IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CAMPAIGN LEGAL CENTER

1101 14th St., NW, Ste. 400 

Washington, D.C. 20005

CATHERINE HINCKLEY KELLEY

1101 14th St., NW, Ste. 400 

Washington, D.C. 20005

Plaintiffs,

v.

FEDERAL ELECTION COMMISSION

1050 First St., NE

Washington, D.C. 20463

Defendant,

HILLARY FOR AMERICA

P.O. Box 5256

New York, NY 10185-5256

CORRECT THE RECORD

455 Massachusetts Ave., NW, Ste. 600

Washington, D.C. 20001

Defendant-Intervenors.

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

PLAINTIFFS’ OPPOSITION TO CORRECT THE RECORD’S

AND HILLARY FOR AMERICA’S AMENDED MOTION TO DISMISS

Tara Malloy (DC Bar No. 988280)

tmalloy@campaignlegalcenter.org

Megan P. McAllen (DC Bar No. 1020509)

mmcallen@campaignlegalcenter.org

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Suite 400

Washington, D.C. 20005

(202) 736-2200

Attorneys for Plaintiffs

Case 1:19-cv-02336-JEB Document 27 Filed 03/05/20 Page 1 of 55
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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................................................................................... iii

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

SUMMARY OF ARGUMENT.....................................................................................................2

BACKGROUND ............................................................................................................................6

A. Statutory and Regulatory Background.................................................................................6

1. Coordinated expenditures are in-kind contributions subject to FECA’s 

contribution limits and disclosure requirements............................................................6

2. The FEC exempts only a narrow category of unpaid internet activity from its 

coordination regulations.................................................................................................7

3. The statutory framework for FEC administrative complaints .......................................8

B. Factual Background .............................................................................................................9

LEGAL STANDARD ..................................................................................................................10

ARGUMENT................................................................................................................................11

I. PLAINTIFFS HAVE STANDING.......................................................................................11

A. Plaintiffs Have Established Informational Injury ..............................................................11

1. Plaintiffs have been deprived of information that FECA requires to be disclosed......12

2. The factual information plaintiffs seek is not already available to them.....................14

a. CTR’s and HFA’s failure to report leaves plaintiffs without access to the 

information they are owed under FECA................................................................15

b. CTR’s and HFA’s disclosure reports do not contain the information plaintiffs 

need to determine the amounts and purposes of CTR’s in-kind contributions......16

c. Intervenors cite no case suggesting that the failure to disclose up to $9 million 

in in-kind contributions does not inflict informational injury ...............................20

3. Both plaintiffs sufficiently show that their inability to access FECA disclosure 

information directly and concretely injures their interests ..........................................23

B. CLC’s Organizational Interests Have Been Directly Impaired by the Lack of FECA 

Disclosure, and They Have Diverted Resources to Counteract That Harm ......................25

C. Plaintiffs’ Injury Is Fairly Traceable to the Dismissal of Their Administrative 

Complaint and Is Likely to Be Redressed by a Favorable Court Decision .......................28

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II. PLAINTIFFS PROPERLY STATE A CLAIM FOR RELIEF UNDER FECA..............28

A. The Dismissal Rested on an Impermissible Interpretation of FECA and FEC Rules That 

Frustrates the Act’s Purposes and “Creates the Potential for Gross Abuse.” ....................30

1. The Commission’s expansion of the internet exception was contrary to FECA’s 

clear text and core purposes.........................................................................................30

2. The interpretation is contrary to the FEC’s own rules.................................................33

B. Finding no “Reason to Believe” CTR Violated Statutory or Regulatory 

Coordination Provisions Was Arbitrary, Capricious, and Contrary to the Record............38

III. PLAINTIFFS PROPERLY STATE A CLAIM UNDER THE APA ...............................42

CONCLUSION ............................................................................................................................45

CERTIFICATE OF SERVICE ..................................................................................................47

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TABLE OF AUTHORITIES

*Authorities upon which plaintiffs primarily rely

Page

Cases:

Abigail All. for Better Access to Developmental Drugs v. Eschenbach, 469 F.3d 129 

(D.C. Cir. 2006) .................................................................................................................26, 27

Alliance for Democracy v. FEC, 362 F. Supp. 2d 138 (D.D.C. 2005) ..........................................22

Ashcroft v. Iqbal, 556 U.S. 662 (2009)..........................................................................................11

ASPCA v. Feld Entm’t, Inc., 659 F.3d 13 (D.C. Cir. 2011)...........................................................25

Bowen v. Massachusetts, 487 U.S. 879, 903 (1988)..................................................................6, 43

Buckley v. Valeo, 424 U.S. 1 (1976)....................................................................................6, 30, 37

CLC v. FEC, 245 F. Supp. 3d 119 (D.D.C. 2017)...................................................................16, 24

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) .................................................................9

Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997) ...............................................................13

CREW v. FEC, 401 F. Supp. 2d 115 (D.D.C. 2005) (“CREW 2005”).....................................26, 27

CREW v. FEC, 475 F.3d 337 (D.C. Cir. 2007) (“CREW 2007”)...................................................22

CREW v. FEC, 799 F. Supp. 2d 78 (D.D.C. 2011) (“CREW 2011”).............................................21

CREW v. FEC, 243 F. Supp. 3d 91 (D.D.C. 2017) (“CREW 2017”).......................................13, 43

Ctr. for Ind’l Freedom v. Van Hollen, 694 F.3d 108 (D.C. Cir. 2012)..........................................12

Elec. Privacy Info. Ctr. v. Pres. Advisory Comm’n on Election Integrity, 828 F.3d 989 

(D.C. Cir. 2016) .......................................................................................................................23

Envtl. Def. Fund v. EPA, 922 F.3d 446 (D.C. Cir. 2019) ..............................................................11

*FEC v. Akins, 524 U.S. 11 (1998)....................................................................2, 12, 14, 23, 24, 28

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981)........................................33

Friends of Animals v. Jewell, 824 F.3d 1033 (D.C. Cir. 2016) .....................................................10

Hancock v. Urban Outfitters, Inc., 830 F.3d 511 (D.C. Cir. 2016)...............................................11

Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249 (D.C. Cir. 2005).......................................11

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ....................................................................28

McConnell v. FEC, 540 U.S. 93, 196 (2003).............................................................................2, 24

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)................37, 38

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986)...................................................................3, 32, 33

People for the Ethical Treatment of Animals v. USDA, 797 F.3d 1087 (D.C. Cir. 

2015) (“PETA”) .....................................................................................................25, 26, 27, 28

Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004) (“Shays I”) ....................................................4, 8

Case 1:19-cv-02336-JEB Document 27 Filed 03/05/20 Page 4 of 55
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*Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) (“Shays II”)...............................4, 32, 34, 43, 44, 45

*Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008) (“Shays III”)............................................13, 15, 23

Stewart v. Nat’l Educ. Ass’n, 471 F.3d 169 (D.C. Cir. 2006)........................................................11

Unity08 v. FEC, 596 F.3d 861 (D.C. Cir. 2010)............................................................................43

Statutes:

52 U.S.C. § 30101(8)(A)(i)..................................................................................................6, 33, 42

*52 U.S.C. § 30101(8)(A)(ii)........................................................................................6, 33, 42, 44, 

52 U.S.C. § 30104......................................................................................................................7, 16

52 U.S.C. § 30104(b)(2) ............................................................................................................2, 12

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

52 U.S.C.§ 30104(b)(3)(B)..............................................................................................................7

52 U.S.C.§ 30104(b)(5)(A)........................................................................................................7, 14

52 U.S.C.§ 30104(b)(6)(B)(i) ..........................................................................................................7

52 U.S.C.§ 30104(b)(4)(H)(i)........................................................................................................13

52 U.S.C. § 30109(a)(1)...................................................................................................................8

52 U.S.C. § 30109(a)(2).................................................................................................................41

52 U.S.C. § 30109(a)(3)...................................................................................................................9

52 U.S.C. § 30109(a)(4)(A).......................................................................................................9, 41

52 U.S.C. § 30109(a)(5)...................................................................................................................9

52 U.S.C. § 30109(a)(6)(A).............................................................................................................9

52 U.S.C. § 30109(a)(8).............................................................................................................6, 28

52 U.S.C. § 30109(a)(8)(A).............................................................................................................9

52 U.S.C. § 30109(a)(8)(B) .............................................................................................................9

52 U.S.C. § 30111(e) .....................................................................................................................45

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

52 U.S.C. § 30116(a)(7)(B) .....................................................................................................12, 13

*52 U.S.C. § 30116(a)(7)(B)(i).............................................................................................. passim

Regulations and Rulemaking Documents:

*11 C.F.R. § 100.26...................................................................................................4, 8, 29, 31, 42

11 C.F.R. § 104.13.........................................................................................................................12

11 C.F.R. § 104.13(a).............................................................................................................2, 7, 13

*11 C.F.R. § 109.20...........................................................................................................12, 42, 44

11 C.F.R. § 109.20(a).......................................................................................................................8

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11 C.F.R. § 109.20(b) ................................................................................................................7, 29

*11 C.F.R. § 109.21.......................................................................................................8, 33, 42, 44

11 C.F.R. § 109.21(a)(1)..................................................................................................................8

11 C.F.R. § 109.21(b) ......................................................................................................................7

11 C.F.R. § 109.21(c).................................................................................................................8, 36

11 C.F.R. § 109.21(d) ......................................................................................................................8

11 C.F.R. § 100.155.......................................................................................................................37

Internet Communications, 71 Fed. Reg. 18589 (Apr. 12, 2006) (Explanation & 

Justification).....................................................................................................................4, 8, 34

Democracy 21, CLC & Ctr. for Responsive Politics Comments on Notice 2005-10: 

Internet Communications (June 3, 2005), available at https://sers.fec.gov/fosers/

showpdf.htm?docid=36918......................................................................................................33

Administrative Record Materials (MUR 7146): 

First General Counsel’s Report, MURs 6940, 7097, 7146, 7160, and 7193 (Correct 

the Record) (Oct. 16, 2018), https://www.fec.gov/files/legal/murs/7146/190444

72082.pdf ......................................................................................................................... passim

Statement of Reasons of Vice Chairman Matthew S. Petersen and Commissioner

Caroline C. Hunter, MURs 6940, 7097, 7146, 7160, 7193 (Correct the Record) 

(Aug. 21, 2019), https://www.fec.gov/files/legal/murs/7146/7146_1.pdf....................... passim

Statement of Reasons of Chair Ellen L. Weintraub, MURs 6940, 7097, 7146, 7160, 

7193 (Correct the Record) (Sept. 20, 2019), https://www.fec.gov/files/legal/murs/

7146/7146_2.pdf..............................................................................................34, 39, 40, 41, 44

Other Materials:

Certification, MUR 7080 (Babeu for Congress) (Oct. 24, 2017), https://www.fec.gov/

files/legal/murs/7080/17044431830.pdf..................................................................................36

Correct the Record Financial Summary (2015-16), FEC, https://www.fec.gov/data/

committee/C00578997/?cycle=2016 .......................................................................................17

Disbursements: Correct the Record to David Brock (2015-16), FEC, https://www.fec.

gov/data/disbursements/?committee_id=C00578997&two_year_transaction_

period=2016&recipient_name=BROCK%2C+DAVID&data_type=processed .....................17

CTR Report of Receipts and Disbursements (FEC Form 3X), October 2016 Quarterly 

Report (amended Dec. 7, 2016), https://docquery.fec.gov/pdf/477/201612

089040486477/201612089040486477.pdf..............................................................................18

Factual & Legal Analysis, MUR 6414 (July 17, 2012) (Carnahan in Congress), 

https://www.fec.gov/files/legal/murs/6414/12044320498.pdf ................................................35

FEC Guidebook for Complainants and Respondents on the FEC Enforcement 

Process, https://transition.fec.gov/em/respondent_guide.pdf..................................................41

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FEC Advisory Op. 2011-14 (Utah Bankers Ass’n), https://www.fec.gov/data/legal/

advisory-opinions/2011-14 ......................................................................................................35

FEC Advisory Op. 2008-10 (VoterVoter.com), https://www.fec.gov/data/legal/

advisory-opinions/2008-10 .....................................................................................................35

First Gen. Counsel’s Report, MUR 6657 (May 6, 2013) (Akin for Senate), 

https://www.fec.gov/files/legal/murs/6657/13044343282.pdf .......................................... 34-35

First Gen. Counsel’s Report, MUR 6729 (Checks and Balances) (Aug. 6, 2014), 

https://www.fec.gov/files/legal/murs/6729/14044363781.pdf ..........................................34, 36

First Gen. Counsel’s Report, MUR 7023 (Kinzler for Congress) (Oct. 6, 2016), 

https://www.fec.gov/files/legal/murs/7023/17044414170.pdf ................................................36

First Gen. Counsel’s Report, MUR 7080 (Babeu for Congress) (Dec. 15, 2016), 

https://www.fec.gov/files/legal/murs/7080/17044431815.pdf ................................................36

Instructions for FEC Form 3P and Related Schedules, FEC, https://www.fec.gov/

resources/cms-content/documents/fecfrm3pi.pdf......................................................................7

Statement of Policy Regarding Commission Action in Matters at the Initial Stage in 

the Enforcement Process, 72 Fed. Reg. 12545 .................................................................. 40-41

Statement of Reasons of Comm’rs Hunter, Goodman & Petersen, MUR 7023

(Kinzler for Congress) (Jan. 23, 2018), https://www.fec.gov/files/legal/murs/

7023/18044435928.pdf............................................................................................................36

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TABLE OF ABBREVIATIONS

CREW Citizens for Responsibility and Ethics in Washington

BCRA Bipartisan Campaign Reform Act

CTR Correct the Record

FEC Federal Election Commission

FECA Federal Election Campaign Act

FGCR First General Counsel’s Report

HFA Hillary for America

MUR Matter Under Review

OGC Office of General Counsel (FEC)

SOR Statement of Reasons

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INTRODUCTION

In the run-up to the 2016 elections, the super PAC Correct the Record (“CTR”) declared 

an ambitious and unprecedented plan to spend millions of dollars on opposition research and media 

outreach to support then-candidate Hillary Clinton—and to do so by openly “coordinating” its 

spending with her campaign, Hillary for America (“HFA”). Am. Compl. ¶¶ 62-66. CTR’s founder

and chairman, David Brock, announced that this venture would not violate the Federal Election 

Campaign Act (“FECA”) because CTR pledged to engage only in the types of unpaid internet 

communications that FEC regulations exempt from the statutory coordination regime. Id. ¶¶ 2, 65.

