IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CAMPAIGN LEGAL CENTER 

CATHERINE HINCKLEY KELLEY, 

Plaintiffs, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant, 

and 

HILLARY FOR AMERICA 

CORRECT THE RECORD, 

Intervenors. 

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

REPLY BRIEF IN SUPPORT OF DEFENDANT-INTERVENORS’ CROSS-MOTION 

FOR SUMMARY JUDGMENT 

Marc E. Elias (D.C. Bar No. 442007) 

Aria C. Branch (D.C. Bar No. 1014541) 

PERKINS COIE LLP 

700 Thirteenth Street, N.W., Suite 800 

Washington, D.C. 20005-3960 

Telephone: 202.654.6200 

Facsimile: 202.654.6211 

Email: MElias@perkinscoie.com 

Email: ABranch@perkinscoie.com 

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TABLE OF CONTENTS 

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

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

I. Plaintiffs lack standing. ........................................................................................................ 2 

A. Plaintiffs lack an informational injury because they will not learn any new factual 

information if they prevail. .......................................................................................... 2 

B. The application of Plaintiffs’ view of the law makes clear that they are merely 

seeking a legal determination. ..................................................................................... 4 

C. CLC lacks organizational standing. ............................................................................. 6 

II. The FEC’s Dismissal Was Not Contrary to Law. ................................................................ 6 

A. The First Amendment Played a Central Role in the Commissioners’ Decision and 

Was a Reasonable Consideration in Interpreting FECA. ............................................ 6 

B. Plaintiffs Mischaracterize the Due Process Concerns at Play in this Matter and Fail to 

Recognize How They Shaped the Commissioners’ Decision ................................... 11 

C. The FEC’s History Supports the Commissioners’ Dismissal. ................................... 12 

III. The Commissioners’ decision to exempt expenses unrelated to unpaid Internet activity 

was not arbitrary, capricious, or an abuse of discretion. .................................................... 16 

A. The controlling Commissioners properly applied the “reason to believe” standard. 16 

B. Intervenors did not concede that they coordinated on non-exempt activities. .......... 19 

C. The controlling Commissioners’ treatment of polling costs and the David Brock 

podcast was not arbitrary or capricious. .................................................................... 20 

IV. Plaintiffs’ APA claim fails. ................................................................................................ 22 

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

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TABLE OF AUTHORITIES 

CASES PAGE(S) 

Buckley v. Valeo, 

424 U.S. 1 (1976) .................................................................................................................7, 12 

Campaign Legal Ctr. v. FEC, 

245 F. Supp. 3d 119 (D.D.C. 2017) ...........................................................................................6 

Common Cause v. FEC, 

842 F.2d 436 (D.D.C. 1988) ....................................................................................................12 

FEC v. DSCC, 

454 U.S. 27 (1981) ...................................................................................................................10 

FEC v. LaRouche Campaign, 

817 F.2d 233 (2d Cir. 1987).......................................................................................................7 

FEC v. Legi-Tech, Inc., 

75 F.3d 704 (D.C. Cir. 1996) ...................................................................................................21 

FEC v. Machinists Non-Partisan Political League, 

655 F.2d 380 (D.C. Cir. 1981) .................................................................................................18 

Jacobellis v. State of Ohio, 

378 U.S. 184 (1964) (Stewart, J., concurring) ...........................................................................2 

McConnell v. FEC, 

540 U.S. 93 (2003) .....................................................................................................................9 

Nader v. FEC, 

725 F.3d 226 (D.C. Cir. 2013) ...................................................................................................1 

Packingham v. North Carolina, 

137 S. Ct. 1730 (2017) .............................................................................................................10 

Reno v. ACLU, 

521 U.S. 844 (1997) .............................................................................................................8, 10 

Van Hollen v. FEC, 

811 F.3d 486 (2016) .............................................................................................................9, 10 

Wertheimer v. FEC, 

268 F.3d 1070 (D.C. Cir. 2001) .................................................................................................4 

STATUTES

28 U.S.C. § 2111 ............................................................................................................................21 

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OTHER AUTHORITIES

11 C.F.R. § 106.4 ...........................................................................................................................21 

11 C.F.R. § 106.4(c).......................................................................................................................21 

11 C.F.R. § 109.20(a).....................................................................................................................16 

71 Fed. Reg. 18589 (2006) ..............................................................................................................8 

MUR 7023 (Kinzler for Congress) ...............................................................................................14 

MUR 7080 (Babeu for Congress) ..................................................................................................14 

MUR 6414 (Carnahan in Congress Committee) ............................................................................14 

MUR 6657 (Akin for Senate) ........................................................................................................14 

MUR 5564 (Alaska Democratic Party) ..........................................................................................15

MUR 4960 (Clinton for Senate) ....................................................................................................17 

MUR 6518 (Gingrich)....................................................................................................................19 

MUR 4850 (Deloitte & Touche, LLP) ...........................................................................................20

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TABLE OF ABBREVIATIONS 

APA Administrative Procedure Act 

AR Administrative Record 

CLC Campaign Legal Center 

CTR Correct the Record 

DSCC Democratic Senatorial Campaign Committee 

F&LA Factual & Legal Analysis 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

HFA Hillary for America 

MUR Matter Under Review 

OGC Office of General Counsel 

PAC Political Action Committee 

SOR Statement of Reasons 

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INTRODUCTION

 Defendant-Intervenors Correct the Record (“CTR”) and Hillary for America (“HFA) 

submit this Reply brief in support of their Cross-Motion for Summary Judgment. 

 Plaintiffs Campaign Legal Center (“CLC”) and Catherine Hinckley Kelley lack standing 

to sue because they have suffered no informational injury. They already have all of the information 

they would obtain, even if they were to prevail on their theory of the case. They believe that all of 

CTR’s expenditures were coordinated with HFA and thus were in-kind contributions, which makes 

this case simply about moving expenditures from one line of CTR’s Federal Election Commission 

reports to the other. See, e.g., Pls.’ Opp’n to Int. Cross-Mot. for Summ. J. at 38, ECF No. 42 

(“broad, systematic coordination with the Clinton campaign was [CTR’s] raison d’être”). Plaintiffs 

reject the idea that some expenditures were coordinated, while others were not: in fact, they say 

that the Federal Election Commission (“FEC” or the “Commission) erred by “discounting the 

voluminous record evidence showing that CTR and HFA were collaborating across the full range 

of CTR’s activities,” and by “demanding conclusive evidence on a transaction-by-transaction basis 

to determine whether specific conduct occurred with respect to particular expenditures.” Id.

