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

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTINTERVENORS’ AMENDED MOTION TO DISMISS PLAINTIFFS’ AMENDED 

COMPLAINT 

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TABLE OF CONTENTS

 PAGE

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

BACKGROUND.............................................................................................................................3

I. Statutory and Regulatory Background..................................................................................3

II. Factual Background ..............................................................................................................5

ARGUMENT ..................................................................................................................................8

I. Plaintiffs Lack Standing to Challenge the Dismissal of their Administrative Complaint. ...8

A. Plaintiffs are Required to Establish Article III Standing..................................................8

B. Plaintiffs Have Not Suffered a Legally Cognizable Injury Sufficient to Confer Article 

III standing. ....................................................................................................................10

1. Plaintiffs’ Desire for a Legal Determination on Coordination is not a Legally

Cognizable Injury.......................................................................................................10

2. The Information Plaintiffs Claim to Seek is Already Available to Them..................13

3. Plaintiff CLC Does Not Allege a Concrete and Demonstrable Injury to Its 

Activities. ...................................................................................................................15

II. Plaintiffs’ Claims Brought under the Administrative Procedure Act Should be Dismissed 

Because FECA Provides an Adequate Judicial Review Mechanism. ...................................18

III. Plaintiffs Cannot Show that the Commission’s Dismissal of the Complaint in MUR 7146 

was Contrary to Law, Arbitrary, or Capricious. ....................................................................21

A. Standard of Review Under 52 U.S.C. § 30109(a)(8)(A)................................................21

B. The Commission’s Dismissal of Plaintiffs’ Administrative Complaint Was Not 

Contrary to Law, Arbitrary, or Capricious. ....................................................................22

CONCLUSION .............................................................................................................................30

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TABLE OF AUTHORITIES

CASES

Akins v. FEC,

736 F. Supp. 2d 9 (D.D.C. 2010).............................................................................................21

All. for Democracy v. FEC,

362 F. Supp. 2d 138 (D.D.C. 2005).........................................................................................15

Am. Horse Prot. Ass’n, Inc. v. Yeutter,

917 F.2d 594 (D.C. Cir. 1990).................................................................................................21

ASPCA v. Feld Entm’t, Inc.,

659 F.3d 13 (D.C. Cir. 2011)...................................................................................................10

Bowen v. Massachusetts,

487 U.S. 879 (1988) ................................................................................................................18

Buckley v. Valeo,

424 U.S. 1 (1976) ....................................................................................................................22

Carey v. Fed. Election Comm’n,

No. 11-259-RMC (D.D.C. 2011).........................................................................................5, 11

Citizens for Responsibility & Ethics in Washington v. FEC,

799 F. Supp. 2d 78 (D.D.C. 2011).............................................................................8, 9, 11, 13

Common Cause v. FEC,

108 F.3d 413 (D.C. Cir. 1997)..........................................................................................passim

CREW v. FEC,

164 F. Supp. 3d 113 (D.D.C. 2015)...................................................................................19, 20

CREW v. FEC,

243 F. Supp. 3d 91 (D.D.C. 2017)...........................................................................................20

CREW v. FEC,

363 F. Supp. 3d 33 (D.D.C. 2018)...........................................................................................20

CREW v. FEC,

475 F.3d 337 (D.C. Cir. 2007)...........................................................................................13, 15

CREW v. Fed. Election Comm’n,

401 F. Supp. 2d 115 (D.D.C. 2005).............................................................................14, 15, 17

CREW v. U.S. Dep’t of Justice,

846 F.3d 1235 (D.C. Cir. 2017)...............................................................................................19

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CREW v. U.S. Dep’t of the Treasury, IRS,

21 F. Supp. 3d 25 (D.D.C. 2014).......................................................................................10, 17

El Rio Santa Cruz Neighborhood Health Ctr. v. U.S. Dep’t of Health & Human 

Servs.,

396 F.3d 1265 (D.C. Cir. 2005)...............................................................................................18

FEC v. DSCC,

454 U.S. 27 (1981) ............................................................................................................21, 22

FEC v. Nat’l Republican Senatorial Comm.,

966 F.2d 1471 (D.C. Cir. 1992).............................................................................................4, 5

Freedom Republicans, Inc. v. FEC,

13 F.3d 412 (D.C. Cir. 1994).............................................................................................17, 18

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,

528 U.S. 1671 (2000) ................................................................................................................9

Greatness v. FEC,

831 F.3d 500 (D.C. Cir. 2016)...........................................................................................21, 30

Hagelin v. FEC,

411 F.3d 237 (D.C. Cir. 2005).................................................................................................21

Judicial Watch, Inc. v. FEC,

180 F.3d 277 (D.C. Cir. 1999)...................................................................................................8

