anoti@campaignlegal.org 

mgaber@campainglegal.org 

mdanahy@campaignlegal.org 

Case 1:19-cv-01192-EGS Document 50 Filed 01/08/20 Page 2 of 30
 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

GIFFORDS, 

 Plaintiff, 

 v. 

FEDERAL ELECTION COMMISSION, 

 Defendant. 

Civil Action No. 1:19-cv-1192 (EGS) 

REDACTED 

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 

CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO 

DEFENDANT’S MOTION TO DISMISS OR IN THE ALTERNATIVE FOR SUMMARY 

JUDGMENT 

J. Adam Skaggs* 

David Pucino* 

GIFFORDS LAW CENTER TO 

PREVENT GUN VIOLENCE

223 West 38th St. #90 

New York, NY 10018 

(917) 680-3473 

askaggs@giffords.org 

dpucino@giffords.org 

*Admitted Pro Hac Vice

Adav Noti (DC Bar No. 490714) 

Mark P. Gaber (DC Bar No. 988077) 

Molly E. Danahy (DC Bar No. 1643411) 

CAMPAIGN LEGAL CENTER ACTION

1101 14th Street NW, Suite 400 

Washington, DC 20005 

(202) 736-2200 

anoti@campaignlegal.org 

mgaber@campaignlegal.org 

mdanahy@campaignlegal.org 

Counsel for Plaintiff 

Case 1:19-cv-01192-EGS Document 50 Filed 01/08/20 Page 3 of 30
 

i 

TABLE OF CONTENTS 

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

INDEX OF EXHIBITS .................................................................................................................. iv

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

FACTUAL AND PROCEDURAL HISTORY .............................................................................. 2

LEGAL STANDARDS .................................................................................................................. 5

I. Summary Judgment Standard .............................................................................................. 5

II. Contrary to Law Standard .................................................................................................... 6

ARGUMENT .................................................................................................................................. 7

I. The Commission Has Failed to Act Expeditiously To Determine Whether 

 FECA Was Violated. .......................................................................... 7

A. Plaintiff’s Administrative Complaints Are Credible. ................................................... 8

B. The Allegations that the NRA Made Millions of Dollars of Illegal, Unreported, 

Excessive In-Kind Contributions to Candidates for Federal Office Constitute a 

Substantial and Ongoing Threat. ............................................................................... 11

C. The Commission’s Failure 

 Is Not Excused by Resource Constraints, Competing 

Priorities, or Lack of Available Information. ............................................................ 12

D. The Underlying Complaints Do Not Raise Novel Issues. .......................................... 17

E. The Commission’s Delay Violates the “Rule of Reason,” and Runs Contrary to 

Congress’s Intent that the Commission Act Expeditiously. ...................................... 19

F. The Commission’s Delay Prejudices Plaintiff and Gives Rise to the Appearance 

of Impropriety. ........................................................................................................... 20

II. Congress Created a Private Right of Action to Address Delay in Cases Like This. ......... 21

CONCLUSION ............................................................................................................................. 22

Case 1:19-cv-01192-EGS Document 50 Filed 01/08/20 Page 4 of 30
 

ii 

TABLE OF AUTHORITIES 

Cases 

Alegent Health-Immanuel Med. Ctr. v. Sebelius, 917 F. Supp. 2d 1 (D.D.C. 2012) .........23 

Autor v. Pritzker, 740 F.3d 176 (D.C. Cir. 2014) ................................................................5 

Banneker Ventures, LLC v. Graham, 798 F.3d 1119 (D.C. Cir. 2015) ...............................5

Bowman v. Iddon, 848 F.3d 1034 (D.C. Cir. 2017) .............................................................5 

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ................................................................5, 6 

Citizens for Percy ’84 v. FEC, Civ. A No. 84-2653, 

1984 WL 6601 (D.D.C. 1984) ...........................................................8, 9, 11, 14, 16, 17 

Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001) ............................................................22

Common Cause v. FEC, 489 F. Supp. 738 (D.D.C. 1980) ............................................6, 18 

*DSCC v. FEC, No. CIV.A. 95-0349-JHG, 

1996 WL 34301203 (D.D.C. Apr. 17, 1996) ....................................................... passim 

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

In re Am. Rivers & Idaho Rivers United, 372 F. 3d 413 (D.C. Cir. 2004) ........................19 

Kessenich v. Commodity Futures Trading Comm’n, 684 F.2d 88 (D.C. Cir. 1982) .........20

McCutcheon v. FEC, 572 U.S. 185 (2014) ........................................................................12

Potomac Electric Power Co. v. I.C.C., 702 F.2d 1026 (D.C. Cir. 1983).............................8

Shays v. FEC, 424 F. Supp. 2d 100 (D.D.C. 2006) .........................................................5, 6 

*Telecommunications Research & Action Center v. F.C.C., 

750 F. 2d 70 (D.C. Cir. 1984) (“TRAC”) .............................................................6, 7, 22 

Statutes 

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

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

52 U.S.C. § 30107(a)(2) .......................................................................................................1 

52 U.S.C. § 30107(a)(3) .......................................................................................................1 

52 U.S.C. § 30107(a)(4) .......................................................................................................1 

52 U.S.C. § 30107(a)(5) .......................................................................................................1 

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

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

52 U.S.C. § 30109(a)(2) ...............................................................................................1, 4, 5 

52 U.S.C. § 30109(a)(3) .......................................................................................................1 

52 U.S.C. § 30109(a)(4) .......................................................................................................1 

Case 1:19-cv-01192-EGS Document 50 Filed 01/08/20 Page 5 of 30
 

iii 

52 U.S.C. § 30109(a)(4)(A)(i) .............................................................................................1 

52 U.S.C. § 30109(a)(6) .......................................................................................................2 

*52 U.S.C. § 30109(a)(8)(A) .........................................................................................2, 19 

