IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

FREE SPEECH FOR PEOPLE, 

 Plaintiff, 

v. 

 

FEDERAL ELECTION COMMISSION, 

Defendant. 

Civil Action No. 19-1722 (APM) 

Oral Argument Requested 

MEMORANDUM IN OPPOSITION TO DEFENDANT FEDERAL ELECTION 

COMMISSION’S MOTION TO DISMISS 

COHEN MILSTEIN SELLERS & TOLL 

 PLLC 

S. Douglas Bunch (D.D.C. Bar #974054) 

1100 New York Avenue, N.W., 5th Floor 

Washington, D.C. 20005 

Tel.: (202) 408-4600 

dbunch@cohenmilstein.com 

Jessica (Ji Eun) Kim (pro hac vice pending) 

88 Pine St., 14th Floor 

New York, NY 10005 

Tel.: (212) 838-7797 

jekim@cohenmilstein.com 

FREE SPEECH FOR PEOPLE 

Ronald A. Fein (D.D.C. Bar #MA0012) 

John C. Bonifaz 

Ben T. Clements

1320 Centre St. #405 

Newton, MA 02459 

Tel.: (617) 244-0234 

rfein@freespeechforpeople.org 

jbonifaz@freespeechforpeople.org 

bclements@freespeechforpeople.org 

Attorneys for Plaintiff 

September 27, 2019 

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TABLE OF CONTENTS 

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

STATEMENT OF FACTS .............................................................................................................. 2

STANDARD OF REVIEW ............................................................................................................ 4

ARGUMENT .................................................................................................................................. 6

I. FSFP Has Article III Standing ............................................................................................ 6

A. FSFP Has Suffered an Informational Injury ............................................................... 6

B. Nonprofits Such As FSFP Can Assert Informational Injuries. .................................. 12

C. There Is No Reason to Doubt FSFP’s Need for Seeking This Information .............. 14

CONCLUSION ............................................................................................................................. 15

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TABLE OF AUTHORITIES 

Page(s) 

CASES

Alliance for Democracy v. FEC, 

335 F. Supp. 2d 39 (2004) ....................................................................... 7, 10, 11, 12 

Am. Soc. for the Prevention of Cruelty to Animals v. Feld Entm’t, Inc., 

659 F.3d 13 (D.C. Cir. 2011) .................................................................................. 10 

Ashcroft v. Iqbal, 

556 U.S. 662 (2009) .............................................................................................. 5, 6 

Campaign Legal Ctr. v. FEC, 

245 F. Supp. 3d 119 (D.D.C. 2017) ................................................................. passim

Citizens for Responsibility & Ethics in Wash. v. FEC, 

243 F. Supp. 3d 91, 97 (D.C. Cir. 2017) .............................................................. 4, 5 

Citizens for Responsibility & Ethics in Wash. v. FEC, 

316 F. Supp. 3d 349 (D.D.C. 2018) .......................................................................... 7 

Citizens for Responsibility & Ethics in Wash. v. FEC, 

401 F. Supp. 2d 115 (D.D.C. 2005) .......................................................................... 5 

Common Cause v. FEC, 

108 F.3d 413 (1997) .......................................................................................... 10, 11 

Ethyl Corp v. EPA, 

306 F.3d 1144 (D.C. Cir. 2002) .............................................................................. 13 

FEC v. Akins, 

524 U.S. 11 (1998) ........................................................................................... passim

Friends of Animals v. Jewell, 

824 F.3d 1033 (D.C. Cir. 2016) ................................................................................ 7 

Havens Realty Corp. v. Coleman, 

455 U.S. 363 (1982) ................................................................................................ 10 

Judicial Watch, Inc. v. FEC, 

293 F. Supp. 2d 41 (2003) ................................................................................. 10, 11 

Case 1:19-cv-01722-APM Document 10 Filed 09/27/19 Page 3 of 20
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Kean for Cong. Comm. v. FEC, 