Judicial Watch v. FEC,

293 F. Supp. 2d 41 (D.D.C. 2003).....................................................................................13, 15

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) ................................................................................................................14

Nader v. FEC,

725 F.3d 226 (D.C. Cir. 2013).................................................................................................11

Perot v. FEC,

97 F.3d 553 (D.C. Cir. 1996)...................................................................................................19

Stockman v. FEC,

138 F.3d 144 (5th Cir. 1998)...................................................................................................20

Vroom v. FEC,

951 F. Supp. 2d 175 (D.D.C. 2013).........................................................................................11

Wertheimer v. FEC,

268 F.3d 1070 (D.C. Cir. 2001)...................................................................................10, 11, 12

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STATUTES

5 U.S.C. § 704 .........................................................................................................................18, 19

52 U.S.C. § 30101 ...........................................................................................................................5

52 U.S.C. § 30106 .....................................................................................................................3, 19

52 U.S.C. § 30107 ...........................................................................................................................3

52 U.S.C. § 30108 ...........................................................................................................................3

52 U.S.C. § 30109 ..................................................................................................................passim

52 U.S.C. § 30116 .......................................................................................................................1, 6

OTHER AUTHORITIES

11 C.F.R. § 100.26.............................................................................................................18, 22, 24

11 C.F.R. § 109.20.........................................................................................................................18

11 C.F.R. § 109.21..................................................................................................................passim

71 Fed. Reg. 18589 (April 12, 2006).............................................................................................26

Advisory Op. 2008-10 .............................................................................................................26, 27

Advisory Op. 2011-14 ...................................................................................................................27

Fed. R. Civ. P. 12(b)....................................................................................................................1, 2

MUR 6477 (Turn Right USA) (July 17, 2012) .............................................................................27

MUR 6657 (Akin for Senate) (Sept. 17, 2013) .......................................................................27, 28

MUR 6729 (Checks and Balances for Economic Growth) (Aug. 6, 2014).............................27, 28

MUR 7080 (Babeu for Congress) (Dec. 15, 2016)........................................................................28

MUR 7023 (Kinzler for Congress) (Jan. 23, 2018).......................................................................28

Case 1:19-cv-02336-JEB Document 26-1 Filed 02/04/20 Page 5 of 37
Hillary for America (“HFA”) and Correct the Record (“CTR”) (collectively, “DefendantIntervenors”), respectfully move to dismiss the Amended Complaint, filed by Plaintiffs Campaign 

Legal Center (“CLC”) and Catherine Hinckley Kelley, with prejudice, for lack of standing under 

Rule 12(b)(1) of the Federal Rules of Civil Procedure and for failure to state a claim upon which 

relief can be granted under Rule 12(b)(6). In support of their Motion, Defendant-Intervenors 

submit as follows.

INTRODUCTION

Plaintiffs seek judicial review of the Federal Election Commission’s (“Commission” or 

“FEC”) dismissal of their administrative complaint alleging that CTR made prohibited and 

excessive in-kind contributions in the form of coordinated communications and other coordinated 

expenditures to HFA. In particular, plaintiffs allege that Defendant-Intervenors violated the 

Federal Election Campaign Act’s (“FECA” or the “Act”) contribution limits, 52 U.S.C. § 

30116(a)(1), its prohibition on contributions to a candidate from union or corporate funds, id. § 

30118(a) and (b)(2), and its requirement that candidate committees and non-connected political 

committees report and disclose all in-kind contributions made and accepted, id. § 30104(b). Am. 

Compl., ECF No. 15, at ¶ 1.

Plaintiffs’ amended complaint, however, must be dismissed for several reasons. First, 

plaintiffs lack Article III standing to obtain review pursuant to FECA’s narrow review provision, 

52 U.S.C. § 30109(a)(8). Second, even if plaintiffs had standing—which they do not—they have 

failed to state a claim upon which relief can be granted because FECA provides the exclusive 

avenue for review of the Commission’s dismissal of the administrative complaint and thus 

precludes portions of their claims that seek relief under the Administrative Procedure Act 

(“APA”), 5 U.S.C. § 706. Third, even accepting all of plaintiffs’ factual allegations as true for 

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purposes of this motion, plaintiffs have failed to sufficiently plead that the Commission’s dismissal 

of plaintiffs’ administrative complaint was “contrary to law.” To the contrary, the Commission’s 

dismissal of plaintiffs’ complaint was lawful and thoroughly supported by Commission precedent.

Accordingly, Defendant-Intervenors move this Court to dismiss Plaintiffs’ amended complaint for 

lack of subject-matter jurisdiction and/or failure to state a claim upon which relief can be granted. 

See Fed. R. Civ. P. 12(b)(1) and 12(b)(6). 