News reports quickly raised doubts about his pledge. CTR and HFA in fact appeared to be 

coordinating on a host of activities, including campaign surrogate training, research and polling,

and media rapid-response efforts, that were “not fairly characterized as ‘communications’” exempt 

from the coordination rules, as the FEC’s General Counsel (“OGC”) later found. Id. ¶ 75.

Nevertheless, in response to plaintiffs’ administrative complaint, the Commission split 2-2 on 

whether to find reason to believe this massive joint undertaking violated FECA’s contribution 

limits and disclosure requirements for coordinated expenditures, and dismissed plaintiffs’ 

complaint. The no-vote Commissioners accepted without question that virtually all of CTR’s 

spending was tied to exempt internet postings—despite a record replete with contradictory 

evidence—and advanced the unsustainable theory that if an expense (e.g., payments for a poll) in 

some small part furthers a “free” internet communication (e.g., a tweet describing the poll), then 

no amount of that expense can be regulated as a coordinated expenditure. Plaintiffs here challenge 

the dismissal of their complaint as contrary to law, because it hinged on an impermissible 

interpretation of FECA that “creates the potential for gross abuse,” Orloski v. FEC, 795 F.2d 156, 

165-66 (D.C. Cir. 1986), and was arbitrary, capricious, and counter to the record.

Case 1:19-cv-02336-JEB Document 27 Filed 03/05/20 Page 9 of 55
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SUMMARY OF ARGUMENT

Defendant-Intervenors CTR and HFA move to dismiss the Amended Complaint under 

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of standing and failure to state a 

claim, respectively. See Mem. Supp. Int.-Defs.’ Am. Mot. to Dismiss (Dkt. No. 26-1) (“Int. Br.”).

Intervenors focus their attack on the informational injuries asserted by plaintiffs Campaign 

Legal Center (“CLC”) and Catherine Kelley, pushing the false argument that plaintiffs already 

have all the information they are due under FECA—despite the undisputed fact that the Clinton 

campaign never reported receiving any in-kind contributions in the form of coordinated 

expenditures from CTR, and CTR never reported making such contributions. Under the Supreme 

Court’s ruling in FEC v. Akins, however, a plaintiff “suffers an ‘injury in fact’ when the plaintiff 

fails to obtain information which must be publicly disclosed pursuant to a statute.” 524 U.S. 11, 

21 (1998). FECA provides that coordinated expenditures are in-kind contributions—and CTR 

should have reported them as such, including their dates, amounts, and purposes; and HFA should 

also have reported them, as both contributions to and expenditures by the Clinton campaign. See 

52 U.S.C. §§ 30104(b)(2), 30116(a)(7)(B); 11 C.F.R. § 104.13(a). 

As the Supreme Court has recognized, the sources of a candidate’s support and the nature 

and amounts of the candidate’s spending are the most fundamental types of information that FECA 

requires to be disclosed. See Buckley v. Valeo, 424 U.S. 1, 66-67 (1976) (“[D]isclosure provides 

the electorate with information as to where political campaign money comes from and how it is 

spent by the candidate in order to aid the voters in evaluating those who seek federal office.”) 

(internal quotation marks omitted); McConnell v. FEC, 540 U.S. 93, 196 (2003). The information 

plaintiffs seek—namely, the extent to which the Clinton campaign accepted and “spent” in-kind 

contributions in the form of coordinated expenditures from CTR—is thus precisely the kind of 

Case 1:19-cv-02336-JEB Document 27 Filed 03/05/20 Page 10 of 55
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information that FECA’s disclosure regime is designed to make public.

Rather than disputing that the information at issue here is subject to FECA’s disclosure 

requirements, intervenors assert that plaintiffs can gather all of this information from the 

committee reports that CTR filed with the FEC in the 2016 election cycle. That claim is false: even 

if CTR’s or HFA’s reports could theoretically “cure” their failure to disclose any coordinated 

spending, these reports do not. They do not contain sufficient information for plaintiffs to even

retroactively deduce the “scale and scope of CTR’s expenditures coordinated with the Clinton 

campaign.” Am. Compl. ¶ 11. CTR’s reports reveal only the broadest outlines of its disbursements, 

typically reporting undifferentiated “lump sums” for expenses like payroll, salary, or travel, and 

wholly fail to specify which disbursements (or which portions of a given disbursement) were made 

for coordinated versus non-coordinated activities. Indeed, without an itemization of disbursements 

according to their specific purposes, as FECA requires, it is impossible to discern which of CTR’s 

expenditures, if any, qualified for the FEC’s internet exemption—which is the central and 

dispositive inquiry here. The existing record thus conceals, rather than reveals, the core 

information that Congress sought to make public: “where political campaign money comes from 

and how it is spent by the candidate.” Buckley, 424 U.S. at 66-67.

Plaintiffs have also sufficiently pleaded that the rationale for the dismissal of their 

complaint, as set forth in the Statement of Reasons (“SOR”) of the two “controlling” FEC 

Commissioners,

1

rested on impermissible interpretations of FECA and FEC regulations, and was 

arbitrary, capricious, and otherwise contrary to law. See Orloski, 795 F.2d at 161; Am. Compl. 

¶¶ 7, 85-98. In response to this 12(b)(6) motion, plaintiffs do not attempt to enumerate all of the 

 

1 The Statement of Reasons is attached to Intervenors’ brief as Exhibit A (Dkt. No. 26-4). 

Hyperlinks to FEC administrative materials cited herein appear in the Table of Contents. 

Case 1:19-cv-02336-JEB Document 27 Filed 03/05/20 Page 11 of 55
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reasons the dismissal was contrary to law, which will require full briefing, but will address 

intervenors’ two primary arguments for dismissal.

First, CTR and HFA argue that the controlling Commissioners were correct to find that 

virtually all of CTR’s more than $9 million in expenditures funded activities that were

categorically exempt from FECA and FEC coordination provisions as unpaid “communications 

over the Internet,” 11 C.F.R. § 100.26, or more broadly still, as “input expenses” for such 

communications. Intervenors essentially claim that campaigns and outside groups can freely 

coordinate their expenditures, as long as some portion, however negligible, of those expenditures 

support eventual exempt internet communications. Under their standard, for example, paying 

private consultants to conduct a poll in coordination with a campaign is exempt if some of the poll 

results are posted online; the poll is nothing more than an “input cost” for the internet 

communication. This is so, they say, even when a particular cost, such as overhead for rent or 

payroll, supports both internet communications and non-internet, non-communication 

expenditures. This is plainly “contrary to law” and FECA’s clear text.

It also flies in the face of Shays v. FEC, 337 F. Supp. 2d 28, 69-70 (D.D.C. 2004) (“Shays 

I”), aff’d, 414 F.3d 76 (D.C. Cir. 2005) (“Shays II”), which struck down a more capacious 

antecedent of the current internet exemption as contrary to Congress’s clear statutory directive to 

regulate coordinated communications. As Shays I recognized, an unduly broad carve-out from the 

coordination rules for internet activity “severely undermines FECA’s purposes,” since “allow[ing] 

such expenditures to be made unregulated would permit rampant circumvention of the campaign 

finance laws and foster corruption or the appearance of corruption.” Id. at 70.2Intervenors here 

 

2 The FEC did not appeal the district court’s decision with respect to the internet exemption, 

choosing instead to promulgate the narrower rule at issue here. Internet Communications, 71 Fed. 

Reg. 18589 (Apr. 12, 2006) (Explanation & Justification).

Case 1:19-cv-02336-JEB Document 27 Filed 03/05/20 Page 12 of 55
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seek not only to reopen the “public communication” loophole that Shays I closed, but to expand

it—so that the internet exception swallows the coordination rules entirely.

Second, even if intervenors’ unbounded views of the “input costs” necessary to make an 

exempt communication were accepted, they still have no answer for CTR’s expenditures with no 

conceivable nexus to internet communications, such as CTR’s training of campaign surrogates and 

public relations efforts to place op-eds and contact reporters. With respect to this category of 

CTR’s activities, the controlling Commissioners claimed the evidence of coordination was 

insufficient. Am. Compl. ¶¶ 88-91. Although intervenors now defend that conclusion, neither CTR 

nor HFA actually denied that these activities were coordinated in their responses to the 

administrative complaint. Instead, both argued that coordination of these expenditures was legally 

permitted—if not though the internet exception, then through the “media exemption,” a legal claim

so obviously wrong that the controlling Commissioners simply ignored it. See infra note 12.

Indeed, to maintain that the record here was in any way inadequate, the controlling 

Commissioners effectively had to ignore it. Abundant evidence documented coordinated efforts 

between CTR and HFA, including the public admissions of CTR spokespeople that the group

would “work in coordination with the Clinton campaign as a stand-alone super PAC.” FEC Compl. 

¶ 9 (Dkt. No. 15-1 (Ex. A to Am. Compl.)). From its inception, CTR took the position that it 

could—and would—freely coordinate with the campaign, and CTR’s leadership consistently 

affirmed this arrangement in press reports and interviews throughout the election cycle.

Finally, because both the controlling Commissioners and intervenors claim that the SOR

reflects the FEC’s official “longstanding” approach to the internet exemption, see Int. Br. at 25-

26, plaintiffs also assert a claim under the APA challenging the coordination rules themselves. 

These regulations, at least as construed by the controlling group, are in direct conflict with FECA’s 

Case 1:19-cv-02336-JEB Document 27 Filed 03/05/20 Page 13 of 55
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mandate to regulate coordinated expenditures as in-kind contributions. See Am. Compl. ¶¶ 92, 

108-113. Intervenors argue that FECA provides the exclusive avenue for challenging FEC actions, 

but that principle only applies if “Congress has provided special and adequate review procedures.” 

Bowen v. Massachusetts, 487 U.S. 879, 903 (1988) (emphasis added) (internal quotation marks 

and citations omitted). Plaintiffs seek an order declaring the construction of these rules unlawful 

and invalid, and ordering the FEC to regulate coordination in a manner consistent with FECA, not 

just here, but in all future cases. This is not a remedy that FECA provides, so the judicial review 

mechanism in 52 U.S.C. § 30109(a)(8) is not adequate.

BACKGROUND

A. Statutory and Regulatory Background

1. Coordinated expenditures are in-kind contributions subject to FECA’s 

contribution limits and disclosure requirements.

FECA defines “contribution” as a “gift . . . of money or anything of value made by any 

person for the purpose of influencing any election for Federal office.” 52 U.S.C. § 30101(8)(A)(i). 

All expenditures made “in cooperation, consultation, or concert, with, or at the request or 

suggestion of, a candidate, his authorized political committees, or their agents” (i.e., coordinated 

expenditures) are treated as in-kind contributions to that candidate. Id. § 30116(a)(7)(B)(i).3 This 

is because coordinated expenditures function as “disguised contributions,” —and failing to 

regulate them as such creates a risk of corruption and conceals the true sources of candidates’ 

support. Buckley, 424 U.S. at 46-47. 

Coordinated expenditures are thus covered by FECA’s contribution limits, source 

 

3

“In-kind contributions” also include “the payment . . . of compensation for the personal 

services of another person which are rendered to a political committee without charge for any 

purpose.” Id. § 30101(8)(A)(ii). 