398 F. Supp. 2d 26 (2005) ....................................................................... 5, 10, 13, 15 

Lujan v. Defenders of Wildlife, 

504 U.S. 555 (1992) .................................................................................... 4, 5, 6, 12 

Parker v. D.C., 

478 F.3d 370 (D.C. Cir. 2007) .................................................................................. 6 

Public Citizen v. Department of Justice, 

491 U.S. 440 (1989) ................................................................................................ 10 

Shays v. FEC, 

528 F.3d 914 (D.C. Cir. 2008) .................................................................................. 7 

Spokeo Inc. v. Robins, 

136 S. Ct. 1540 (2016) ........................................................................................ 5, 12 

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 

551 U.S. 308 (2007) .................................................................................................. 5 

Wood v. Moss, 

572 U.S. 744 (2014) .................................................................................................. 5 

STATUTES

5 U.S.C. §§ 702-3 ............................................................................................................ 3 

52 U.S.C. § 30109(a)(8)(A) ......................................................................................... 2, 3 

Administrative Procedure Act ....................................................................................... 3 

Federal Election Campaign Act ........................................................................... passim

OTHER AUTHORITIES

Federal Rule of Civil Procedure 12(b)(1) ...................................................................... 4 

Federal Rule of Civil Procedure 12(b)(6) ...................................................................... 5 

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INTRODUCTION 

This case arises from an illicit campaign finance transaction involving at least 

two, and possibly four, private parties not before the Court. 

In 2018, plaintiff Free Speech For People (“FSFP”) filed an administrative 

complaint requesting a Federal Election Commission (“FEC”) investigation into 

allegations that American Media, Inc. (“AMI”), Donald J. Trump for President, Inc. 

(“Trump Campaign”), Donald J. Trump, and Michael Cohen (collectively, 

“Respondents”), had made and/or facilitated “hush money” payments to Karen 

McDougal (Trump’s former mistress) for the purpose of influencing the 2016 election, 

thus violating the Federal Election Campaign Act (“FECA”). As of this date, the FEC 

has not conducted an investigation, and open factual questions remain about the 

transaction. Among those open questions are the involvement of Trump himself and 

the Trump Campaign, both of which have explicitly denied any involvement. 

FSFP seeks an FEC investigation to determine, among other open questions, 

whether (and how) Trump and/or the Trump Campaign were involved in the 

unlawful transaction. In other words, FSFP is seeking information that 

Respondents were required to disclose to the FEC concerning the substance of their 

financial dealings. It is the responsibility of the FEC to respond to FSFP’s 

administrative complaint alleging that FSFP has been denied access to complete and 

accurate information concerning alleged campaign expenditures. 

Because the FEC has failed to act on the administrative complaint within the 

120-day statutory period (in fact, over a year has passed), FSFP was entitled to file 

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this action declaring that delay unlawful. 52 U.S.C. § 30109(a)(8)(A). FSFP has 

suffered a concrete informational injury because the FEC’s unlawful delay has 

deprived FSFP of information (in particular, whether and how Trump and/or the 

Trump Campaign were involved) that FSFP needs for its programmatic activities and 

to which it is statutorily entitled. 

The FEC’s motion to dismiss mischaracterizes FSFP’s interest as a desire to 

“get the bad guys.” Defendant Federal Election Commission’s Motion to Dismiss, ECF 

No. 7 (“FEC MTD”), at 7. To the contrary, FSFP’s interest is to obtain information 

regarding the nature of the payment, including in particular whether two parties—

Trump and the Trump Campaign—were involved in making an unlawful payment 

(as some information appears to suggest) or not (as they insist). Unfortunately, the 

FEC’s year-long delay has deprived FSFP of this information. This is a classic 

informational injury for Article III standing purposes, and the FEC’s motion to 

dismiss should be denied. 