52 U.S.C. § 30109(a)(8)(C) ...........................................................................................6, 21 

Rules Regulations 

Fed. R. Civ. P. 56(c) ............................................................................................................6 

11 C.F.R. § 111.9(a).............................................................................................................4 

11 C.F.R. § 111.10-14 ..........................................................................................................1 

Other Authorities 

FEC, Nat’l Rifle Ass’n Inst. for Legislative Action, 

https://www.fec.gov/data/committee/C90013301/ ......................................................11 

FEC, Press Release: Matthew Petersen to Depart Federal Election Commission, 

https://www.fec.gov/ 

updates/matthew-petersen-depart-federal-election-commission/ ..................................4 

Holtzman Vogel Josefiak Torchinsky PLLC, Former FEC Chairman Matt Petersen Joins 

Holtzman Vogel Josefiak Torchinsky, https://hvjt.law/news/former-fec-chairman-mattpetersen-joins-holtzman-vogel-josefiak-torchinsky/ .....................................................4 

MUR 7432 (John James for Senate), First General Counsel’s Report (Mar. 18, 2019), 

https://eqs.fec.gov/eqsdocsMUR/19044473374.pdf ....................................................18 

MUR 7167 (Blunt), First General Counsel’s Report (June 2, 2017), 

https://eqs.fec.gov/eqsdocsMUR/18044441527.pdf ....................................................18 

MUR 7124 (Katie McGinty for Senate), First General Counsel’s Report (Mar. 1, 2017), 

https://eqs.fec.gov/eqsdocsMUR/17044414289.pdf ....................................................18 

Case 1:19-cv-01192-EGS Document 50 Filed 01/08/20 Page 6 of 30
 

iv 

INDEX OF EXHIBITS 

Exhibit 1: Tillis, et al., Complaint 

Exhibit 2: Tillis, et al., Amended Complaint 

Exhibit 3: Rosendale Complaint 

Exhibit 4: Rosendale Complaint Supplement 

Exhibit 5: Hawley Complaint 

Exhibit 6: Trump Complaint 

Exhibit 7: Weintraub Statement 

Exhibit 8: Q3 2019 Statistics 

Exhibit 9: C. Kitcher Deposition Transcript Excerpts (30(b)(6) Representative) 

Exhibit 10: J. Peterson Deposition Transcript Excerpts

Case 1:19-cv-01192-EGS Document 50 Filed 01/08/20 Page 7 of 30
 

1 

INTRODUCTION 

 Almost 500 days ago, Plaintiff Giffords filed the first of four administrative complaints 

with the Federal Election Commission (“FEC” or “Commission”). Collectively, these complaints 

demonstrate with substantial evidence that the National Rifle Association (“NRA”) violated 

federal law by illegally coordinating expenditures with candidates for federal office, thereby 

making millions of dollars of illegal, unreported, and excessive in-kind contributions, including 

up to $25 million in illegal contributions to the campaign of now-President Donald J. Trump. 

There are four stages of enforcement under the Federal Election Campaign Act (“FECA”) 

for complaints such as those filed by Plaintiff. See 52 U.S.C. § 30109(a); FEC Br. at 3-5. In the 

first stage, after the respondents are notified and given an opportunity to present written arguments, 

the FEC’s Commissioners vote on whether the complaint provides reason to believe the law has 

been violated. 52 U.S.C. § 30109(a)(1)-(2). If at least four Commissioners vote to find that there 

is reason to believe a violation has occurred, the matter proceeds to the second stage of 

enforcement.2 52 U.S.C. § 30109(a)(2); see also FEC Br. at 4. 

In the second stage, the FEC investigates the claims, including through subpoenaed 

documents and testimony. 52 U.S.C. §§ 30106(c), 30107(a)(1)-(5), 30109(a)(2), 11 C.F.R. 

§ 111.10-14. Based on the evidence gathered and additional submissions from the respondents, the 

Commissioners vote to determine whether there is probable cause to believe a violation occurred. 

52 U.S.C. 30109(a)(3)-(4); see also FEC Br. at 4-5. If probable cause is found, the Commission 

proceeds to the third stage of enforcement, which is an attempt to conciliate the matter with the 

respondents. 52 U.S.C. 30109(a)(4)(A)(i); see also FEC Br. at 5. Finally, if the respondents are 

 

2

 Alternatively, the Commission may dismiss the case or determine there is no reason to believe a 

violation has occurred. See 52 U.S.C. § 30109(a)(1)-(2). 

Case 1:19-cv-01192-EGS Document 50 Filed 01/08/20 Page 8 of 30
 

2 

unwilling to conciliate, the Commission proceeds to the fourth stage of enforcement, which is to 

file a civil enforcement action in federal court. 52 U.S.C. § 30109(a)(6); see also FEC Br. at 5. 

 To ensure the FEC moves enforcement matters through these stages in a timely matter, 

Congress has provided that a complainant may seek relief from this Court if the FEC fails to act 

on a complaint within 120 days. 52 U.S.C. § 30109(a)(8)(A). Here, nearly 500 days have elapsed 

since Plaintiff filed its first administrative complaint, and the Commission has not

. The undisputed facts show that this delay is almost entirely 

attributable to . 

 to do so is contrary to law. 

FACTUAL AND PROCEDURAL HISTORY 

Between August 16 and December 7, 2018, Plaintiff Giffords filed with the FEC four 

administrative complaints. Exs. 1-6 (Administrative Complaints). These complaints demonstrate 

that the NRA violated FECA by unlawfully coordinating expenditures with candidates for federal 

office by using a common vendor for advertising, thereby making millions of dollars of illegal, 

unreported, and excessive in-kind contributions, including up to $25 million in illegal 

contributions to now-President Donald J. Trump. Id. On April 24, 2019, 130 days after the filing 

of the last administrative complaint, and over 250 days after joining the initial complaint, Giffords 

filed this action against the Commission for unreasonably delaying action on the complaints in 

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

. Kitcher Dep. 117:2-9. 