(emphasis added). Plaintiff cannot have it both ways, branding CTR as a wholly-owned subsidiary 

of HFA for merits purposes, but averring that only some of its expenditures may have been 

attributable to HFA for standing purposes. Their case is just a thinly disguised effort to “get the 

bad guys.” Nader v. FEC, 725 F.3d 226, 230 (D.C. Cir. 2013) (internal quotation marks omitted), 

and they have suffered no real informational injury. 

 Plaintiffs fare no better on the merits. They accuse Intervenors of ignoring what they claim 

is the broad sweep of the Federal Election Campaign Act of 1971, as amended (“FECA’s”) 

coordination statute, by being “fixated on direct production costs.” Pls.’ Opp’n to Int. Cross-Mot. 

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for Summ. J. at 2, 3, ECF No. 42. But they cannot explain away the many enforcement matters in 

which the Commission has refused to tag campaigns with the costs associated with the production 

of Internet communications. Int. Opp’n to Pls.’ Cross-Mot. for Summ. J. at 35-37, ECF No. 38-1. 

Plaintiffs claim that Intervenors have shown “no tenable argument for why the First Amendment 

even comes into play here,” Pls.’ Opp’n to Int. Cross-Mot. for Summ. J. at 30, ECF No. 42. But 

Plaintiffs refuse to recognize that the Commission’s practice appropriately avoids constitutional 

difficulties, and that sweeping enforcement of their intuitive test for coordination—“I know it 

when I see it,” Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring) —

would upset decades of Commission policy, and wreak havoc across a wide range of protected 

speech and association. 

 Finally, Plaintiffs’ Administrative Procedure Act (“APA”) claim likewise fails, because 

FECA provides an adequate judicial review mechanism, as every court to consider that issue has 

held. 

 For the reasons set forth herein and in Intervenors’ cross motion for summary judgment, 

Intervenors respectfully request that this Court deny Plaintiffs’ motion for summary judgment and 

enter summary judgment in favor of Intervenors. 

ARGUMENT 

I. Plaintiffs lack standing. 

A. Plaintiffs lack an informational injury because they will not learn any new 

 factual information if they prevail. 

Plaintiffs claim informational injury because they lack “itemized disclosures” that would 

allow them to determine whether (1) each particular expenditure made by CTR was coordinated 

with HFA; and (2) if a particular expenditure was coordinated, whether it was eligible for 

Plaintiffs’ narrow construction of the Internet exemption. Plaintiffs say that they cannot know the 

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amount of in-kind contributions made by CTR to HFA during the 2016 election cycle without this 

information. Pls.’ Opp’n to Int. Mot. for Summ. J. at 7, ECF No. 42. 

 This is pure fiction. CTR’s publicly available FEC reports already disclose the information 

Plaintiffs claim they would obtain if they had their way. Plaintiffs advance a sweeping claim that 

CTR’s spending represented coordinated expenditures, and thus in-kind contributions to HFA, 

because of the “voluminous record evidence showing that CTR and HFA were collaborating across 

the full range of CTR’s activities ...” Id. at 38. They allege “broad, systematic coordination with 

the Clinton campaign ...” Id. They say it was error for the FEC to seek “conclusive evidence on a 

transaction-by-transaction basis to determine whether specific conduct occurred with respect to 

particular expenditures.” Id. (internal quotation marks omitted). Plaintiffs are not genuinely trying 

to determine which of CTR’s expenditures were coordinated, and which were not. Plaintiffs have 

gone to court to advance the argument that all of CTR’s spending was coordinated. 

 There is a stark contradiction between Plaintiffs’ position on standing—that “some 

unknown portion of CTR’s expenditures were coordinated in-kind contributions,” and that they 

need to know how much that was, id. at 7—with their position on the merits, which is that CTR 

was nothing more than a “surrogate arm of the campaign and under HFA’s thumb.” Id. at 39 

(internal quotation marks and ellipses omitted). Plaintiffs try to hide this contradiction with circular 

arguments. They claim not to know the “amount, date, source and purpose” of each CTR 

disbursement. But CTR has already publicly disclosed all of its disbursements in accordance with 

FEC reporting guidelines, in the same detail as if it had treated these disbursements as in-kind 

contributions. Plaintiffs have never responded to Intervenors’ argument that they would not learn 

any additional information about the “purpose” of CTR’s disbursements if they were reported as 

in-kind contributions. There is no difference between the level of information a political committee 

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provides when reporting an operating expense, and what it provides when it reports making an inkind contribution. See Instructions for FEC Form 3X and Related Schedules 10, FEC, 

https://www.fec.gov/resources/cms-content/documents/fecfrm3xi.pdf. The only change that 

would occur is that after a legal determination of coordination, expenses now reported as 

“expenditures” would be disclosed instead as “in-kind contributions.” 

 Plaintiffs already know whom CTR paid, when they paid them, and how much they paid 

them. The only thing they lack is a finding of coordination and a legal conclusion that treats these 

disbursements as in-kind contributions. That is what Plaintiffs seek, but it is not enough to prove 

informational standing. Wertheimer v. FEC, 268 F.3d 1070, 1075 (D.C. Cir. 2001) (seeking “a 

legal characterization or duplicative reporting of information that under existing rules is already 

required to be disclosed” is insufficient for informational standing). 

 B. The application of Plaintiffs’ view of the law makes clear that they are 

 merely seeking a legal determination. 