Case 1:19-cv-02336-JEB Document 27 Filed 03/05/20 Page 14 of 55
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restrictions, and disclosure requirements. 52 U.S.C. §§ 30104; 30116(a)(1)(A), (a)(7)(B)(i). For 

each reporting period and the calendar year, a candidate-authorized committee must disclose the 

total contributions received from other committees, including in-kind contributions in the form of 

coordinated expenditures. Id. § 30104(b)(2)(D). The candidate’s report must also itemize all 

contributions received from other committees, and for each, state the contribution’s date, value, 

and whether it was in support of the candidate’s primary or general election. Id. § 30104(b)(3)(B); 

see also Instructions for FEC Form 3P and Related Schedules 5, FEC, https://www.fec.gov/

resources/cms-content/documents/fecfrm3pi.pdf. Because in-kind contributions received by a 

campaign are also “expenditures” of that campaign, the report must disclose a coordinated 

expenditure not only as a contribution received, but also as an expenditure made by the candidate. 

11 C.F.R. §§ 104.13(a), 109.20(b), 109.21(b).

Likewise, for each reporting period and the election cycle, an unauthorized (i.e., noncandidate) committee must disclose its total contributions to other committees, including in-kind 

contributions in the form of coordinated expenditures, and itemize all contributions made to other 

committees, stating for each the date, value, and recipient’s name and address. 52 U.S.C.

§ 30104(b)(6)(B)(i), (H)(i). In addition, because in-kind contributions by a committee are also 

expenditures of that committee, the report must disclose the person to whom each expenditure is 

made and its date, amount, and purpose. Id. § 30104(b)(5)(A).4

2. The FEC exempts only a narrow category of unpaid internet activity from its 

coordination regulations.

The FEC defines “coordinated” expenditures as those made “in cooperation, consultation 

or concert with, or at the request or suggestion of, a candidate, a candidate’s authorized committee, 

 

4 These disclosure requirements also apply to hybrid or “Carey committees” like CTR. See Am. 

Compl. ¶¶ 56-57.

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8

or a political party committee.” 11 C.F.R. § 109.20(a).

In addition to this general rule implementing the statutory definition of coordination, 52 

U.S.C. § 30116(a)(7)(B)(i), the FEC regulates a subset of coordinated expenditures as

“coordinated communications.” 11 C.F.R. § 109.21. To be a “coordinated communication” under 

the rule’s three-part test, a communication must be paid for by a person other than the candidate, 

id. § 109.21(a)(1), and satisfy one of the content standards and one of the conduct standards set 

forth in sections 109.21(c) and (d), respectively. The content standards in subsection (c) only cover

“public communications,” which include communications made by “broadcast, cable, or satellite 

communication, newspaper, magazine, outdoor advertising facility, mass mailing, or telephone 

bank to the general public, or any other form of general public political advertising.” Id. § 100.26. 

In 2006, the FEC carved out a narrow exception to this facially expansive definition, 

clarifying that public communications do not include “communications over the Internet” except 

for those “placed for a fee on another person’s Web site.” Id.; 71 Fed. Reg. 18589. This “internet 

exception” is necessarily narrow, as the rulemaking was initiated after a more sweeping effort to 

exempt internet communications was invalidated as unduly broad in Shays I. 337 F. Supp. 2d at 

69-70. Therefore, while unpaid internet communications are not public communications and 

cannot be regulated as “coordinated communications” under 11 C.F.R. § 109.21, expenditures for 

paid internet communications are not exempt. Likewise, payments for services “rendered to” a 

campaign, if coordinated, are in-kind contributions, id. §§ 100.54, 100.94—even if the services 

rendered also result in exempt internet communications. See FEC Compl.¶¶ 81-83, 92-95, 98-99.

3. The statutory framework for FEC administrative complaints.

Any person may file a complaint with the FEC alleging a violation of the Act. 52 U.S.C. 

§ 30109(a)(1). After reviewing the complaint and the OGC’s recommendations, the Commission 

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9

votes on whether there is sufficient “reason to believe” the Act was violated to justify an 

investigation. After any investigation, if the Commission finds probable cause to believe a FECA 

violation occurred, id. § 30109(a)(3), it seeks a conciliation agreement with the respondent, which 

may include civil penalties. Id. § 30109(a)(4)(A), (5). If the Commission is unable to correct the 

violation and enter a conciliation agreement, it may institute a civil action in federal district court. 

Id. § 30109(a)(6)(A). All of these decisions require four affirmative votes.

If, at any of these decision-making junctures, fewer than four Commissioners vote to 

proceed, the Commission may vote to dismiss the complaint and the controlling group of 

Commissioners who voted not to proceed must issue a Statement of Reasons to serve as the basis 

for any judicial review. Common Cause v. FEC, 842 F.2d 436, 449 (D.C. Cir. 1988). “Any party 

aggrieved” by the dismissal of its FEC complaint may seek review in this Court to determine 

whether the dismissal was “contrary to law.” 52 U.S.C. § 30109(a)(8)(A), (B). 

B. Factual Background

On October 6, 2016, plaintiffs filed a sworn administrative complaint against CTR and 

HFA for failing to report CTR’s in-kind contributions to HFA in the form of coordinated 

expenditures and for violating FECA’s contribution restrictions. Am. Compl. ¶ 62. Plaintiffs’ 

administrative complaint—one of five raising similar concerns—documented millions of dollars 

that CTR spent on opposition research, message development, and press outreach for the benefit 

of HFA. Id. ¶¶ 63, 72. CTR’s leadership publicly admitted that its activities were coordinated with 

HFA, but claimed that such coordination was permitted because CTR would only engage in unpaid 

internet communications. Id. ¶¶ 65-66. This claim, however, was contradicted by unrefuted reports 

that CTR had spent millions of dollars on non-communication activities, such as paying staff to 

build relationships with reporters; contracting with consultants to provide “on-camera media 

training” for Clinton surrogates; hiring private polling firms; and paying for extensive travel. Id.

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¶¶ 68-71.

After reviewing plaintiffs’ complaint, respondents’ written replies, and other available 

evidence, OGC recommended the Commission find reason to believe that CTR and HFA violated 

FECA by making and accepting excessive and prohibited in-kind contributions and failing to 

report those contributions. Id. ¶ 74. OGC rejected claims by respondents that CTR’s expenditures 

were communications covered by the internet exception and instead found that most of the $9 

million that CTR raised and spent were for a “wide array of activities, most of which are not fairly 

characterized as ‘communications.’” Id. ¶ 75. OGC also noted that neither respondent disputed

“the description or scope of [CTR’s] activities on behalf of [HFA] as set forth in [plaintiffs’

administrative complaint].” Id. ¶ 76. Nor did CTR and HFA dispute that their myriad noncommunication activities were, in fact, coordinated. Id. ¶ 79.

On June 4, 2019, the FEC’s four Commissioners failed to find reason to believe that CTR 

and/or HFA had violated any provision of FECA, deadlocking by a vote of 2-2, id. ¶ 82, and the 

Commission dismissed plaintiffs’ administrative complaint. Id. ¶ 83. 

Plaintiffs filed this action on August 2, 2019, challenging the dismissal of their complaint 

as contrary to law. Compl. (Dkt. No. 1). On August 21, 2019, seventy-eight days after the dismissal 

and eighteen days after plaintiffs’ statutory deadline to file suit, the controlling Commissioners 

issued their SOR. Am. Compl. ¶¶ 85-86. Plaintiffs amended their complaint on October 29, 2019

to address the belated issuance of the controlling SOR. Am. Compl. (Dkt. No. 15). 

LEGAL STANDARD

To demonstrate Article III standing, plaintiffs must establish three elements: (1) “injury in 

fact”; (2) causation; and (3) redressability. Friends of Animals v. Jewell, 824 F.3d 1033, 1040-41 

(D.C. Cir. 2016). While plaintiffs bear the burden of proving that the Court has subject matter 

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jurisdiction to hear their claims, on a motion to dismiss, plaintiffs “need only ‘state[] a plausible

claim’ that each element of standing is satisfied.” Hancock v. Urban Outfitters, Inc., 830 F.3d 511, 

513 (D.C. Cir. 2016) (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678-79 

(2009)). For purposes of the Rule 12(b)(1) motion, the Court “may consider materials outside the 

pleadings.” Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).

Similarly, “[t]o survive a motion to dismiss” under Rule 12(b)(6), “a complaint must 

contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’” Iqbal, 

556 U.S. at 678 (citation omitted). The Court “must take all of the factual allegations in the 

complaint as true,” id., and “constru[e] the complaint liberally in the plaintiff’s favor.” Stewart v. 

Nat’l Educ. Ass’n, 471 F.3d 169, 173 (D.C. Cir. 2006). For a Rule 12(b)(6) motion, the Court may 

only “consider the facts alleged in the complaint, documents attached thereto or incorporated 

therein, and matters of which it may take judicial notice.” Id.

ARGUMENT

I. PLAINTIFFS HAVE STANDING.

A. Plaintiffs Have Established Informational Injury.

“The law is settled that ‘a denial of access to information’ qualifies as an injury in fact 

‘where a statute (on the claimants’ reading) requires that the information be publicly disclosed and 

there is no reason to doubt their claim that the information would help them.’” Envtl. Def. Fund v. 

EPA, 922 F.3d 446, 452 (D.C. Cir. 2019) (internal citations omitted).

Here, the dismissal has injured plaintiffs by depriving them of important information that 

FECA requires to be disclosed. Under plaintiffs’ reading of FECA and FEC coordination 

regulations—an reading shared by the Commission’s OGC—CTR’s activities on behalf of HFA

likely gave rise to millions of dollars in undisclosed in-kind contributions to the campaign, a 

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possibility the FEC has not even investigated, much less confirmed. The resulting in-kind 

contributions should have been reported by CTR, and more importantly, by HFA, as both 

contributions to and expenditures by the Clinton campaign. See 52 U.S.C. §§ 30104(b)(2)-(5), 

30116(a)(7)(B); 11 C.F.R. §§ 104.13, 109.20. Plaintiffs’ informational injury also extends beyond 

this particular matter, because the controlling group’s construction of the coordination regulations

and internet exemption allows similar schemes to go unregulated and unreported, see infra Part 

III, thereby “illegally den[ying] [plaintiffs] information about who is funding presidential 

candidates’ campaigns.” Shays v. FEC, 528 F.3d 914, 923 (D.C. Cir. 2008) (“Shays III”).

1. Plaintiffs have been deprived of information that FECA requires to be disclosed.

“[A] plaintiff suffers an ‘injury in fact’ when the plaintiff fails to obtain information which 

must be publicly disclosed pursuant to a statute,” Akins, 524 U.S. at 21. In Akins, the Supreme 

Court held that the plaintiffs had suffered an injury in fact because they had been unable “to obtain 

information—lists of AIPAC donors . . . and campaign-related contributions and expenditures—

that, on [the plaintiffs’] view of the law, the statute requires that AIPAC make public.” Id. Because 

the plaintiffs had been deprived of that information and there was “no reason to doubt” that the 

concealed information would be helpful for evaluating candidates and their relationships with 

AIPAC, the plaintiffs’ injury was sufficient to give them standing. Id.

Consistent with Akins, the D.C. Circuit and this Court have recognized that plaintiffs are 

injured when an alleged FECA violation causes the concealment of information that the Act 

requires disclosed, including information about coordinated expenditures. For example, in Shays 

III, the D.C. Circuit held that the plaintiff had standing to sue the FEC for promulgating an 

unlawfully narrow definition of “coordinated communications” under the Bipartisan Campaign 

Reform Act (“BCRA”), which would result in presidential candidates failing to “report as 

contributions many expenditures that [the plaintiff] believe[d] BCRA requires them to report.” 528 

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F.3d at 923. See also Ctr. for Ind’l Freedom v. Van Hollen, 694 F.3d 108, 109 (D.C. Cir. 2012) 

(per curiam); CREW v. FEC, 243 F. Supp. 3d 91, 101-02 (D.D.C. 2017) (“CREW 2017”). 

To be sure, Akins standing is unavailable when plaintiffs seek only a legal determination 

about what FECA prohibits, Wertheimer v. FEC, 268 F.3d 1070, 1074 (D.C. Cir. 2001), but that 

principle has no bearing here. Plaintiffs’ injury is not merely an abstract “interest in having the 

Executive Branch act in a lawful manner.” Common Cause v. FEC, 108 F.3d 413, 419 (D.C. Cir. 

1997). Instead, plaintiffs have been denied a statutory right to obtain information about the

expenditures CTR made in coordination with HFA, and the amounts and purposes of these 

expenditures. 52 U.S.C. § 30104(b)(3)-(5). And for purposes of the pending motion, plaintiffs’ 

allegations that at least some of these expenditures do not qualify for FEC’s limited regulatory 

exemption for unpaid online communications must be taken as true. See infra Part II. In addition, 

through their APA claim, plaintiffs allege that the construction of FECA and its regulations 

sanctions potentially widespread failures to “report as contributions many expenditures that [they] 

believe[] [FECA] requires them to report,” 528 F.3d at 923, depriving plaintiffs of information not 

only in this matter, but in any case concerning “coordinated communications” activity.