Case 1:19-cv-01192-EGS Document 50 Filed 01/08/20 Page 9 of 30
 

3 

.

3

Peterson Decl. MUR 7427 ¶ 39. 

. Peterson Dep. 96:17-97:2. 

.” Peterson Dep. 97:13-22. 

. Peterson Dep. 100:6-17. 

.” Peterson Dep. 101:9-102:2. . Kitcher 

Dep. 126:9-22. 

. Peterson 

Dep. 91:22-92:13. 

. Peterson Dep. 110:8-17. 

. Peterson Dep. 108:17. 

. Peterson Dep. 

 

3

 A FGCR analyzes the legal and factual underpinnings of the complaint and the respondents’ 

responses, and provides the enforcement division’s recommendations as to whether the 

Commission should find reason to believe a violation has occurred. FEC Br. at 11-12, 25; Peterson 

Dep. 58:6-16. Once an FGCR is circulated to the Commission, the Commissioners conduct an 

electronic “tally vote” to either approve the FGCR’s recommendations or to set them for 

consideration at a meeting of the Commissioners in executive session. Peterson Dep. at 67:24-

68:12. 

Case 1:19-cv-01192-EGS Document 50 Filed 01/08/20 Page 10 of 30
 

4 

113:10-114:5. 

. Peterson Dep. 113:10-114:5. 

. Peterson Dep. 114:9-11. 

.

4

 See Peterson Dep. at 116:17-117:25; Kitcher Dep. at 143:22-144:2. 

Commissioner Petersen announced in August that he was leaving the FEC at the 

end of that month, and in September it was announced that he had become a partner at the law firm 

Holtzman, Vogel, Josefiak, Torchinsky PLLC, 

. See FEC, Press Release: Matthew Petersen to Depart Federal Election 

Commission, https://www.fec.gov/updates/matthew-petersen-depart-federal-electioncommission/ (last visited Dec. 20, 2019); Holtzman Vogel Josefiak Torchinsky PLLC, Former 

FEC Chairman Matt Petersen Joins Holtzman Vogel Josefiak Torchinsky, 

https://hvjt.law/news/former-fec-chairman-matt-petersen-joins-holtzman-vogel-josefiaktorchinsky/ (last visited Dec. 20, 2019); see also, e.g., 

. 

By statute, many of the actions taken by the FEC require a vote of four of the 

commissioners. See, e.g., 52 U.S.C. § 30109(a)(2); 11 C.F.R. § 111.9(a). Without a quorum of four 

 

4

 The FEC did not disclose to this Court or to 

Plaintiff in any of its filings in this matter, 

. See Peterson Dep. at 116:17-117:25; Kitcher Dep. at 143:22-144:2. 

Case 1:19-cv-01192-EGS Document 50 Filed 01/08/20 Page 11 of 30
 

5 

Commissioners, almost no official business, including consideration of enforcement matters, can 

take place. See, e.g., 52 U.S.C. § 30109(a)(2) (requiring vote of four commissioners to find reason 

to believe violation of FECA has occurred); FEC, Directive 10, 

https://www.fec.gov/documents/41/directive_10.pdf (last visited Dec. 20, 2019) (requiring chair 

to call a recess in absence of quorum). Although the FEC still had a quorum of commissioners 

 until September 1, 

. Peterson Dep. 116:22-24; Kitcher Dep. 147:4-9. 

LEGAL STANDARDS 

I. Summary Judgment Standard5

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to 

any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex 

Corp. v. Catrett, 477 U.S. 317, 322 (1986). “In determining whether a genuine issue of material 

fact exists, the court must view all facts in the light most favorable to the non-moving party.” Shays 

v. FEC, 424 F. Supp. 2d 100, 109 (D.D.C. 2006). To establish a genuine issue of fact, the nonmoving party cannot rely on “mere unsupported allegations or denials” but must support its 

 

5

 Defendant also seeks to dismiss Plaintiff’s complaint pursuant to Rule 12(b)(6). To withstand a 

challenge under Rule 12(b)(6), “a complaint must set forth ‘factual content that allows the court 

to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Bowman 

v. Iddon, 848 F.3d 1034, 1039 (D.C. Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009)). The court must “accept[ ] as true all of the factual allegations contained in the complaint 

and draw[ ] all inferences in favor of the nonmoving party.” Autor v. Pritzker, 740 F.3d 176, 179 

(D.C. Cir. 2014) (quotation marks omitted). Moreover, “[a] complaint survives a motion to dismiss 

even ‘[i]f there are two alternative explanations, one advanced by [the] defendant and the other 

advanced by [the] plaintiff, both of which are plausible.’” Banneker Ventures, LLC v. Graham, 

798 F.3d 1119, 1129 (D.C. Cir. 2015) (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) 

(first bracket added)). 

Case 1:19-cv-01192-EGS Document 50 Filed 01/08/20 Page 12 of 30
 

6 

opposition by “affidavits or other competent evidence setting forth specific facts showing there is 

a genuine issue for trial.” Id. (citing Celotex, 477 U.S. at 324). “[O]n cross motions for summary 

judgment, the court shall grant summary judgment only if one of the moving parties is entitled to 

judgment as a matter of law upon material facts that are not genuinely disputed.” Id. (relying on 

Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir. 1975)). To meet its burden on summary judgment, 

each moving party must “inform[] the district court of the basis for its motion, and identify[] those 

parts of the [record] which it believes demonstrate the absence of a genuine issue of material fact.” 

Celotex, 477 U.S. at 317; see also Fed. R. Civ. P. 56(c). 

II. Contrary to Law Standard 

 Plaintiff is entitled to judgment as a matter of law where the undisputed facts show that the 

FEC has acted “contrary to law” by unreasonably delaying action on the underlying complaints. 

