UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CAMPAIGN LEGAL CENTER

1101 14TH St., NW, Ste. 400 

Washington, D.C. 20005 

CATHERINE HINCKLEY KELLEY

1101 14TH St., NW, Ste. 400 

Washington, D.C. 20005 

Plaintiffs,

v. 

FEDERAL ELECTION COMMISSION

1050 First St., NE 

Washington, D.C. 20463, 

Defendant 

and 

HILLARY FOR AMERICA

P.O. Box 5256 

New York, NY 10185-5256 

CORRECT THE RECORD

455 Massachusetts Ave., NW

Ste. 600 

Washington, D.C. 20001 

Defendant-Intervenors. 

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

DEFENDANT-INTERVENORS HILLARY FOR AMERICA AND CORRECT THE 

RECORD’S REPLY BRIEF IN SUPPORT OF THEIR AMENDED MOTION TO 

DISMISS PLAINTIFFS’ AMENDED COMPLAINT 

Case 1:19-cv-02336-JEB Document 31 Filed 03/27/20 Page 1 of 33
TABLE OF CONTENTS

Page

i

ARGUMENT ................................................................................................................................. 1 

I. PLAINTIFFS LACK ARTICLE III STANDING. ............................................................ 1 

A. Plaintiffs have not suffered an informational injury. ............................................. 1 

1. Plaintiffs seek a legal finding of coordination. .......................................... 3 

2. Plaintiffs are not be entitled to additional information about the

purpose of a particular in-kind contribution or expenditure under

their view of the law. ................................................................................. 5 

B. Plaintiffs fail to show that their alleged informational injury directly and

concretely injures their interests. ........................................................................... 8 

C. Plaintiff CLC has failed to demonstrate organizational standing. ....................... 10 

D. Plaintiffs lack standing to bring an APA claim. .................................................. 11 

II. PLAINTIFFS FAIL TO STATE A CLAIM FOR RELIEF UNDER FECA................... 12 

A. The Commissioners’ decision to dismiss the administrative complaint was

not the result of an impermissible interpretation of FECA or FEC rules. ........... 13 

1. The FEC exempts internet communications not placed for a fee,

and their input costs, from the definition of “coordinated

communications.” .................................................................................... 13 

2. The FEC’s decision to dismiss the coordination allegations for the

non-Internet expenditures was rational.................................................... 20

III. PLAINTIFFS’ PURPORTED APA CLAIM IS PREEMPTED BY FECA AND

MUST BE DISMISSED. ................................................................................................. 21 

CONCLUSION ............................................................................................................................ 25 

Case 1:19-cv-02336-JEB Document 31 Filed 03/27/20 Page 2 of 33
TABLE OF AUTHORITIES

Cases Page 

ii

All. for Democracy v. FEC, 

362 F. Supp. 2d 138 (D.D.C. 2005) .......................................................................................2, 9

Am. Farm Bureau. v. EPA, 

121 F. Supp. 2d 84 (D.D.C. 2000) ...........................................................................................12

Common Cause v. FEC, 

108 F.3d 413 (D.C. Cir. 1997) .........................................................................................7, 8, 10

Conference Group LLC v. FCC, 

720 F.3d 957 (D.C. Cir. 2013) .................................................................................................23

CREW v. FEC, 

236 F. Supp. 3d 378 (D.D.C. 2017), aff’d, 892 F.3d 434 (D.C. Cir. 2018) .............................18

CREW v. FEC, 

475 F.3d 337 (D.C. Cir. 2007) ...................................................................................................9

CREW v. FEC (“CREW 2005”), 

401 F. Supp. 2d 115 (D.D.C. 2005) ...................................................................................10, 12

CREW v. FEC (“CREW 2011”), 

799 F. Supp. 2d 78 (D.D.C. 2011) .................................................................................1, 3, 4, 8

CREW v. FEC (“CREW 2015”), 

164 F. Supp. 3d 113 (D.D.C. 2015) .......................................................................22, 23, 24, 25

CREW v. FEC (“CREW 2017”), 

243 F. Supp. 3d 91 (D.D.C. 2017) .....................................................................................22, 23

Envt’l Def. Fund v. EPA, 

922 F.3d 446 (D.C. Cir. 2019) .................................................................................................12

Envtl. Working Grp. v. U. S. Food & Drug Admin., 

301 F. Supp. 3d 165 (D.D.C. 2018) .........................................................................................11

FEC v. Akins, 

524 U.S. 11 (1998) .....................................................................................................................5

FEC v. DSCC, 

454 U.S. 27 (1981) ...................................................................................................................13

FEC v. Nat’l Republican Senatorial Comm., 

966 F.2d 1471 (D.C. Cir. 1992) ...............................................................................................18

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. Inc., 

528 U.S. 167 (2000) ...................................................................................................................9

Case 1:19-cv-02336-JEB Document 31 Filed 03/27/20 Page 3 of 33
TABLE OF AUTHORITIES

Cases Page 

iii

Hagelin v. FEC, 

411 F.3d 237 (D.C. Cir. 2005) .................................................................................................13

Lujan v. Defs. of Wildlife, 

504 U.S. 555 (1992) .................................................................................................................11

Nader v. FEC, 

725 F.3d 226 (D.C. Cir. 2013) ...................................................................................................8

Orloski v. FEC, 

795 F.2d 156 (D.C. Cir. 1986) .....................................................................................12, 13, 20

Perot v. Fed. Election Comm’n, 

97 F.3d 553 (D.C. Cir. 1996) ...................................................................................................24

Shays v. FEC, 

337 F. Supp. 2d 28 (D.D.C. 2004) ...........................................................................................16

Shays v. FEC, 

528 F.3d 914 (D.C. Cir. 2008) .....................................................................................12, 15, 16

Shays v. FEC (“Shays II”), 

414 F.3d 76 (D.C. Cir. 2005) ...................................................................................................25

Vroom v. FEC, 

951 F. Supp. 2d 175 (D.D.C. 2013) ...........................................................................................8

Wertheimer v. FEC, 

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

STATUTES

52 U.S.C. § 30104 ............................................................................................................................2

52 U.S.C. § 30109(a)(8)(C) ...........................................................................................................25

OTHER AUTHORITIES

11 C.F.R. § 100.26 .........................................................................................................................21

11 C.F.R. §§ 100.26, 109.20, 109.21 .............................................................................................22

11 C.F.R. §§ 100.26 and 109.21 ..........................................................................................4, 14, 17

11 C.F.R. § 100.26’s ......................................................................................................................13

11 C.F.R. §§ 100.74, 100.75 ..........................................................................................................14

11 C.F.R. § 100.86 .........................................................................................................................14

Case 1:19-cv-02336-JEB Document 31 Filed 03/27/20 Page 4 of 33
TABLE OF AUTHORITIES

Cases Page 

iv

11 C.F.R. § 104.3(b)(3)(vii) .............................................................................................................7

11 C.F.R. § 109.20 ...............................................................................................................3, 14, 17

11 C.F.R. § 109.21 ...................................................................................................................13, 21

68 Fed. Reg. 421, 425 (Jan. 3, 2003) .............................................................................................14

68 Fed. Reg. 425 ............................................................................................................................14