FECA treats all expenditures made “in cooperation, consultation, or concert, with, or at the 

request or suggestion of, a candidate, his authorized political committees, or their agents” as 

“contribution[s] to such candidate.” 52 U.S.C. § 30116(a)(7)(B). As in-kind contributions, 

coordinated expenditures trigger unique reporting obligations; most importantly, candidate

committees must itemize in-kind contributions on their financial reports as both receipts to and

disbursements by the campaign. See 11 C.F.R. § 104.13(a). Similarly, an unauthorized committee 

(for example, CTR) must itemize each in-kind contribution it makes to another committee, 52 

U.S.C. § 30104(b)(4)(H)(i), and disaggregate its in-kind contributions from other types of 

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spending that are subject to different reporting. See id. § 30104(b)(4)(H)(i)-(v). Each in-kind 

contribution made by a political committee counts as an operating expense of that committee, and 

thus the contributing committee must also disclose the payment’s recipient, “date, amount, and 

purpose.” Id. § 30104(b)(5)(A). See also supra at 6-7 (Statutory Background).

In short, FECA requires complete, itemized disclosure of a political committee’s 

expenditures made in coordination with a candidate—by both the committee and the candidate—

and intervenors do not dispute this. Thus, if a committee made $50,000 in aggregate disbursements 

on “travel” in a reporting period, and some amount of that total was connected to activities 

“coordinated” with a candidate, it is not sufficient under FECA to simply report the $50,000 as a 

lump sum disbursement on travel. See infra Part I.A.2.b. Instead, the committee is obligated to 

itemize those particular expenses from the $50,000 total that constituted “coordinated 

expenditures” and report them as in-kind contributions—not simply lump them in with the

committee’s undifferentiated spending on the line item of “travel.” This reporting enables the 

public to understand what goods or services of value the committee has provided to the candidate.

5

The FEC’s failure to require this disclosure from CTR and HFA deprives plaintiffs of 

crucial information FECA requires to be disclosed both in this matter and future cases.

2. The factual information plaintiffs seek is not already available to them. 

Intervenors do not even attempt to claim that CTR or HFA reported any in-kind 

contributions in the form of coordinated expenditures. Instead, they offer up various arguments for 

 

5 To the extent that CTR and HFA argue that the internet exemption permits them to conceal all 

of their alleged coordinated spending, no matter how attenuated from internet postings, see Int. Br. 

at 24-30, that is a disputed legal argument, and does not bear on whether plaintiffs have stated a 

plausible claim of informational injury. See Akins, 524 U.S. at 21 (plaintiffs-respondents had 

standing because they were denied “information . . . that, on respondents’ view of the law, the 

statute requires that AIPAC make public”) (emphasis added).

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why the information plaintiffs seek is “already available to them,” Int. Br. at 13, and plaintiffs thus

have not suffered informational injury.

6 But the FEC reports CTR and HFA filed in the 2016 

elections are not a functional substitute for proper disclosure of the coordinated spending alleged, 

because they lack the factual information to which plaintiffs are entitled. CTR’s 2016 reports 

disclosed its disbursements only in general terms (e.g., as “salary” or “rent”), and failed to provide 

information that would allow a determination of which disbursements, in whole or part, were made 

in coordination with HFA and which were made for non-coordinated or exempt activities.

a. CTR’s and HFA’s failure to report leaves plaintiffs without access to the 

information they are owed under FECA.

Intervenors’ first theory is that plaintiffs have not suffered informational injury because the

news reports and other sources cited in the administrative complaint already provided considerable 

information about CTR’s apparent coordination with HFA. Int. Br. at 12-13. But plaintiffs have 

made clear that without an FEC investigation, they do not know which activities were in fact

coordinated between HFA and CTR, nor the extent to which any given disbursement by CTR 

constituted in whole or part an in-kind contribution to HFA. Am. Compl. ¶ 11, 30, 95. Indeed, 

even after reviewing the existing factual record, which comprised plaintiffs’ administrative 

complaint, intervenors’ responses thereto, and other publicly available material, the OGC

determined that an investigation was necessary because “the extent” of illegal coordination 

between CTR and HFA was unknown. Id. ¶ 4. A similar challenge to a plaintiff’s informational 

 

6 As a threshold matter, this argument bears only upon plaintiffs’ access to disclosure from CTR 

and HFA; it does not address the broader informational injury that arises from the controlling 

group’s purportedly authoritative construction of the coordination regulations and internet 

exemption that plaintiffs challenge under the APA. See infra Part III. The latter injury is consistent 

with the general deprivation of information that was found to sustain standing in Shays III—

“[s]pecifically, under the FEC’s definition of coordinated communications, presidential candidates 

need not report as contributions many expenditures that [plaintiffs] believe[] BCRA requires them 

to report.” 528 F.3d at 923.

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standing based upon the purported adequacy of news reporting was recently rejected where “the 

[FEC’s] General Counsel did not believe it knew the entire story about the contributions.” CLC v. 

FEC, 245 F. Supp. 3d 119, 127 (D.D.C. 2017). As that Court found, “[i]f the General Counsel did 

not know the whole story then, there is little reason to believe that plaintiffs know it now.” Id.

Moreover, although the public record makes clear that CTR and HFA coordinated some

activities that qualified as reportable in-kind contributions, plaintiffs know only the broadest

contours of that spending, and the little additional information they have is based on news reports. 

This evidence, while more than sufficient to support a finding of reason to believe that CTR and 

HFA violated FECA, see infra Part II, is not the type of information, certified as correct and 

provided in disclosure reports filed under penalty of law, 52 U.S.C. § 30109, that FECA demands. 

Nor was this information disclosed by virtue of an FEC investigation,

7

unlike many of the standing 

decisions that intervenors cite. See infra Part I.A.2.c. Plaintiffs need not settle for incomplete 

second-hand information in lieu of the comprehensive verified disclosure they are owed under 

FECA. See 52 U.S.C. § 30104. 

b. CTR’s and HFA’s disclosure reports do not contain the information plaintiffs 

need to determine the amounts and purposes of CTR’s in-kind contributions.

Intervenors next argue that CTR’s committee disclosure reports from the 2015-16 cycle

disclose “every CTR expenditure” at issue in this case, and thus plaintiffs are suing merely to have 

those expenditures “re-classified as an in-kind contribution.” Int. Br. at 12. But this argument is 

based on the false premise that CTR’s reports actually disclose specific, itemized expenditures that 

could be “re-classified” as coordinated or non-coordinated expenditures. Instead of disclosing such 

 

7 OGC recommended “[a]uthorizing the use of compulsory process, including the issuance of 

appropriate interrogatories, document subpoenas and deposition subpoenas.” First Gen. Counsel’s 

Report (“FGCR”) at 27 (“OGC Rept.”), cited in Am. Compl. ¶ 4 and attached hereto as Exhibit C.

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information, CTR has simply reported undifferentiated “lump sums” for expenses like payroll, 

salary, or travel, without identifying whether or the extent to which these disbursements were 

connected to coordinated activities. And this case, in particular, turns on the purpose of CTR’s

expenditures—namely, whether they funded exempt internet communications. Without an 

itemization of disbursements according to their specific purposes, it is impossible to answer this 

central inquiry. Plaintiffs are thus suing for access to new factual information crucial to 

understanding which CTR disbursements served as in-kind contributions—not for a mere 

reclassification of information already in the public domain.

During the 2015-16 election cycle, CTR filed periodic reports with the FEC disclosing

$9,617,828 in disbursements. CTR reported no contributions to HFA.8In reporting its 

“independent” disbursements, CTR typically described the purpose of each line item in terms that 

were “not communication-specific, including payroll, salary, travel, lodging, meals, rent, 

fundraising consulting, computers, digital software, domain services, email services, equipment, 

event tickets, hardware, insurance, office supplies, parking, and shipping.” OGC Rept. at 9. These 

generic descriptions leave plaintiffs with more questions than answers regarding the information 

to which they are entitled: How much of the spending on this line item (if any) was coordinated 

with HFA? If some portion of this disbursement was indeed “coordinated,” which specific 

coordinated activities were funded, and were they exempt as unpaid internet communications? 

For example, CTR reported making 36 distinct salary payments to David Brock, totaling 

over $168,500.

9 One typical paycheck was the $4,521.56 that Brock received on July 28, 2016. 

 

8

See Correct the Record Financial Summary (2015-16), FEC, https://www.fec.gov/data/

committee/C00578997/?cycle=2016.

9

See Disbursements: Correct the Record to David Brock (2015-16), FEC, https://www.fec.gov/

data/disbursements/?committee_id=C00578997&two_year_transaction_period=2016&recipient_

name=BROCK%2C+DAVID&data_type=processed (attached hereto as Ex. D).

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Like the typical salary payment CTR made, this payment was reported simply as “Salary: NonContribution Account.” Id. This method of paying and reporting Brock’s salary would be accurate 

and complete only if all of Brock’s work during that pay period was either uncoordinated with 

HFA or focused exclusively on online communications (assuming arguendo that paid staff time 

devoted to exempt internet activity is a “direct” production cost and exempt on that basis).

However, there is reason to believe that Brock’s salary payments compensated him for a 

broader range of work, including work in coordination with HFA on matters other than online 

communications. As OGC found, “[t]he available information shows that CTR systematically 

coordinated with HFA on its activities.” OGC Rept. at 16. Brock’s own statements provided much 

of the key evidence for this conclusion, including a podcast interview in which he described CTR 

as “under [HFA’s] thumb” and gave “several examples of how HFA would ‘make sure’ that CTR 

activity met HFA’s needs.” Id. at 17-18. Given Brock’s apparently extensive personal involvement 

in coordinating CTR’s activities with HFA, there is reason to believe that some portion of his 

paycheck functioned as a disguised contribution to the campaign.

But the actual mix of coordinated and non-coordinated (or exempt) work that Brock 

performed in any given pay period remains a mystery. To take just one plausible scenario, suppose 

that in the period covered by his July 28 paycheck of $4,521.5610 Brock’s work consisted of 

preparing surrogates for television interviews at HFA’s suggestion (40 percent) and reviewing 

Facebook posts and tweets for CTR to post at HFA’s suggestion (60 percent). In that case, 40 

percent of Brock’s paycheck, or $1,808, represented non-exempt, coordinated spending and CTR 

should have reported that amount as an in-kind contribution to HFA, with a descriptive memo such 

 

10 See CTR Report of Receipts and Disbursements (FEC Form 3X) at 55, October 2016 Quarterly 

Report (amended Dec. 7, 2016), https://docquery.fec.gov/pdf/477/201612089040486477/201612

089040486477.pdf (page reference attached hereto as Ex. E).

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as “In-Kind Contribution: Media Training for Surrogates.” FECA entitles plaintiffs to know about 

this type of coordinated transaction. But CTR’s apparent practice was to treat the entirety of every 

salary payment as a non-contribution disbursement no matter what work it paid for, violating 

FECA and leaving plaintiffs in the dark.

Another example of CTR’s unlawful reporting is its treatment of travel expenses. CTR

disclosed more than $589,000 in disbursements for “travel” in the 2015-16 election cycle. OGC 

Rept. at 21. A disbursement for “travel” is not an expense for an unpaid online communication—

or a communications expense at all—so it must be treated as an in-kind contribution to the extent 

it was connected to coordinated activity. Given the abundant evidence that “CTR systematically 

coordinated with HFA on its activities,” id. at 16, there is at least reason to believe that some of 

CTR’s travel spending funded coordinated activities unconnected to the internet, and thus should 

have been allocated between contribution and non-contribution components. 

HFA’s public reports provide even less information than CTR’s about the spending 

coordinated between the two committees. HFA did not report receiving any contributions from 

CTR. Am. Compl. ¶ 63. The only reported transactions between HFA and CTR were the two 

payments that HFA made to CTR in 2015: $275,615 for “research, non-contribution account,” and 

$6,346 for “research services.” OGC Rept. at 9. Intervenors argue that these payments “fully 

compensated CTR for any tracking and research services it provided to HFA.” Int. Br. at 30. 

However, as OGC found, it is actually “not clear” whether these payments covered the value of 

any non-public information CTR shared with HFA, OGC Rept. at 9, and an investigation is 

necessary “to determine how [the payments] relate to CTR’s overall activity,” id. at 20 n.67. It 

would be premature for the Court to decide, on a motion to dismiss, whether it was reasonable to 

conclude that HFA’s minimal payments to CTR covered the fair market value of CTR’s 

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coordinated research and tracking work. In any event, HFA’s relatively modest reported payments 

to CTR reveal nothing about coordinated activity other than research and tracking.