52 U.S.C. § 30109(a)(8)(c). While FECA “does not require that an [enforcement action] be 

completed within a specific time period,” DSCC v. FEC, No. Civ.A. 95-0349-JHG, 1996 WL 

34301203, at *1 (D.D.C. Apr. 17, 1996), it does impose “an obligation to investigate complaints 

expeditiously.” Id. at *4; see also Common Cause v. FEC, 489 F. Supp. 738, 744 (D.D.C. 1980) 

(“Where the issue before the Court is whether the agency’s failure to act is contrary to law, the 

Court must determine whether the Commission has acted ‘expeditiously.’”). 

 In determining whether the Commission has acted “expeditiously,” the court may look to 

“the credibility of the allegation, the nature of the threat posed, the resources available to the 

agency and the information available to it, as well as the novelty of the issues involved.” Common 

Cause, 489 F. Supp. at 744. In addition, the court may consider the factors outlined in Telecomm. 

Research & Action Ctr. v. FCC, 750 F. 2d 70, 80 (D.C. Cir. 1984) (“TRAC”): 

(1) the time agencies take to make decisions must be governed by a “rule of 

reason[;]” (2) where Congress has provided a timetable or other indication of the 

Case 1:19-cv-01192-EGS Document 50 Filed 01/08/20 Page 13 of 30
 

7 

speed with which it expects the agency to proceed in the enabling statute, that 

statutory scheme may supply content for this rule of reason; (3) delays that might 

be reasonable in the sphere of economic regulation are less tolerable when human 

health and welfare are at stake; (4) the court should consider the effect of expediting 

delayed action on agency activities of a higher or competing priority; (5) the court 

should also take into account the nature and extent of the interests prejudiced by 

delay; and (6) the court need not “find any impropriety lurking behind agency 

lassitude in order to hold that agency action is ‘unreasonably delayed.’” 

Although the Commission’s decision whether or not to investigate “is entitled to 

considerable deference, the failure to act in making such a determination is not.” DSCC, 1996 WL 

34301203, at *4. 

ARGUMENT 

I. The Commission Has Failed to Act Expeditiously To Determine Whether 

. 

 The Commission has failed to act expeditiously to determine whether 

 the National Rifle Association, its affiliates, the Trump campaign, and the respondent 

Senate campaigns violated FECA . “[T]he FEC’s obligation 

is to act reasonably in processing administrative complaints.” Id. Applying the Common Cause

and TRAC factors, the Commission has failed to do so here. The underlying complaints are 

credible; the conduct described therein poses a substantial threat that goes to the heart of FECA’s 

regulation of campaign finance activity; and the Commissioners 

. 

Nonetheless, although the underlying complaints in this matter have been pending for between 

twelve and sixteen months, the Commission has not yet 

. Further, the Commission has failed to take any 

meaningful action . Such “excessive delay saps the public 

Case 1:19-cv-01192-EGS Document 50 Filed 01/08/20 Page 14 of 30
 

8 

confidence in an agency’s ability to discharge its responsibilities.” Potomac Elec. Power Co. v. 

I.C.C., 702 F.2d 1026, 1034 (D.C. Cir. 1983), supplemented, 705 F.2d 1343 (D.C. Cir. 1983). 

A. Plaintiff’s Administrative Complaints Are Credible. 

 

 Plaintiff’s administrative complaints are supported by substantial evidence demonstrating 

the credibility of the alleged FECA violations. In Citizens for Percy ’84 v. FEC, Civ. A No. 84-

2653, 1984 WL 6601, at *4 (D.D.C. Nov. 19, 1984), the court found that the Commission had 

failed to act reasonably on allegations of excessive contributions made in the form of coordinated 

expenditures because it did not make a reason to believe determination until five months after the 

complaint was filed. Applying the Common Cause and TRAC factors, the court found that the 

underlying complaints were credible because they contained “specific documentation of the 

amounts spent and the purposes of the spending, along with specific evidence of the linkage 

between the [person making the coordinated expenditure] and the [candidate] campaign.” Citizens 

for Percy, at *3. So too here, where the evidence relied upon in Plaintiff’s complaint includes, 

inter alia, the Commission’s own records of the specific amounts of expenditures made by the 

NRA and its affiliates in support of the various candidates through the common vendor shell 

companies; publicly available information demonstrating the links between the shell companies 

used in the common vendor scheme, including records held by the states in which those companies 

are incorporated and do business; public statements by candidates and representatives of the 

common vendor; and records held by the Federal Communications Commission demonstrating the 

links between ad placements made by the common vendor shell companies on behalf of the NRA 

entities and the coordinated candidates, including evidence that the same individuals were placing 

ads on behalf of both entities. See Exs. 1-6 (Administrative Complaints). Nor has the Commission 

at any point “contended that the allegations [in the underlying matters] lack[] credibility.” DSCC, 

Case 1:19-cv-01192-EGS Document 50 Filed 01/08/20 Page 15 of 30
 

9 

1996 WL 34301203, at *5; see also Percy, 1984 WL 6601, at *3 (finding the allegations credible 

where “[t]he FEC makes no claim that the allegations were not believable”). 

 of Plaintiff’s administrative complaints further 

demonstrates their credibility. See, e.g., DSCC, 1996 WL 34301203, at *5 (finding the underlying 

allegations credible where 

). When the Commission receives an administrative complaint, it is evaluated by the 

enforcement division’s Complaints Examination and Legal Administration team, which 

 takes into account the priority of the matter 

, among other issues. Kitcher Dep. 26:21-27:25, 108:8-109:3; FEC Br. at 3.6 Here, 

. The 

FEC has refused to —asserting that the information 

is protected by the “law enforcement,” deliberative process, and attorney-client privileges, Kitcher 

Dep. 33:13-34:3—but has 

. 