71 Fed. Reg. 18589 (Apr. 12, 2006) ..............................................................................................16

71 Fed. Reg. 18589, 18597 (Apr. 12, 2006) ..................................................................................15

Advisory Op. 2008-10 ...................................................................................................................19

Advisory Op. 2012-16 ...................................................................................................................14

Case 1:19-cv-02336-JEB Document 31 Filed 03/27/20 Page 5 of 33
iv

TABLE OF ABBREVIATIONS

APA Administrative Procedure Act 

CREW Citizens for Responsibility and Ethics in Washington 

CTR Correct the Record

FEC Federal Election Commission

FECA Federal Election Campaign Act of 1971, as amended 

FGCR First General Counsel’s Report

HFA Hillary for America

MUR Matter Under Review

PAC Political Action Committee

SOR Statement of Reasons

Case 1:19-cv-02336-JEB Document 31 Filed 03/27/20 Page 6 of 33
1

Plaintiffs’ challenges to the FEC’s decision to dismiss their administrative complaint 

against Defendant-Intervenors should be dismissed for lack of subject-matter jurisdiction and, 

alternatively, for failure to state a claim. 

ARGUMENT

I. Plaintiffs lack Article III standing. 

A. Plaintiffs have not suffered an informational injury.

A plaintiff does not suffer an informational injury to establish standing by merely seeking

a legal determination based on factual information that is already publicly available. See

Wertheimer v. FEC, 268 F.3d 1070, 1074-75 (D.C. Cir. 2001); CREW v. FEC (“CREW 2011”), 

799 F. Supp. 2d 78, 88-89 (D.D.C. 2011). That is precisely the case here, no matter how hard 

Plaintiffs work to disguise their desire for a legal determination that CTR’s publicly disclosed 

expenditures constituted illegal in-kind contributions to HFA as a quest for additional facts. 

Plaintiffs appear to concede, as they must, that determining whether payments constitute 

“in-kind contributions” posits a legal, not a factual, question. See CREW 2011, 799 F. Supp. 2d at

88-89 (“Much like ‘coordination,’ classifying a particular disbursement as an ‘in-kind 

contribution’ appears to us to be a legal conclusion that carries certain law enforcement 

consequences. . . .” (quoting Wertheimer, 268 F.3d at 1075)). Plaintiffs contend, however, that 

under Wertheimer, if they can show that additional facts can be gleaned from re-classifying CTR’s 

expenditures as in-kind contributions, then they can demonstrate an informational injury. Pls.’ Br. 

at 21 n.11. Once Plaintiffs finally get to this argument—which appears in a footnote but seems to 

be the crux of their claim to standing—what follows are tortured attempts to try to drum up 

additional facts that Plaintiffs contend they could learn as a result of a coordination finding. But

the only facts Plaintiffs can remotely identify are ones that are not required to be disclosed under 

Case 1:19-cv-02336-JEB Document 31 Filed 03/27/20 Page 7 of 33
2

the law. Indeed, Plaintiffs’ circular arguments—that they will learn new facts if only certain of 

CTR’s expenditures are re-classified as in-kind contributions and others are not, or that they will 

learn new facts about the “purpose” of expenditures if they are re-classified as in-kind 

contributions—are inaccurate and unavailing. See Pls.’ Br. at 16-19.

As a threshold matter, to the extent that Plaintiffs’ “view of the law” is that all expenditures 

made by CTR are in-kind contributions, then Plaintiffs’ claim to new factual information clearly

fails. All of CTR’s expenditures, which have been publicly reported, would simply be re-classified 

and reported as in-kind contributions to HFA, and HFA would be required to report them as well. 

See 52 U.S.C. § 30104. While this change in reporting would provide Plaintiffs with a legal

determination as to which expenditures are coordinated, it cannot be disputed that Plaintiffs would 

learn no new factual information sufficient for standing. See Wertheimer, 268 F.3d at 1074-75 

(holding plaintiffs lacked standing because they “d[id] not really seek additional facts but only the 

legal determination that certain transactions constitute coordinated expenditures,” which would 

lead only to obtaining “the same information from a different source”). 

For standing purposes, however, Plaintiffs appear to contend that some of CTR’s 

expenditures—those for input costs related to unpaid online communications—are exempt from 

being treated as coordinated communications or in-kind contributions, and all other CTR 

expenditures are in-kind contributions. See Pls.’ Br. at 15-19. And, the fact that only some 

expenditures constitute in-kind contributions will provide them with new factual information (i.e., 

which expenditures are in-kind contributions) sufficient for standing. Id. Moreover, Plaintiffs 

contend that they will be able to glean additional information regarding the purpose of the 

expenditures that are re-classified as in-kind contributions. Id. at 13-14, 16-19. Unfortunately for 

Case 1:19-cv-02336-JEB Document 31 Filed 03/27/20 Page 8 of 33
3

Plaintiffs, this view of the law is unavailing because re-classifying CTR expenditures, in whole or 

in part, as in-kind contributions will not entitle them to any new factual information under the law. 

1. Plaintiffs seek a legal finding of coordination.

Despite Plaintiffs’ arguments to the contrary, the “fact” of the “extent,” “scale and scope” 

of “coordination” with HFA in this case, see Pls.’ Br. at 2-3, is no different from the “fact” of 

“coordination” held insufficient for standing purposes in CREW 2011 and Wertheimer. 

Wertheimer, 268 F.3d at 1075; CREW 2011, 799 F. Supp. 2d at 88-89. And the fact that, under 

Plaintiffs’ apparent view of the law, only some of CTR’s expenditures, or a portion of certain CTR 

expenditures, may be classified as “coordinated” does not change that outcome. The legal 

determination of coordination, which dictates which portion of an expense is an in-kind 

contribution and which is not, is still the information sought regardless of which expenditures, or 

portions thereof, Plaintiffs seek to re-classify. 

To use Plaintiffs’ example, they argue that they are missing information about David 

Brock’s salary because “the actual mix of coordinated and non-coordinated (or exempt) work that 

Brock performed in any given pay period remains a mystery.” Pls’. Br. at 18. At the outset, HFA 

and CTR note that the inconsistency in Plaintiffs’ “view of the law” is evident. On the one hand, 

Plaintiffs claim they have suffered an informational injury because they do not know which portion 

of David Brock’s salary in any given paycheck was related to the production of online 

communications and was thus exempt, and which was not. See Pls.’ Br. at 17-18. On the other 

hand, Plaintiffs claim that staff salaries amount to compensation for personal services rendered to 

a campaign and are therefore in-kind contributions under 11 C.F.R. § 109.20 regardless of whether 

the ultimate activity was related to an online communication. Pls.’ Br. at 33 n. 13. If Plaintiffs have 

informational standing because only some CTR expenditures for input costs are in-kind 

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4

contributions—those unrelated to online communications—then they should be precluded from 

later arguing that expenditures for input costs related to online communications are in-kind 

contributions.