In short, neither CTR nor HFA have provided the public accounting of coordinated 

expenditures to which plaintiffs are entitled under FECA, and CTR’s filed reports do not contain 

the information necessary cure this failure. 

c. Intervenors cite no case suggesting that the failure to disclose up to $9 million in 

in-kind contributions does not inflict informational injury.

Unlike the judicial authority that intervenors cite to challenge plaintiffs’ standing, this case 

does not merely concern a “re-classifi[cation]” of already known coordinated spending “as an inkind contribution.” Int. Br. at 12. Intervenors’ cited precedents, insofar as they even concern 

coordinated spending, involved plaintiffs seeking a legal finding of violation in connection to a 

discrete reported expenditure as to which the fact of coordination had already been confirmed—

for instance, because the FEC actually investigated or entered into a conciliation agreement. Here, 

by contrast, CTR spent as much as $9 million in coordination with HFA, but there has been no

acknowledgment of coordination, no FEC investigation, and no information reported by either 

group revealing the extent of the in-kind contribution that HFA received from CTR.

Therefore, although intervenors lean heavily on Wertheimer, their reliance is misplaced. 

The apparent “impetus” for that lawsuit, as the Court noted, was the plaintiffs’ dissatisfaction with 

the FEC’s failure to find that the DNC’s spending on certain advertisements in connection to 

President Clinton’s 1996 campaign constituted illegal coordinated expenditures under the 

Presidential Election Campaign Fund Act. Wertheimer, 268 F.3d at 1072. In short, the plaintiffs

sought a legal ruling that the DNC had violated the Fund Act, not new facts.

The problem with those plaintiffs’ theory of standing was their failure to show that such a 

ruling “might lead to additional factual information.” Id. at 1074. The plaintiffs already knew that 

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the DNC’s spending was coordinated with President Clinton, because—as no one disputed—

FECA already required political party committees to report their coordinated expenditures with 

presidential candidates. Id. at 1073; see also id. at 1075 (Garland, J., concurring) (“[A]ppellants 

do not dispute[] that political party committees are already required to report and to identify such 

coordinated expenditures as § [30116(d)] expenditures.”). If the plaintiffs had prevailed, the result 

would have been to force candidate committees to “disclose” as contributions the exact same 

coordinated expenditures already disclosed by the DNC; therefore, they were not pursuing new 

factual information, but “the same information from a different source.” Id. at 1075.11

The other cases intervenors cite are similarly inapposite. For example, in CREW v. FEC, 

799 F. Supp. 2d 78 (D.D.C. 2011) (“CREW 2011”), this Court ruled that the plaintiffs lacked 

informational standing to challenge the FEC’s failure to take enforcement action regarding an 

excessive in-kind contribution that a congressmember’s PAC made to his presidential campaign 

in the form of $10,243 in travel expenses. Id. at 88. The plaintiffs already had all of the information 

they claimed to seek, because the FEC had conducted an investigation and published a report 

clarifying precisely how much the PAC spent on travel expenses, and under what factual 

circumstances. Id. The only remaining question was a legal dispute about how much of the $10,243 

expenditure should be considered a contribution to the presidential campaign, and how much 

should be considered a non-contribution expenditure in furtherance of the PAC’s own mission. Id. 

Unlike in this case, categorizing a specific portion of the expenditure in CREW 2011 as an in-kind 

 

11 Intervenors characterize Wertheimer as holding that “‘coordination’ is a legal conclusion” no 

matter the context. Int. Br. at 12. But Wertheimer merely recognized that “coordination” can be a 

legal conclusion in situations where the underlying facts are known. 268 F.3d at 1075. At the same 

time, the court recognized that in other contexts, “facts are necessarily implied by the label 

‘coordinated,’” suggesting that plaintiffs could show informational injury in other cases based on 

a failure to disclose coordinated spending. Id. (emphasis added). This is such a case.

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contribution would reveal no new facts about it. 

Likewise off point are CREW v. FEC, 475 F.3d 337 (D.C. Cir. 2007) (“CREW 2007”), and 

Alliance for Democracy v. FEC, 362 F. Supp. 2d 138 (D.D.C. 2005), which both turned on the 

valuation of a discrete in-kind contribution in the form of a mailing list. In CREW 2007, the 

plaintiff lacked standing to challenge the FEC’s dismissal of a complaint alleging an illegal 

contribution of a list of conservative activists to President George W. Bush’s reelection campaign. 

475 F.3d at 337-38, 341. Despite having extensive information about the list and how the Bush 

campaign acquired it, CREW claimed to sustain informational injury because it disagreed with the 

valuation of the list provided by the campaign. Id. at 338-39. The Court explained that this theory 

of injury was “highly attenuated” because “the list’s precise value—if that could be determined—

would add only a trifle to the store of information about the transaction already publicly available.” 

Id. at 339-40. Similarly, in Alliance for Democracy, the plaintiffs sought to show informational 

standing on the ground that the FEC failed to calculate and publish the value of a donor list that 

allegedly constituted an illegal in-kind contribution. 362 F. Supp. 2d at 145. There, the Court noted 

that “there was no single, objective value that could be attached to the mailing list,” and insofar as 

it was possible to estimate the list’s value, the plaintiffs already had access to data that would 

enable that estimation. Id. at 145-46. 

These cases have no bearing on plaintiffs’ informational interest here. Unlike the value of 

the list in Alliance for Democracy, the nature and extent of CTR’s coordinated spending with HFA 

is possible to quantify, but depends on information that is currently known only by respondents. 

And the information plaintiffs seek—specifically, the extent to which a $9-million “independent” 

super PAC was in fact working and spending money in coordination with the Democratic nominee 

for President—can hardly be dismissed as a “trifle.” CREW 2007, 475 F.3d at 340. Intervenors 

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cannot escape the reality that plaintiffs’ injury in this case consists of “their inability to obtain 

information” that FECA requires CTR and HFA to disclose. Akins, 524 U.S. at 21.

3. Both plaintiffs sufficiently show that their inability to access FECA disclosure

information directly and concretely injures their interests.

A plaintiff suffers an injury in fact when it shows that it has been deprived of information 

that must be disclosed pursuant to a statute, and that it “suffers, by being denied access to that 

information, the type of harm Congress sought to prevent by requiring disclosure.” Elec. Privacy 

Info. Ctr. v. Pres. Advisory Comm’n on Election Integrity, 828 F.3d 989, 992 (D.C. Cir. 2016). 

“There is no reason to doubt” that information required to be publicly disclosed here is 

“helpful” to plaintiff Kelly in her evaluation of candidates for public office, and to CLC in its 

programmatic work in public education, policy development, legislative advocacy, and litigation. 

Akins, 524 U.S. at 21; Shays III, 528 F.3d at 923.

Like the Akins plaintiffs, plaintiff Kelley is a U.S. citizen and registered voter. See Kelley 

Decl. ¶ 1 (attached hereto as Ex. A); see also Am. Compl. ¶ 26; Akins, 524 U.S. at 13. As a voter, 

she wishes to use information missing from CTR’s and HFA’s disclosure reports to assess 

candidates for office and evaluate the role that CTR’s funders and operatives might play in the 

2020 and future elections. Kelley Decl. ¶¶ 5-7. The controlling Commissioners’ unlawful 

construction of the coordination rules also deprives her of information about coordinated spending 

by similar outside groups, which she would use to evaluate the range of political messages she 

hears and monitor the influence of campaign money on officeholders and public policy. Id. ¶ 8. As 

a result of the FEC’s refusal to require CTR and HFA, as well as other political actors, to disclose 

the extent of their coordinated activity, Kelley suffers a concrete injury: she cannot access 

information that she would use in her capacity as a voter. Id.; Akins, 524 U.S. at 24-25 (holding 

informational injury “sufficiently concrete and specific” when it is “directly related to voting, the 

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most basic of political rights”).

Plaintiff CLC also suffers concrete informational injury due to the FEC’s failure to require 

complete disclosure from CTR and HFA, and its construction of its coordination rules to exempt 

broad swaths of coordinated activities. See infra Part III. The harm Congress sought to prevent by 

requiring disclosure under FECA applies with equal force to those individuals and organizations, 

like CLC, who “communicate” such information to voters to facilitate informed participation in 

the political process. Akins, 524 U.S. at 21 (“There is no reason to doubt [plaintiffs’] claim that the 

information would help them (and others to whom they would communicate it) to evaluate 

candidates for public office.”) (emphasis added); CLC, 245 F. Supp. 3d at 128.

Indeed, a central way that CLC works to advance its mission involves researching the 

money used to influence elections—including, critically, analysis of FEC disclosure reports—and 

communicating its research to voters. Am. Compl. ¶ 17. CLC relies on information reported under

FECA to develop a wide variety of public education materials, including fact sheets, reports, and 

blogs, to inform voters about the sources and extent of candidates’ financial support and the role 

of outside groups in elections. Fischer Decl. ¶¶ 14-16 (attached hereto as Ex. B). These public 

education activities are harmed when candidates and committees fail to file accurate disclosure.

Id. ¶ 17; Am. Compl. ¶ 24. 

CLC also uses information from FEC disclosure reports to prepare comments, letters, and 

complaints submitted to the FEC and state campaign finance agencies, Fischer Decl. ¶¶ 29-32; 

draft briefs and other filings for state and federal campaign finance litigation, id. ¶¶ 22-28; and 

provide testimony and educational materials to legislators, partner organizations, and other 

policymakers, id. ¶¶ 31-34. These efforts are directly harmed by the FEC’s dismissal here, Am. 

Compl. ¶ 11, and by its construction of the coordination rules, id. ¶¶ 108-113. 

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All of these programmatic activities rely on CLC’s ability to compile a factual record 

showing the problems addressed by campaign finance laws; the dismissal here has decreased the 

quantity of accurate and complete reporting from which CLC can draw in compiling such a record. 

For instance, key to any constitutional defense of FECA’s coordination provisions is a record 

corroborating the anticorruption interests they serve, with evidence demonstrating, e.g., the 

political influence and access facilitated by coordinated spending, as well as any explicit quid pro 

quos that arise from such “disguised” contributions. Similarly, a factual record of the problems to 

be remedied by campaign finance laws is necessary for CLC’s legislative advocacy. Without 

accurate disclosure of the sources of candidates’ support, attempts to “follow the money” and 

connect big contributors to officeholder action—thereby securing one of the most important forms 

of record evidence for campaign finance legislation—are greatly impeded. Fischer Decl. ¶ 28.

B. CLC’s Organizational Interests Have Been Directly Impaired by the Lack of FECA

Disclosure, and They Have Diverted Resources to Counteract That Harm.

CLC also asserts a claim of organizational injury, because the FEC’s “actions cause[d] a 

‘concrete and demonstrable injury to the organization’s activities’ that is more than simply a 

setback to [CLC’s] abstract social interests.’” ASPCA v. Feld Entm’t, Inc., 659 F.3d 13, 25 (D.C. 

Cir. 2011) (citation omitted). This is a two-part inquiry, requiring plaintiffs to show, “first, whether 

the agency’s action . . . ‘injured [CLC’s] interest’ and, second, whether [CLC] ‘used its resources 

to counteract that harm.’” People for the Ethical Treatment of Animals v. USDA, 797 F.3d 1087, 

1094 (D.C. Cir. 2015) (“PETA”) (citation omitted). CLC meets both prongs.

Intervenors contend that CLC’s organizational standing claim is doomed because it is 

based only on “general assertion[s].” Int. Br. at 17. At the motion to dismiss stage, of course, 

“general factual allegations” of injury are sufficient, because the court assumes that they “embrace 

those specific facts that are necessary to support the claim.” Abigail All. for Better Access to 

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Developmental Drugs v. Eschenbach, 469 F.3d 129, 132 (D.C. Cir. 2006) (citation omitted). In 

any event, CLC has alleged in detail how the inability to obtain required disclosure information

from CTR and HFA has harmed CLC’s discrete programmatic interests and required it to use 

organizational resources to counteract the harm.

CLC’s inability to obtain required disclosure information directly harms its organizational 

mission to “strengthen the U.S. democratic process” and promote “representative, responsive and 

accountable government,” which it achieves, in large part, by protecting the public’s access to 

information about the financing of federal and state election campaigns and communicating about 

the influence that campaign finance has on policy. Am. Compl. ¶ 15; Fischer Decl. ¶ 4. Complete 

and accurate FEC reports are essential for programs advancing CLC’s mission, including public 

education efforts to inform to voters about campaign spending and the true sources and nature of 

candidates’ financial support. Am. Compl. ¶ 16; Fischer Decl. ¶¶ 9, 14; see supra Part I.A.3. 

The D.C. Circuit recognized a similar theory of organizational injury in PETA. There, 

PETA alleged that the USDA’s failure to apply the Animal Welfare Act to birds harmed its 

organizational interests by depriving PETA of information it needed to conduct public education 

efforts central to its mission of preventing animal cruelty and denying it the ability to combat bird

abuse through USDA enforcement complaints. 797 F.3d at 1094-95. The Court concluded that the 

deprivation of bird-related information, including “investigatory information,” created an injury 

sufficiently “concrete and specific” to confer organizational standing. Id. at 1095.