 Examining one category of Plaintiffs’ claim—their allegations about David Brock’s 

salary—makes clear that they do not genuinely seek any new factual information. In Plaintiffs’ 

view, all of CTR’s activities were coordinated with HFA, and such expenditures are presumptively 

in-kind contributions. See, e.g., Pls.’ Opp’n to Int. Cross-Mot. for Summ. J. at 1, ECF No. 42 

(“CTR coordinated millions of dollars in expenditures with HFA for ‘opposition research, message 

development, surrogate training and booking, professional video production, and press outreach’ 

for the benefit of the [2016] Clinton campaign”); id. at 8 (“As already detailed at length, CTR from 

its inception made clear—and announced publicly—that broad, systematic coordination with the 

Clinton campaign was its raison d’etre.”); id. at 40 (“The unrefuted evidence shows that CTR’s 

purpose—and consistent practice—was the systematic coordination of its operations with HFA.”). 

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According to Plaintiffs’ argument, Brock’s salary would be treated no differently, and would 

presumptively represent an in-kind contribution to HFA. 

 The question then becomes whether—in Plaintiffs’ view—Brock’s salary was exempt from 

treatment as an in-kind contribution. Plaintiffs say no. In their view, expenditures for overhead 

expenses like Brock’s salary, are not eligible for the Internet exemption. Pls.’ Opp’n to 

Intervenors’ Cross-Mot. to Dismiss at 41 n.13, ECF No. 27 (emphasis added) (“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.’”). Thus, according to Plaintiffs, it does not matter 

whether David Brock’s salary was divided between Internet and non-Internet activity, because 

salaries, in their view, are not eligible for the Internet exemption. This same reasoning applies to 

CTR’s other expenses.1

 What this means is that, even if Plaintiffs prevail, all that would happen is that these 

expenditures would be moved from Line 21 (operating expenditures) to Line 23 (in-kind 

contributions) of CTR’s reports. The same payee names, dollar amounts, and dates would be 

                                                            

1 Even if Plaintiffs were willing to admit that “direct production costs” for Internet activity should 

fall within the Internet exemption, those expenses are already clearly disclosed on CTR’s reports.

See, e.g., CTR’s July 2016 Quarterly Report, available at

https://www.fec.gov/data/committee/C00578997/?cycle=2016&tab=filings (showing, for 

example, an expenditure made to “Go Daddy” on May 10, 2016 for $16.46 for “domain services;” 

an expenditure made to WP Engine on May 10, 2016 for “web hosting services”). CTR’s reports 

already clearly display the only Internet-related services that would not be deemed in-kind 

contributions to HFA under Plaintiffs’ view. To the extent that Plaintiffs’ argument is that costs 

for web hosting and domain services do not represent examples of “direct production costs” of 

unpaid Internet communications, it is not clear what types of expenses would fall in that category. 

Note also that the FEC Office of General Counsel considered costs for expenses such as “web 

hosting” to be related to the production of CTR’s Internet communications. AR at 385.

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disclosed on the reports, just as they are today. Plaintiffs would obtain no new factual information, 

which is why they lack standing. 

 C. CLC lacks organizational standing. 

 CLC continues to claim that the dismissal of its FEC complaint has “injured CLC’s 

interest,” and that it “used resources to counteract the harm.” But the whole point of CLC’s 

existence is to identify potential campaign finance violations and file complaints. See, e.g., 

Campaign Legal Ctr. v. FEC, 245 F. Supp. 3d 119, 122 (D.D.C. 2017) (“To advance [its] cause . 

. . . Campaign Legal Center provides information to voters . . . . [and] files administrative 

complaints . . . .”). Responding to media inquiries about alleged “incomplete disclosure reports” 

is part of its job. See Fischer Decl. ¶27, ECF No. 27-2 (part of CLC’s mission is to “identify[ ] 

problematic campaign practices”). CLC can scarcely claim injury, when the proximate result of 

the FEC’s dismissal is that it simply continues to do the same things that it normally does. 

II. The FEC’s Dismissal Was Not Contrary to Law. 

A. The First Amendment Played a Central Role in the Commissioners’ Decision 

 and Was a Reasonable Consideration in Interpreting FECA. 

 Plaintiffs pay no heed to the reality that their legal position, if adopted by this Court, will 

have a serious impact on First Amendment speech and association. By taking the Rorschach test 

that is 11 C.F.R. § 109.20(a)’s general coordination standard, and applying it indiscriminately to 

non-communication expenses, they would throw into legal peril the wide range of organizations 

which interact with candidates and campaigns on a day-to-day basis, and which do things that 

might be construed to help them. Plaintiffs call Intervenors’ First Amendment arguments 

“misplaced” and claim that the briefing in this case has shown “no tenable argument for why the 

First Amendment even comes into play here.” Pls.’ Opp’n to Cross-Int. Mot. for Summ. J. at 30, 

ECF No. 42. But the First Amendment is implicated by every FEC activity, because the agency’s 

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purpose is to regulate core political speech. See Buckley v. Valeo, 424 U.S. 1, 14 (1976) (“The 

Act’s contribution and expenditure limitations operate in an area of the most fundamental First 

Amendment activities.”). Especially during an enforcement action, which can result in civil 

penalties for speaking about candidates and elections, and in lengthy investigations into political 

activities, the FEC “tread[s] in an area rife with first amendment” concerns. FEC v. LaRouche 

Campaign, 817 F.2d 233, 234 (2d Cir. 1987). 

 For example, imagine that a nonprofit corporation that advocates for anti-racist policies 

has a conversation with a candidate of color about the candidate’s experiences on the campaign 

trail. In the conversation, the candidate tells the group that there would be more diverse people, 

like herself, in elected office if people took a stand against injustice and did not let others get away 

with making destructive comments. Then, months later, the nonprofit group writes an article for 

its website addressing a racist comment the candidate’s opponent made, so that it can do its part 

to hold people accountable for their words and to educate the public on why the comment was 

harmful. Under Plaintiffs’ view of the law, the group would now have to worry about whether the 

salary of the article’s author and any travel the author did to interview people for the story is an 

unlawful contribution. The only way for the organization to avoid this concern would be to not 

write the story and forgo an opportunity to advance the organization’s mission. This is an 

intolerable result under the First Amendment. 

 Plaintiffs claimed that “the dismissal did not hinge on a constitutional avoidance rationale,” 

and it was “inappropriate” for Intervenors to raise these constitutional issues. See Pls.’ Opp’n to 

Int. Cross-Mot. for Summ. J. at 30, ECF No. 42. But the very first sentence in the controlling 

Commissioners’ Statement of Reasons (“SOR”) says: “These matters raise questions of . . . First 

Amendment rights.” AR380. The Commissioners “approached these matters deliberately and with 

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caution” because “every action the Commission takes implicates core constitutionally protected 

activity.” Id. They wanted to avoid a decision that would “potentially chill political speech online.” 

