Case 1:19-cv-02336-JEB Document 66 Filed 10/17/22 Page 1 of 22 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CAMPAIGN LEGAL CENTER and 

CATHERINE HINCKLEY KELLEY, 

Plaintiffs, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant, 

HILLARY FOR AMERICA and 

CORRECT THE RECORD, 

Defendant-Intervenors. 

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

PLAINTIFFS’ REPLY IN SUPPORT OF 

THEIR SECOND MOTION FOR SUMMARY JUDGMENT 

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 66 Filed 10/17/22 Page 2 of 22 

TABLE OF CONTENTS 

Page 

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

TABLE OF ABBREVIATIONS...................................................................................................v 

INTRODUCTION AND SUMMARY OF ARGUMENT ..........................................................1 

ARGUMENT..................................................................................................................................2 

I. The Dismissal Was Contrary to Law ....................................................................................2 

A. Intervenors misstate the standard of review.........................................................................2 

B. The dismissal relied on an impermissible interpretation of the Act ....................................3 

1. The controlling Commissioners’ expansion of the internet exemption is contrary 

to FECA’s clear text and purposes.................................................................................3 

2. The regulatory construction applied here is contrary to FEC rules and precedent ........6 

3. There is no constitutional justification for the controlling group’s rationale ................8 

C. The dismissal was arbitrary, capricious, and wholly contrary to the record........................9 

II. Intervenors Have Not Shown That Effectual Relief is Impossible in This Case..............11 

A. Intervenors’ statute of limitations defense is unavailing and premature ...........................11 

B. Intervenors’ unsupported claim that they would be “incapable” of providing required 

disclosure information does not bear upon the redressability of CLC’s injury .................14 

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

CERTIFICATE OF SERVICE ..................................................................................................17 

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TABLE OF AUTHORITIES 

Page 

Cases: 

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996)................................................................................15 

Akins v. FEC, 736 F. Supp. 2d 9 (D.D.C. 2010)............................................................................12 

Buchanan v. FEC, 112 F. Supp. 2d 58 (D.D.C. 2000) ..................................................................14 

Buckley v. Valeo, 424 U.S. 1 (1976)............................................................................................3, 4 

Campbell-Ewald Company v. Gomez, 577 U.S. 153 (2016) .........................................................11 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) .................................................................7 

FEC v. Akins, 524 U.S. 11 (1998)........................................................................................2, 13, 15 

FEC v. Christian Coalition, 965 F. Supp. 66 (D.D.C. 1997) ........................................................12 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981)..........................................3 

Loughlin v. United States, 393 F.3d 155 (D.C. Cir. 2004) ............................................................11 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986)....................................................................... 1, 2-3 

Se. Ala. Med. Ctr. v. Sebelius, 572 F.3d 912 (D.C. Cir. 2009) ........................................................3 

Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004) (“Shays I”) ....................................................5, 9 

Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) (“Shays II”) ...........................................................5, 6 

Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008) (“Shays III”)............................................................6 

Statutes: 

28 U.S.C. § 2111..............................................................................................................................2 

28 U.S.C. § 2462............................................................................................................................12 

52 U.S.C. § 30101(9)(A)(i)..............................................................................................................3 

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

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

52 U.S.C. § 30116(a)(7)(B)(i)......................................................................................................1, 3 

Legislative and Regulatory Authorities: 

11 C.F.R. § 100.26.......................................................................................................................7, 8 

11 C.F.R. § 109.21...........................................................................................................................1 

11 C.F.R. § 109.37(a)(2)..................................................................................................................5 

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Other Materials: 

Internet Communications, 71 Fed. Reg. 18589 (Apr. 12, 2006) .................................................4, 5 

FEC Mem. Supp. Cross-Mot. for Summ. J., Akins v. FEC, 736 F. Supp. 2d 9, 2009 

WL 4920567 (D.D.C. Aug. 28, 2009) (No. 03-cv-2401) ........................................................12 

FEC Mem. in Opp. to Mot. to Dismiss, FEC v. Lynch, 2016 WL 7231428 (S.D. Fla. 

Mar. 16, 2016) (No. 9:15-cv-81732) .......................................................................................12 

First Gen. Counsel’s Rep., MUR 7894 (True the Vote) (Dec. 9, 2021) ........................................15 

iv 
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TABLE OF ABBREVIATIONS 

CLC Campaign Legal Center 

CTR Correct the Record 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

HFA Hillary for America 

OGC Office of General Counsel (FEC) 

SOR Statement of Reasons 

v 
 

 

 

 

 

 

 

 

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INTRODUCTION AND SUMMARY OF ARGUMENT 

The “merits” of this 52 U.S.C. § 30109(a)(8) case are simple—even as intervenors Correct 

the Record (“CTR”) and Hillary for America (“HFA”) have spent years complicating them. 