Putting the obvious inconsistencies in Plaintiffs’ argument aside, Plaintiffs make clear that 

they want to know which portion of Brock’s salary is coordinated and an in-kind contribution to 

HFA, and which portion is non-coordinated (or exempt) such that it is not an in-kind contribution

to HFA. See id. In this way, they claim that they are deprived of information about the “amounts” 

of the in-kind contributions. Pls.’ Br. Ex. B, Fischer Decl. ¶ 8. But the legal determination of 

coordination is still the information Plaintiffs seek. Plaintiffs disagree with CTR, HFA, and the 

FEC as to whether the law permits input costs for unpaid internet communications to fall within 

the internet exemption for non-public communications under 11 C.F.R. §§ 100.26 and 109.21. 

That legal determination—whether input costs for unpaid internet communications are required to 

be treated as in-kind contributions or whether they are encompassed by the internet exemption—

is critical to determining which (and in what amounts) CTR expenditures would be re-classified 

as in-kind contributions under Plaintiffs’ view of the law. This is not a factual dispute; it is purely 

legal.

In 2011, this Court held that CREW lacked informational standing in CREW 2011 because 

the same information that Plaintiffs seek here—a finding of coordination and a classification of a 

certain portion of an expenditure as an in-kind contribution—is a legal determination, not an 

inquiry for additional facts. CREW 2011, 799 F. Supp. 2d at 88-89. Indeed, Plaintiffs acknowledge 

that in CREW 2011 “[t]he only remaining question was a legal dispute about how much of the 

$10,243 expenditure should be considered a contribution to the presidential campaign, and how 

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

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mission.” Pls.’ Br. at 21. In other words, CREW wanted to know the “amount” of the in-kind 

contribution, but that was insufficient to provide standing. The same is true here. See Fischer Decl. 

¶ 8. Plaintiffs already know how much CTR spent on each expenditure because “each transaction 

[Plaintiffs] allege is illegal is reported in some form.” Wertheimer, 268 F.3d at 1074. The only 

remaining question is how much of each expenditure should be treated as an in-kind contribution 

and how much should be treated as a non-coordinated or exempt expenditure. That question will 

only be answered based on a legal finding of coordination and a legal resolution on the treatment 

of input costs, not based on an FEC investigation or additional facts. This is insufficient to show 

informational injury.

2. Plaintiffs are not be entitled to additional information about the 

purpose of a particular in-kind contribution or expenditure under 

their view of the law.

Contrary to Plaintiffs’ baseless suggestion, CTR would not be required under FECA to 

reveal any new factual information in its FEC reports about expenditures that are re-classified as 

in-kind contributions in whole or in part. Accordingly, Plaintiffs have not suffered an informational 

injury because the “specific, itemized” expenditure information they claim to seek is not required 

to be disclosed by law. See FEC v. Akins, 524 U.S. 11, 21 (1998) (plaintiffs suffer an informational 

injury only when the alleged FECA violation causes the concealment of information that FECA 

requires be disclosed). 

Plaintiffs take issue with CTR’s descriptions of the purpose of certain expenditures, 

including for example, “payroll, salary, travel, lodging, meals,” and erroneously claim that reclassifying them as in-kind contributions would require CTR to disclose more specific information 

about the purpose for those expenditures. Pls.’ Br. at 17. But Plaintiffs do not cite to any authority 

to support their position that descriptions of coordinated expenditures require a more specific level 

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of detail than what CTR has already reported. Moreover, what Plaintiffs describe as 

“undifferentiated” or “lump” sum reporting is all that is required under FECA. Pls.’ Br. at 3, 14, 

17. There is certainly no FEC statute or guidance that requires committees to report in-kind 

contributions or coordinated expenditures with the level of detail Plaintiffs use in their brief: “InKind Contribution: Media Training for Surrogates.” Pls.’ Br. at 19.

To the contrary, if any of CTR’s expenditures are re-classified as in-kind contributions,

CTR would be required under FECA to disclose the same purpose that it has already disclosed on 

its FEC reports. It would need to disclose only the name of the candidate (Clinton), the office the 

candidate was seeking (presidency), the election in question (general), the amount or value of the 

in-kind contribution, and the contribution’s general purpose (e.g., salary). As the recipient of the 

in-kind contribution, HFA would have been required to report the name and address of the 

contributor (CTR), the value of the in-kind contribution, and the general nature of the contribution 

(e.g., In-kind contribution - salary). Plaintiffs would not garner additional factual information 

about the purpose for the expense.1

Indeed, the FEC’s reporting guidance indicates that the purpose descriptions used by CTR 

are compliant for both disbursements and coordinated expenditures or in-kind contributions. See 

Instructions for FEC Form 3X and Related Schedules 10, FEC, 

https://www.fec.gov/resources/cms-content/documents/fecfrm3xi.pdf (regarding reporting inkind contributions, “[t]he item must be labeled ‘contribution in-kind’ and include the nature of the 

 1 See Exhibit A (showing how designating a portion of David Brock’s salary as an in-kind 

contribution would have been reported under Plaintiffs’ example, Pls.’s Br. at 18-19, and 

demonstrating that no additional information would have been provided regarding the purpose of 

the expenditure); see also Exhibit B (showing that actual HFA reports reflecting the receipt of inkind contributions for “staff time” contain none of the additional factual information Plaintiffs 

purportedly seek).

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7

contribution (e.g., consulting, polling, etc.)”); see also id. at 13 (“[e]xamples of adequate 

descriptions [for disbursements] include the following: dinner expenses, media, salary, polling, 

travel, party fees, phone banks, travel expenses and catering costs”). Plaintiffs’ strained attempt to 

show that they would somehow be entitled to additional factual information regarding the purpose 

of CTR’s expenditures if they were re-classified as in-kind contributions is meritless on its face. 

Plaintiffs have apparently confused the reporting requirements for independent expenditures with 

those for coordinated communications. Committees must report information about independent 

expenditures on a communication-specific basis and state which candidate each communication 

supports or opposes. See 11 C.F.R. § 104.3(b)(3)(vii). These reporting requirements do not apply 

to coordinated communications or in-kind contributions. Furthermore, Plaintiffs’ insinuation that 

they would learn additional information simply by the re-classification of a particular expenditure 

as an in-kind contribution (regardless of whether the “purpose” field on the FEC report changes) 

is not correct. There are many reasons why a particular expense could be a “contribution” and not 

merely an “expenditure.” The mere classification of an expense as falling into one category or the 

other does not provide any additional factual information. 

Plaintiffs and others like them have repeatedly filed similar lawsuits when they disagree 

with the FEC’s finding that particular expenditures are not in-kind contributions. And time and 

time again, courts reviewing these challenges have held that a disagreement about whether a 

coordination has taken place or a legal violation has occurred is not sufficient for standing. See, 

e.g., Wertheimer, 268 F.3d at 1074–75 (D.C. Cir. 2001) (no informational standing to pursue a 

legal determination that expenditures were “coordinated” when all relevant expenditures had been 

publicly disclosed); Common Cause v. FEC, 108 F.3d 413, 418 (D.C. Cir. 1997) (holding plaintiffs 

lack injury by alleging they have “been deprived of the knowledge as to whether a violation of the 

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law has occurred”); Vroom v. FEC, 951 F. Supp. 2d 175, 178–79 (D.D.C. 2013) (no informational 

standing to pursue legal determination that publicly reported expenditures exceeded applicable 

limitations); CREW 2011, 799 F. Supp. 2d at 88–89 (no informational standing to pursue legal 

determination that publicly reported expenditures were “in-kind contributions”); see also Mot. at 

10-11. This case is no different. What Plaintiffs actually seek is a finding that CTR and HFA broke 

the law, and they contend that the FEC’s decision to dismiss their administrative complaint 

hindered that. But a plaintiff does not have standing to merely learn “whether a violation of the 

law has occurred,” Common Cause, 108 F.3d at 418, or in having the FEC “get the bad guys.” 

