1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CAMPAIGN LEGAL CENTER, 

 Plaintiff, 

v. 

FEDERAL ELECTION COMMISSION, 

 Defendant. 

Civil Action No. 20-cv-0588-BAH 

PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT AGAINST DEFENDANT 

FEDERAL ELECTION COMMISSION 

Plaintiff Campaign Legal Center (“CLC”), pursuant to Rule 55(b) of the Federal Rules of 

Civil Procedure, respectfully moves for the entry of default judgment against Defendant Federal 

Election Commission (“FEC” or “Commission”). CLC brought this action on February 27, 2020, 

challenging Defendant’s unlawful failure to act on Plaintiff’s administrative complaint alleging 

violations of the Federal Election Campaign Act (“FECA”). Service was effected on March 4, 

2020, such that the FEC’s deadline to file a responsive pleading was May 4, 2020. See ECF No. 

9. The FEC failed to appear, answer, plead, or otherwise defend this action as required by the 

Federal Rules of Civil Procedure, and the Clerk of Court entered a default against the FEC on May 

6, 2020. See ECF No. 11. 

For the reasons described below, entry of default judgment against the FEC is appropriate 

because the evidence establishes that the FEC has failed to act and that this failure to act is contrary 

to law. Plaintiff is therefore entitled to an order declaring that the FEC’s failure to act is contrary 

to law in violation of 52 U.S.C. § 30109(a)(8)(C), and directing the FEC to conform within 30 

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days. Plaintiff further requests that the Court assess $400 in court costs pursuant to 28 U.S.C. 

§ 1920. 

STATEMENT OF FACTS

1. On September 12, 2019, Campaign Legal Center (“CLC”) filed with the FEC an 

administrative complaint showing that, during the 2018 midterm election cycle, John Doe, Jane 

Doe, and/or other persons who created and operated American Progress Now (“APN”) made 

unreported expenditures and omitted required ad disclaimers in violation of FECA. See FEC 

Matter Under Review (“MUR”) No. 7643 (“Admin. Complaint”), attached hereto as Exhibit 1. 

2. The administrative complaint demonstrates that John Doe, Jane Doe, and/or other 

persons set up and used a Facebook page entitled America Progress Now to pay for and 

disseminate on Facebook independent expenditure ads that expressly advocated for the election of 

certain candidates in U.S. Senate races in Michigan and Missouri, and in U.S. House races in 

Illinois, Iowa, and Ohio. Id. ¶¶ 6-7. 

3. The administrative complaint identifies the dates, elections, and amounts spent for 

a series of express advocacy advertisements paid for and run by APN beginning approximately 

three weeks before the November 2018 election, and continuing through the election. Id. ¶¶ 7-8. 

These facts are supported by specific documentation, including the FEC’s own records. Id. ¶ 9. 

4. According to Facebook’s Ad Library, APN spent in excess of the $250 federal 

reporting threshold in independent expenditures with respect to at least some of those federal 

candidates’ elections, but did not report any such expenditures, in violation of FECA. Id. ¶ 7 

5. The administrative complaint further demonstrates that APN does not appear to be 

a legal person as it does not appear in corporate records or Commission records, does not appear 

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to have a website, and the apartment building address shown on its Facebook page has no record 

of the entity’s existence. Id. ¶ 13. 

6. Because APN is not a person, it could not have paid for said independent 

expenditures and, consequently, the ads run by APN failed to include the FECA-required 

disclaimers identifying the actual person(s) paying for the communications. Id. ¶ 22. 

7. On September 18, 2019, the FEC sent CLC a letter acknowledging receipt of the 

Complaint and designating it MUR 7643. See Sept. 18, 2019 Letter, attached hereto as Exhibit 3. 

8. CLC has not received any further communication from the FEC regarding MUR 

7643. Gaber Declaration ¶ 2, attached hereto as Exhibit 2. 

9. CLC waited more than 160 days for the FEC to take action on its administrative 

complaint before filing this action on February 27, 2020. 

10. To date, more than 240 days after CLC’s administrative complaint was filed, the 

FEC has not taken any public action with respect to MUR 7643. See FEC, Enforcement Query 

System, https://eqs.fec.gov/eqs/searcheqs (search for “MUR 7643” yields the response “No 

Matches Found”). 

11. The FEC has not had a quorum of commissioners since September 1, 2019. See

Press Release, FEC remains open for business, despite lack of quorum, 

https://www.fec.gov/updates/fec-remains-open-business-despite-lack-quorum/ (Sept. 11, 2019), 

attached hereto as Exhibit 4. 

12. Without a quorum, the FEC cannot “launch any new investigations, issue any 

advisory opinions, promulgate any rules, or render any decisions in pending enforcement actions. 