The Federal Election Campaign Act (“FECA” or “Act”) provides that every “expenditure”

made in “cooperation, consultation, or concert, with” a candidate “shall be considered to be a

contribution to such candidate.” 52 U.S.C. § 30116(a)(7)(B)(i). Yet to defend the FEC’s dismissal 

of plaintiffs’ administrative complaint, the controlling Commissioners argued that this statutory 

provision permits exempting virtually all operating expenditures of a federal super PAC—up to 

$9.6 million dollars for “payroll, salary, travel, lodging, meals, rent, fundraising consulting, 

computers, . . . event tickets, hardware, insurance, office supplies, parking, and shipping,” AR089-

90—on the pretext that they qualify for a narrow regulatory exemption created for certain unpaid 

internet communications, 11 C.F.R. §§ 100.26, 109.21. 

There is no way to square this position with FECA’s unambiguous text, and neither the 

controlling Commissioners nor intervenors attempt to do so. Intervenors’ defense instead hinges 

on the tertiary question of whether the construction of the internet exemption applied to dismiss 

CLC’s complaint reflected the FEC’s “consistent” and authoritative interpretation of its own 

coordination rules and precedents, such that enforcement would offend their due process rights. 

See, e.g., Intervenors’ Reply Supp. 2d Mot. for Summ. J. 34, ECF No. 63 (“Int. Reply”). 

Even if the decision had been consistent with FEC authorities, that would not save a 

construction of the Act that “vitiates the plain language of FECA,” ECF No. 33 at 23, and “unduly

compromises the Act’s purposes,” Orloski v. FEC, 795 F.2d 156, 164 (D.C. Cir. 1986). And 

regardless, it was not: the relevant 2006 rulemaking record and all authoritative FEC precedents 

applying the internet exemption confirm that the exemption was never intended or understood to 

reach overt coordination schemes involving a political committee like CTR engaged in massive 

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amounts of offline activities for one candidate’s benefit. 

Intervenors’ only other defense is their renewed challenge to plaintiffs’ standing—based 

on a claim of non-redressability directly controverted by FEC v. Akins, 524 U.S. 11 (1998), and 

coming only after the D.C. Circuit specifically held to the contrary. Their attempt to make what 

amounts to a mootness argument also fails on its own terms, as it relies on a misplaced and 

erroneous statute-of-limitations defense that has no application to this case, and self-serving claims 

that intervenors themselves would ultimately be unwilling or unable to provide the relief plaintiffs 

are due. Neither is a basis for questioning this Court’s jurisdiction.

ARGUMENT 

I. The Dismissal Was Contrary to Law. 

A. Intervenors misstate the standard of review. 

All parties agree that an FEC dismissal is contrary to law under 52 U.S.C. § 30109(a)(8)(C) 

“if (1) the FEC dismissed the complaint as a result of an impermissible interpretation of the Act,”

or (2) “if the FEC’s dismissal of the complaint, under a permissible interpretation of the statute,

was arbitrary or capricious, or an abuse of discretion.” Orloski, 795 F.2d at 161. However, 

intervenors previously sought to refocus Orloski’s “arbitrary and capricious” inquiry on the 

outcome of agency decisionmaking under the “harmless error” standard of 28 U.S.C. § 2111. See 

Intervenors’ 2d Mot. for Summ. J. 19, ECF No. 61-1 (“Int. 2d MSJ”). CLC objected that this was 

improper post hoc rationalization, and intervenors apparently concede the point. See Pls.’ 2d Mot. 

for Summ. J. 11-12, ECF No. 62 (“Pls.’ 2d MSJ”); Int. Reply 11 (admitting “the FEC’s decision

must be upheld on the basis articulated by the agency itself”). 