STATEMENT OF FACTS 

Plaintiff FSFP filed an administrative complaint with the FEC on February 

16, 2018 against Respondents AMI and the Trump Campaign, and subsequently filed 

amendments to the administrative complaint on April 26, 2018 and July 26, 2018 

respectively, alleging additional facts and naming Cohen and Trump as individual 

Respondents (collectively, the “Amended Administrative Complaint”). See Complaint 

for Declaratory and Injunctive Relief, ECF No. 1 (the “Complaint”), ¶¶ 14, 16, 18. The 

Amended Administrative Complaint alleged that, for the purposes of influencing the 

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2016 elections, (i) AMI paid Ms. McDougal $150,000 for the rights to her life story, 

including an account of her alleged affair with Mr. Trump; (ii) Mr. Cohen, as an agent 

for the Trump Campaign, facilitated these negotiations between AMI and Ms. 

McDougal; and (iii) Mr. Trump, on behalf of the Trump Campaign, instructed Mr. 

Cohen to facilitate these negotiations between AMI and Ms. McDougal. Id. ¶ 15. 

Thus, the Amended Administrative Complaint requested that the FEC investigate 

six separate potential violations of FECA by four separate respondents. 

FSFP received letters from the FEC acknowledging receipt of the original 

administrative complaint and the two amendments on March 1, 2018, May 1, 2018, 

and August 9, 2018, respectively. Compl. ¶¶ 17, 19. In the first letter, the FEC 

designated the administrative complaint as matter under review (“MUR”) 7332. To 

date, the FEC has failed to take final action on the Amended Administrative 

Complaint. 

On June 13, 2019, FSFP filed this action under 52 U.S.C. § 30109(a)(8)(A),1

which provides: “Any party aggrieved by an order of the Commission dismissing a 

complaint filed by such party . . . or by a failure of the Commission to act on such 

 

1 The Complaint alleges a single cause of action, citing 52 U.S.C. § 30109(a)(8)(A), and entitled 

“FECA—Failure to Act, 52 U.S.C. § 30109(a)(8)(A).” Compl. ¶¶ 26-29. The FEC’s motion to dismiss, 

however, devotes four pages to seeking dismissal of a phantom second claim under the Administrative 

Procedure Act that FSFP never alleged. See FEC MTD at 22-25. The apparent basis for the FEC’s 

misunderstanding is that FSFP alleged subject matter jurisdiction and venue under 5 U.S.C. §§ 702-

03 in the alternative. Compl. ¶¶ 4-5. To the extent that the FEC concedes, and this Court concludes, 

that 52 U.S.C. § 30109(a)(8)(A) confers subject matter jurisdiction over FSFP’s Section 30109 claim, it 

is unnecessary for the Court to reach the issue of whether 5 U.S.C. § 702 also confers subject matter 

jurisdiction over FSFP’s Section 30109 claim. 

Case 1:19-cv-01722-APM Document 10 Filed 09/27/19 Page 7 of 20
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complaint during the 120-day period beginning on the date the complaint is filed, may 

file a petition with the United States District Court for the District of Columbia.” 

 In the Complaint, FSFP challenged the FEC’s failure to take action on its 

Amended Administrative Complaint, noting that “FSFP still lacks essential 

information about the financing of the 2016 election as a result of the FEC’s failure 

to act.” Compl. ¶ 22. For example, FSFP acknowledged that “many facts suggest that 

Mr. Cohen acted as an agent of the Trump Campaign and in consultation with Mr. 

Trump himself in facilitating the payment from AMI to Ms. McDougal,” but noted 

that, on the other hand, “spokespeople and counsel for the Trump Campaign and Mr. 

Trump have repeatedly denied contemporaneous knowledge of, or involvement with, 

that payment.” Id. Consequently, FSFP alleged that “[a]n FEC investigation and 

determination of Mr. Trump and the Trump Campaign’s role in AMI’s payment . . . 

is essential to clarifying the nature of Mr. Trump’s and/or the Trump Campaign’s 

involvement.” Id. ¶ 24. 