Nader v. FEC, 725 F.3d 226, 230 (D.C. Cir. 2013). Plaintiffs thus lack an informational injury.

B. Plaintiffs fail to show that their alleged informational injury directly 

and concretely injures their interests.

Even if Plaintiffs had suffered an informational injury—and they have not—their claims 

are not concrete and particularized enough to confer standing. Plaintiff Kelley alleges that she has 

been deprived of information she would use as a voter to assess candidates for office. Am. Compl. 

¶ 25-29; Pls.’ Br. at 23; id. Ex. A, Kelley Decl. ¶¶ 5-6. However, Kelley’s argument that, due to 

the FEC’s actions, she was unable to access information about “the sources of” Secretary Clinton’s 

support or the role of CTR’s relationship with HFA, Kelley Decl. at ¶¶ 6-7, is not supported by the 

facts. As alleged throughout the Amended Complaint and opposition brief, Kelley possessed 

extensive evidence regarding the scale and scope of coordinated activities between HFA and CTR.

Pls.’ Br. at 29, 31, 38-40, 42; Am. Compl. ¶¶ 2, 63-66, 68-71, 76-77, 79. This evidence, of which 

Kelley was obviously privy, revealed that CTR was engaged in efforts to advance Secretary’s 

Clinton’s 2016 presidential campaign in coordination with HFA and the impact of those efforts. 

As Plaintiffs have already admitted, CTR made this information publicly available, including 

through press releases, statements to the press, and FEC reports. Pls.’ Br. at 29, 31, 38-40, 42; Am. 

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Compl. ¶¶ 2, 63-66, 68-71, 76-77, 79. Kelley cannot credibly allege that knowledge of the specific

dollar amount of coordinated expenditures would have any impact on her ability to evaluate 

Secretary Clinton’s candidacy. See CREW v. FEC, 475 F.3d 337, 341 (D.C. Cir. 2007) (“CREW 

2007”) (lack of knowledge of precise valuation of mailing list was not sufficient informational injury 

when so much information was already publicly available); All. for Democracy v. FEC, 362 F. Supp. 

2d 138, 148-49 (D.D.C. 2005) (same). The only reason that particular information would make a 

difference is because of Kelley’s actual purpose, which is to prove that CLC and HFA broke the 

law. As discussed above, that is not sufficient for standing.

Similarly, CLC is not credible when it claims that its attempts to “follow the money” and 

connect big contributors to officeholder action for purposes of litigation or briefing policy makers 

are greatly impeded by the alleged inaccuracy of CTR’s FEC reports. Pls.’ Br. at 25. Like Kelley, 

CLC knew that HFA and CTR were coordinating on CTR’s unpaid online activity, and both CTR 

and HFA have disclosed on their FEC reports all donors who contributed in excess of $200. If 

CLC was interested in determining which donors supported HFA by contributing to CTR, all it 

had to do was review publicly available donor information on CTR’s FEC reports.

Plaintiffs have also failed to demonstrate the causation and redressability requirements for 

Article III standing. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. Inc., 528 U.S. 167, 180–

81 (2000) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). For the reasons 

discussed herein, and in the motion to dismiss, Plaintiffs cannot plausibly claim that the dismissal 

of their administrative complaint has caused any deprivation of information required to be 

disclosed under FECA, or that judicial relief will lead to any new factual information that is 

required to be disclosed. Mot. 10-15, 17 n.5; see supra at 5-8.

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C. Plaintiff CLC has failed to demonstrate organizational standing.

To establish organizational standing, a plaintiff must demonstrate that the challenged 

dismissal decision caused a “‘concrete and demonstrable injury to the organization’s activities—

with [a] consequent drain on the organization’s resources—constitut[ing] . . . more than simply a 

setback to the organization’s abstract social interests.’” Common Cause, 108 F.3d at 417 (internal 

quotation omitted); see also id. (“The organization must allege that discrete programmatic 

concerns are being directly and adversely affected by the challenged action.”). CLC, which is not 

a membership organization, and does not participate in or contribute to political campaigns given 

that it is legally foreclosed from doing so because of its status as a 501(c)(3) entity, fails to meet 

both criteria. See CREW v. FEC (“CREW 2005”), 401 F. Supp. 2d 115, 116 (D.D.C. 2005).

First, CLC fails to articulate an actionable injury to the organization. CLC again asserts an 

informational injury—that it has been deprived of “complete and accurate reporting” information 

from CTR and HFA that has harmed its mission. For the reasons discussed above, see supra at 3-

8, CLC has not been deprived of any factual information required to be disclosed under law. Given 

that all contributions to and all expenditures made by CTR and HFA have been publicly disclosed, 

the allegation that CLC could not convey useful information to voters about the scope of CTR’s 

support for Secretary Clinton’s candidacy, or that it could not “follow the money” or trace explicit 

quid-pro quo corruption for engaging in litigation or legislative policy, is simply unsupported. Pls.’ 

Br. at 25. CLC could easily review all of the donors to CTR and HFA and draw conclusions as it 

normally would from that publicly available information. CLC has not alleged how having a 

precise number—which could only be derived from a legal finding of coordination—for the value 

of the alleged in-kind contributions has injured its work.

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Second, CLC has failed to show how its alleged injury has caused a “drain” on the 

organization’s resources. To the contrary, it is clear that CLC has not been forced to redirect 

resources in any substantial way in order to compensate for CTR’s alleged inaccurate reporting.

CLC has alleged, for example, that it had to “divert time” to “researching gaps in required reporting 

and explaining them to reporters, partner organizations, and the public.” Fischer Decl. ¶ 21. But 

CLC also admits that CLC realizes its core missions by “identifying campaign finance and ethics 

violations and practices” and “identifying problematic campaign practices that require legislative 

solutions.” Fischer Decl. ¶¶ 3, 21. Thus, the activities that CLC identifies hardly constitute the 

requisite “drain on [CLC]’s resources,” as they are activities that CLC would otherwise undertake 

in order to achieve its core mission. See Envtl. Working Grp. v. U. S. Food & Drug Admin., 301 

F. Supp. 3d 165, 171 (D.D.C. 2018) (“[A]n organization does not suffer an injury in fact where it 

‘expend[s] resources to educate its members and others’ unless doing so subjects the organization 

to ‘operational costs beyond those normally expended.’”) (internal citation omitted). 