Likewise, CLC’s inability to access information has harmed its public education efforts

and strained several other key programmatic activities central to its mission. Fischer Decl. ¶ 17. 

Intervenors nevertheless insist that CLC, like the plaintiffs in CREW v. FEC, 401 F. Supp. 2d 115 

(D.D.C. 2005) (“CREW 2005”), has failed to specify concrete injuries or articulate a “particular 

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plan” for using the information it seeks. Int. Br. at 17. This is wrong. CLC’s regulatory practice is 

directly and concretely injured by the dismissal because CLC has been deprived of information it 

needs to participate effectively in rulemaking proceedings and engage in its “normal process of 

submitting [FEC] complaints.” PETA, 797 F.3d at 1094; Fischer Decl. ¶ 24. The FEC’s failure 

also decreases the store of judicially-noticeable information from which CLC can draw to prepare

materials for campaign finance litigation in state and federal courts and in its legislative advocacy 

program. Fischer Decl. ¶¶ 23, 34. Furthermore, unlike the plaintiff in CREW 2005, CLC is not 

already “privy” to the information at issue. 401 F. Supp. 2d at 122-23; see also infra Part I.A.2.

CLC has also shown that it has expended resources to counteract the injury to its 

programmatic activities, so it meets the second prong of the organizational standing test. See 

PETA, 797 F.3d at 1094. Because the FEC failed to require disclosure in connection with CTR’s 

and HFA’s coordinated activity, reporters, researchers, and the public have contacted CLC for 

guidance as to whether CTR and HFA had violated disclosure laws and for advice about how to 

find the unreported information. Am. Compl. ¶ 24; Fischer Decl. ¶ 20. In response, CLC had to 

divert resources from other organizational needs to research relevant law, review inadequate

disclosure reports, and explain to reporters and partner organizations how to they might attempt to 

find information not properly reported. Fischer Decl. ¶ 20. 

Intervenors assert that the allegation “that CLC was injured by having to provide such 

information to reporters” is not legally sufficient for standing purposes. Int. Br. at 16. But plausible

claims of injury based on the diversion of organizational resources clear the Article III bar—

especially at this stage of the case. See Abigail All., 469 F.3d at 132; PETA, 797 F.3d at 1096 

(finding USDA’s failure to provide for investigations of bird-related abuse caused PETA to expend 

resources to gather the information it sought from the USDA independently). CLC has been forced 

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to divert resources in a futile attempt to find the information sought here, reviewing incomplete 

disclosure reports and reallocating staff time to assist reporters and partner organizations. Fischer 

Decl. ¶¶ 20-21. These allegations, like PETA’s, are “non-speculative” and directly result from the 

agency’s failure to provide legally required disclosure. 797 F.3d at 1095.

C. Plaintiffs’ Injury Is Fairly Traceable to the Dismissal of their Administrative 

Complaint and Is Likely to Be Redressed by a Favorable Court Decision.

Intervenors finally argue—albeit only in a footnote—that plaintiffs have “failed to meet 

the causation and redressability requirements for Article III standing.” Int. Br. at 17 n.5. Not so. 

Any party “aggrieved” by the dismissal of their administrative complaint can seek review of that 

decision in court. 52 U.SC. § 30109(a)(8). See also Akins, 524 U.S. at 19 (“History associates the 

word ‘aggrieved’ with a congressional intent to cast the standing net broadly.”). Plaintiffs’ inability 

to access information about the true scope of CTR’s and HFA’s coordinated activity is a direct 

result of the FEC’s failure to find reason to believe that CTR and HFA had violated FECA. 

For the plaintiffs’ injuries to be redressable, it need only be likely that judicial relief will 

redress their injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). If the Court agrees 

that the FEC’s refusal to investigate plaintiffs’ complaint was contrary to law, then it will set aside 

the agency’s action and remand the case. Akins, 524 U.S. at 25. Even if the FEC reaches the same 

result on different grounds, the Court’s action will have redressed plaintiffs’ injury in fact. Id.

II. PLAINTIFFS PROPERLY STATE A CLAIM FOR RELIEF UNDER FECA. 

Intervenors also claim under Rule 12(b)(6) that plaintiffs “fail[ed] to reasonably allege” 

that the dismissal of their administrative complaint was contrary to law. Int. Br. at 22. But the

Amended Complaint details at length why the dismissal was arbitrary, capricious, and contrary to 

law: because it hinged on impermissible interpretations of FECA and FEC rules and arbitrarily 

disregarded the factual record. These allegations are more than sufficient to state a claim.

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The controlling Commissioners advanced two principal reasons for their conclusion that 

there was no reason to believe CTR made any in-kind contributions to HFA in the form of 

coordinated expenditures. As plaintiffs set forth in their complaint, neither withstands the slightest 

scrutiny. 

First, the controlling Commissioners accepted that nearly all of CTR’s expenditures went 

toward online activity falling outside the regulatory definition of “public communication,” 11 

C.F.R. § 100.26, and thus could not be “coordinated communications” under 11 C.F.R. § 109.21. 

This was an implausible legal analysis on its own terms, but manifestly arbitrary and contrary to 

law in that it treated CTR’s general overhead expenses covering both internet communications and 

non-internet activities as categorically unregulable “input costs” for the former. See SOR at 12-13. 

The record before them plainly indicated that CTR’s expenditures funded substantial offline

activities like opposition research, polling, surrogate training, reporter pitches, and “rapid 

response” press outreach, while most of its reported disbursements took the form of general 

overhead expenses that were not communication-specific. OGC Rept. at 9-10. At a minimum, 

therefore, CTR’s non-internet spending likely gave rise to significant unreported in-kind 

contributions to HFA under the general “coordinated expenditure” regulation, 11 C.F.R. 

§ 109.20(b), and as OGC found, an investigation was warranted to determine “the extent” of the 

contribution. Am. Compl. ¶ 4.

Second, the controlling Commissioners found that “[e]ven assuming” any of CTR’s 

expenditures were unconnected to exempt communications and could be analyzed under 11 C.F.R. 

§ 109.20(b), the allegations of coordination were too “speculative” to support finding reason to 

believe, SOR at 14—notwithstanding copious record evidence to the contrary. By its own 

admission, CTR was operating as a “surrogate arm” of the Clinton campaign, OGC Rept. at 16, 

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and “work[ing] in support of Hillary Clinton’s candidacy for president.”

12 FEC Compl. ¶ 11. The 

controlling group’s willful blindness to these facts does not render the administrative complaint’s

allegations insufficient.

A. The Dismissal Rested on an Impermissible Interpretation of FECA and FEC Rules 

that Frustrates the Act’s Purposes and “Creates the Potential for Gross Abuse.”

1. The Commission’s expansion of the internet exception was contrary to FECA’s 

clear text and core purposes.

Since Buckley, the Supreme Court has recognized that candidate contribution limits are 

central to FECA’s core anticorruption purposes, and has made clear that “expenditures controlled 

by or coordinated with the candidate might well have virtually the same value to the candidate as 

a contribution and would pose similar dangers of abuse.” 424 U.S. at 46. For this reason, “such 

controlled or coordinated expenditures are treated as contributions,” thus “prevent[ing] attempts 

to circumvent the Act through prearranged or coordinated expenditures amounting to disguised 

contributions.” Id. at 46-47. To this end, FECA provides that “expenditures made by any person 

in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate . . . 

shall be considered to be a contribution to such candidate.” 52 U.S.C. § 30116(a)(7)(B)(i). The 

controlling group’s unbounded construction of the internet exemption defies this clear statutory 

language and frustrates Congress’s unambiguous intent to regulate and require disclosure of all 

expenditures coordinated with a candidate. 

 

12 Intervenors have maintained that none of CTR’s activities—save those reflected in the two 

payments HFA made to CTR for unspecified “research services” that amounted to less than 3 

percent of CTR’s total receipts, see supra at 19-20—could be “contributions,” because they either 

involved exempt “internet-only” “communications activities” or qualified for the “media 

exception.” As for the latter, CTR is a political committee, and as such, unable to claim the media 

exemption—either for its own websites or for its public relations efforts involving speaking to 

reporters and placing op-eds. 11 C.F.R. § 100.73 (political committee’s communication not 

covered by media exemption unless it is “a bona fide news account communicated in a publication 

of general circulation or on a licensed broadcasting facility” and “part of a general pattern of 

campaign-related news accounts that give reasonably equal coverage to all opposing candidates”). 

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These Commissioners took at face value that all of CTR’s activities constituted or were 

“input costs” for exempt internet communications—even though the record did not support that 

characterization. CTR’s own description of its supposedly exempt “communications” included 

activities well beyond communications distributed for free online. In addition to internet activities 

undertaken by paid staff like “[p]ublishing websites” or “[t]weeting,” CTR claimed the absolute 

ability to “coordinate with HFA” on expenditures including: commissioning a poll and distributing 

it online; hiring media consultants to train Clinton campaign surrogates; paying employees to 

contact reporters in support of Clinton or opposition to her opponents; “[h]iring trackers to attend 

and film campaign events”; and paying senior staff to publish op-eds supporting Clinton in The 

Hill and The Detroit Free Press. HFA Resp. to FEC Compl. at 2 (Dkt. No. 26-3). As OGC 

concluded, “CTR’s characterization of most of its activity as communications is inconsistent with 

CTR’s known activity, CTR’s reported disbursements for that activity, and the Commission’s 

approach to coordinated expenditures as in-kind contributions.” OGC Rept. at 24-25. 

Nevertheless, the controlling Commissioners treated all of CTR’s general operating 

expenditures as subject to an apparently limitless exemption for “expenses incurred by [CTR] to 

produce an internet communication.” SOR at 12; Am. Compl. ¶¶ 89-91. Under this view, the 

exemption goes far beyond internet communications not “placed for a fee on another person’s 

Website,” 11 C.F.R. § 100.26, and includes all “associated expenses” and “overhead expenses” 

that in some small part support “internet communications.” SOR at 14. Their votes to dismiss thus 

rested on a “bright-line rule” requiring that the Commission: first, treat any cost “associated” with 

an unpaid internet communication as an “input” cost categorically exempt from regulation; and 

second, include in such “input costs” general overhead disbursements only partly attributable (at 

most) to exempt internet communications. Am. Compl. ¶¶ 89-91. 

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Intervenors defend this unsustainable approach to the coordination rules by insisting that it 

reflects the FEC’s “clear and deliberate intent to include input costs within the scope of the Internet 

exception.” Int. Br. at 25. Even if that were actually true, see infra Part II.A.2, it still would not 

explain why expenditures for non-internet activities can be lumped in with the direct costs of 

internet communications and treated as exempt on the same terms. Indeed, although the controlling 

Commissioners described “input expenses” as only those costs “‘necessary to make’ the internet 

communication,” SOR at 13, their analysis sweeps almost all of CTR’s reported disbursements—

over $9 million dollars in expenditures that largely paid for office space, staff salaries, and travel—

into that unregulable zone. 

Even if CTR had some input expenses that were plausibly “necessary to make” an exempt 

internet communication, its general operating costs were not tied to any specific communications 

and supported at least some activities clearly outside the scope of the exception. See Am. Compl. 

¶¶ 90-91. Under the controlling group’s standard, however, one dollar of internet-related spending 

immunizes all general operating expenses from disclosure and regulation as contributions, 

regardless of a group’s other coordinated activities.

The controlling Commissioners utterly failed to explain how this approach “rationally 

separates election-related advocacy from other activity falling outside FECA’s expenditure 

provision,” Shays II, 414 F.3d at 102, or is otherwise permissible under the Act. Their standard 

has no basis in FECA and creates a massive loophole in the FEC’s regulation of coordinated 

spending. A categorical exception of this magnitude plainly “compromise[s] the Act’s purposes” 

and “create[s] the potential for gross abuse.” Orloski, 795 F.2d at 165. Courts “must reject 

administrative constructions . . . that are inconsistent with the statutory mandate or that frustrate 

the policy that Congress sought to implement.” FEC v. Democratic Senatorial Campaign Comm., 

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454 U.S. 27, 32 (1981). FECA simply does not permit the FEC to create a blanket exception to the 

contribution limits allowing for unfettered strategic collaboration between candidates and 

“independent” groups on any expenditures that can be notionally “associated” with 

communications disseminated for free online.13

2. The interpretation is contrary to the FEC’s own rules.

The controlling Commissioners’ single-minded focus on 11 C.F.R. § 109.21 and the 

“public communication” definition—and their extreme interpretation of the internet exception 

underlying it—was also inconsistent with the FEC’s own rules and precedent. As OGC noted, this 

was not how the internet exemption has previously been understood or applied. OGC Rept. at 28. 