STANDARD OF REVIEW 

In evaluating a defendant’s motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(1), the Court must find that the plaintiff has “establish[ed] the 

[C]ourt’s jurisdiction over the subject matter [at issue] by a preponderance of the 

evidence.” Citizens for Responsibility & Ethics in Wash. v. FEC, 243 F. Supp. 3d 91, 

97 (D.C. Cir. 2017) (“CREW I”) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 

561 (1992)). “The [C]ourt must accept as true all uncontroverted material factual 

allegations contained in the complaint and construe the complaint liberally, granting 

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plaintiff the benefit of all inferences that can be derived from the facts alleged and 

upon such facts determine jurisdictional questions.” CREW I at 97 (citation omitted). 

The Court may consider materials outside the pleadings in order to determine 

subject-matter jurisdiction. Kean for Cong. Comm. v. FEC, 398 F. Supp. 2d 26, 31 

(D.D.C. 2005). 

In evaluating a defendant’s motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(6), the Court must find that the “complaint . . . contain[s] sufficient 

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 

Wood v. Moss, 572 U.S. 744, 757-58 (2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 

678 (2009)). “In considering a motion to dismiss for failure to plead a claim on which 

relief can be granted, the [C]ourt must consider the complaint in its entirety, 

accepting all factual allegations in the complaint as true, ‘even if doubtful in fact.’” 

CREW I at 98 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) 

(remaining citations omitted)). The Court may examine other sources “when ruling 

on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the 

complaint by reference, and matters of which a court may take judicial notice.” 

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). 

To establish Article III standing, a plaintiff must have “(1) suffered an injury 

in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) 

that is likely to be redressed by a favorable judicial decision.” Campaign Legal Ctr. v. 

FEC, 245 F. Supp. 3d 119, 123 (D.D.C. 2017) (“CLC”) (citing Spokeo Inc. v. Robins, 

136 S. Ct. 1540 (2016); Lujan, 504 U.S. at 560-61). On a motion to dismiss, a plaintiff 

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only needs to “’state[ ] a plausible claim’ that each element of standing is satisfied.” 

Ashcroft, 556 U.S. at 678-79. In determining standing, “the court must be careful not 

to decide the questions on the merits for or against the plaintiff, and must therefore 

assume that on the merits the plaintiffs would be successful in their claims.” Parker 

v. D.C., 478 F.3d 370, 377 (D.C. Cir. 2007). Thus, “[a]t the pleading stage, general 

factual allegations of injury resulting from the defendant’s conduct may suffice, for 

on a motion to dismiss [courts] presume that general allegations embrace those 

specific facts that are necessary to support the claim.” Lujan, 504 U.S. at 561 (citation 

omitted). Finally, “[t]o establish injury in fact, a plaintiff must show that he or she 

suffered ‘an invasion of a legally protected interest’ that is ‘concrete and 

particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Id. at 560. 

ARGUMENT 

I. FSFP Has Article III Standing 

A. FSFP Has Suffered an Informational Injury 

The Supreme Court has held that a plaintiff “suffers an ‘injury in fact’ when 

the plaintiff fails to obtain information which must be publicly disclosed pursuant to 

a statute.” FEC v. Akins, 524 U.S. 11, 21 (1998); Warth v. Seldin, 422 U.S. 490, 514 

(1975) (“Congress may create a statutory right or entitlement the alleged deprivation 

of which can confer standing to sue even where the plaintiff would have suffered no 

judicially cognizable injury in the absence of statute.”). In particular, as Akins and 

subsequent cases in the D.C. Circuit and this court have reaffirmed, denial of 

information about campaign financing under the Federal Election Campaign Act can 

Case 1:19-cv-01722-APM Document 10 Filed 09/27/19 Page 10 of 20
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constitute an informational injury. See, e.g., Shays v. FEC, 528 F.3d 914, 923 (D.C. 