But intervenors now seek to refashion Orloski’s standard in another way, this time by 

redirecting review under the first prong away from whether the dismissal relied on an 

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“impermissible interpretation of the Act,” 795 F.2d at 165, to merely whether “the SOR is . . . 

faithful to the FEC’s longstanding policy, precedent, and regulations.” Int. Reply 3-4; see also id. 

at 5-6 (claiming the “question” is “whether it was ‘sufficiently reasonable’ . . . to find that CTR’s

communications and the relevant input costs fell within the Internet Exemption”). This 

reformulation of the “contrary to law” inquiry is also in error. While the FEC’s fidelity to its own

regulations and authoritative precedents may be relevant to the inquiry if a decision is justified on 

those grounds, the guiding question remains whether the FEC’s “administrative constructions of 

the statute . . . are inconsistent with the statutory mandate or . . . frustrate the policy that Congress 

sought to implement.” FEC v. Dem. Senatorial Campaign Comm., 454 U.S. 27, 32 (1981). “[N]o 

amount of historical consistency can transmute an unreasoned statutory interpretation into a 

reasoned one.” Se. Ala. Med. Ctr. v. Sebelius, 572 F.3d 912, 920 (D.C. Cir. 2009). 

B. The Dismissal relied on an impermissible interpretation of the Act. 

1. The controlling Commissioners’ expansion of the internet exemption is contrary 

to FECA’s clear text and purposes.

Intervenors’ singular focus on whether the controlling Commissioners’ rationale was 

“reasonable” under past FEC guidance is unsurprising—because it is irreconcilable with FECA. 

To “prevent attempts to circumvent the Act through prearranged or coordinated

expenditures amounting to disguised contributions,” Buckley v. Valeo, 424 U.S. 1, 46-47 (1976) 

(per curiam), 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). As intervenors concede, the CTR 

disbursements in question here are “expenditures” within the meaning of the Act. See Int. CrossMot. for Summ. J. 26, ECF No. 38-1 (“Int. MSJ”); 52 U.S.C. § 30101(9)(A)(i) (defining 

“expenditures” as “payments” made “for the purpose of influencing any election for Federal 

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office”). Thus, there is no dispute that under the statute, each expenditure that CTR made “in

cooperation, consultation, or concert, with, or at the request or suggestion of” the Clinton campaign 

or its agents is “considered a contribution” to the campaign. Id. 

Furthermore, the internet exemption, as originally promulgated, was meant to provide a 

safe harbor for online communications created and disseminated by individuals at marginal or no 

cost. See, e.g., Internet Communications, 71 Fed. Reg. 18589, 18594 (Apr. 12, 2006) (emphasizing 

that “[t]he cost of placing a particular piece of political commentary on the Web is generally 

insignificant” and is “often only the time and energy that is devoted by an individual to share his

or her views and opinions with the rest of the Internet community”). If construed narrowly to 

protect individuals engaged in online political commentary involving only de minimis 

“expenditures,” the internet exemption can be harmonized with FECA and Congress’s focus on 

averting the “danger” that significant coordinated “expenditures will be given as a quid pro quo 

for improper commitments from the candidate.” Buckley, 424 U.S. at 47. 

But there is no statutory justification for an interpretation of this rule that exempts almost 

the entire $9.6 million operating budget of a super PAC as mere “input” expenses for “unpaid”

internet communications. Intervenors do not even attempt to ground this construction in FECA’s

text or purpose. Instead, they posit that “what constitutes a ‘coordinated expenditure’ under the 

law . . . is far from clear.” Int. Reply 4. While this might be true in a different case, it is not true 

here—nor was statutory “ambiguity” cited as a basis for dismissal. The most challenging 

interpretive issues in applying FECA’s coordination provisions relate to determining which 

disbursements by groups that lack the major purpose of influencing federal elections qualify as 

“expenditures.” Pls.’ Opp’n to Intervenors’ Mot. for Summ. J. 30-34, ECF No. 42 (“Pls.’ MSJ 

Opp.”). But CTR is a federal political committee, and has conceded, as it must, that its 

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disbursements are “for the purpose of influencing” federal elections. Int. MSJ 26. 

Indeed, intervenors have never identified what purported statutory ambiguity complicates 

the resolution of this case. They devote a full page of their reply brief to a string cite of inapposite 

matters that supposedly demonstrate the difficulties of applying FECA to coordinated spending—

covering topics from the republication of campaign materials to party coordinated spending under 

11 C.F.R. § 109.37(a)(2)—but none concern any issues present here. Intervenors also complain 

that FECA is “silent” with respect to when “unpaid Internet communications” are “coordinated.”

Int. Reply 5. But the statute is not silent in this regard. FECA provides that any “expenditure”

made in coordination with a candidate is a contribution—regardless of whether it pays for an 

internet communication or any other thing of value. 