Kitcher Dep. 122:23-123:22. 

Additional evidence also supports the fact that . 

The typical procedure is that after a complaint is filed and responses are received from the 

 

6

 Matters are evaluated under the agency’s Enforcement Priority System, and those determined to 

be of “relatively higher priority” are assigned to the Enforcement Division and are activated once 

all responses are received or the time to respond has elapsed. FEC Br. at 3 (citing FEC, Guidebook 

for Complainants and Respondents on the FEC Enforcement Process, 10-11 (May 2012), 

https://www.fec.gov/em/respondent_guide.pdf). An enforcement attorney is assigned, “as staff are 

available and in consideration of case priority,” to evaluate the complaint and to draft, in 

coordination with supervisors, the FGCR. Id. at 4 (citing FEC, Responses to Questions from the 

Committee on House Administration at 16, May 1, 2019), https://www.fec.gov/resources/cmscontent/docments/FEC_Response_to_House_Admin.pdf). 

Case 1:19-cv-01192-EGS Document 50 Filed 01/08/20 Page 16 of 30
 

10 

respondents, a matter is “activated and assigned . . . as staff are available and in consideration of 

case priority.” FEC Br. at 4; see also Peterson Dep. at 38:24-4 (“Typically a matter gets activated, 

meaning that the complaint and the response have been submitted and we’re not waiting on any 

additional information. At that point the matter proceeds with a staff attorney.”). But, “in some 

cases where it’s necessary to process matters more quickly, [the FEC] will commence work 

before” activation. Kitcher Dep. 61:21-62:12; id. at 60:3-8 (stating that it is customary to start 

drafting the FGCR before a response is received “[i]n a matter where we’re actively trying to get 

the case moving along as fast as we can”). Here, 

, Peterson Dep. 29:8-12, , 

Peterson Dep. 29:8-12. Once a case is activated, a “post-activation meeting” is held between the 

staff attorney and the second-level reviewer to discuss “the factual and legal issues of the case and 

the legal analysis,” after which the FGCR is drafted. Peterson Dep. 39:11-17. 

.

7

 Petersen Dep. 47:13-18. 

. Peterson Dep. 51:20-22. 

. Peterson Dep. 52:4-6. 

Further, 

. 

Kitcher Dep. at 20:19-24. Indeed, the evidence shows that the complaints 

 

7

 Matters are only “activated” once the FEC has received responses from the respondents named 

in the underlying matter. Peterson Dep. 38:24-39:4. Once a case is activated, a deadline is set for 

the circulation of the First General Counsel’s Report. Peterson Dep. 45:7-10. 

Case 1:19-cv-01192-EGS Document 50 Filed 01/08/20 Page 17 of 30
 

11 

. 

B. The Allegations that the NRA Made Millions of Dollars of Illegal, Unreported, 

Excessive In-Kind Contributions to Candidates for Federal Office Constitute 

a Substantial and Ongoing Threat. 

 The allegations contained in Plaintiff’s administrative complaint constitute a substantial 

and ongoing threat to the integrity of the election system. Illegal and excessive coordinated 

contributions threaten the fundamental fairness of American elections, particularly where there is 

a likelihood that the named entities will repeat their illegal conduct in subsequent elections—

something that is a particular risk with the NRA, given its longstanding major expenditures on 

political campaigns. See Percy, 1984 WL 6601, at *3 (finding that “the significance of the threat 

to the integrity of [an] election” posed by $300,000 in alleged illegal coordinated contributions 

reported as independent expenditures “should have been obvious,” particularly where there was a 

“likelihood” that the illegal activity would continue); DSCC, 1996 WL 34301203, at *5 (“The 

threat to the electoral system is highlighted not only by the amounts of money involved and the 

impact upon close elections, but by the serious threat of recurrence.”); see also FEC, Nat’l Rifle 

Ass’n Inst. for Legislative Action, https://www.fec.gov/data/committee/C90013301/ (last visited 

Dec. 20, 2019) (showing one NRA affiliate’s election spending of more than $50 million since 

2012). Not only did Plaintiff’s complaints demonstrate that the NRA entities had made up to $35 

million in excessive, illegal, and unreported campaign contributions to federal candidates, but they 

also demonstrated that the NRA entities continued to make such contributions even after 

. See, e.g., Ex. 3 (Rosendale 

Compl. ¶ 14-15) (documenting coordinated expenditures made by the NRA entities and Matt 

Case 1:19-cv-01192-EGS Document 50 Filed 01/08/20 Page 18 of 30
 

12 

Rosendale for Montana after ); FEC Statement of 

Material Facts (“SMF”) ¶ 22, 24, 27, 29-30 (

). 

Furthermore, the nature of the threat is substantial where, as here, the conduct alleged is 

contrary to one of the principal purposes of FECA. DSCC, 1996 WL 34301203, at *5 (finding that 

the underlying matter involved a substantial threat when it “involve[d] allegations that illegal 

contributions are being used to influence elections”). Enforcing contribution limits serves one of 

the principal purposes of FECA: limiting contributions to candidates as a means of preventing quid 

pro quo corruption or its appearance. See McCutcheon v. FEC, 572 U.S. 185, 192 (2014) (plurality 

op.). And Plaintiff’s administrative complaints demonstrate that the NRA entities have engaged in 

repeated and sustained violations of FECA’s contribution limits by coordinating massive 

expenditures through a common vendor scheme. Exs. 1-6 (Administrative Complaints). Nor, 

again, has the Commission at any time “contested the substantial nature of the threat.” DSCC, 1996 

WL 34301203, at *5. 

C. The Commission’s Failure 

 Is Not Excused by Resource Constraints, Competing 

Priorities, or Lack of Available Information. 