Cir. 2008) (“Here, as in Akins, Shays's injury in fact is the denial of information he 

believes the law entitles him to.”); CLC at 127 (“Under FECA, plaintiffs have ‘a right 

to truthful information regarding campaign contributions and expenditures.’”) 

(quoting Alliance for Democracy v. FEC, 362 F. Supp. 2d 39, 144 (D.D.C. 2004)); Kean, 

398 F. Supp. 2d at 26 (“[T]he FEC misconstrues the holding of Akins. There the 

injury-in-fact was the failure to obtain information that, by statute, the plaintiffs had 

a right to have.”). 

Here, FSFP has been deprived of specific information, subject to disclosure 

under FECA, regarding the true nature of the alleged campaign expenditures by 

Respondents. Because FECA “requires that the information be publicly disclosed and 

there is no reason to doubt [plaintiff’s] claim that the information would help them,” 

FSFP has suffered informational injury, which establishes standing to pursue this 

claim. CLC at 124-25 (citing Friends of Animals v. Jewell, 824 F.3d 1033, 1040–41 

(D.C. Cir. 2016) (remaining citations omitted)); see also Citizens for Responsibility & 

Ethics in Wash., 316 F. Supp. 3d 349, 364 (D.D.C. 2018) (“[T]he denial of information 

[a plaintiff] believes the law entitles him to constitutes an injury in fact.”) (citations 

omitted). 

The FEC argues that because FSFP’s “administrative complaint already 

identifies” the source and amount of the money transfer, FSFP “would not learn any 

new factual information that is required to be disclosed.” FEC MTD at 15. This is 

incorrect, and a misrepresentation of the Complaint. 

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In support of its argument, the FEC represents that “[a]s FSFP concedes in its 

court complaint, FSFP is already aware of ‘many facts suggest[ing]’ the alleged 

source, recipient, and amount of the $150,000 payment that its administrative 

complaint claims took place.” FEC MTD at 1. However, this is a partial quote from a 

dependent clause in the Complaint which entirely omits the context: 

23. For example, while many facts suggest that Mr. Cohen 

acted as an agent of the Trump Campaign and in 

consultation with Mr. Trump himself in facilitating the 

payment from AMI to Ms. McDougal, spokespeople and 

counsel for the Trump Campaign and Mr. Trump 

have repeatedly denied contemporaneous 

knowledge of, or involvement with, that payment. 

24. FSFP’s lack of information regarding the nature 

of the involvement of the Trump Campaign and/or 

Mr. Trump in AMI’s payment is due in significant part 

to the FEC’s delays in investigating MUR 7332. An FEC 

investigation and determination of Mr. Trump and the 

Trump Campaign’s role in AMI’s payment, through an 

investigative process in which Mr. Trump and the Trump 

Campaign have the opportunity to provide a detailed 

written response to all allegations, is essential to 

clarifying the nature of Mr. Trump’s and/or the 

Trump Campaign’s involvement. 

Compl. ¶¶ 23-24 (emphases added).2

Thus, the Complaint specifically states that there are open factual questions 

as to whether Mr. Cohen’s actions were (1) on behalf of the Trump Campaign, and/or 

(2) in consultation with Trump himself. The importance of this information is obvious. 

Under one scenario (suggested by the denials from Trump and the Trump Campaign), 

 

2 The second amendment to the administrative complaint added Trump as a respondent to Counts I, 

II, IV, and VI of the original and first amended complaint. 

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Cohen arranged a payment from AMI to McDougal without any involvement from 

Trump or the Trump Campaign. But if in fact (as an FEC investigation could 

determine) the Trump Campaign (and perhaps Trump himself, as its agent) actively 

directed or facilitated the payment, then that information would be of substantial 

value to FSFP in determining and implementing its programmatic activities. Yet 

without an FEC investigation to answer that question, FSFP does not have the 

complete factual picture, and is thus lacking “key information” required under FECA. 