Id. at 392. Contrary to Plaintiffs’ incorrect characterization of the administrative decision, the 

record clearly shows that the Commissioners considered the First Amendment in dismissing 

CLC’s complaint. 

 While rushing past the First Amendment, Plaintiffs failed to recognize another important 

factor of the Commissioners’ approach to input costs for Internet communications: the unique 

characteristics of the Internet that separate it from other modes of communication. Plaintiffs say: 

“[T]here is no First Amendment impetus to exempt coordinated ‘expenditures’ for internet 

communications from regulation at all.” Pls.’ Opp’n to Cross-Int. Mot. for Summ. J. at 31, ECF 

No. 42. However, they ignore what the Supreme Court has said about the Internet, which has 

affected the FEC’s policy. In 1997, when the Internet was first becoming part of American daily 

life, the Court called it a “vast democratic forum[ ],” observing that the web has a “relatively 

unlimited, low-cost capacity for communication of all kinds.” Reno v. ACLU, 521 U.S. 844, 868, 

870 (1997). The Supreme Court further noted that, unlike traditional forms of advertising such as 

television and radio, websites are not “invasive” and rarely “appear on one’s computer screen 

unbidden.” Id. at 869. 

 Quoting ACLU v. Reno, and relying on a voluminous administrative record, the FEC 

explained in its 2006 Internet rulemaking that websites, emails, blogs, and the like are distinct 

methods of communication that require a different regulatory approach. See Internet 

Communications, 71 Fed. Reg. 18589 (2006). The FEC pointed out that “a website’s information 

is seen only by those who actively take the steps necessary to find, visit, and view the website.” 

Id. at 18590. Because of these unique features, the FEC adopted a “restrained regulatory approach” 

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to Internet communications. Id. at 18589. It removed unpaid Internet communications from the 

definition of “public communication” and the coordination regulations, intending to treat input 

costs as exempt from coordination too. See Int. Mot. for Summ. J. at 40-42, ECF No. 38-1 

(describing discussions of input costs during the rulemaking). 

 Plaintiffs claim that this approach contradicts the purpose of the Bipartisan Campaign 

Reform Act of 2002 (“BCRA”). Pls.’ Opp’n to Int. Cross-Mot. for Summ. J. at 18-22, ECF No. 

42. Plaintiffs characterize BCRA’s purpose as expanding the definition of coordination, so that all 

forms of communication and their costs would be included. Id. at 21. In truth, BCRA focused 

especially on broadcast, cable and satellite media, which it did by creating a new class of reportable 

communications called “electioneering communications.” See McConnell v. FEC, 540 U.S. 93, 

189 (2003) (explaining that electioneering communications are only those occurring on 

“broadcast, cable, or satellite”). As Plaintiffs seem to admit, BCRA was silent about Internet 

political speech, see Pls.’ Opp’n to Int. Cross-Mot. for Summ. J. at 18-22, ECF No. 42, leaving the 

FEC to “fill in the statutory gaps,” Van Hollen v. FEC, 811 F.3d 486, 495 (2016) (internal quotation 

marks omitted). 

 Plaintiffs try to get around the deference the FEC enjoys in setting policy by repeatedly 

citing the Shays I decision, which addressed a precursor to the coordination regulation at issue in 

this case. See Pls.’ Opp’n to Int. Mot. for Summ. J. at 14, 19, 21, ECF No. 42. However, the FEC’s 

current approach to Internet communications and their input costs is more nuanced than the one 

examined in Shays I. As the D.C. Circuit recognized: “Congress ‘took great care in crafting . . . 

language [in BCRA] to avoid violating the important p[ ]rinciples in the First Amendment.’” Van 

Hollen, 811 F.3d at 495 (quoting 147 Cong. Rec. S3033 (daily ed. Mar. 28, 2001) (statement of 

Sen. Jeffords)) (alteration in original). And where an agency’s interpretation of a statute is “a 

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reasonable accommodation of conflicting policies that were committed to the agency’s care,” such 

as accounting for differences in types of media while regulating coordinated expenditures, the 

agency’s interpretation of the statute “demands [ ] deference.” Id. (internal quotation marks 

omitted).2

 

 The controlling bloc of Commissioners adopted a “sufficiently reasonable” interpretation 

of the Act when it found that CTR’s production or input costs were not contributions to HFA. See 

Reno, 521 U.S. at 868-70; FEC v. DSCC, 454 U.S. 27, 39 (1981) (stating that a court’s role in 

reviewing an FEC interpretation is to determine “whether the Commission’s construction was 

sufficiently reasonable”); AR380, 392. Embracing an approach that avoids chilling political speech 

on what the Supreme Court has more recently described as “the most important place[ ] . . . for the 

exchange of views” and today’s equivalent of “a street or a park” is an appropriate goal to balance 

with the robust regulation of campaign spending. See Packingham v. North Carolina, 137 S. Ct. 

1730, 1735 (2017). Plaintiffs argue that “the core premise of the 2006 rulemaking . . . bears no 

resemblance to the word today” in an effort say that the Internet is fundamentally different from 

what it was fourteen years ago. See Pls.’ Opp’n to Int. Cross-Mot. for Summ. J. at 29, ECF No. 

42. This may be true, but it only supports Intervenors’ point. With the advent of social media, and 

the Internet a central part of everyday life, there are now even more opportunities for free political 

expression. The Commission’s First Amendment rationales are stronger now than in 2006, not 

weaker. 

 Far from being contrary to law, the FEC’s decision reflected a carefully structured 

application of FECA to a unique form of communication. Plaintiffs would replace the 

                                                            

2

 While a federal court is not required to follow an agency’s interpretation of constitutional law, 

an agency’s failure to account for constitutional issues in the first place is itself arbitrary and 

capricious. 

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Commission’s careful approach with a hyper-regulatory interpretation of coordination, which is 

achievable only if the First Amendment does not “come[ ] into play.” See Pls.’ Opp’n to Int. Mot. 

for Summ. J. at 37, ECF No. 42. 