Finally, intervenors again insinuate that the Shays litigation compelled both the internet 

exemption and the capacious version of it applied below, claiming incorrectly that the FEC 

initiated the 2006 internet rulemaking because the “D.C. Circuit explicitly recognized that ‘all 

Internet communications do not fall within’ the meaning of ‘public communication.’” Int. Reply 

1 (citing Shays v. FEC, 337 F. Supp. 2d 28, 67 (D.D.C. 2004) (“Shays I”), aff’d sub nom. Shays v.

FEC, 414 F.3d 76 (D.C. Cir. 2005) (“Shays II”)). But the D.C. Circuit did no such thing. The 

district court in Shays I invalidated the FEC’s prior attempt to exclude the internet entirely from 

the coordination rules, recognizing that an unduly broad carve-out for internet communications 

was contrary to “the plain terms of the statute” and “severely undermines FECA’s purposes.” 337 

F. Supp. 2d at 69-70. The FEC never appealed that aspect of the district court decision, choosing 

instead to promulgate the narrower exemption at issue here. See Pls.’ MSJ Opp. 21-22. 

But intervenors also misread the Shays decisions in a more fundamental way. In Shays II, 

the D.C. Circuit made clear that the FEC’s only discretion to limit the regulation of coordinated 

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spending comes from “the [statutory] expenditure definition’s purposive language.” 414 F.3d at 

99. In construing that language, the FEC could permissibly employ some content standard to 

clarify when spending is “undertaken ‘for the purpose of influencing’ a federal election” (and thus 

qualifies as an expenditure). Id. Otherwise, “the FEC lacks discretion to exclude [communications 

intended to influence federal elections] from its coordinated communication rule.” Shays v. FEC, 

528 F.3d 914, 927 (D.C. Cir. 2008) (“Shays III”) (alteration in original) (citing Shays II, 414 F.3d 

at 99). Here, the controlling Commissioners engaged in precisely the unlawful action that Shays 

proscribed: they excluded indisputable “expenditures” from being regulated as coordinated. 

2. The regulatory construction applied here is contrary to FEC rules and precedent. 

Intervenors attempt to collapse the “contrary to law” analysis into a limited inquiry into

whether the dismissal was based on a “reasonable interpretation” of the FEC’s regulations and 

other guidance concerning the internet exemption. As discussed above, this articulation of the 

contrary-to-law standard is fatally circumscribed. But it is also just wrong. 

First, the FEC’s Office of General Counsel (“OGC”) disagreed, finding that the internet 

exemption had not previously been applied to exempt the broad range of committee expenses at 

issue here—including “payroll, salary, travel, lodging, meals, rent, fundraising consulting, . . . 

office supplies, parking, and shipping,” AR089-90. See also AR101-02 (noting that even the 

precedents “cited by CTR” would suggest that its coordinated payments for “the conduct of polls, 

the payment and training of staff, and the hiring of consultants to support the general activities of 

the committee, are properly analyzed as in-kind contributions to HFA”).

Second, as intervenors concede, the FEC “authorities” upon which they almost exclusively 

rely are minority opinions, often representing the views of just one or two Commissioners. Int. 

Reply 7. But FECA’s entire enforcement structure is designed to prevent fewer than four 

Commissioners from entrenching their interpretations of law as agency precedent. See Common 

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Cause v. FEC, 842 F.2d 436, 449 n.32 (D.C. Cir. 1988). The Commissioners’ supposed adherence 

to minority opinions that by definition are not authoritative cannot make their decision lawful. 

Finally, and most fundamentally, the non-binding minority opinions intervenors cite do not 

actually draw the legal conclusions intervenors ascribe to them, as plaintiffs have already discussed 

at length. See, e.g., Pls.’ MSJ Opp. 25-30. The cited opinions discuss only expenditures that 

directly and exclusively paid for bone fide exempt internet communications, as intervenors’ own 

descriptions of these opinions make clear: e.g., the costs related to “a YouTube video,” “social

media and website postings,” “Internet videos posted to a super PAC’s website,” “design[ing] a

website,” and “purchas[ing] a domain name and web hosting.” See Int. Reply 10. None suggest 

that the expenditures at issue in this case—which cover the full range of a PAC’s operational

expenses—would be exempt as “production costs” for internet communications. 

Intervenors attempt to bolster their case by protesting that “CLC is unable to point to a

single enforcement decision . . . that tracks its preferred interpretation of 11 C.F.R. § 100.26.” Int. 