See FEC MTD at 16. In other words, FSFP has been “denied access to complete and 

accurate information” concerning the alleged campaign expenditures identified in its 

Amended Administrative Complaint. CLC at 125 (finding informational standing 

when local media reported a possible connection between political contributions and 

the respondent to the administrative complaint). 

The court in CLC disagreed with the FEC when the FEC set forth the same 

argument it does here, namely arguing that plaintiffs lacked informational injury 

because “they already possess all the information they claim to seek in this action.” 

CLC at 119. The CLC court recognized that plaintiffs did incur informational injuries 

in connection with three of their five administrative complaints, which alleged that 

the “true source[s]” of contributions made to super PACs had not been confirmed by 

the FEC. Id. at 123. Although media reports had reported a possible link between the 

corporate entities that made the contributions and the suspected “true source,” those 

reports were not deemed to be “conclusive proof” that those sources, and only those 

sources, were behind the super PAC contributions. Id. at 127. Thus, the CLC court 

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found that “plaintiffs have ‘espouse[d] a view of the law’ under which entities 

regulated by the Commission are ‘obligated to disclose certain information’ that 

plaintiffs have not received but have a right to obtain.” Id. at 127 (citing Am. Soc. for 

the Prevention of Cruelty to Animals v. Feld Entm’t, Inc., 659 F.3d 13, 23 (D.C. Cir. 

2011); Kean, 398 F. Supp. 2d at 34-35). 

In so holding, the CLC court relied on FEC v. Akins, 524 U.S. 11 (1998), in 

which the FEC had also contested the standing of a group of voters who filed an 

administrative complaint with the FEC disputing the FEC’s determination that a 

specific organization was not a “political committee,” and therefore not subject to the 

FEC’s disclosure requirements. The Supreme Court disagreed with the FEC and held 

that standing was satisfied because respondents had suffered a genuine “injury in 

fact” which “consist[ed] of their inability to obtain information,” including a list of 

donor members of the organization, as well as its campaign-related contributions and 

expenditures. Id. at 20-21. The Supreme Court further noted that “[r]espondents’ 

injury consequently seems concrete and particular, Indeed, this Court has previously 

held that a plaintiff suffers an ‘injury in fact’ when the plaintiff fails to obtain 

information which must be publicly disclosed pursuant to a statute.” Id. at 21 (citing 

Public Citizen v. Dept. of Justice, 491 U.S. 440, 449 (1989); Havens Realty Corp. v. 

Coleman, 455 U.S. 363, 373-74 (1982)). 

The FEC cites Judicial Watch, Inc. v. FEC, 293 F. Supp. 2d 41 (D.D.C. 2003),

Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997), and Alliance for Democracy v. 

FEC, 335 F. Supp. 2d 39 (D.D.C. 2004) in support of its argument that FSFP has not 

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suffered injury in fact. FEC MTD at 11-13. First, all those cases were decided prior 

to Shays, in which the D.C. Circuit held that the plaintiff suffered injury in fact due 

to “the denial of information he believes the law entitles him to” under campaign 

finance law. Shays, 528 F.3d at 923. Thus, Shays should control. Second, each case is 

distinguishable on its facts. In Judicial Watch, the plaintiff, an individual donor, filed 

an administrative complaint requesting an investigation into his own alleged 

contributions to a presidential campaign because the campaign failed to report the 

contributions. In holding that there was no standing, the court noted that “[plaintiff] 

is already aware of the facts underlying his own alleged contributions to Senator 

Clinton’s campaign.” In Common Cause, the court, noting that “the nature of the 

information allegedly withheld is critical to the standing analysis” (emphasis 

added), found that there was no injury in fact because the information requested was 

“simply the fact that a violation of FECA has occurred,” and not information that was 

required to be disclosed to the public under FECA. Common Cause, 108 F.3d at 417. 