 B. Plaintiffs Mischaracterize the Due Process Concerns at Play in this Matter 

 and Fail to Recognize How They Shaped the Commissioners’ Decision 

 Plaintiffs take a similarly cavalier approach to due process. They again overlook 

inconvenient parts of the record, claiming that “[t]he controlling Commissioners did not ground 

their decision on a fair notice rationale.” Id. at 33 n.5. In fact, the Commissioners explicitly stated 

that the administrative matter raised “questions of . . . fair notice.” AR380. They also concluded 

that prior decisions in enforcement actions and advisory opinions informed CTR’s and HFA’s 

understanding of input costs and included a long string of citations about courts striking “agencies’ 

retroactive policy reversals as violations of due process.” AR393-94 & n.66. The Commissioners 

were quite obviously concerned with the due process implications of reversing course after years 

of exempting input costs from the reach of the coordinated communication regulation. To say 

otherwise is a gross mischaracterization and conceals the sea change in agency policy that 

Plaintiffs’ interpretation of the law would present. 

 To the extent Plaintiffs acknowledge that “due process concerns would even theoretically 

come into play” in this case, they assert that the FEC has never taken a position on the type of 

input costs CTR treated as uncoordinated, stating that CTR and HFA could have no reliance 

interest. Pls.’ Opp’n to Int. Cross-Mot. for Summ. J. at 33, ECF No. 42. To reach this position, 

Plaintiffs assert that the FEC has not addressed whether overhead costs related to producing online 

communications—like travel, research, and salaries—are exempt expenses. See id. However, 

Intervenors dedicated an entire section of their Cross-Motion for Summary Judgment to detailing 

the string of enforcement matters in which the Commission has addressed this very question. Int. 

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Opp’n to Pls.’ Mot. for Summ. J. at 35-37, ECF No. 38-1. The Commission has consistently 

declined to treat component costs of free online communications as coordinated expenditures. See 

id. While Plaintiffs argue that split decisions are not precedential, courts have recognized that 

SORs give notice to the regulated community about how the Commission will rule in similar, 

future matters. See Common Cause v. FEC, 842 F.2d 436, 450 (D.D.C. 1988) (stating that SORs 

“enhance the predictability of Commission decisions”). It is exactly this kind of predictability and 

notice that brings “due process . . . into play” here. Pls.’ Opp’n to Int. Cross-Mot. for Summ. J. at 

33, ECF No. 42. 

 It is wrong for Plaintiffs to refer to these fundamental constitutional concerns as 

“indistinct.” Id. at 33. There is no shortage of court opinions concluding that an agency’s decision 

to penalize conduct it previously allowed triggers the Due Process Clause, because the regulated 

community lacked fair notice of the impending reversal in policy. See AR 394 n.66 (citing several 

such cases). It is equally well-established that a vague rule that does not provide meaningful 

guidance about what is allowed and what is prohibited cannot survive under the Due Process 

Clause, particularly where the First Amendment is concerned. See, e.g., Buckley, 424 U.S. at 77. 

To fashion a new rule through litigation that takes input costs and shrinks them down to what 

Plaintiffs call “bona fide production costs”—whatever that means—would leave the regulated 

community guessing about what is sufficiently related to an online communication to be exempt 

from coordination. See Pls.’ Opp’n to Int. Cross-Mot. for Summ. J. at 33, ECF No. 42. 

 C. The FEC’s History Supports the Commissioners’ Dismissal. 

 Plaintiffs bristle at the claim that they are taking a second bite at the regulatory apple, trying 

to get this Court to enforce a policy that the Commission would not adopt through rulemaking. 

They try to prove that CLC did not raise—and the FEC did not reject—an invitation to regulate 

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input costs during the 2006 Internet rulemaking. Id. at 22-23. However, Plaintiffs republish in full 

a key passage of CLC’s comment on the proposed Internet rules, which shows the exact opposite. 

See id. at 23. Plaintiffs try to square the circle by claiming that the reference to “production costs” 

in the comment meant only “direct production costs” and did not include “staff time or overhead.” 

See id. at 22-23. But the comment contains no such restriction. It speaks of payments for the 

“professional creation and production of campaign materials,” which would appear to encompass 

fees for consultants or the labor of professional staff—the same types of expenses which Plaintiffs 

now try to shoehorn into the coordination rules. Id. at 23. 

 Plaintiffs also claim that there is no evidence the Commission actually considered CLC’s 

comment. However, at a hearing on the proposed Internet rules, the vice chairman of the FEC 

questioned a representative of CLC concerning the organization’s position on input costs, 

explicitly citing the footnote in CLC’s comment. See FEC, Public Hearing on Internet 

Communications (June 29, 2005), Transcript at 185, 194-95, 

https://sers.fec.gov/fosers/showpdf.htm?docid=775. In fact, the input cost question was the first 

issue the FEC raised to CLC after CLC’s opening comments. See id. at 194. The record shows a 

colloquy between the CLC representative and the FEC vice chairman, concluding with the CLC 

representative stating that “payments to third parties” should not be sheltered from regulation as 

exempt production costs. Id. at 196. Thus, CLC’s comment was not simply one comment among 

many, that the FEC happened to overlook. The Commission considered CLC’s proposal to regulate 

input costs and rejected it. 

 The rest of Plaintiffs’ arguments about the FEC’s past actions on input costs are simply 

misplaced. As noted above, one of Plaintiffs’ core contentions is that while the FEC may exempt 

costs directly related to Internet communications, like web hosting and email list costs, it has never 

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determined that overhead costs like rent, salaries, research, and travel are similarly exempt. See 

Pls.’ Opp’n to Int. Cross-Mot. for Summ. J. at 32-33, ECF No. 42. However, this is at odds with 

the FEC’s enforcement history, as controlling blocs of Commissioners have explicitly exempted 

“the cost of staff time, office space [and] equipment usage,” and the cost of hiring consultants and 

conducting research, when connected to free online communications. See SOR of Comm’rs 

Hunter, Goodman & Petersen at 1, MUR 7023 (Kinzler for Congress) (Jan. 23, 2018); First Gen. 