And certainly, notwithstanding intervenors’ claims to the contrary, the FEC has not 

“consistently adhered to this interpretation” of FECA. Orloski, 795 F.2d at 166. Most obviously, 

the assertion that the internet exemption has always broadly covered any conceivable “input costs” 

ignores what the FEC actually did in its 2006 internet rulemaking.14 As OGC recently observed, 

“[n]either the [internet] regulation itself nor the Commission’s accompanying explanation and 

 

13 As plaintiffs alleged in Count II of their FEC complaint, CTR’s disbursements for staff salaries 

amounted to “compensation for personal services” rendered to the campaign, and were therefore 

in-kind contributions under FECA whether or not the ultimate activity qualified as a “public 

communication.” See 52 U.S.C. §§ 30101(8)(A)(i)-(ii), 30116(a)(7)(B)(i); Am. Compl. ¶ 69; FEC 

Compl. ¶¶ 81-83, 98-102. The controlling group did not even address this claim, much less attempt 

to harmonize their myopic focus on the content standards in 11 C.F.R. § 109.21 with FECA’s clear 

intent to regulate this activity. 

14 Intervenors quote at length from comments jointly filed by CLC and several other groups in 

the rulemaking for the proposition that CLC was “well aware” in 2006 that the rule would require 

this treatment of input costs. Int. Br. at 25-26. In fact, the comment said no such thing. In the 

footnote that intervenors reproduce—albeit in a materially altered and misleading form—the 

comments sought to clarify the treatment of production costs for internet communications by 

individuals, because “[t]he Commission’s proposed rule [was] unclear.” Democracy 21, CLC & 

Ctr. for Responsive Politics Comments on Notice 2005-10: Internet Communications at 12 n.10 

(June 3, 2005), https://sers.fec.gov/fosers/showpdf.htm?docid=36918) (emphasis added). The 

comments did not say that the rule “would permit” the exemption of input costs, much less 

affirmatively require it. Int. Br. at 25 (emphasis added).

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justification expressly address whether the regulation also exempts production costs that are 

incurred unrelated to the advertisement’s dissemination over the internet.” FGCR at 6, MUR 6729

(Checks and Balances) (Aug. 6, 2014). Far from supporting a blanket exemption for input costs, 

the rulemaking record suggests that the internet exemption was far narrower, and addressed 

primarily to activities by individuals and non-committees—not single-candidate super PACs like 

CTR. In promulgating the final rules, for example, the FEC confirmed that computer purchases 

and payments to bloggers can be “expenditures” even if the blogs themselves ultimately fall under 

the “internet exemption.” FEC Compl. ¶¶ 94-95 (citing 71 Fed. Reg. at 18604-06).

Even if the rulemaking record were silent on this point, that would be no justification for 

an interpretation that dismantles the entire statutory scheme. Nor was the controlling 

Commissioners’ interpretation reasonable because it supposedly avoids “chill[ing] political speech 

online.” SOR at 13. “[S]o would regulating nothing at all, and that would hardly comport with the 

statute.” Shays II, 414 F.3d at 101. Besides, as the Supreme Court recognized in McConnell, “the 

rationale for affording special protection to wholly independent expenditures” does not extend to 

coordinated expenditures, because “expenditures made after a ‘wink or nod’ often will be ‘as 

useful to the candidate as cash.’” 540 U.S. at 221. In any event, the First Amendment concerns 

noted in the internet rulemaking were reserved for individual citizens and bloggers who might 

incidentally communicate about a candidate online; they do not reasonably extend to a “fullfledged media machine dedicated to providing HFA with services only tangentially related to 

internet communications.” SOR of then-Chair Weintraub at 3 (cited in Am. Compl. ¶ 9; attached 

hereto as Ex. F). 

FEC precedent likewise did not justify dramatically expanding the exemption. The 

controlling SOR and the intervenors both point to MUR 6657 (Akin for Senate), but that matter 

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bears no resemblance to this case. First, as OGC explained in justifying its recommendation not to 

proceed there, “the alleged prospective coordinated communications . . . never occurred.” FGCR 

at 2, MUR 6657 (May 6, 2013) (emphasis added). Second, the only question OGC was examining 

with respect to “input costs” was whether expenditures for “‘Email List Rental’ or ‘Online 

Processing,’” id. at 6, alone were sufficient to cause the group’s internet communications to be 

“placed for a fee”—thereby rendering the “internet exemption” entirely inapplicable. Id. at 6-7. 

The question was not whether a broader category of disbursements not tied to online 

communications, such as CTR’s overhead expenses here, should be exempt as “input costs.”15

The other FEC “precedents” intervenors cite also do not validate their unbounded approach 

to input costs. See Int. Br. at 25-29. For one thing, none of the enforcement matters or advisory 

opinions cited in their brief involved a remotely comparable scheme, either in substance or in scale, 

to coordinate with a campaign; indeed, many did not address coordinated activity at all. See, e.g.,

Int. Br. at 26-27 (citing FEC Advisory Op. 2011-14 (Utah Bankers Ass’n) (approving corporate 

PAC’s request to operate an email list soliciting contributions to particular candidates, where the 

PAC appended a detailed policy confirming that it was structured to operate independently of 

candidates); FEC Advisory Op. 2008-10 (VoterVoter.com) (permitting nonpartisan commercial 

vendor to operate online marketplace facilitating the purchase and sale of political ads, where 

unpaid ad creators and broadcast buyers were transacting at arm’s length and not coordinating with 

candidates or each other)).

 

15 Other matters cited by intervenors and in the SOR are also readily distinguishable. For 

example, MUR 6414 (Carnahan in Congress) involved entirely uncompensated activity. In fact, 

the OGC analysis quoted by the controlling Commissioners here, SOR at 12 n.60, goes on to 

emphasize, in the very next sentence, that “the individuals responsible for the website were not 

compensated for their work in hosting, designing or creating the website or its written content.” 

Factual & Legal Analysis at 11, MUR 6414 (July 17, 2012).

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Many of the cited matters also ended in deadlock, but intervenors repeatedly present the 

views of a minority bloc of Commissioners as if they reflect a settled interpretation of law adopted 

by the full Commission. See, e.g., Int. Br. at 27-28 (citing MURs 6729 (Checks and Balances); 

7023 (Kinzler for Congress); 7080 (Babeu for Congress)).

16 That intervenors must resort to a 

handful of non-binding minority statements in deadlocked matters only serves to underscore that 

the legal interpretation underlying this dismissal was neither “traditional” nor authoritative. 

MUR 6729 (Checks and Balances) is illustrative. There, the Commission deadlocked 3-3 

on allegations that a 501(c)(4) group had failed to disclose or include required disclaimers on two 

broadcast advertisements, despite reportedly spending almost $900,000 to buy air time for the ads. 

But the group had countered with a sworn declaration averring that the two ads in question were 

only disseminated online, and the broadcast air time was in fact used to run a third ad that did not 

trigger FECA disclosure obligations. FGCR at 6, MUR 6729 (Aug. 6, 2014). There was no other 

 

16 In MUR 7080 (Babeu for Congress), the Commission deadlocked on whether a candidate 

had accepted an impermissible in-kind contribution from an Arizona sheriff’s office that allegedly 

used paid staff to coordinate Facebook posts promoting the candidate. Although OGC found that 

the Facebook posts did not meet the content standards in 11 C.F.R. § 109.21(c) by virtue of the 

internet exception, it concluded that Babeu still “may have received an impermissible in-kind 

contribution from [the Sheriff’s Office] in the form of free staffing” to create internet 

communications. FGCR at 12-13, MUR 7080 (Dec. 15, 2016). Therefore, despite recommending 

dismissal as a matter of discretion because the amount in violation was de minimis, OGC 

recognized that “coordinated communications” are not the entire universe of potential in-kind 

contributions under FECA. See id. But three Commissioners disagreed, preferring to find no 

violation rather than to dismiss on discretionary grounds, and the Commission deadlocked. 

Certification, MUR 7080 (Oct. 24, 2017).

The relevant vote in MUR 7023 (Kinzler for Congress) deadlocked along similar lines. OGC 

accepted in theory that the resources used to support an exempt internet communication, i.e., “staff 

time, office space, and equipment,” could be an in-kind contribution, but recommended dismissing 

because the costs of disseminating candidate campaign materials via a single tweet were de 

minimis. FGCR at 14, 16, MUR 7023 (Oct. 6, 2016). The Commission then deadlocked 2-3 on 

whether to accept that recommendation, with some Commissioners opining that the “Internet 

Freedom Rules” forestalled the mere suggestion that such costs could ever be regulated. SOR of 

Comm’rs Hunter, Goodman & Petersen at 2, MUR 7023 (Jan. 23, 2018).

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information about the group’s spending, nor any suggestion that its activities had been coordinated 

with a candidate. Although OGC assumed that any direct production costs incurred for the ads 

beyond the purchase of air time might be included under the regulatory exemption for 

uncompensated internet activities, 11 C.F.R. § 100.155, it did not address the types of indirect 

costs that intervenors attempt to subsume under the exemption here. And even with respect to 

direct costs, OGC acknowledged that the question was unsettled, id., and ultimately recommended 

dismissal on an alternative ground. Id. at 6, 10 (finding that ads were not reportable “independent 

expenditures” because they lacked express advocacy). 

Here, however, CTR’s operating costs are not direct input expenses for exempt 

expenditures—or, in many instances, even related to exempt activity whatsoever. “[M]uch of 

CTR’s approximately $9 million in disbursements for activity during the 2016 election cycle 

cannot fairly be described as for ‘communications,’ public or otherwise, unless that term covers 

almost every conceivable political activity.” OGC Rept. at 20. At a minimum, the controlling 

group did not “articulate a satisfactory explanation,” “including a rational connection between the 

facts found and the choice made,” for the conclusion that CTR’s payments for general overhead 

expenses supporting multiple organizational activities constituted “input costs” that were 

“necessary to make” covered internet communications, and thus entirely exempt from treatment 

as coordinated expenditures or in-kind contributions. Motor Vehicle Mfrs. Ass’n v. State Farm 

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (citations omitted). 

The controlling Commissioners’ unbounded construction of the internet rules directly 

compromises FECA’s core anticorruption goals by inviting “attempts to circumvent the Act 

through prearranged or coordinated expenditures amounting to disguised contributions.” Buckley, 

424 U.S. at 47. Even if there were FEC precedent supporting their “input cost” theory, it would 

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not permit them to extend that interpretation in a way that betrays FECA’s plain text and purposes. 

B. Finding No “Reason to Believe” CTR Violated Statutory or Regulatory 

Coordination Provisions Was Arbitrary, Capricious, and Contrary to the Record.

Although the controlling group largely accepted CTR’s claims that all of its expenditures 

were associated with exempt online “communications activities,” they granted—at least for the 

sake of argument, see SOR at 14—that some of CTR’s activities did not “relate directly” to internet 

communications. As for this category of expenditures, they simply dismissed the allegations of 

coordination as too “speculative” to support a reason-to-believe finding. SOR at 2. But that 

sweeping conclusion was “counter to the evidence before the agency.” State Farm, 463 U.S. at 43.

There was no rational way to review this record and conclude that CTR had in fact “limited 

its interactions with [HFA] to the very communications that the Commission has previously 

decided not to regulate.” SOR at 16. Incredibly, the controlling group arrived at this conclusion 

even though neither CTR nor HFA denied that their non-communication activities were 

coordinated, as OGC noted. OGC Rept. at 10 n.28. Instead, respondents generally argued that CTR 

had no non-communication activities subject to the coordination rules, so all of its spending was 

exempt. See, e.g., Am. Compl. ¶¶ 2, 63, 79.

17

To draw the counterfactual conclusion that CTR’s admittedly coordinated activity was 

“uncoordinated,” therefore, the controlling group had to ignore the voluminous evidence of 

coordinated efforts between CTR and the Clinton campaign, as well as CTR’s repeated statements 

that it existed for a singular purpose: to raise and spend unregulated funds advocating Clinton’s 

election online, in full coordination with her authorized campaign committee. See, e.g., Am.

 

17 The only “qualifying” contribution they acknowledged was the research and tracking services 

for which HFA supposedly paid in full. See supra at 19-20. Given the reported extent of this 

activity, Am. Compl. ¶¶ 63, 70, the claim that CTR was fully compensated for it was not credible. 

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Compl. ¶¶ 63, 65, 75, 79-81. CTR and its spokespeople consistently touted the group as a “strategic 

research and rapid-response” operation that could “work in coordination with the Clinton 

campaign as a stand-alone super PAC” but “avoid the coordination ban by relying on [the internet 

exception].” FEC Compl. ¶¶ 9, 12. From its inception, CTR took the position that it could—and 

would—freely coordinate with the campaign, and its leadership affirmed this arrangement 

consistently in press reports and interviews throughout the election cycle. See, e.g., id. ¶¶ 9-12, 14, 

24, 26, 27, 30, 52; OGC Rept. at 18.