See FEC Chair Ellen L. Weintraub, The State of the Federal Election Commission, 

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https://www.fec.gov/resources/cms-content/documents/2019-11-01-State-of-the-CommissionELW.pdf, (Nov. 1, 2019), attached hereto as Exhibit 5. 

13. As such, the Commission has not acted on Plaintiff’s administrative complaint and 

will not be able to act until a quorum is re-established. See id. 

14. At this time, the FEC remains in default with respect to this lawsuit, and has not 

appeared, filed an answer, or otherwise defended the action. 

15. Plaintiffs have incurred $400 in court costs as defined under 28 U.S.C. § 1920 in 

seeking this default judgment. See ECF No. 1 (docket text showing receipt of payment for filing 

fee). 

LEGAL STANDARD 

I. Default by the Government under Rule 55

 A plaintiff may seek a default judgment in a lawsuit where the defendant fails “to plead or 

otherwise defend.” Fed. R. Civ. P. 55(a)-(b). But, “[a] default judgment may be entered against 

the United States, its officers, or its agencies only if the claimant establishes a claim or right to 

relief by evidence that satisfies the court.” Fed. R. Civ. P. 55(d). Although default against the 

government is disfavored, Rule 55(d) does not “relieve[] the sovereign from the duty to defend 

cases.” Doe v. Democratic People’s Republic of Korea Ministry of Foreign Affairs JungsongDong, 414 F. Supp. 3d 109, 120 (D.D.C. 2019) (citing Commercial Bank of Kuwait v. Rafidain 

Bank, 15 F.3d 238, 242 (2d. Cir. 1994)). “In determining whether the default judgment against the 

government is proper, the court may accept as true the plaintiff’s uncontroverted evidence,” Payne 

v. Barnhart, 725 F. Supp. 2d 113, 116 (D.D.C. 2010), including evidence submitted by affidavit,

see Estate v. Botvin ex rel. Ellis v. Islamic Republic of Iran, 684 F. Supp. 2d 34, 37 (D.D.C. 2010), 

and public record evidence, see Doe, 414 F. Supp. 3d at 120. 

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II. Contrary to Law Standard

 A Plaintiff is entitled to relief 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. F.C.C.: 

(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 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.’” 

750 F.2d 70, 80 (D.C. Cir. 1984) (“TRAC”). 

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. 

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ARGUMENT 

 Under the Common Cause and TRAC factors, the undisputed evidence demonstrates that 

the Commission acted contrary to law by failing to act on Plaintiff’s administrative complaint. As 

such, Plaintiff is entitled to a default judgment against the Commission pursuant to Rule 55. 

I. Plaintiff’s Administrative Complaint States Credible Allegations that APN Violated 

FECA. 

Plaintiff’s administrative complaint provides substantial evidence both that the person or 

persons behind APN violated FECA’s mandatory reporting requirements for independent 

expenditures in excess of $250 in aggregate during a calendar year, see 52 U.S.C. § 30104(c), and 

that person or persons who paid for the advertisements violated of 52 U.S.C. § 30120(a), by listing 

the name “America Progress Now” on the Facebook page’s ad disclaimers rather than the identity 

of whoever paid for the communications. See Ex. 1. 

FEC complaints are credible where they contain “specific documentation of the amounts 

spent and the purposes of the spending,” along with specific evidence as to the violations alleged. 

Citizens for Percy ’84 v. FEC, Civ. A No. 84-2653, 1984 WL 6601, at *4 (D.D.C. Nov. 19, 1984). 

Plaintiff’s complaint specifically documents the dates each advertisement was displayed; the 

purpose of each ad, including the candidates the advertisements advocated for or against; and the 

range of amounts spent on each ad.1 See Ex. 1 ¶ 7. This evidence demonstrates that APN likely 

spent over the $250 limit to trigger mandatory reporting in each race just on payments to Facebook 

ad alone, id., not including any time and money required to design and develop the ads and target 

their placement that could potentially count as well. 

 

1

 The Facebook Ad Library is an archive of political advertising run on Facebook. It provides 

information about who funded an ad, a range of how much was spent on the ad, and when it was 

active. See What is the Facebook Ad Library and how do I search it?, Facebook, 

https://www.facebook.com/help/259468828226154, last visited May 9, 2020. 