 The Commission’s failure 

 is not excused by resource constraints, competing priorities, or lack of available information. The

FEC correctly notes that it is “entitled to deference in the allocation of its resources to meet its 

statutory obligations.” FEC Br. at 18 (quoting DSCC, 1996 WL 34301203, at *5). But, “[w]hatever 

Case 1:19-cv-01192-EGS Document 50 Filed 01/08/20 Page 19 of 30
 

13 

deference an agency is due in resource allocation decisions, it is entitled to substantially less 

deference when it fails to take any meaningful action within a reasonable time period.” DSCC, 

1996 WL 34301203, at *5-*6 (declining to defer to the Commission’s prioritization of resources 

where it fails to take “meaningful action within a reasonable time 

period”). Here, notwithstanding 

 and the FEC’s statement to this Court that 

, FEC Br. at 12, 

 Kitcher Dep. 141:19-23.8 Indeed, 

. 

Kitcher Dep. 120:23-121:9, 125:2-12, 130:9-21, 141:19-23. 

Although , there is “no 

indication in the record, and the FEC has not so claimed, that a lack information” contributed to 

this delay. DSCC, 1996 WL 34301203, at *6. To the contrary, 

. Peterson Dep. 

73:6-74:8; 103:11-105:24; 107:11-14. While the Commission is obligated to wait for responses 

from the named parties to a complaint before making a reason to believe determination, 

, FEC SMF ¶ 80, and 

 

8

 Although

. Peterson Dep. 96:17-97:2, 100:6-17, 110:8-17, 113:10-114:5, 

117:11-19. 

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14 

. Furthermore, as discussed supra, the 

underlying complaints contained evidence sufficient to establish the credibility of the allegations, 

including substantial evidence that “could be verified from the FEC’s own records.” Percy, 1984 

WL 6601, at *4. 

 Not only has the FEC not explained why it 

. 

. Kitcher Dep. 

131:15-22. 

 Peterson 

Dep. 91:22-25, Kitcher 

Dep. 135:17-18. The witnesses 

. Kitcher Dep. 

134:24-150:22.9 Although the FEC was willing to disclose that 

. Peterson Dep. 93:16-94:5. The FEC’s

 

9 The FEC also refused to provide any information about “

” and when asked to confirm that it was “the FEC’s view that the 

privilege extends to ” 

responded “yes.” Kitcher Dep. 118:9-24.

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15 

counsel instructed the witness not to answer the question “

 Peterson Dep. 93:11-14. 

Notably, the FEC refused to disclose whether 

. See Kitcher 

Dep. 145:14-146:9 (FEC’s counsel instructing witness not to answer whether 

”). Ultimately, 

. Peterson Dep. 108:17, 110:8-17, 113:10-114:5, 114:9-11. 

The Commission’s delay in these matters 

contrasts significantly with other delay cases. The complaint in FEC v. Rose raised “novel and 

complex issues,” yet the Commission was able to 

. 806 F. 2d 1081, 1082, 1091 (D.C. Cir. 1986). In DSCC, the 

Commission delayed nearly two years in assigning the matter to an enforcement attorney, but again 

was able . 

1996 WL 34301203, at *2. Similarly, in Percy, although the court found an unreasonable delay 

when the Commission failed until five months after 

Case 1:19-cv-01192-EGS Document 50 Filed 01/08/20 Page 22 of 30
 

16 

the complaint was filed, the Commission yet again was able to 

. 1984 WL 6601, at *1. 

 Moreover, the FEC’s contention that the January 2019 government shutdown excuses its 

delay in these matters is a red herring. 

 Kitcher Dep. 47:3-6, and 

. Peterson Dep. 47:13-18. Certainly, the 

shutdown had no effect on 

.

10 

Likewise, the FEC’s citation to its generally heavy workload as a justification for delay is 

belied by the evidence. Chair Weintraub has publicly stated that 

[b]efore losing the quorum on September 1, the Commission was making progress 

to reduce its significant enforcement backlog (even despite the government 

shutdown that disabled the FEC for most of January). The year [2019] began with 

344 matters on the enforcement docket, with 101 of those matters awaiting a 

decision requiring the participation of at least four Commissioners. By the time the 

quorum was lost in September, the backlog of cases pending before the 

Commission for a vote had been reduced from 101 to 63 matters. We resolved 

approximately 200 of the original 344 matters in the first eight months of the year. 

Kitcher Dep. Ex. 9. The FEC confirmed that the sentiment and numbers in Chair Weintraub’s 

statement seemed correct. Kitcher Dep. 105:5-106:21.11

 

10 Only one or two executive sessions would have been held by the commissioners in January but 

for the shutdown, Kitcher Dep. 58:21-59:3, and following the shutdown “the executive sessions 

were perhaps longer than they otherwise would have been” and “at least one session was added,” 

56:17-21. 

11 In addition, the cited workload statistics demonstrate that the FEC’s contention that its delay is 

justified by its heavy enforcement docket is overstated. The statistics reflect that about a third of 

the number of cases that are opened each year are “Dismissed Via

. Kitcher Dep. 107:7-109:3. Moreover, most matters do not 

make it very far through the statutory enforcement process. Only three matters have reached the 

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17 

Finally, unlike in TRAC, the Commission has not “assured [the Court] that it is moving 

expeditiously” such that there is no need to determine whether it has unreasonably delayed. 750 

F.2d 70, 80 (D.C. Cir. 1984); see also DSCC, 1996 WL 34301203, at *9 (declining to order the 

Commission to act within a specific time frame, despite finding that its delay in acting was contrary 

to law, because the Commission had acted expeditiously to advance the matter after the delay suit 

was filed). Instead, the Commission declined to disclose to this court that 

. Nor can the Commission 

now make such assurances, because Commissioner Petersen’s departure from the FEC 

 has deprived it of a 

quorum—a state of affairs that looks to remain unchanged for at least the near future. Thus, the 

Commission’s failure to take meaningful action will 

continue indefinitely, vastly exceeding the 120 days contemplated by section 30109(a)(8). 