Reply 7. This ignores OGC’s conclusion that “most” of the “approximately $9 million [CTR spent] 

on a wide array of activities” cannot be “fairly characterized” as communications exempt from

regulation. AR085. Further, intervenors have the analysis backwards: they cite no authority in the 

Act, applicable regulations, or FEC precedent that would permit exempting CTR’s “wide array”

of expenditures from regulation. In essence, intervenors are arguing not that FEC rules or decisions 

clearly exempted CTR’s full range of coordinated expenditures, but that they did not clearly bar 

their exemption. CLC cannot “point to” a case holding that the internet exemption does not cover 

a political committee’s general operational expenses because, to CLC’s knowledge, no other 

respondent has ever attempted to argue that such expenses are categorically subsumed by the 

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internet exemption even when the expenses also cover non-internet activity.

1 

3. There is no constitutional justification for the controlling group’s rationale. 

In their reply, intervenors clarify that they believe the controlling Commissioners advanced 

two distinct constitutional justifications for their votes: a concern for “First Amendment rights”

and considerations of “fair notice.” Int. Reply 11. As CLC has noted, however, see Pls.’ 2d MSJ 

20, the Statement of Reasons barely mentions the First Amendment. This is intervenors’ argument, 

although they have yet to identify any specific infringement of First Amendment rights, and now 

concede that finding “reason to believe” would not have “extended the Act beyond election-related 

advocacy [n]or impermissibly regulated independent speech.” Int. Reply 11-12. 

Instead of substantiating their First Amendment argument, intervenors now recast the 

Commissioners’ purported constitutional concerns as the fear that “significant due process

issues . . . would arise if the Commission . . . applied CLC’s preferred and novel interpretation of

11 C.F.R. § 100.26.” Int. Reply 12. But the dismissal was not based on a fair notice rationale and 

it cannot be upheld on that ground. It was assertedly dictated by the FEC’s “consistent” and

authoritative interpretation of the internet exemption—but, as discussed above, no FEC rulings 

support this claim. Thus, even if the dismissal had been premised in part on notice concerns, there 

is no way to know whether that would remain the case if the controlling Commissioners had 

correctly construed FEC rules and precedents. Moreover, whether intervenors would be entitled to 

claim FECA’s safe harbor for good-faith reliance on this regulatory construction is a separate 

question from whether the construction itself is unlawful. See Pls.’ MSJ Opp. 33-35. 

Nor is there any merit to intervenors’ claims that treating any of CTR’s spending as 

1 “Input costs” appears to have been a coinage of the controlling Commissioners here—belying 

intervenors’ many appeals to the FEC’s “longstanding position on input costs.” Int. Reply 7. 

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coordinated would require “arbitrary line-drawing between ‘direct’ and ‘indirect’ costs of unpaid 

Internet communication.” Int. Reply 12. Indeed, OGC had no problem concluding that “much of

CTR’s approximately $9 million in disbursements . . . cannot fairly be described” as for (exempt) 

communications “unless that term covers almost every conceivable political activity.” AR100. 

There may be close cases concerning where to draw the line between exempt and non-exempt 

expenditures, but given CTR’s publicly announced plan to coordinate expenditures with a 

presidential candidate in areas far beyond internet activity, this is not one of them. However 

expansively one reads the FEC’s prior treatment of the direct production costs associated with

internet communications, it still would give CTR no basis to conclude that all of its activity would 

qualify as exempt “input costs” for internet communications. Nor would it relieve the FEC of its 

mandate to apply the coordination provisions “in a manner ‘commensurate with Congress’s

regulatory aims.’” Shays I, 337 F. Supp. 2d at 79 (citation omitted). 

C. The dismissal was arbitrary, capricious, and wholly contrary to the record. 

The controlling Commissioners’ chief rationale for refusing to investigate plaintiffs’

allegations that respondents coordinated their non-internet-related spending was that plaintiffs’

allegations were too “speculative” to support a reason-to-believe finding. AR381. But there was 

no rational way to review the administrative record and conclude that CTR had in fact “limited”

its coordinated interactions with HFA “to the very communications that the Commission has 

previously decided not to regulate.” AR395. See generally Pls.’ Mot. for Summ. J. 28-40, ECF 

No. 35 (“Pls.’ MSJ”). As plaintiffs have documented, there was ample evidence that respondents 

coordinated their non-internet activities, including: CTR’s public statements confirming its intent 

to systematically coordinate its operations with HFA, AR359; press interviews in which CTR’s

leadership confirmed that they coordinated strategy with respect to “advocating for [Clinton’s] 

election online, through the press, or through other means of non-public communication,” AR401, 

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and acknowledged that CTR was “a ‘surrogate arm of the campaign’ and ‘under [HFA’s] thumb,’”

AR385; copious reporting on external indicia of synchronized operations, Pls.’ MSJ 31; and 

finally, corroborating internal records exposed by Wikileaks that respondents had 

comprehensively coordinated their offline activities, AR116-18.