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Plaintiff’s administrative complaint also provided specific evidence that neither APN nor 

any other filer reported the independent expenditures run under APN’s name, according to the 

FEC’s own files. Id ¶ 8. Finally, Plaintiff provided substantial evidence that APN was merely a 

front for the true source of the expenditures, including that it was active only for a short period of 

time before and after the November 2018 election; and that it does not appear as a corporate entity 

in the LexisNexis corporate filings database, nor in the state corporate records databases in New 

York, Delaware, Washington D.C., or Maryland. Id. ¶ 11-13. This evidence demonstrates reason 

to believe APN did not pay for the expenditures run from the APN Facebook page, and thus the 

disclaimers on the APN Facebook page did not identify the person or persons who paid for the 

advertisements. 

Plaintiff’s administrative complaint states credible allegations, supported by substantial 

evidence, demonstrating that John Doe, Jane Doe, and/or other persons who created and operated 

APN violated FECA by failing to report expenditures and omitting the required ad disclosures. 

II. The FEC’s Delay in Acting on Plaintiff’s Allegations Poses a Substantial and Ongoing 

Threat to the Electoral System. 

 

 The conduct alleged in Plaintiff’s administrative complaint constitutes a substantial and 

ongoing threat to the integrity of the election system, because there is a substantial likelihood that 

this type of illegal activity will continue, or even grow, absent any threat of enforcement. See 

Percy, 1984 WL 6601, at *3 (finding that “the significance of the threat to the integrity of [an] . . . 

election” is “obvious” where there is a “likelihood” that the illegal activity will continue); see also

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.”). Unreported online expenditures by undisclosed persons threaten the fundamental 

fairness of American elections by denying the electorate necessary information about precisely 

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who is advocating for and against candidates for federal office. Digital political spending is on the 

rise, with nearly $2.8 billion projected in 2020.2 Without clear application and enforcement of 

disclosure and disclaimer requirements to digital advertising, any individual or entity, foreign or 

domestic, could meddle in U.S. elections at any scale, without fear of disclosure or enforcement. 

The risk of large-scale noncompliance with federal disclaimer and disclosure laws, and thus 

interference by unknown actors in federal elections, will only continue to grow as digital ad 

spending increases and the Commission’s inability to enforce FECA persists. Thus, even illegal 

ad purchases that are relatively small signal danger to the transparency and openness of federal 

elections, particularly when the source of the communications is unknown. 

 Disclosure requirements not only ensure that voters and candidates are able to evaluate 

messages and understand the agenda behind them, see Citizens United v. FEC, 558 U.S. 310, 369-

70 (2010), but also are critical to enforcement of other aspects of FECA, including prohibitions on 

foreign spending, excess contributions, and coordination, see Buckley v. Valeo, 424 U.S. 1, 56-58 

(1976). Without effective oversight and prompt enforcement of campaign finance laws, unreported 

and undisclosed pseudo-entities like APN can pop into existence just prior to an election, exploit 

lax registration and reporting requirements on digital platforms, make unlimited expenditures on 

behalf of or in opposition to candidates, and then disappear, having engaged in little to no activity 

beyond the unlawful advertisements themselves. 

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

contrary to one of the principal purposes of FECA. See, e.g., DSCC, 1996 WL 34301203, at *5 

 

2

 Alexandra Bruell, Political Ad Spending Will Approach $10 Billion in 2020, New 

ForecastPredicts, WALL ST. J. (June 4, 2019), https://www.wsj.com/articles/political-adspending-will-approach-10-billion-in-2020-new-forecast-predicts-11559642400.

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

at the core of FECA’s requirements). 

III. The Commission’s Failure to Act on Plaintiff’s Administrative Complaint Is Not 

Excused by Lack of Resources, Competing Priorities, or Lack of Information. 

 Because the FEC has failed to appear in this case, it has put forward no evidence that its 

delay is caused by lack of resources, competing priorities, or lack of information. Cf. Common 

Cause 489 F. Supp. at 744; TRAC, 750 F.2d at 80. Indeed, the evidence gathered by Plaintiff and 

provided in its administrative complaint, including evidence of the Commissions’ own records, is 

more than sufficient to allow the Commission to proceed expeditiously under normal 

circumstances. Thus, the FEC has failed to carry its burden of showing that its delay is reasonable. 

See Percy, 1984 WL 6601, at *4 (placing the burden of showing lack of resources on the agency 

because “[k]nowledge as to the limits of [agency] resources is exclusively within the control of 

the Commission”). And “[w]hatever 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. 

Here, the FEC has lacked a quorum of Commissioners necessary to advance Plaintiff’s 

administrative complaint through the Commission’s enforcement process. But while the lack of 

quorum may make the FEC’s delay inevitable,3

 it does not make that delay reasonable under the 

law or leave the Court powerless to ensure the Nation’s campaign finance laws are enforced. 