In so holding, the court specifically noted that under Akins, a “particularized injury 

sufficient to create standing” was found in “cases where the information denied is 

both useful in voting and required by Congress to be disclosed.” Id. at 417-18. Finally, 

in Alliance for Democracy, at the time of the decision the FEC had responded to 

plaintiffs’ administrative complaint, conducted an investigation, and found probable 

cause to believe FECA had been violated, and thus the plaintiffs had obtained the 

information requested. 335 F. Supp. 2d at 42. The Alliance court, citing Akins, stated 

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that “[h]ad the agency found no violation and dismissed the complaint, then it seems 

that plaintiffs may be entitled to the information they seek.” Id. at 48. 

The FEC quotes Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), for the 

proposition that complainants cannot “automatically satisfy the injury-in-fact 

requirement” via statute because “Article III standing requires a concrete injury even 

in the context of a statutory violation.” FEC MTD at 9. However, the FEC omits that 

the Spokeo court then went on to specifically state that “[t]he violation of a 

procedural right granted by statute can be sufficient in some circumstances 

to constitute injury in fact; in such a case, a plaintiff need not allege any 

additional harm beyond the one identified by Congress.” Spokeo, 136 S. Ct. at 1544 

(citing Akins, 524 U.S. at 20-25) (emphasis in original). Congress has constitutional 

power to “elevat[e] to the status of legally cognizable injuries concrete, de facto

injuries that were previously inadequate in law.” Id. at 1549 (quoting Lujan, 504 U.S. 

at 578). 

This is such a case; FECA granted a procedural right to FSFP, and the FEC’s 

inaction constitutes a legally cognizable injury. As in CLC and Akins, FSFP has been 

deprived of accurate and complete information regarding the true nature of the “hush 

money” payments made to Ms. McDougal. Thus, FSFP has suffered an informational 

injury, and has Article III standing to pursue its Complaint. 

B. Nonprofits Such As FSFP Can Assert Informational Injuries. 

Attempting to further its standing argument, the FEC also argues that FSFP 

cannot demonstrate standing because FSFP, as a section 501(c)(3) nonprofit, “cannot 

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vote, ha[s] no members who vote, and cannot engage in partisan political activity.” 

FEC MTD at 17. However, those are not prerequisites under D.C. Circuit case law. 

Under D.C. Circuit precedent, a plaintiff alleging an informational injury must 

demonstrate only that “there ‘is no reason to doubt their claim that the information 

would help them.’” CLC, 245 F. Supp. 3d at 128 (quoting Ethyl Corp., 306 F.3d 1144, 

1148 (D.C. Cir. 2002); Akins, 524 U.S. at 21). As the court in CLC stated, while this 

standard can be satisfied by seeking information that is useful in voting itself, “that 

does not mean that all other proffered uses are legally insufficient.” Id. at 128. Thus, 

the CLC court found standing where the plaintiffs, Campaign Legal Center and 

Democracy 21, were both 501(c)(3) nonprofit organizations, and had offered “valid 

uses, related to their organizational missions, for the information they seek.” Id. at 

129. 

When the FEC set forth a similar argument in Kean, arguing that Kean, as a 

candidate, did not have standing as FECA’s disclosure requirements were only 

intended for voters, the Kean court disagreed, stating: 

[Citing Akins, the FEC argues that] only voters have 

standing to bring an action based on FECA's disclosure 

laws. . . . The FEC again misstates Akins. . . . Akins does 

not lend itself to such a narrow construction. . . . [T]he 

reporting requirements in FECA create transparency in 

the political process by informing the political process of 

who is giving and who is spending money. . . . There is 

nothing in the text of FECA limiting that 

information to voters, nor would it seem to further 

the ends of FECA if voters were the only political 

actors the information was intended to assist. 

Kean, 398 F. Supp. 2d at 37-38 (emphasis added). 