Counsel’s Rpt. at 4, MUR 7080 (Babeu for Congress) (Dec. 15, 2016); Factual and Legal Analysis 

(“F&LA”) at 1 n.1, MUR 7080 (Babeu for Congress) (Oct. 30, 2017); “F&LA” at 6-7, 11-12, 

MUR 6414 (Carnahan in Congress Committee) (July 17, 2012). 

 Second, even in cases where the FEC discussed only those costs Plaintiffs appear to 

concede are exempt production costs, it is clear that the FEC is also exempting “overhead.” There 

is no practical way that a political committee could send emails or make videos for its website 

without staff to do the work. Those staffers also require places from which to work; computers on 

which to create the communications; travel in order to interview subjects and confirm the facts 

that will be part of advertisements or articles; and research materials to develop and support the 

communications. Online content does not simply spring from an author’s head onto a website or 

into an email; there are myriad other “inputs” that go into creating communications. That is why 

the FEC has not, in matters like Akin for Senate, agreed that costs closely related to activities like 

sending emails are exempt, while the staff time and office rent allocable to those activities must 

be treated as contributions. See F&LA at 2, MUR 6657 (Akin for Senate). Exempting only the 

costs “necessary” for “placing” a communication online would be unworkable and would, as the 

Commissioners articulate in their SOR, “eviscerate the internet exemption and the deliberate 

policy decisions behind it. . .” AR392. 

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 The rest of Plaintiffs’ attacks on the FEC authority cited in Intervenors’ motion are feeble 

attempts to distinguish those cases from CTR’s activities, or to question their value. Plaintiffs 

contend that SORs adopted by only three Commissioners carry no weight. Pls. Opp’n to Int. CrossMot. for Summ. J. at 33, ECF No. 35. They say they represent only the “idiosyncratic views” of a 

few Commissioners. Id. at 42. Critically, they fail to recognize that these SORs are “controlling” 

decisions, and in practice articulate the prevailing opinion of the FEC. Plaintiffs also conflate 

“binding” with “consistent.” Id. The FEC can exhibit consistency in its decision-making even 

when it is not rendering binding conclusions—and consistency is the hallmark of a decision that 

is not arbitrary, capricious, or an abuse of discretion. 

 Plaintiffs then separately contend that, because certain enforcement matters concerning 

input costs included alternative holdings, or contained facts suggesting the “conduct” prong of the 

coordinated communication test was not met, the Commission’s legal conclusions concerning 

input costs should be disregarded. Id. at 25-28. Plaintiffs cast the Commission’s input-cost 

analyses as dicta in these matters, when in fact, what Plaintiffs highlight was dicta (or was raised 

only by the Commission’s staff). See id. 

 Plaintiffs also state that these past FEC matters indicate that the Internet exemption applies 

only to “incidental online communications created and disseminated by individuals at marginal 

cost.” Id. at 28. This again is plainly refuted by the very matters discussed in Plaintiffs’ motion. 

The FEC has addressed input costs totaling into the hundreds of thousands of dollars, incurred by 

political committees and corporations alike. See id. at 26-28. These decisions far surpass the 

bounds of individuals spending negligible amounts. And the significance of these decisions is not 

undercut by matters like MUR 5564 (Alaska Democratic Party), which did not involve online 

activity. See id. at 28. 

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 Rather, the only real difference between prior FEC cases and this one is the Plaintiffs’ zeal 

to apply the general coordination standard to what they call a “scheme.” See id. at 13, 34, 36-37. 

Plaintiffs would set aside the regulatory and enforcement history and take a “know it when you 

see it” approach to finding coordination, instead of weighing this case on the scales of existing 

guidance. They see an “unambiguous statutory mandate” in the indeterminate language of 11 

C.F.R. § 109.20(a). But the FEC has spent almost fifty years, multiple rulemakings, and several 

advisory opinions trying to figure out what a phrase like “in cooperation, consultation or concert 

with” means in practical application. Id. at 13. Now that the FEC has landed on a reasonable, 

nuanced approach that it has applied consistently to the realm of free online communications, the 

approach should not be disturbed. 

III. The Commissioners’ decision to exempt expenses unrelated to unpaid Internet 

 activity was not arbitrary, capricious, or an abuse of discretion. 

 A. The controlling Commissioners properly applied the “reason to 

 believe” standard. 

 The gravamen of Plaintiffs’ complaint is that the controlling Commissioners declined to 

find reason to believe that CTR coordinated its non-exempt activities with HFA based on 

Plaintiffs’ allegations of “broad, systematic coordination” and the fact that CTR’s “sole mission” 

was to defend Hillary Clinton. Pls. Opp’n to Int. Cross-Mot. for Summ. J. at 13, 38, ECF No. 42. 

Plaintiffs erroneously argue that these allegations provided a sufficient basis for the FEC to find 

“reason to believe” prohibited coordination occurred with respect to CTR’s non-exempt activities. 

See AR003, 005–07. This is incorrect. It is not unusual—and certainly not incriminating—for a 

PAC to focus its efforts on a particular race, especially a presidential race. More importantly, the 

FEC has wisely avoided the nebulous standard of coordination that Plaintiffs push in this case. 

Pls.’ Opp’n to Int. Cross-Mot. for Summ. J. at 37-40, ECF No. 42. As the controlling 

Commissioners’ SOR states, “‘[c]oordination’ is not a status, however, such that coordination in 

Case 1:19-cv-02336-JEB Document 44 Filed 10/16/20 Page 21 of 29
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one activity can be imputed to other activities. Finding coordination requires more than 

considering the general relationship between entities — it requires a transaction-by-transaction 

assessment to determine whether specific conduct occurred with respect to particular 

expenditures.” AR 395. 