While FECA allows any person to file an administrative complaint alleging a violation of 

the Act, a complainant must have suffered a legally cognizable injury sufficient to meet the 

requirements of Article III standing in order to obtain review under 52 U.S.C. § 30109(a)(8). An 

informational injury stemming from the Commission’s dismissal of its administrative complaint

can be sufficient to confer Article III standing, but courts have explicitly made clear that a desire 

for information about whether FECA has been violated is inadequate to show standing, as is a 

desire for information that is already publicly available. Here, that is the only information plaintiffs 

seek. While plaintiffs complain that they were deprived of access to information “regarding the 

scale and scope of CTR’s expenditures coordinated with the Clinton campaign,” Am. Compl., ECF 

No. 15, at ¶¶ 30, 31, plaintiffs’ own complaint for judicial review (and their administrative 

complaint) demonstrates that they were aware of the activities that CTR allegedly paid for in 

support of HFA. Am. Compl., ECF No. 15, at ¶¶ 2, 65; see also Admin. Compl., ECF No. 15-1, at 

¶¶ 5, 10-12, 20, 21, 24, 30, 35, 43, 49, 53, 61, 64-65, 67. Plaintiffs cannot dispute that CTR’s 

expenditures were all publicly reported or that each transaction plaintiffs allege is illegal has been

publicly disclosed in some form. Plaintiffs do not seek additional facts about these transactions,

but only the legal determination that these transactions constitute coordinated expenditures. This 

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is not a legally cognizable injury sufficient to assert Article III standing. This Court thus lacks 

subject-matter jurisdiction and plaintiffs’ amended complaint should be dismissed. 

Moreover, plaintiffs’ amended complaint fails to state a claim upon which relief can be 

granted. First, plaintiffs’ claims under the APA must be dismissed because FECA provides an 

adequate judicial review mechanism, as every court to consider that issue has held. Second, 

plaintiffs fail to sufficiently allege that the Commission’s dismissal decision was contrary to law 

because the controlling group of Commissioners’ determination that the transactions did not 

constitute coordinated expenditures was based on longstanding Commission precedent and 

supported by the plain language of the applicable regulations. Plaintiffs have thus failed to meet 

their significant burden of showing that this Court should disregard the Commission’s decision to 

dismiss. 

For these reasons and those detailed below, plaintiffs’ amended complaint for judicial 

review should be dismissed. 

BACKGROUND

I. Statutory and Regulatory Background

The Commission is an independent agency of the United States government with exclusive 

jurisdiction over the administration, interpretation, and civil enforcement of the Act. See generally 

52 U.S.C. §§ 30106, 30107, 30108. The Commission is authorized to institute investigations of 

possible violations of FECA. Id. at § 30109. It may also institute a civil action for relief if it is 

unable to correct or prevent any violation of the Act pursuant to its administrative enforcement 

processes. Id. § 30109(a)(6)(A).

Any person who believes a violation of the Act has occurred may file a complaint with the 

Commission. Id. § 30109(a)(1). After reviewing the complaint and any response filed by the 

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respondent, the Commission considers whether there is “reason to believe” a violation of the Act 

has occurred. Id. § 30109(a)(2). If at least four of the FEC’s Commissioners vote to find such 

reason to believe, 1the FEC may investigate the alleged violation; otherwise, the FEC dismisses 

the administrative complaint. Id. §§ 30106(c), 30109(a)(2). If the Commission votes to proceed 

with an investigation, it must determine whether there is “probable cause to believe” a violation

occurred, which also requires the affirmative vote of at least four Commissioners. Id. §§ 30106(c), 

30109(a)(4)(A)(i). If the Commission finds probable cause, it is required to correct or prevent the 

violation and to attempt to enter into a conciliation agreement with the respondent. Id. §

30109(a)(4)(A)(i). If the Commission is unable to reach a conciliation agreement, it may institute 

a civil enforcement action in federal district court. Id. § 30109(a)(6)(A). 

If at any point the Commission determines that no violation has occurred or decides to 

dismiss a complaint, the Act authorizes limited judicial review of the Commission’s dismissal 

decision. See id. § 30109(a)(8)(A). That limited review applies equally to dismissals that result 

from an evenly divided vote. FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471, 1476 

(D.C. Cir. 1992) (“[A split vote] dismissal, like any other, is judicially reviewable under [§ 

30109(a)(8)].”). A complainant must file a dismissal suit “within 60 days after the date of the 

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

The scope of a district court’s judicial review of the Commission’s decision to dismiss is 

limited. Specifically, “[a] court may not disturb a Commission decision to dismiss a complaint 

unless the dismissal was based on an ‘impermissible interpretation of the Act . . . or was arbitrary

or capricious, or an abuse of discretion.’” Common Cause v. FEC, 108 F.3d 413, 415 (D.C. Cir. 