Rather, Congress included an alternative enforcement mechanism in FECA, authorizing private 

 

3

 Even when the FEC has had a quorum of Commissioners, it has regularly unlawfully delayed 

action on administrative complaints, see, e.g., Plaintiff’s Redacted Cross-Mot. for Summ. J. at 16-

17 n.11, Giffords v. FEC, No. 19-1192 (EGS) (Jan. 8, 2020), ECF No. 50 (discussing FEC’s 

workload statistics), so there is no evidence the agency would have taken meaningful action even 

if it could. 

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actions against administrative respondents when FEC does not or cannot act. See 52 U.S.C. 

§ 30109(a)(8)(C) (authorizing private right of action in federal court against administrative 

respondent should the FEC fail to conform to this Court’s judgment within thirty days). 

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 to this Court’s order. If not, the lack of quorum 

will remain, the FEC will fail to conform to this Court’s order, and Plaintiff will be authorized to 

file suit to enforce its administrative complaint. 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 John Doe, Jane Doe, and/or other persons who created and 

operated APN, the FEC can focus on other matters when and if it regains a quorum. 

IV. Plaintiff’s Complaint Does Not Raise Novel Issues. 

FECA’s reporting and disclosure requirements date back to the mid-1970s. Plaintiff’s 

allegations that APN failed to report independent expenditures or to disclose the name or names 

of the person(s) who paid for them are not remotely a “novel” issue. See Percy 1984 WL 6601, at 

*1 (finding that issues that make up a substantial amount of the Commission’s workload are not 

“novel”). The Commission routinely deals with matters involving the failure to report independent 

expenditures, and the failure to disclose the person who paid for such expenditures. See, e.g., 

Frank v. Unknown Respondents, FEC MUR 7416, 

https://eqs.fec.gov/eqsdocsMUR/19044471145.pdf (last visited May 13, 2020); Pickerel v. 

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Indivisible Ky., Inc., FEC MUR 7286, https://eqs.fec.gov/eqsdocsMUR/19044473175.pdf (last 

visited May 13, 2020). 

 As such, the Commission is clearly familiar with the relevant law and regulations 

surrounding violations of 54 U.S.C. §§ 30104(c) and 30120(a). These issues are not novel. 

V. 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 every 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.Indeed, the multitude of “short

deadlines governing the speed with which such complaints must be handled,” Rose, 608 F. Supp. 

at 11 (emphasis in original), itself demonstrates that Congress expected enforcement actions to 

advance expeditiously. 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 time frame.” DSCC, 1996 WL 34301203, at *8; 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). The Commission’s inability to act given its lack of quorum is just such a regulatory 

breakdown. Indeed, it seems likely that the only way the allegations raised in Plaintiff’s 

administrative complaint will be investigated and adjudicated in any reasonable time frame is by 

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this Court ordering the Commission to conform, failing which Plaintiff may avail itself of FECA’s 

private right of action. 

VI. The Commission’s Delay Prejudices Plaintiff and the Public.

The Commission’s failure to act undermines public confidence in our elections by allowing 

apparent violations of the law to go uninvestigated and unredressed.4 So too, the lack of 

enforcement and corresponding lack of any consequence for illegal behavior necessarily 

encourages APN and others who seek to emulate APN’s activities to continue to violate campaign 

finance law. See 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, CLC and the voting public will continue to be harmed because they will be denied necessary 

information about precisely who is advocating for and against candidates for federal office. 

CONCLUSION

 The uncontested evidence demonstrates that the Commission has acted contrary to law in 

failing to act on Plaintiff’s administrative complaint. Thus, Plaintiff is entitled to entry of a default 

judgment against the Commission. Accordingly, Plaintiff respectfully requests that the Court enter 

judgment that the Commission has acted contrary to law; order the Commission to conform to the 

judgment within 30 days, and assess $400 in court costs pursuant to 28 U.S.C. § 1920.5

 

4

 Although evidence of impropriety may buttress a plaintiff’s claim that the Commission has acted 

contrary to law, “the court need not find any impropriety lurking behind agency lassitude in order 

to hold that agency action is unreasonably delayed.” TRAC, 750 F.2d at 80. Plaintiffs do not allege, 

and it is unnecessary for this Court to find, any impropriety in the Commission’s failure to act. See 

Rose, 209 F. Supp. at 12 (“the Court need not and does not make such findings.”). Nonetheless, 

for the reasons stated herein, the Commission’s failure to act is contrary to law. 

5

 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 

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. 

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Dated: May 14, 2020 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 

1101 14th Street NW, Ste. 400 

Washington, DC 20005 

(202) 736-2200 

anoti@campaignlegal.org 

mgaber@campaignlegal.org 

mdanahy@campaignlegal.org 

 

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

action”).

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