2 

Furthermore, incredibly, the controlling group found insufficient evidence of coordination 

even though, as OGC noted, CTR never denied that its offline activities were “coordinated” with 

HFA. AR003 (noting that “by its own admission” CTR operated “in full coordination with the 

Clinton campaign”). Intervenors have no answer to this charge, and acknowledge that their 

administrative responses offered only legal theories for why their coordinated offline activities 

should not be deemed “coordinated expenditures”—e.g., because their press outreach qualified for 

the media exemption. Int. 2d MSJ 18. 

Intervenors now highlight that they also defended against these allegations by claiming 

“that any coordinated expenditures not related to unpaid Internet communications were paid for 

by HFA,” Int. Reply 14—an assertion that OGC declined to credit, see AR089. As discussed in 

CLC’s earlier briefing, see Pls.’ MSJ 12, 34; Pls.’ MSJ Opp. 37-38, these payments, amounting to 

less than $280,000, only purported to pay for research and tracking, not CTR’s full range of offline 

activities, which included surrogate training, media strategy and extensive press outreach. And 

even so, research and tracking represented a central part of CTR’s operations that continued 

throughout the campaign, and it strains credulity to imagine that two payments early in the cycle 

that amounted to less than three percent of CTR’s operating budget were sufficient to compensate

2 Intervenors highlight that the controlling Commissioners objected to the administrative 

complaint’s use of the “conditional tense.” Int. Reply 14. As CLC has explained, Pls.’ MSJ 38, 

this was based on a single rhetorical use of this phrasing, and ignores dozens of paragraphs 

preceding it making plaintiffs’ factual allegations in plain and unconditional terms. 

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CTR for the breadth of these services. 

In short, as OGC found and plaintiffs have explained in greater detail elsewhere, “the

record contains ample evidence . . . to support a coordination determination.” AR122. See Pls.’

MSJ 28-40; Pls.’ MSJ Opp. 34-42. The controlling group’s contrary finding cannot be sustained. 

II. Intervenors Have Not Shown That Effectual Relief is Impossible in This Case. 

As CLC has explained, intervenors’ “redressability” argument “confuses standing with 

mootness,” Loughlin v. United States, 393 F.3d 155, 169 (D.C. Cir. 2004), causing them to 

misallocate the burden of proof and invoke a statute of limitations defense that has no application 

here. See Pls.’ 2d MSJ 27-29. Intervenors’ response does not even attempt to justify these clear 

errors. Instead, they continue to rely on speculation about how the FEC will exercise its discretion 

in the event of a remand and unsupported assertions about how intervenors themselves may seek 

to obstruct future enforcement efforts. Int. Reply 15, 17-18. Neither is a basis for finding this case 

moot or plaintiffs’ injuries “no longer redressable.” Int. 2d MSJ 2. At bottom, intervenors’

argument amounts to nothing more than an untimely and ill-conceived attempt to stress-test the 

defenses they hope to make in a future enforcement action; it has no bearing on this Court’s

jurisdiction, which has already been confirmed by the D.C. Circuit.3 

A. Intervenors’ statute of limitations defense is unavailing and premature. 

Intervenors’ “redressability” challenge is really a mootness claim upon which they bear the 

“heavy burden” of showing that “any effectual relief whatever” is “impossible,” Campbell-Ewald 

v. Gomez, 577 U.S. 153, 161 (2016) (citation omitted); their response does not even acknowledge 

3 Intervenors argue that “the Circuit Court did not address redressability in the context of the lapsed

statute of limitations, because that was not yet at issue.” Int. Reply 15. But according to 

intervenors’ own (erroneous) view of the statute of limitations, it ran in February 2022—more than 

two months before the D.C. Circuit ruling—and yet they undertook no effort to bring this 

supposedly dispositive fact to the Circuit panel’s attention.

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this point, much less contest it. Instead, they repeat their misplaced argument based on the 

hypothetical lapse of the limitations period under 28 U.S.C. § 2462. 

But as plaintiffs have explained, intervenors fail to identify any authoritative FEC policy 

or judicial precedent showing that the statute of limitations in 28 U.S.C. § 2462 would bar 

enforcement in the event of a contrary-to-law ruling and remand here. See Pls.’ 2d MSJ 31-34. 