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In support of its argument, the FEC cites numerous cases in which at least one 

of the plaintiffs was a nonprofit organization, and standing was denied. See FEC MTD 

at 17-18. However, in only one of those cases did the court actually cite the plaintiff’s 

status as a nonprofit organization as a possible reason for denying standing. See 

Citizens for Responsibility & Ethics in Wash., 401 F. Supp. 2d 115 (D.D.C. 2005) 

(“CREW II”). In addition, CREW II is distinguishable because there, the FEC had 

already conducted an investigation, instigated by the plaintiffs’ administrative 

complaint, had found “reason to believe” that the 2004 Bush presidential campaign 

had received an illegal in-kind contribution, and had further determined the value of 

that contribution. No such investigation nor determination has taken place here. 

Pursuant to D.C. Circuit precedent, FSFP has set forth its reasons and 

prospective uses for the information it seeks from the FEC. See Compl. ¶¶ 6, 25. It 

has therefore proposed “valid uses, related to [its] organizational mission[], for the 

information [it] seek[s].” CLC, 245 F. Supp. 3d at 128-29. This is sufficient to allege 

informational standing. 

C. There Is No Reason to Doubt FSFP’s Need for Seeking This 

Information 

The FEC also argues that FSFP cannot demonstrate standing because “its 

programmatic activities are not directly and adversely affected by the alleged agency 

delay.” FEC MTD at 20-21. This is inapposite for the following two reasons. First, if 

informational standing is established, that is sufficient, and there is no need to 

establish organizational standing. CLC, 245 F. Supp. at 128. Second, it is not FSFP’s 

burden at this stage to specify specific programmatic activities or resources that have 

Case 1:19-cv-01722-APM Document 10 Filed 09/27/19 Page 18 of 20
15 

been harmed. See id. (“[T]he Commission faults plaintiffs for failing to specify a 

particular litigation, scheduled testimony, or current or looming outreach activity in 

which they would use the information they seek. . . . But that is not plaintiffs’ 

burden.”) (quotations omitted). “The relevant question is simply whether there is no 

reason to doubt plaintiffs’ asserted justification for seeking the information.” Id. 

(quoting Kean, 398 F. Supp. 2d at 35; Akins, 524 U.S. at 21 (quotations omitted)). The 

FEC has not provided any reason to doubt FSFP’s stated need for this information in 

order to fulfill its organizational goals. Compl. ¶¶ 6, 25. 

CONCLUSION 

The FEC’s inaction for over a year regarding the Amended Administrative 

Complaint injured FSFP by depriving it of information to which it is entitled by 

statute. For the foregoing reasons, the FEC’s motion to dismiss should be denied.3 

 

3

 In the event the Court concludes the Complaint is deficient in any respect, Plaintiff requests leave to file an 

amended complaint. See Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave [to amend pleadings] when 

justice so requires”); Brink v. Cont’l Ins. Co., 787 F.3d 1120 (D.C. Cir. 2015). 

Case 1:19-cv-01722-APM Document 10 Filed 09/27/19 Page 19 of 20
16 

Dated: September 27, 2019 

Respectfully submitted, 

/s/ S. Douglas Bunch 

COHEN MILSTEIN SELLERS & 

 TOLL PLLC 

S. Douglas Bunch (D.D.C. Bar #974054) 

1100 New York Avenue, N.W., 5th Floor 

Washington, D.C. 20005 

Tel.: (202) 408-4600 

Fax: (202) 408-4699 

dbunch@cohenmilstein.com 

Jessica (Ji Eun) Kim (pro hac vice pending) 

88 Pine St., 14th Floor 

New York, NY 10005 

Tel.: (212) 838-7797 

Fax.: (212) 838-7745 

jekim@cohenmilstein.com 

FREE SPEECH FOR PEOPLE 

Ronald A. Fein (D.D.C. Bar #MA0012) 

John C. Bonifaz 

Ben T. Clements

1320 Centre St. #405 

Newton, MA 02459 

Tel.: (617) 244-0234 

rfein@freespeechforpeople.org 

jbonifaz@freespeechforpeople.org 

bclements@freespeechforpeople.org 

Attorneys for Plaintiff

Case 1:19-cv-01722-APM Document 10 Filed 09/27/19 Page 20 of 20