D. Plaintiffs lack standing to bring an APA claim.

Bringing an APA claim does not relieve Plaintiffs from having to show that they have 

suffered a concrete and particularized injury in fact that is both fairly traceable to the FEC’s action 

and likely to be redressed by a favorable judicial decision. See Lujan, 504 U.S. at 560. Plaintiffs’ 

allegations that the FEC’s interpretation of the internet exemption in this matter will lead to “gross 

abuse” and “sanctions potentially widespread failures to ‘report as contributions many 

expenditures that they believe FECA requires them to report,’” Pls.’ Br. at 13, 15 n.6, are 

completely speculative and insufficient to demonstrate a cognizable informational injury under the 

APA. Not only do such claims fail to identify any concrete or particularized informational injury

to Plaintiffs, as discussed above, see supra at 8-9, but they further reveal that the essence of this 

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12

lawsuit is Plaintiffs’ deficient request for a legal determination and enforcement of the law against 

CTR and HFA. As explained above, “[i]t is axiomatic that standing cannot rest on a plaintiff’s 

alleged interest in having the law enforced . . . because such an injury is too generalized and 

ideological.” CREW 2005, 401 F. Supp. 2d at 122; Am. Farm Bureau. v. EPA, 121 F. Supp. 2d 84, 

98 (D.D.C. 2000) (“Plaintiffs’ argument for informational standing [under the APA] presses. . . 

the same generalized grievance [in seeing the law enforced] that the court has already rejected.”).

Indeed, the vast majority of plaintiffs’ allegations involve two layers of efforts to enforce the law. 

See, e.g., Pls’. Br. at 23 (seeking a legal determination of coordinated contributions here and in 

similar future cases); see also Am. Compl. ¶ 27 (“[Kelley] is further entitled to the FEC’s proper 

administration of the federal campaign finance laws.”).

Plaintiffs’ heavy reliance on Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008) (“Shays III”) is 

inapposite. There, the D.C. Circuit found that the FEC’s regulation defining “coordinated 

communications” resulted in the plaintiff suffering a concrete and particular injury—the 

deprivation of information about who was funding presidential campaigns. Id. at 923. Unlike in

Shays III, Plaintiffs’ alleged injury that they claim they will suffer at some unknown time in the 

future—that the FEC’s interpretation of the internet exemption violates the APA because it will 

create a loophole in campaign finance rules that will be exploited in the future—is completely

theoretical and hypothetical and will not cause an injury for Plaintiffs. Pl’s Br. at 32; cf. Envt’l 

Def. Fund v. EPA, 922 F.3d 446, 452 (D.C. Cir. 2019) (finding in APA case that plaintiff had 

informational standing based on actual deprivation of information). 

II. Plaintiffs fail to state a claim for relief under FECA. 

An FEC decision to dismiss an administrative complaint is only “contrary to law” if “(1) 

the [FEC] dismissed the complaint as a result of an impermissible interpretation of the Act, or (2) 

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the [FEC’s] dismissal of the complaint, under a permissible interpretation of the statute, was 

arbitrary or capricious, or an abuse of discretion.” Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 

1986). The arbitrary and capricious standard, “‘presumes the validity of agency action’ and permits 

reversal ‘only if the agency’s decision is not supported by substantial evidence, or the agency has 

made a clear error in judgment.’” Hagelin v. FEC, 411 F.3d 237, 242 (D.C. Cir. 2005) (internal 

citation omitted). The FEC’s decision need not be “the only reasonable one or even the” decision 

“the [C]ourt would have reached” on its own “if the question initially had arisen in a judicial 

proceeding.” FEC v. DSCC, 454 U.S. 27, 39 (1981). Plaintiffs have failed to alleged facts sufficient 

to overcome this “extremely deferential” standard of review, which “requires affirmance if a 

rational basis for the agency’s decision is shown.” Orloski, 795 F.2d at 167 (emphasis added). 

A. The Commissioners’ decision to dismiss the administrative complaint was not 

the result of an impermissible interpretation of FECA or FEC rules. 

Contrary to Plaintiffs’ argument, the Controlling Commissioners acted in accordance with 

FECA and FEC rules by basing their decision to dismiss Plaintiffs’ administrative complaint on 

the principle that unpaid online communications and the costs associated with producing them are

not “coordinated communications” under 11 C.F.R. § 109.21. This was not contrary to law. 

Instead, it is Plaintiffs’ attempt to create a new and different internet exemption out of whole 

cloth—a process that they tried unsuccessfully during the 2006 Internet Communication

rulemaking—that is plainly contrary to law. Plaintiffs’ proposed cramped version of the internet 

exemption cannot form the basis of a legitimate Section 30109(a)(8)(A) suit. 

1. The FEC exempts internet communications not placed for a fee, and 

their input costs, from the definition of “coordinated communications.”

As the Controlling Commissioners explained, they were closely following Commission 

rules and precedent in coming to their decision to include input costs in the exemption for unpaid 

online communications: “the Commission has repeatedly interpreted the internet exemption to 

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encompass expenses incurred by a speaker to produce an internet communication.” SOR at 12. 

Indeed, the FEC has consistently interpreted 11 C.F.R. § 100.26’s “placed for a fee” language to 

mean what it says—it captures internet communications one pays to place, not to produce. Id. at 

9, 12. Moreover, the FEC has repeatedly refused to use 11 C.F.R. § 109.20 to capture expenditures 

for internet communications that are excluded from regulation under 11 C.F.R. §§ 100.26 and 

109.21. See 68 Fed. Reg. 421, 425 (Jan. 3, 2003); see also FEC Matter Under Review (“MUR”)

6037 (Democratic Party of Oregon), First General Counsel’s Report (“FGCR”) (Sept. 17, 2009). 

When it explained the coordination rules, the FEC said clearly that “section 109.20 addresses 

expenditures that are not made for communications but that are coordinated with a candidate, 

authorized committee, or political party committee.” 68 Fed. Reg. 425 (emphasis added). 

To the extent that Plaintiffs contend that the FEC’s position is not clear as to whether input 

costs for unpaid online communications are considered exempt, they need look no further than the 

comments Plaintiff CLC submitted during the 2006 Internet Communication rulemaking, and the 

FEC’s failure to change its position in response. As stated in Defendant-Intervenors’ Amended

Motion, Plaintiffs’ argument here is not new. CLC submitted comments during the 2006 

rulemaking making the same arguments they make here and recognizing a default rule for the 

treatment of input costs: “[t]ypically, the Commission treats the costs of producing campaignrelated materials the same as the costs of distributing the materials.” Mot. at 25. Input costs are 

considered part and parcel of other exempt activities under the Commission’s regulations. See 11 

C.F.R. §§ 100.74, 100.75 (providing that, not only are volunteer services exempt from the 

definition of contribution, but the value of any real or personal property an individual uses while 

volunteering do not become contributions, either); Advisory Op. 2012-16 (Angus King for U.S. 

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Senate Campaign) (when a firm provides exempt legal and accounting services under 11 C.F.R. 

§ 100.86, the value of the services and of “firm resources” used to provide the services are exempt).

CLC warned the FEC that if it applied that default rule and treated production costs for 

internet communications the same as production costs for other types of media, then individuals 

and organizations would be able to spend significant amounts of money in coordination with a 

candidate through internet activity: “If the production costs are also treated as outside the 

coordination rules, this could lead to a large loophole in the rules on coordinated campaign 

spending—precisely the kind of loophole that the court in Shays indicated should not be 

permitted.” Democracy 21, Campaign Legal Center & Center for Responsive Politics, Comment 

on Notice of 2004-12: Internet Communications (Shays I) at 12 n.10 (June 3, 2005). 