That failing is alone sufficient to defeat their mootness claim. Although intervenors posit that “the

Commission does not appear to have any discretion,” Int. Reply 16 (emphasis added), they rely 

on two false premises: that non-majority views expressed by “several Commissioners” are capable

of setting FEC policy and limiting its enforcement discretion; and that because intervenors believe 

the statute of limitations has run, the FEC or a court would necessarily share that view. 

First, positions that fail to garner bipartisan support on the Commission do not and cannot 

dictate agency policy. And even assuming a minority of current Commissioners do subscribe to an 

interpretation of 28 U.S.C. § 2462 that would significantly curtail their own enforcement powers, 

that view never been adopted by the full Commission and departs from its longstanding position.4 

Indeed, according to intervenors’ theory, practically every court to have considered 

whether the FEC’s dismissal of an administrative complaint was contrary to law under FECA’s

judicial review provision—including the Supreme Court in Akins—may have actually lacked 

jurisdiction to reach that question. For example, the original administrative complaint underlying 

the Akins decision was filed on January 9, 1989, and involved activity that took place between 

4 See, e.g., FEC v. Christian Coal., 965 F. Supp. 66, 70-72 (D.D.C. 1997); FEC Mem. Supp. CrossMot. for Summ. J. 39, Akins v. FEC, 736 F. Supp. 2d 9, 2009 WL 4920567 (D.D.C. Aug. 28, 2009) 

(No. 03-cv-2401) (“[T]he Commission agrees with the plaintiffs that the weight of authority holds

that 28 U.S.C. § 2462 does not bar suits brought by the Commission for injunctive or other 

equitable relief.”) (citing Christian Coal., 965 F. Supp. at 70-72); FEC Opp. to Mot. to Dismiss 

13, FEC v. Lynch, 2016 WL 7231428 (S.D. Fla. Mar. 16, 2016) (No. 9:15-cv-81732) (“[E]quitable 

claims are not subject to the 5-year statute of limitations in 28 U.S.C. § 2462.”).

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1980 and 1990; the Supreme Court nevertheless upheld the redressability of the plaintiffs’

informational injury in 1998. See 524 U.S. at 25. And litigation spurred by the original Akins 

complaint continued through 2010, despite involving alleged violations that ceased after the 1980s. 

FEC v. Akins, 736 F. Supp. 2d 9, 13-16 (D.D.C. 2010). In the denouement of this saga, the FEC 

expressly exercised its “discretion” to dismiss the allegations because the conduct at issue was 

several decades old—and the FEC defended that final decision on the ground that it was 

reasonable, not because it was mandated by the statute of limitations. See FEC Summ. J. Mem. 

38-39, Akins, 736 F. Supp. 2d 9, 2009 WL 4920567. Intervenors are thus doubly wrong in 

attempting to distinguish Akins on the ground that it did not involve an “instance[] in which the 

statute of limitations . . . had run,” Int. Reply 15-16—first by, again, presuming that their view of 

the statute of limitations is the correct and only one, and second by suggesting that Akins would 

have come out differently if the administrative respondent had only intervened and cited the statute 

of limitations as an obstacle to redressability. 

Second, contrary to intervenors’ unproven assumption, the statute of limitations has not 

run—and CLC certainly has never suggested it has, although intervenors misleadingly intimate as 

much. See Int. Reply 15. However, as explained in CLC’s prior briefing, the statute of limitations:

(1) does not apply to equitable relief; (2) would not bar a future citizen suit—because even if it 

applies to private actions under FECA, no such claim can possibly accrue until the resolution of 

this lawsuit and therefore the statute has not yet started to run; and (3) has not expired—because 

it has been tolled during the pendency of this lawsuit, intervenors’ disclosure violations are

continuing, and intervenors would be equitably estopped from raising a defense based on a delay 

of their own making. See Pls.’ 2d MSJ 31-38. Intervenors all but ignore these arguments. 

The only response they do offer is to claim that CLC lacks a redressable injury because 

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“CLC has not [shown] and cannot show that the Commission would not act” on remand. Int. Reply 

17. Intervenors thus contend that plaintiffs must show to a certainty both that the FEC would not 

exercise its discretion to “dismiss the matter once again” if this Court declares the dismissal 

contrary to law, id., and contradictorily, that the FEC would fail to conform with such an order and 

thereby trigger a private right of action. But that, obviously, is not the standard. As Akins 

recognized, plaintiffs need not prove how the FEC will act (or fail to act) to show their injury is 

redressable. Buchanan v. FEC, 112 F. Supp. 2d 58, 69 (D.D.C. 2000) (“[T]hat an agency might 

not ultimately find in the plaintiffs’ favor on remand does not destroy the plaintiff’s standing . . . It 

is enough that a remand ‘would leave the agency free to exercise its discretion in a proper manner

[which] could lead to agency action that would redress [plaintiffs’] injury.’”) (citations omitted).