D. The Underlying Complaints Do Not Raise Novel Issues. 

 Although the underlying complaints involve lengthy and detailed factual allegations 

regarding the nature of the common vendor scheme employed by the NRA and its affiliates, 

allegations about coordinated expenditures are not novel. See Percy, 1984 WL 6601, at *1 (finding 

that such allegations “appear to be the basis for much of the agency’s workload”). The court in 

Percy, a case involving allegations of coordinated expenditures that was decided in 1984, explicitly 

 

“probable cause” phase since 2013, and the number of closed investigations each year frequently 

is just a handful, and never higher than twelve since 2013. Only seventeen investigations have 

been commenced in 2019. Ex. 8 (2019 Q3 Statistics). And although the FEC’s briefing implied 

that its inaction was connected to a budget proposal that included a decrease in staff, the FEC 

acknowledged at its 30(b)(6) deposition that those positions were already vacant and merely will 

not be backfilled, and “indeed [the FEC] added several enforcement attorneys recently.” Kitcher 

Dep. 64:22-65:4, 65:11-12, 66:17-19. Certainly, the FEC’s claim that it is busy is not a basis to 

dismiss the suit under Rule 12(b)(6), as the FEC contends. FEC Br. at 20. 

Case 1:19-cv-01192-EGS Document 50 Filed 01/08/20 Page 24 of 30
 

18 

found that although such allegations “involve[e] analysis of a number of factors, [they] are not 

novel.” Id. at *4.The Commission cannot credibly argue that an activity for which regulations date 

back to 1977 constitutes a “novel” issue, see id. at *1, and indeed concedes that the underlying 

complaints raise “issues common to many FEC matters.” FEC Br. at 18. The FEC’s enforcement 

docket is replete with matters raising the same legal issues as plaintiff’s complaints. See, e.g.,

MUR 7432 (John James for Senate), First General Counsel’s Report (Mar. 18, 2019), 

https://eqs.fec.gov/eqsdocsMUR/19044473374.pdf (examining allegations of coordinated 

advertising activity between Senate campaign and outside entity); MUR 7167 (Blunt), First 

General Counsel’s Report (June 2, 2017), https://eqs.fec.gov/eqsdocsMUR/18044441527.pdf 

(same); MUR 7124 (Katie McGinty for Senate), First General Counsel’s Report (Mar. 1, 2017), 

https://eqs.fec.gov/eqsdocsMUR/17044414289.pdf (same). 

In any event, the fact that a matter may involve a “lengthy and detailed investigation” 

, “while relevant to determining whether an 

investigation has been conducted in a reasonable time frame,” is not relevant to the Commission’s 

failure 

. DSCC, 1996 WL 34301203, at *6; see also Kitcher Dep. 99:6-16 

. That is, the FEC cannot rely upon the fact that an investigation

might be expansive in order to justify a refusal to .

12

 

12 The novelty or complexity of the underlying issues also is not grounds to dismiss the case under 

Rule 12(b)(6), but rather one factor to be balanced in determining whether the Commission’s delay 

has been unreasonable. See Common Cause, 489 F. Supp. at 744.

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19 

E. The Commission’s Delay Violates the “Rule of Reason,” and Runs Contrary 

to Congress’s Intent that the Commission Act Expeditiously. 

 The Commission’s delay is unreasonable. Although “Congress did not impose specific 

time constraints upon the Commission to complete final action, . . . it did expect that the 

Commission would fulfill its statutory obligations so that [FECA] would not become a dead letter.” 

DSCC, 1996 WL 34301203, at *7. Thus, although courts have declined to find that the 

Commission must act on a complaint within 120 days or within an election cycle, see FEC v. Rose, 

806 F.2d 1081, 1092 (D.C. Cir. 1986), this “is not the equivalent of unfettered FEC discretion to 

determine its own timeline.” DSCC, 1996 WL 34301203, at *8.13 This is because “the deterrent 

value of the Act’s enforcement provisions are substantially undermined, if not completely 

eviscerated, by the FEC’s failure to process administrative complaints in a meaningful timeframe.” 

Id.; see also In re Am. Rivers & Idaho Rivers United, 372 F.3d 413, 418 (D.C. Cir. 2004) (finding 

that an agency’s unreasonable delay “signals the breakdown of regulatory processes”) (internal 

quotation marks omitted). failure to take any action on the underlying 

complaints has triggered just such a 

regulatory breakdown. See infra Part I.F & II. 

 

13 The FEC contends that this case must be dismissed under Rule 12(b)(6) because the 120-day 

period is a jurisdictional floor, and not a requirement that the agency actually complete its work in 

that timeframe. In support of this argument, the FEC correctly notes that courts have found longer 

periods of delay to be reasonable under the factual circumstances of other cases. FEC Br. at 15-

16. As the FEC acknowledges, however, determining whether delay is reasonable requires courts 

to apply two fact-intensive balancing tests with a combined ten factors. See id. at 13-14 (citing 

Common Cause and TRAC). The fact that a delay suit under § 30109(a)(8)(A) can lose on the 

merits if filed more than 120 days after the administrative complaint does not remotely suggest 

that all such suits must fail as a matter of law. Were the FEC correct, the statute would be rendered 

meaningless. Nor is Plaintiff contending that the FEC must complete its work in 120 days. 

Case 1:19-cv-01192-EGS Document 50 Filed 01/08/20 Page 26 of 30
 

20 

F. The Commission’s Delay Prejudices Plaintiff and Gives Rise to the 

Appearance of Impropriety. 

 Not only does the Commission’s failure, in the face of substantial credible evidence, 

 undermine public confidence in our elections, it also 

encourages bad actors to continue to violate campaign finance laws. See supra Part I.B. 