 To separate the wheat from the chaff, in a docket that is dominated by politically or 

ideologically motivated complaints, the FEC requires complainants to put forth “sufficient specific 

facts, which, if proven true, would constitute a violation of FECA” in order to satisfy the “reason 

to believe” standard. See SOR of Comm’rs Mason, Sandstrom, Smith & Thomas at 1, MUR 4960 

(Clinton for Senate) (Dec. 21, 2000). Here, the controlling Commissioners reasonably concluded 

that there were not enough specific facts to support CLC’s allegation of coordination on nonexempt activity. This was not unreasonable, given the factual allegations CLC made in its 

administrative complaint. Indeed, the media articles cited in Plaintiffs’ complaint merely confirm 

what was already public—that CTR and HFA interacted over unpaid Internet activity. See, e.g., 

AR005–06 (citing Matea Gold, How a Super PAC Plans to Coordinate Directly with Hillary 

Clinton’s Campaign, Wash. Post (May 12, 2015), https://www.washingtonpost.com/news/postpolitics/wp/2015/05/12/how-a-super-pac-plans-to-coordinate-directly-with-hillary-clintonscampaign/, which quotes a CTR spokesman saying, “The FEC rules specifically permit some

activity—in particular, activity on an organization’s website, in email, and on social media—to be 

legally coordinated with candidates” (emphasis added); and Rebecca Ballhaus, Pro Clinton Group 

Sets Novel Strategy, Wall St. J. (May 12, 2015), https://blogs.wsj.com/washwire/2015/05/12/prohillary-clinton-group-sets-novel-strategy-to-back-presidential-hopeful/, which quotes CTR as 

saying it “will spend money on activities that can legally be coordinated with a campaign” 

(emphasis added)). 

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 By contrast, CLC’s administrative complaint did not contain specific facts about alleged 

coordination between HFA and CTR on non-exempt activity, and thus it failed to meet the reason 

to believe standard. When it came to non-exempt activity, Plaintiffs relied on general discussions 

of CTR’s coordination with HFA. See, e.g., Pls. Opp’n to Int. Cross-Mot. for Summ. J. at 38-40, 

ECF No. 42 (CTR and HFA were collaborating “across the full range of CTR activities”; CTR 

existed “solely to make expenditures in cooperation, consultation, or concert with, or at the request 

or suggestion of Clinton and HFA;” CTR “conducted its activities under HFA’s thumb”). But the 

articles Plaintiffs rely on do not discuss coordination specific to any type of non-exempt activity; 

they are mere general statements about CTR’s relationship with HFA. However, “mere ‘official 

curiosity’ will not suffice as the basis for FEC investigations”) (footnote omitted); see also FEC 

v. Machinists Non-Partisan Political League, 655 F.2d 380, 387 (D.C. Cir. 1981) (distinguishing 

the Commission from administrative agencies “vested with broad duties to gather and compile 

information and to conduct periodic investigations concerning business practices . . . . the FEC has 

no such roving statutory functions”). 

 Plaintiffs have never articulated why it was arbitrary or capricious for the controlling 

Commissioners to require specific facts to support legal allegations of coordination before finding 

“reason to believe.” The FEC has never imputed coordination on one activity to a whole range of 

activities, as Plaintiffs would have it do. See Pls.’ Mot. for Summ. J. at 33, ECF No. 35 (claiming 

that the FEC should have found reason to believe that CTR’s surrogacy program was coordinated 

because “[n]othing in the record suggests that CTR departed from its modus operandi [of 

coordination] in the area of surrogacy”).

 Furthermore, the vast majority of the statements discussing CTR’s coordination in more 

general terms were secondhand characterizations of CTR’s activity. It was not arbitrary or 

Case 1:19-cv-02336-JEB Document 44 Filed 10/16/20 Page 23 of 29
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capricious for the controlling Commissioners to attribute more weight to direct quotations from 

HFA and CTR spokespersons than to third party hearsay, especially when the FEC has hewed to 

such a standard in the past. See SOR of Petersen, Hunter & Goodman at 6-7, MUR 6518 (Gingrich) 

(June 2, 2016) (“As a threshold matter, we observe that unsworn news reports by authors who are 

not first-hand complainants or witnesses before the Commission present legal and practical 

problems for the Commission and respondents, and, in any event, may be of limited probative 

value.”). 

 B. Intervenors did not concede that they coordinated on non-exempt activities. 

 Plaintiffs repeatedly contend that Intervenors conceded in their administrative responses 

that they coordinated on the activities that Plaintiffs deem ineligible for the Internet exemption, 

and that the controlling Commissioners’ failure to treat these so-called “concessions” as evidence 

of coordination was arbitrary and capricious. Pls. Opp’n to Int. Mot. for Summ. J. at 41, ECF No. 

42. But Intervenors made no such concessions, and Plaintiffs’ argument fails. 

 With respect to activities that Plaintiffs deem ineligible for the Internet exemption, CTR’s 

response to CLC’s administrative complaint stated that (1) HFA compensated CTR for the fair 

market value of the research and tracking services it provided, see AR067, 076-77; (2) CTR 

contacts with reporters were not “public communications” and were exempt under the media 

exemption, see AR066-67; (3) polling costs were for polls that were distributed on CTR’s website 

and were thus exempt from being treated as contributions under the Internet exemption, id. at 65; 

and (4) the media training sessions did not include official Clinton campaign surrogates or HFA 

staff, and that CTR did not solicit or accept any suggestions from HFA regarding who should 

Case 1:19-cv-02336-JEB Document 44 Filed 10/16/20 Page 24 of 29
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attend the sessions or otherwise permit HFA to direct individuals to the sessions.3 Plaintiffs argue 

with no basis that CTR somehow tacitly conceded coordination on these activities. This argument 

is completely without support. It also reverses the burden of proof that applies to FEC complaints. 

Intervenors were not required to contest CLC’s facts by presenting their own evidence disproving

coordination. See SOR of Comm’rs Wold, Mason & Thomas at 2, MUR 4850 (Deloitte & Touche, 

LLP) (July 20, 2000) (“The burden of proof does not shift to a respondent merely because a 

complaint is filed.”). It was neither arbitrary nor capricious for the controlling Commissioners to 

decline to read concessions into CTR’s response that were never made in the first place. 

 C. The controlling Commissioners’ treatment of polling costs and the David 

 Brock podcast was not arbitrary or capricious. 