5 

B. Intervenors’ unsupported claim that they would be “incapable” of providing required 

disclosure information does not bear upon the redressability of CLC’s injury. 

Finally, intervenors cannot or will not support their claims of being “defunct” or “flatly

incapable” of cooperating with any future effort to enforce FECA’s disclosure provisions. Int. 

Reply 17. Given that intervenors have actively litigated this case for more than three years, the 

bare assertion by their counsel that intervenors are now “defunct” cannot establish mootness or 

excuse them from their legal obligations. And even if it could, intervenors still have yet to produce 

anything to substantiate this claim, much less explain how the passage of time necessarily renders 

all future efforts to seek compliance with FECA disclosure provisions “impossible.”

Intervenors’ latest filing makes no attempt to fill these gaps, preferring instead to quote 

from their previous briefs as if that allays all “doubts” about the claims’ veracity or legal relevance. 

Id. But CTR and HFA do not contest that both are still regarded as active by the FEC. See Pls.’ 2d

5 While CLC need not show that FECA’s private right of action would definitively be available, 

the FEC’s continued absence in this litigation suggests that it is a likelier than usual prospect. 

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Case 1:19-cv-02336-JEB Document 66 Filed 10/17/22 Page 20 of 22 

MSJ 38 & n.9 (noting that CTR’s attempt to terminate committee status was disallowed by the

FEC because it remained the subject of an open enforcement matter). And “defunct” or not, 

intervenors have yet to explain why either CTR or HFA (or the committees’ treasurers, principals, 

and/or successors) would be incapable of complying with future investigatory or enforcement 

efforts. That a regulated party intends to resist enforcement is not a basis for preempting a 

complainant’s standing to challenge agency action. Akins v. FEC, 101 F.3d 731, 738 (D.C. Cir. 

1996) (en banc) (“Nor can it be relevant . . . that [respondent] might not comply” with FEC

enforcement; that “is always true when an agency’s nonaction against a third party is challenged.”),

vacated on other grounds, 524 U.S. 11. 

But even if the Court entertains this gambit, intervenors still fail to show that “any effectual

relief whatever” is impossible. Apart from being self-serving in the extreme, the argument 

incorrectly assumes that remedying plaintiffs’ informational injury is an all-or-nothing 

proposition. Intervenors thus fixate on whether plaintiffs’ informational injury can be redressed

completely, disregarding that it clearly can be remedied at least in part. There are a variety of 

investigatory and enforcement tools that might be brought to bear to seek compliance with FECA, 

so intervenors’ intransigence cannot prevent recovery of at least some of the missing disclosure 

information plaintiffs are due. See Pls.’ 2d MSJ 38-39.6 That is sufficient for Article III purposes. 

CONCLUSION 

This Court should grant plaintiffs’ second motion for summary judgment and declare the 

FEC’s dismissal of plaintiffs’ administrative complaint contrary to law. 

6 FEC investigations routinely seek to uncover factual information about the scope of undisclosed 

spending. See, e.g., First Gen. Counsel’s Rep. 19-21, MUR 7894 (True the Vote) (Dec. 9, 2021) 

(recommending an investigation in connection with failure to disclose “the dates, amounts, and 

purposes of the in-kind contributions” arising from coordinated spending to “determin[e] the 

nature and extent” of coordination and “ascertain the costs associated”). 

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Case 1:19-cv-02336-JEB Document 66 Filed 10/17/22 Page 21 of 22 

Dated: October 17, 2022 

Respectfully submitted, 

/s/ Tara Malloy 

Tara Malloy (DC Bar No. 988280) 

tmalloy@campaignlegalcenter.org 

Megan P. McAllen (DC Bar No. 1020509) 

CAMPAIGN LEGAL CENTER 

1101 14th St. NW, Suite 400 

Washington, D.C. 20005 

(202) 736-2200 

Attorneys for Plaintiffs 

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Case 1:19-cv-02336-JEB Document 66 Filed 10/17/22 Page 22 of 22 

CERTIFICATE OF SERVICE 

I hereby certify that on October 17, 2022, 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 

17