(demonstrating that the NRA continued to engage in the same alleged violations even after 

); see also DSCC, 1996 WL 34301203, at *8 (“[T]hreats to the 

health of our electoral processes . . . require timely attention [and] should not be encouraged by 

FEC lethargy . . . .”). As such, Plaintiff Giffords, which faces yet another election cycle in which 

it must compete politically with the NRA, will be “harmed where it plays by the rules and the other 

side does not.” DSCC, 1996 WL 34301203, at *8. 

 Furthermore, whether or not there is any actual impropriety in the Commission’s delay, the 

particular circumstances of this case reasonably give rise to at least the appearance of impropriety, 

further undermining the credibility of our campaign finance enforcement system. See Kessenich v. 

Commodity Futures Trading Comm’n, 684 F.2d 88, 97 (D.C. Cir. 1982) (explaining that the 

appearance of impropriety can pose a “concrete danger” to the perceived integrity of an agency 

and the court).14 Despite 

. Peterson Dep. 

97:13-22, 101:9-102:2, 110:8-17, 113:10-114:5. This delay persisted until Commissioner Petersen 

 

14 In Kessenich, the D.C. Circuit granted a motion to disqualify an administrative respondent’s 

counsel on appeal of an agency decision. The Court found that despite there being little evidence 

that respondent’s counsel had obtained actual advantage due to his previous role as an agency 

employee handling the administrative complaint in question, disqualification was warranted due 

to the appearance of impropriety. 684 F.2d at 99. 

Case 1:19-cv-01192-EGS Document 50 Filed 01/08/20 Page 27 of 30
 

21 

deprived the Commission of a quorum to act 

. Peterson Dep. at 116:17-117:25; Kitcher Dep. at 143:22-144:2. In light of 

the “significant potential harms from a credible threat to close electoral contests” by continued 

violations by the NRA and its affiliates, DSCC, 1996 WL 34301203, at *8, and from the threat to 

public faith in the Commission of even the appearance of impropriety, this Court should find the 

Commission’s failure to act unreasonable, and therefore contrary to law. 

II. Congress Created a Private Right of Action to Address Delay in Cases Like This. 

The Commission now lacks a quorum, with no sign that the President— 

—and Senate will act 

anytime soon to fill the vacancies. Congress created a private right of action to ensure speedy 

resolution of FEC enforcement matters to remedy situations in which the FEC is unwilling or 

unable to act. Under FECA, 

[i]n any proceeding under this paragraph the court may declare that . . . 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. 

52 U.S.C. § 30109(a)(8)(C). The Commission’s failure to while it 

still had a quorum was unreasonable and contrary to law as explained 

above. That failure has been compounded by 

 the lack of a quorum. And there 

is no sign a quorum will be achieved any time in the near future—a committee hearing on a 

nomination has not even occurred. The only way the serious allegations set forth in the 

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22 

administrative complaints will be investigated and adjudicated in any reasonable 

period of time is by this Court triggering FECA’s private right of action. If this Court concludes 

that the Commission’s failure to act has been unlawful, the Commission will be required to take 

action within 30 days. If the President and Senate use that opportunity to advance nominations to 

fill the vacant Commission positions, the Commission will have a quorum to determine whether 

to conform with this Court’s order. If not, the lack of quorum will remain, the FEC will fail to 

conform with this Court’s order, and Plaintiff will be authorized to file suit to enforce its 

administrative complaints. Notably, that outcome would ease the Commission’s enforcement 

burden, and would avoid any concern about “the effect of expediting delayed action on agency 

activities of a higher or competing priority.” TRAC, 750 F.2d at 80. If Plaintiff brings a civil action 

against the administrative respondents, the FEC can focus on other matters when and if it regains 

a quorum. 

 When Congress created a private right of action for cases of unreasonable delay, it sought 

to ensure that FEC dysfunction would not spell the end of enforcement of campaign finance laws. 

Whether that dysfunction happens because of agency neglect, improper partisan political 

influence, or the refusal of the President and Senate to ensure that the Commission has the quorum 

necessary to act, FECA’s private right of action serves to ensure that our campaigns do not become 

a law-free zone. 

CONCLUSION 

 For the foregoing reasons, Plaintiffs’ motion for summary judgment should be granted, and 

the FEC’s motion to dismiss or in the alternative for summary judgment should be denied.15

 

15 Plaintiff respectfully requests that the Court retain jurisdiction over this matter until Defendant 

takes final agency action with respect to Plaintiff’s administrative complaints. Cobell v. Norton, 

240 F.3d 1081, 1109 (D.C. Cir. 2001) (noting district court’s discretion to “retain jurisdiction until 

Case 1:19-cv-01192-EGS Document 50 Filed 01/08/20 Page 29 of 30
 

23 

Dated: December 20, 2019 Respectfully submitted, 

J. ADAM SKAGGS* 

DAVID PUCINO* 

Giffords Law Center to 

Prevent Gun Violence 

223 West 38th St. #90 

New York, NY 10018 

(917) 680-3473 

askaggs@giffords.org 

dpucino@giffords.org 

*Admitted Pro Hac Vice

/s/ Adav Noti 

ADAV NOTI (DC Bar No. 490714) 

MARK P. GABER (DC Bar No. 988077) 

MOLLY E. DANAHY (DC Bar No. 1643411) 

Campaign Legal Center Action 

1101 14th Street NW, Suite 400 

Washington, DC 20005 

(202) 736-2200 

anoti@campaignlegal.org 

mgaber@campaignlegal.org 

mdanahy@campaignlegal.org 

Counsel for Plaintiff 

 

 

a federal agency has complied with its legal obligations” and to “compel regular progress reports 

in the meantime”); Alegent Health-Immanuel Med. Ctr. v. Sebelius, 917 F. Supp. 2d 1, 3 (D.D.C. 

2012) (noting that court may retain jurisdiction in “cases alleging unreasonable delay of agency 

action”).

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