 Plaintiffs’ argument that “[t]he controlling Commissioners’ rationale was arbitrary and 

capricious because it disregarded CTR’s and HFA’s responses to the administrative complaint” is 

odd, because it directly contradicts what actually happened: the controlling Commissioners 

adopted Intervenors’ position that, while the information indicated that CTR and HFA coordinated 

on exempt communications, there was insufficient evidence to find reason to believe that CTR and 

HFA illegally coordinated on non-exempt activities. For example, with respect to CTR’s polling, 

Intervenors maintain that the controlling Commissioners properly treated costs associated with 

CTR’s polling activity as input costs for exempt communications because the polls were placed 

on CTR’s website, as Plaintiffs admit. Pls.’ Opp’n to Int. Mot. for Summ. J. at 39. Intervenors 

                                                            

3

 Because they do not square with Plaintiffs’ misguided argument that Intervenors never denied 

coordinating on non-exempt activities, Plaintiffs disingenuously suggest that CTR’s descriptions 

of its media trainings should not be “taken at face value” because they were “offered only in the 

form of an unsworn statement by CTR’s counsel.” Pls.’ Opp’n to Int. Mot. for Summ. J. at 42, 

ECF No. 42. In other words, Plaintiffs criticize Intervenors for failing to assert facts disproving 

coordination, but when they do, such facts are not to be believed because they do not fit neatly into 

Plaintiffs’ narrative. CTR’s description of its media trainings was intended to make clear that the 

type of conduct that would have resulted in the media trainings being coordinated with HFA simply 

did not occur. 

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pointed to the polling regulations under 11 C.F.R. § 106.4 to make it clear that even if Plaintiffs 

were to prevail on their argument that input costs should not be treated as exempt, then there were 

other bases upon which the controlling Commissioners could have relied to dismiss Plaintiffs’ 

complaint. Plaintiffs’ admission that “CTR posted data from the poll on the Internet” only 

strengthens Intervenors’ argument. See 11 C.F.R. § 106.4(c) (“The acceptance of any part of a 

poll’s results which part, prior to receipt, has been made public without any request, authorization, 

prearrangement, or coordinated by the candidate-recipient . . . shall not be treated as a 

contribution.”). Plaintiffs’ argument that the controlling Commissioners did not directly consider 

the application of 11 C.F.R. § 106.4 misses Intervenors’ point: a court does not reverse agency 

action for harmless error, when the ultimate outcome would have been the same regardless of the 

reasoning. See 28 U.S.C. § 2111 (codifying a harmless error standard). As the D.C. Circuit has 

recognized, remand is unnecessary when “[e]ven were the Commission to return to square one . . 

. it is virtually inconceivable that its decision would differ.” FEC v. Legi-Tech, Inc., 75 F.3d 704, 

708 (D.C. Cir. 1996). Plaintiffs have no answer to this. 

 Finally, it was not “irrational” for the controlling Commissioners to exclude consideration 

of statements made by CTR’s chairman during a podcast interview that was not cited in CLC’s 

administrative complaint on the grounds that Intervenors did not have the opportunity to respond 

to the evidence. Plaintiffs do not directly respond to this argument, insinuating instead that the 

podcast interview should be construed as a response to the complaint, since it was given after the 

complaint’s filing. See id. at 39 (“In that way, Brock’s comments can be themselves construed as 

a response to CLC’s complaint.”). However, Plaintiffs never acknowledge that the controlling 

Commissioners indicated that the podcast would not have changed their decision to dismiss: 

“Brock’s statements [made during the podcast interview] about Correct the Record’s coordination 

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with Hillary for America merely reinforce what we already know from information in the record.” 

AR 386. Plaintiffs could have supplemented their administrative complaint with evidence of the 

podcast. They chose not to. It was not arbitrary or capricious for the controlling Commissioners to 

decline to explicitly analyze evidence that Plaintiffs failed to put before the Commission and that 

would not have changed the outcome if they had. 

IV. Plaintiffs’ APA claim fails.

 For the reasons set forth in Intervenors’ cross-motion for summary judgment, Plaintiffs 

lack standing to bring their claim under the APA. See Int. Mot. for Summ. J. at 16, ECF No. 38-1. 

Furthermore, Intervenors maintain that Plaintiffs’ FECA claim is an adequate remedy at law, and 

the APA is thus unavailable to address the FEC’s disposal of an administrative complaint. See id. 

at 44. Plaintiffs have yet to present any argument to rebut this authority. They instead attempt to 

recast their claim as one challenging the validity of the regulations, even though they concede that 

they are challenging “the coordination regulations, as construed” by the controlling 

Commissioners. Pls. Opp’n to Int. Mot. for Summ. J. at 44, ECF No. 42. Accordingly, Plaintiffs 

are not challenging the validity of the regulations themselves, but rather, the Commission’s 

interpretation of the regulations, and the APA is not available for such claims. See Int. Mot. for 

Summ. J. at 44, ECF No. 38-1. But if the Court reaches the merits of Plaintiffs’ APA claim, it 

should grant summary judgment in favor of Intervenors for the reasons stated herein and in 

Intervenors’ brief in support of its cross motion for summary judgment. See id. at 45. 

CONCLUSION 

For the foregoing reasons, the Court should grant Intervenors’ Motion for Summary 

Judgment and deny Plaintiffs’ Motion for Summary Judgment. 

 

Case 1:19-cv-02336-JEB Document 44 Filed 10/16/20 Page 27 of 29
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DATED: October 16, 2020 Respectfully submitted, 

PERKINS COIE LLP 

By: /s/ Marc Erik Elias 

Marc Erik Elias, Bar No. 442007 

Aria C. Branch, Bar No. 1014541 

MElias@perkinscoie.com 

ABranch@perkinscoie.com 

700 Thirteenth Street, N.W., Suite 800 

Washington, D.C. 20005-3960 

Telephone: 202.654.6200 

Facsimile: 202.654.6211 

 Attorneys for Intervenors 

 

Case 1:19-cv-02336-JEB Document 44 Filed 10/16/20 Page 28 of 29
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CERTIFICATE OF SERVICE 

I hereby certify that on October 16, 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. 

By: /s/ Marc Erik Elias 

Marc Erik Elias 

Aria C. Branch 

PERKINS COIE LLP 

700 Thirteenth Street, N.W., Suite 800 

Washington, D.C. 20005-3960 

Telephone: 202.654.6200 

Facsimile: 202.654.6211 

Email: MElias@perkinscoie.com 

Email: ABranch@perkinscoie.com

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