While Plaintiffs may argue with the wording used to characterize their comments—which 

was accurate—they cannot dispute the fact that during the 2006 rulemaking, they cautioned the 

FEC of precisely the factual situation that they allege has taken place here. Nor can they dispute 

that the FEC did not promulgate a rule in response to their concerns. Instead, the FEC clarified 

that input and production costs are considered part of the cost of an internet communication and 

are thus exempt from the coordinated communication rules—just like input costs are considered 

part and parcel of other exempt activities under the FEC’s regulations. See 71 Fed. Reg. 18589,

18597 (Apr. 12, 2006) (addressing costs of producing Internet communications). Plaintiffs tried to 

get a second bite at the apple with this enforcement action against CTR and HFA. Plaintiffs also 

contend that in promulgating the final rules, the FEC confirmed that computer purchases and 

payments to bloggers can be “expenditures” even if the blogs themselves ultimately fall under the 

“internet exemption.” Pls.’ Br. at 34. These examples simply support the common-sense 

conclusion that a campaign must report those expenditures it actually makes. In no way do they 

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support taking third-party internet communications, not placed for a fee, and subjecting them to 

the coordination rules. Importantly, CTR reported all such expenditures and Plaintiffs do not allege 

otherwise. The FEC’s position is settled; the FEC followed its default position for input costs and 

applied them to online communications. Just because Plaintiffs disagree with the FEC’s 

interpretation does not mean that the FEC acted contrary to its rules in following it.2

Plaintiffs contend that CTR should be treated differently because of the “scale and scope” 

of CTR’s coordination with HFA. See Pls.’ Br. at 32, 34, 37. But Plaintiffs cannot cite to a single 

rule stating that the “scale and scope” of an organization’s activity somehow determines whether 

the internet exemption applies. As the Controlling Commissioners acknowledged, while some 

internet communications may require only minimal input costs for staff time, computer usage, and 

electricity—like those incurred by bloggers—other internet communications—like those at issue 

here—“could necessitate additional overhead and other expenses, such as travel and services of 

consultants, graphic designers, videographers, actors, and other specialist.” SOR at 13; Mot. at 29.

That does not make such expenses ineligible for the exemption. And, as a factual matter, Plaintiffs 

significantly exaggerate the scope of CTR’s non-Internet related spending as compared to its 

spending for expenses associated with communications that were placed online. See Pls.’ Br. at 32 

(stating that “one dollar of internet-related spending immunizes all general operating expenses 

from disclosure and regulation as contributions”). Of the 11 types of CTR expenditures set forth 

 2 Further, the 2006 Internet Communication rulemaking makes clear that in response to the 

decision in Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004), the FEC opted to treat paid internet 

advertising on another person’s website as a “public communication,” but otherwise sought to 

exclude all internet communications from the definition of “public communication.” See generally

Explanation and Justification, Internet Communications, 71 Fed. Reg. 18589 (Apr. 12, 2006). The 

FEC found that the revised definition of “public communication” comports with the Shays decision 

by removing the wholesale exclusion of all internet communications from the definition of public 

communication. See id.

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in Plaintiffs’ administrative complaint, only four were unrelated to online communications, and 

those expenditures were either not coordinated or paid for by HFA, as discussed in HFA’s response 

to the administrative complaint. Mot. Ex. B, HFA Response to MUR 7146, at 3, 7-9. This is 

unsurprising because as Plaintiffs have pointed out multiple times, CTR set out to coordinate its 

online communications with HFA. Pls.’ Br. at 38-42. This type of coordinated activity was 

essentially CTR’s primary purpose, and it relied on the internet exemption to engage in that activity 

in accordance with federal campaign finance laws.

Nor can Plaintiffs cite to a single example of the FEC requiring “speakers to further allocate 

overhead expenses across internet communications (or other activities) and then exempting only 

those component fees deemed essential for the internet communication’s placement.” SOR at 13. 

Thus, the Commissioners’ decision to not require such allocation of CTR’s overhead can hardly 

be portrayed as irrational or contrary to law. As stated by the Controlling Commissioners, this type 

of allocation “would eviscerate the Internet Exemption and the deliberate policy decisions behind 

it, and potentially chill political speech online.” Id. More importantly, “the Commission has never 

required speakers to do so.” Id. (emphasis added). The Commissioners recognized that “a speaker 

will almost always incur expenses to produce [a free] internet communication.” Id. Requiring 

political committees to attribute each expense to a particular Internet communication would defy 

the rationale for developing the internet exemption in the first place. Id.; Mot. at 28-29.

Indeed, in decision after decision, the Commission has consistently refused to use 11 

C.F.R. § 109.20 to capture input costs associated with internet communications that are excluded 

from regulation under 11 C.F.R. §§ 100.26 and 109.21. Plaintiffs’ attempts to distinguish key 

enforcement actions on this issue are unavailing. First, where the only relevant authority on a 

question is a decision from the Commission that resulted in a deadlock, it is the decision of the 

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Commissioners who voted to dismiss a complaint that controls and is entitled to deference. See, 

e.g., CREW v. FEC, 236 F. Supp. 3d 378, 390 (D.D.C. 2017), aff’d, 892 F.3d 434 (D.C. Cir. 2018);

see also FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992) (the 

controlling group’s statement of reasons states “the agency’s reasons for acting as it did,” not the 

OGC report). Plaintiffs’ chastising of HFA and CTR for citing such decisions is unwarranted.

Second, there are enforcement actions regarding input costs in which the FEC dismissed 

allegations of coordinated communications. For example, in MUR 6722 (House Majority PAC), 

the Commissioners unanimously approved the dismissal of a complaint wherein the video at issue, 

which undoubtedly cost money to produce and featured appearances by two federal candidates 

(clearly indicating that there was coordination), was placed for no fee on YouTube and thus was 

not a “public communication” subject to the coordination rules. FGCR, at 3-4 (Aug. 6, 2013).

Further, if the FEC considered input costs to be part and parcel of an internet communication in a 

particular action, then that action is relevant to determining how the FEC treats input costs 

regardless of whether it involves allegations of coordination. For example, in MUR 6729 (Checks 

and Balances for Economic Growth), where an organization allegedly spent nearly $1 million to 

produce two television advertisements broadcasted only on YouTube for free, and failed to 

disclose the costs associated with producing them, the controlling group of the Commissioners 

determined that under the internet exemption, “the direct costs of producing an Internet 

communication are exempt from regulation on the same basis as costs associated with distributing 

the communication.” SOR of Comm’rs Goodman, Hunter & Petersen, at 3-4 (Oct. 24, 2014). 