The controlling group arbitrarily discounted these admissions, concluding instead that the 

complaint “did not present facts to show that particular efforts were even ‘coordinated’ with 

[HFA].” SOR at 16. That required disregarding abundant contrary evidence. Indeed, these

Commissioners suggested that the only record evidence supporting the conclusion that CTR 

“systematically coordinated with” HFA amounted to CTR’s “May 2015 press release, information 

not included in the complaints or responses, and information stolen and disseminated by Russian 

intelligence officers.” SOR at 6. But this ignores the extensive and unrefuted evidence of 

coordination in plaintiffs’ complaint, which cited numerous reliable public sources other than 

CTR’s 2015 press release and in no way relied on materials “disseminated” by Russia. 

For instance, the complaint cited a 2016 Time magazine profile in which Brock reportedly 

explained that he would “talk to [Clinton] and her campaign staff about strategy, while deploying 

the unregulated money he raises to advocating for her election online, through the press, or through 

other means of non-paid communication.” FEC Compl. ¶ 24. “These representations by CTR are 

not the puffery of an entity acting outside the orbit of HFA. CTR leadership spoke publicly about 

communications with senior HFA personnel, confirming that CTR and HFA had a close 

relationship and worked together to benefit HFA.” Weintraub SOR at 2.

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The controlling group sidestepped other inconvenient facts by mischaracterizing or simply 

ignoring credible allegations in the record. For example, they suggested repeatedly that the 

administrative complaint “concede[s] the speculative nature of its coordination violations” because 

it phrased certain clauses in the “conditional tense.” SOR at 14, 16 n.80. On the contrary, the 

complaint alleged in detail that CTR openly coordinated at least some of its activities with HFA, 

and respondents did not dispute the factual basis for these allegations. The fact that CTR and HFA 

trumpeted their coordination scheme brazenly and in public does not make it any less illegal. 

At the bare minimum, CTR and HFA were obviously wrong about some of the reasons 

they asserted to claim their activities were legally “exempt” from the coordination rules: for 

example, they argued that CTR’s public relations efforts contacting reporters and placing op-eds 

qualified for the media exemption, which is not available to political committees like CTR. See

supra note 12. The controlling group, lacking any justification for this patent legal error, did not 

even try to address it. But it defied all logic for them to then feign blindness as to whether this

effort was coordinated: CTR and HFA all but admitted it was, arguing instead that it was conducted 

under the supposed protection of a different exemption that categorically did not apply.

These Commissioners also refused to consider other “information readily available to the 

general public,” Weintraub SOR at 10, that was raised in OGC’s report, claiming that they were 

bound to ignore any information outside of the four corners of the complaint, see SOR at 6-7 & 

nn.29-30. This included a first-person podcast interview in which Brock described the group’s 

“coordinated status” and detailed his regular contacts with high-ranking campaign officials on 

strategy. OGC Rept. at 11. Refusing to consider this interview, beyond being unreasonable, 

contravenes the FEC’s 2007 statement of enforcement policy, which confirms that it will consider

“the available evidence,” including information in the complaint and “any publicly available 

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information.” Statement of Policy Regarding Commission Action in Matters at the Initial Stage in 

the Enforcement Process, 72 Fed. Reg. 12545, 12546. See Weintraub SOR at 9-10 & nn.50-54.

Finally, having thus arbitrarily rejected much of the record, the controlling group claimed 

that even at the reason-to-believe stage, complainants must establish coordination conclusively, 

“transaction-by-transaction,” and the complainants did not “meet their burden” under that strict 

test. Am. Compl. ¶¶ 93-94. That demand sets an unreasonably high bar that has no grounding in 

FECA and directly contravenes internal agency policies and precedent regarding enforcement 

procedures at the reason-to-believe stage. 

The standard applicable to a “reason-to-believe” finding is not specifically defined in 

FECA, but the structure of section 30109(a) makes clear that it involves a threshold determination 

antecedent to any finding of even probable liability, because it is a necessary precondition for a 

“probable cause” determination or civil enforcement action. See 52 U.S.C. § 30109(a)(2) (reasonto-believe finding authorizing investigation); id. § 30109(a)(4)(A) (probable cause finding). 

Therefore, the Commission has long recognized that “[a] ‘reason to believe’ finding is not a finding 

that the respondent violated [FECA], but instead simply means that the Commission believes a 

violation may have occurred.” FEC Guidebook for Complainants and Respondents on the FEC 

Enforcement Process 12, https://transition.fec.gov/em/respondent_guide.pdf (emphasis added). 

For instance, in its 2007 policy statement, the FEC stressed that reason-to-believe findings are not 

“definitive determinations that a respondent violated the Act,” but instead, “indicate only that the 

Commission found sufficient legal justification to open an investigation to determine whether a 

violation of the Act has occurred.” 72 Fed. Reg. at 12545 (emphasis added). In contrast, a finding 

of no reason to believe is appropriate only where “evidence convincingly demonstrates that no 

violation has occurred,” or when a complaint is “not credible,” “so vague that an investigation 

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would be effectively impossible,” or “fails to describe a violation of the Act.” Id.

On this record, and by their own admission, it was clear that CTR and HFA engaged in a 

systematic effort to coordinate their activities outside of FECA’s reporting requirements and 

contribution source and amount limits. Even if the administrative complaint had not been so 

thoroughly corroborated by Brock’s podcast interview, the record was clearly “at least sufficient 

to warrant conducting an investigation.” Id. The controlling group’s demand for conclusive proof 

at the reason-to-believe stage was manifestly unreasonable, and all but ensures that FECA’s anticoordination provisions will continue to go unenforced. See Am. Compl. ¶ 103.

III. PLAINTIFFS PROPERLY STATE A CLAIM UNDER THE APA.

In addition to their FECA claim, plaintiffs also assert a claim under the APA challenging 

the coordination rules themselves, 11 C.F.R. §§ 100.26, 109.20, and 109.21, as construed, because 

they are in direct conflict with FECA’s mandate to regulate coordinated expenditures. See 52 

U.S.C. §§ 30101(8)(A)(i)-(ii), 30116(a)(7)(B)(i). 

The APA claim is made necessary by intervenors’ insistence that the dismissal followed 

the Commission’s “traditional approach” to the internet exemption, and that this exemption was 

meant to comprehensively encompass all “input costs” for an eventual unpaid internet 

communication, even general overhead expenses that support multiple organizational functions. 

Int. Br. at 25. They contend that this “bright-line rule” reflects the “longstanding” view that all 

coordinated activity with any arguable nexus to an internet communication is exempt, because the 

“Commission has never required speakers to allocate costs” and “overhead expenses across 

internet communications (or other activities).” Id. at 18, 25, 28 (emphases added). The controlling 

Commissioners likewise claimed that CTR and HFA “properly understood” FEC precedent with 

regard to the scope of the exemption, arguing that voting to find “reason to believe” would amount 

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to a “policy reversal[]” depriving respondents of fair notice. SOR at 13-14 & n.66. 

Plaintiffs’ disagree with this characterization of the scope and purpose of the internet 

exemption. But if intervenors’ alternative narrative is accepted, and this construction of the

coordination regulations deemed authoritative, then plaintiffs’ informational injury extends 

beyond this matter—as does the remedy needed to redress it, because then the severe damage this

administrative construction inflicts on FECA’s comprehensive regime for regulating and requiring 

full disclosure of coordinated expenditures will occur not only in this matter, but in any coordinated 

expenditure case involving internet activity. 

Intervenors nevertheless move to dismiss plaintiffs’ arguments under the APA. They 

generally argue that FECA provides the exclusive avenue for challenging FEC actions, Int. Br. at 

18, because “Congress did not intend the general grant of review in the APA to duplicate existing 

procedures for review of agency action.” Bowen, 487 U.S. at 903. But that principle only applies 

“in situations where Congress has provided special and adequate review procedures.” Id. 

(emphasis added). And contrary to intervenors’ assertion, “every court to consider [the] issue” has

not held that FECA precludes APA suits against the FEC, Int. Br. at 2; courts have routinely found

that FECA’s judicial review mechanism is not “adequate” for all challenges to FEC action. Unity08 

v. FEC, 596 F.3d 861, 866 (D.C. Cir. 2010) (finding that FECA judicial review provision did not 

“implicitly” foreclose APA review of advisory opinion); Shays II, 414 F.3d at 96 (reviewing 

regulations under the APA and noting limits of FECA’s remedial scheme); CREW 2017, 243 F. 

Supp. 3d at 105 (reviewing APA claim alongside FECA claim because an unlawful regulation was 

applied to dismiss plaintiff’s FEC complaint). 

Intervenors’ motion relies on a fundamental misunderstanding of plaintiffs’ APA claim. In 

Count One of the Amended Complaint, plaintiffs challenge the controlling Commissioners’ 

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application of the coordination rules to find that none of the coordinated activities described in 

CLC’s administrative complaint qualified as “coordinated expenditures” under FECA, and to 

dismiss the administrative complaint on that basis. Am. Compl. ¶¶ 106-107. But in Count Two, 

plaintiffs also bring as-applied and facial challenges under the APA to the validity of the FEC’s 

coordination regulations, 11 C.F.R. §§ 109.20 and 109.21, insofar as they have been construed to 

incorporate an exemption that encompasses all “input expenses” for a political committee’s 

coordinated internet communications, even if such expenses also support non-internet 

expenditures or constitute general overhead costs. Am. Compl. ¶¶ 109-113.

This regulatory construction permits exactly what FECA forbids: the provision of paid 

professional campaign services and other things of value to candidates by groups operating outside 

of the contribution and disclosure requirements of the Act. The regulations, as construed, thus 

contradict the clear text and express purposes of FECA’s anti-coordination provisions. See 52 

U.S.C. § 30101(8)(A)(ii) (defining in-kind contributions to include “compensation for the personal 

services of another person which are rendered to a political committee without charge for any 

purpose”); id. § 30116(a)(7)(B)(i) (providing that “expenditures made by any person in 

cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate” or her 

agents “shall be considered to be a contribution to such candidate”) (emphasis added). 

The controlling group defended this construction on the ground that it “operates as a brightline rule and recognizes that a speaker will almost always incur expenses to produce an internet 

communication,” SOR at 13—but as the D.C. Circuit recognized in Shays II, “a bright line can be 

drawn in the wrong place.” 414 F.3d at 101. There was no basis to create a per se exception of this 

magnitude, which takes a narrow carve-out originally justified as a way to avoid unduly restraining 

the speech of “bloggers in their pajamas,” Weintraub SOR at 5, and turns it into a vehicle for the 

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wholesale “evasion of campaign finance restrictions through unregulated collaboration.” Shays II, 

414 F.3d at 102. Indeed, the abuses sanctioned by this construction of the rules go far beyond even 

the egregious scheme alleged here. For example, it would appear to permit a “dark money” 

nonprofit, even one funded by foreign nationals, to mount an undisclosed $100 million public 

relations campaign in full coordination with the federal candidate it seeks to elect—avoiding the 

FEC’s coordination rules on the pretext that some small portion of the effort will appear online.

Plaintiffs thus seek an order declaring the construction of these rules unlawful and invalid, 

and ordering the FEC to apply the Act’s anti-coordination provisions in the manner that Congress 

prescribed here and in all future cases. This is not a remedy that FECA can provide. As the D.C. 

Circuit has observed, when an FEC complaint is dismissed based on an invalid regulation, the 

relief available under FECA “hardly appears adequate”—“given that reliance on that regulation 

would afford a defense to ‘any sanction,’ the court might well uphold FEC non-enforcement 

without ever reaching the regulation’s validity.” Shays II, 414 F.3d at 96 (citing 52 U.S.C. 

§ 30111(e)). Because FECA’s remedial scheme does not offer plaintiffs an adequate avenue to 

challenge the FEC’s unlawful construction of statutory and regulatory anti-coordination 

provisions, the motion to dismiss their APA claim should be denied.

CONCLUSION

For these reasons, intervenors’ motion to dismiss should be denied.

Case 1:19-cv-02336-JEB Document 27 Filed 03/05/20 Page 53 of 55
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Dated: March 5, 2020

Respectfully submitted,

/s/ Tara Malloy

Tara Malloy (DC Bar No. 988280)

tmalloy@campaignlegalcenter.org

Megan P. McAllen (DC Bar No. 1020509)

mmcallen@campaignlegalcenter.org

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Suite 400

Washington, D.C. 20005

(202) 736-2200

Case 1:19-cv-02336-JEB Document 27 Filed 03/05/20 Page 54 of 55
47

CERTIFICATE OF SERVICE

I hereby certify that on March 5, 2020, I caused a true and correct copy of the foregoing 

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

electronic service via the Court’s ECF transmission facilities.

Respectfully submitted,

/s/ Tara Malloy

Tara Malloy (DC Bar No. 988280)

tmalloy@campaignlegalcenter.org

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Suite 400

Washington, D.C. 20005

(202) 736-2200

Case 1:19-cv-02336-JEB Document 27 Filed 03/05/20 Page 55 of 55