Third, CTR and HFA have not located any authority for Plaintiffs’ contrived theory that 

only “direct” input costs for internet communications are exempt. None of the authority cited in 

the Amended Motion limits the application of the internet exemption to “direct” input costs as 

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articulated by Plaintiffs. For example, when five out of six Commissioners first explained that 

“[t]he costs incurred by an individual in creating an ad will be covered by the Internet exemption 

from the definition of ‘expenditure’ as long as the creator is not also purchasing TV airtime for the 

ad,” they never mentioned such a limitation. Advisory Op. 2008-10 (VoterVoter.com) at 7. The 

absence of this limit on “direct” input costs is clear in MUR 6657 (Akins for Senate), where a 

political committee reported several expenditures for online fundraising communications for a 

candidate. The Commission noted that “[e]ven though the communications themselves may have 

been created at little cost,” the committee “incurred significant related expenses.” Factual & Legal 

Analysis (“F&LA”) at 5 (Sept. 17, 2013). However, because the committee’s online 

communications were not placed for a fee, and the Commission has not construed “the term 

Internet Communication ‘placed for a fee’ . . . to cover payments for services necessary to make 

an Internet communication,” the Commission unanimously found no reason to believe that those 

related expenses constituted coordinated expenditures. Id. The same is undoubtedly true here: 

Even though Plaintiffs allude that CTR may have created the underlying internet communications 

at “little cost,” the “significant related expenses” CTR incurred while producing those 

communications, including staff salary, travel, and other overhead expenses, fit within the internet 

exemption. Id. Indeed, a controlling group of Commissioners has already disregarded an argument 

that the internet exemption did not apply to “the cost of staff time, office space, equipment usage, 

etc. required . . . to undertake [unpaid online] activities.” MUR 7023 (Kinzler for Congress), SOR 

of Comm’rs Hunter, Goodman & Petersen, at 5 n.21 (Jan. 23, 2018). Rather, these “production 

costs are not regulated unless a communication is disseminated for a fee on another person’s 

website.” Id. (“[T]he exemption would be meaningless if we were to scrutinize and regulate the 

component costs of an exempt communication or otherwise limit the exemption to only the 

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negligible costs of a communication’s Internet distribution.”). The Controlling Commissioners 

applied the exact same reasoning to CTR’s overhead expenses in this case. Plaintiffs have not—

and cannot—point to any authority requiring the opposite conclusion here.

2. The FEC’s decision to dismiss the coordination allegations for the nonInternet expenditures was rational. 

Contrary to Plaintiffs’ claims, the Controlling Commissioners did not “took at face value 

that all of CTR’s activities constituted or were ‘input costs’ for exempt internet communications.” 

Pls.’ Br. at 31. The Controlling Commissioners found that there was a category of expenditures—

namely CTR’s surrogacy program, research and tracking, and contacts with reporters—that was

not directly related to online communications. The Commissioners dismissed Plaintiffs’ 

allegations as to those claims because Plaintiffs simply failed to present sufficient evidence that 

such activities were “coordinated.” Id. at 14-15.

As an initial matter, “[t]he Commission may find ‘reason to believe’ only if a complaint 

sets forth sufficient specific facts, which, if proven true, would constitute a violation of the FECA. 

. . . Unwarranted legal conclusions from asserted facts ..., or mere speculation, ... will not be 

accepted as true.” MUR 4960, Statement of Reasons of Commissioners Mason, Sandstrom, Smith 

and Thomas (Dec. 21, 2001). And on judicial review, this Court must not disturb the Controlling 

Commissioners’ decision if it was rational. See Orloski, 795 F.2d at 164.

In this case, Plaintiffs simply speculate that because CTR coordinated with HFA regarding 

the internet communications underlying their complaint, “some amount of [CTR’s expenditures] 

was connected to activities ‘coordinated’ with [HFA]” and should have been reported as in-kind 

contributions. Pls.’ Br. at 14, 16-19. But that speculation is not enough support a “reason to 

believe” any violation occurred here. Though there was evidence that HFA and CTR coordinated 

various internet communications, which are exempt from the definition of “coordinated 

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communications,” the Controlling Commissioners reasonably noted that “‘[c]oordination’ is not a 

status . . . such that coordination in one activity can be imputed to other activities. Finding 

coordination requires more than considering the general relationship between entities . . . .” SOR 

at 16.

When determining whether any of HFA and CTR’s non-internet activities violated FECA, 

the Controlling Commissioners thoroughly analyzed the information alleged as to each transaction 

and HFA and CTR’s responses. SOR at 17; Mot. at 23. As an example, for the research and 

tracking services, the Commissioners found that HFA paid CTR for those services, and there was 

nothing in the record to support Plaintiffs’ speculative allegations that the payments were not 

equivalent to the fair market value. SOR at 15-16, n.78. Similarly, the Commission would not 

permit Plaintiffs to rely on their speculative allegations that CTR’s contacts with reporters were 

“coordinated.” Id. at 16, n. 80. Moreover, such communications with the media are not “public 

communications” under 11 C.F.R. § 100.26, and thus are not coordinated expenditures.

III. Plaintiffs’ purported APA claim is preempted by FECA and must be dismissed.

Plaintiffs’ opposition brief only confirms what the Amended Complaint makes clear: 

Plaintiffs’ APA claim is simply a restatement of their challenge to the Commission’s interpretation 

of its regulations, not the regulations themselves. Pls.’ Br. at 42-45. Because FECA provides an 

adequate and exclusive judicial mechanism to review the Commission’s interpretation of its 

regulations, no claim separate from Plaintiffs’ FECA claim exists here. 

Plaintiffs unconvincingly attempt to recast their improper APA challenge to the 

Commission’s dismissal of their administrative complaint as “as-applied and facial challenges 

under the APA to the validity of the FEC’s coordination regulations[.]” Pls.’ Br. at 44. But their 

APA claim does not actually challenge FEC regulations at all. Indeed, Plaintiffs do not ask the 

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Court for a declaratory order that 11 C.F.R. §§ 100.26, 109.20, 109.21 are unlawful and invalid. 

Nor do Plaintiffs identify particular provisions of 11 C.F.R. §§ 100.26, 109.20, and 109.21 that 

conflict with FECA. Rather, the APA claim challenges how the FEC has “construed” or 

“interpreted” the relevant regulations in this administrative complaint, not the regulations 

themselves. See, e.g., See Am. Compl. ¶ 112 (alleging that “this construction of the relevant 

coordination regulations conflicts with FECA and the Commission’s own regulations”) (emphasis 

added); id. ¶ 113 (“[T]he coordination regulations, as construed, conflict with FECA and the 

Commission’s own regulations[.]”) (emphasis added); see also id. ¶¶ 29-30 (requesting Court 

“[d]eclare that the construction of the coordination regulations, see 11 C.F.R. §§ 100.26, 109.20, 

109.21, to exempt all “input expenses” connected to internet communications from regulation as 

“coordinated expenditures” is contrary to law, arbitrary and capricious, and invalid[.]”) (emphasis 

added). See also Pls. Br. at 44. Plaintiffs have no quarrel with the regulations—in fact, they believe 

that the regulations, if interpreted under their view, prohibit the activities ascribed to CTR and 

HFA. Pls.’ Br. at 42-43.

As the Amended Motion set out in detail, see Mot. at 18-20, FECA’s judicial review 

provision provides the “exclusive” means to challenge the Commission’s enforcement actions. See 

CREW v. FEC (“CREW 2015”), 164 F. Supp. 3d 113, 120 (D.D.C. 2015) (“This alternative, 

comprehensive judicial review provision precludes review of FEC enforcement decisions under 

the APA.”); accord CREW v. FEC (“CREW 2017”), 243 F. Supp. 3d 91, 105 (D.D.C. 2017).

Plaintiffs’ attempt to wedge an APA claim into their claim seeking judicial review under FECA is 

squarely foreclosed by circuit precedent, including decisions of this court involving analogous 

claims. See Mot. at 18-20. For example, in CREW 2015, this court dismissed an attempt to review 

the Commission’s interpretation of FECA under the APA due to exclusive review allowed under 

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the plaintiffs’ FECA claims. 164 F. Supp. 3d at 118. There, the plaintiff argued that “the repeated 

and consistent application of several Commissioners’ interpretation” created a “de facto 

regulation” governing how the Commission interprets the law and when it will take action to 

investigate an administrative complaint in violation of the APA. Id. at 115, 118. But as the court 

pointed out, even if the plaintiff’s claim that the controlling group’s view had become the “broader 

policy” of the FEC as a whole, “the fact remains that the FEC has announced any such policy only 

through adjudication.” See id. at 118. Agencies like the FEC have broad discretion to choose 

between rulemaking and adjudication to carry out their statutory mandate, and if an agency 

appropriately exercises this choice and announces a new principle in an adjudication, “no court 

has ever held that the resulting order or the rationale underlying it should be treated as a regulation 

for purposes of judicial review.” Id. at 119. After determining that the principles reflected in the 

controlling group’ statements of reasons were not Commission regulations but rather adverse 

enforcement decisions, the CREW 2015 court dismissed the APA claim, noting Congress’s clear 

intention to make FECA’s judicial review provision the exclusive means of challenging an adverse 

FEC enforcement decision, and holding that such procedures are an adequate alternative to APA 

review. See id. at 120. In CREW 2017, a different judge of this court applied the same reasoning 

to dismiss claims brought under the APA to challenge FEC enforcement decisions. See CREW 

2017, 243 F. Supp. 3d at 105; see also Conference Group LLC v. FCC, 720 F.3d 957, 966 (D.C. 

Cir. 2013) (holding that the “fact that an order rendered in an adjudication ‘may affect agency 

policy and have general prospective application’ . . . does not make it [a] rulemaking subject to 

APA”).

Plaintiffs’ APA claim is no different than the claims dismissed in CREW 2015 and CREW 

2017, and Plaintiffs do not even mention—let alone attempt to distinguish—the reasoning of these 

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precedents. Like the plaintiffs in CREW 2015, who alleged that consistent FEC enforcement 

decisions represented a “de facto rule” challengeable under the APA, Plaintiffs’ APA claim rests 

on the premise that the Commission has followed its “traditional approach” to interpreting the 

internet exemption to include “input costs” for unpaid internet communications—an approach that

constitutes a “bright-line rule[.]” See Pls.’ Br. at 42-44. And like the plaintiffs in CREW 2015, 

Plaintiffs attempt to recast their disagreement with the Commission’s interpretations of its own 

regulations as a challenge to the regulations themselves. See id. But as in CREW 2015, the fact 

remains that the FEC’s adjudication decisions do not amount to a regulation under the APA. See

SOR at 12 n.60 (citing interpretation of the Internet exemption to the coordination regulations in 

various MURs). Indeed, Plaintiffs’ argument that they are challenging a rule rather than an 

interpretation is even weaker here, where Plaintiffs assert that the challenged interpretation does 

not even represent any settled policy. See Pls’. Br. at 36, 37. Thus, Plaintiffs may not maintain 

their APA claim here.

Plaintiffs offer no persuasive rebuttal. First, Plaintiffs identify instances in which courts 

have permitted APA suits against the FEC, and argue that such cases show that FECA’s judicial 

review provision is not “adequate” for all challenges to FEC action. Pls.’ Br. at 43. But none of 

those cases involve whether Plaintiffs may challenge FEC enforcement dismissals under the APA, 

even though FECA provides judicial review. The unremarkable fact that litigants may challenge 

FEC regulations under the APA does not alter the conclusion that challenges to FEC enforcement 

dismissals must proceed exclusively through FECA’s judicial review provisions. See Perot v. Fed. 

Election Comm’n, 97 F.3d 553, 560 (D.C. Cir. 1996).

Second, Plaintiffs confusingly argue that FECA’s judicial review mechanisms are 

inadequate to “declar[e] the construction of the[ challenged] rules unlawful and invalid, and 

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ordering the FEC to apply the Act’s anti-coordination provisions in the manner that Congress 

prescribed here and in all future cases.” Pls.’ Br. at 45. Plaintiffs do not and cannot dispute that 

judicial review under Section 30109(a)(8) permits them to pursue their argument that the FEC’s 

interpretation of the coordination regulations and the internet exemption was contrary to law and, 

if they satisfy their burden, to obtain an order declaring that the dismissal of their administrative 

complaint was contrary to law and requiring the FEC to conform with that declaration. 52 U.S.C. 

§ 30109(a)(8)(C). Thus, Plaintiffs’ APA claim is preempted by FECA and must be dismissed.

Third, Plaintiffs argue, citing Shays II, that when an FEC complaint is dismissed based 

upon an allegedly invalid regulation, relief under FECA alone is inadequate. Pls.’s Br. at 45 (citing 

Shays v. FEC (“Shays II”), 414 F.3d 76, 96 (D.C. Cir. 2005)). But the court was referring to 

whether FECA’s judicial review procedures for enforcement denials were adequate for plaintiffs 

to challenge FEC regulations themselves. The D.C. Circuit concluded that they were not because 

FECA’s safe harbor provisions might cause courts to uphold FEC non-enforcement without 

reaching a regulation’s validity, and thus permitted APA review of the regulations. See Shays II, 

414 F.3d at 96. But challenges to regulations and challenges to FEC enforcement dismissals are 

not treated the same way in FECA: while FECA contains no provisions governing judicial review 

of regulations—thus leaving it to courts to fill in the gaps—FECA contains a “delicately balanced 

scheme of procedures of remedies” regarding judicial review of enforcement denials. See CREW 

2015, 164 F. Supp. 3d at 120. Thus, Shays II has no bearing on this case, where Plaintiffs do not 

directly challenge any regulations.

CONCLUSION

For the foregoing reasons, Defendant-Intervenors respectfully request that the Court 

dismiss the Amended Complaint in this matter. 

Case 1:19-cv-02336-JEB Document 31 Filed 03/27/20 Page 31 of 33
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March 27, 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 600

Washington, D.C. 20005-3960

Telephone: 202.654.6200

Facsimile: 202.654.6211

Attorneys for Defendant-Intervenors

Case 1:19-cv-02336-JEB Document 31 Filed 03/27/20 Page 32 of 33
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CERTIFICATE OF SERVICE

I hereby certify that on March 27, 2020, that 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 600

Washington, D.C. 20005-3960

Telephone: 202.654.6200

Facsimile: 202.654.6211

Email: MElias@perkinscoie.com

Email: ABranch@perkinscoie.com

Case 1:19-cv-02336-JEB Document 31 Filed 03/27/20 Page 33 of 33