 

1 Prior to the Commission’s vote, the FEC’s Office of General Counsel (“OGC”) recommends to 

the Commission in a report whether there is “reason to believe” a violation has occurred. Id. 

§ 30109(a)(2). 

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1997) (quoting Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986)). The sole remedy the district 

court may grant in such a case is a declaration “that the dismissal of the complaint or the failure to 

act is contrary to law” and an order “direct[ing] the Commission to conform with such declaration 

within 30 days.” 52 U.S.C. § 30109(a)(8)(C). In cases like this one, where there is a split vote 

dismissal, judicial review is based on the reasoning of the Commissioners who voted to dismiss 

the complaint because “those Commissioners constitute a controlling group for purposes of the 

[dismissal] decision” since their “rationale necessarily states the agency’s reasons for acting as it 

did.” Nat’l Republican Senatorial Comm., 966 F.2d at 1476.

II. Factual Background

HFA is the principal campaign committee of former United States Secretary of State 

Hillary Clinton, who was the nominee of the Democratic Party for the office of President of the 

United States in the 2016 general election. CTR is a strategic research and rapid response team 

that was designed to defend Secretary Clinton from baseless attacks. CTR is a nonprofit 

corporation registered in Washington, D.C. and has registered with the FEC as a “hybrid” or Carey 

political action committee permitted to solicit and accept unlimited contributions into one bank 

account, and to maintain a separate bank account subject to statutory amount limitations and source 

prohibitions for making contributions to federal candidates. See Stipulated Order and Consent 

Judgment, Carey v. Fed. Election Comm’n, No. 11-259-RMC (D.D.C. 2011) (Dkt. No. 28); FED.

ELECTION COMM’N, STATEMENT ON CAREY V. FEC (2011), (Oct. 6, 2011), available at

https://www.fec.gov/updates/fec-statement-on-carey-v-fec/. Defendant-Intervenors are subject to 

the Act, 52 U.S.C. § 30101 et seq., and FEC regulations.

Beginning in May 2015, various complainants filed administrative complaints with the 

FEC against Defendant-Intervenors. On October 6, 2016, Plaintiffs filed an administrative 

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complaint that the FEC designated as Matter Under Review (“MUR”) 7146, alleging there was 

reason to believe that Defendant-Intervenors had violated FECA’s contribution limits, 52 U.S.C. 

§ 30116(a)(1), its prohibition on contributions to a candidate from union or corporate funds, id. § 

30118(a) and (b)(2), and its requirement that candidate committees and non-connected political 

committees report and disclose all in-kind contributions made and accepted, id. § 30104(b). 

Admin. Compl., ECF. No. 15-1, at ¶ 3. Specifically, plaintiffs alleged that CTR made, and HFA 

accepted, millions of dollars of in-kind contributions in the form of coordinated expenditures and 

compensation for personal services. Id. In response, HFA made clear that it maintained an 

aggressive compliance program and at all times adhered to federal campaign finance law 

obligations. Ex. B, HFA Response to MUR 7146, at 1. Moreover, all of the activities that plaintiffs 

alleged were coordinated in-kind contributions either did not qualify as “coordinated 

communications” under the Act because they were for “free” digital activity or were paid for by

HFA according to their fair market value. Id.

After reviewing the various administrative complaints against Defendant-Intervenors, the 

FEC’s Office of General Counsel (“OGC”) recommended dismissing or taking no action as to 

most of the allegations contained therein. Ex. C, OGC First General Counsel’s Report at 2-3. 

However, the OGC recommended that the Commissioners should find reason to believe that CTR 

and the Clinton campaign violated FECA by making and accepting, respectively, “unreported 

excessive and prohibited in-kind contributions” in the form of coordinated expenditures, and 

recommended that the Commissioners authorize an investigation to determine “the extent” of the 

unreported in-kind contributions. Id. at 25-26. 

However, the Commission did not adopt the OGC’s recommendation. On June 4, 2019, by

a deadlocked vote of 2-2, the FEC’s four commissioners failed to find reason to believe and failed 

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to authorize any investigation into the allegations raised in plaintiffs’ administrative complaint. 

See Ex. D, Amended Certification, MURs 6940, 7097, 7146, 7160, and 7193 (signed June 13, 

2019). The Commission voted to dismiss the complaints filed against Defendant-Intervenors and 

close the file. Id. By letter dated June 17, 2019, the Commission notified plaintiffs that it had 

dismissed their complaint. On August 2, 2019, Plaintiffs filed a judicial complaint against the FEC 

pursuant to 52 U.S.C. § 30109(a)(8). Less than three weeks after plaintiffs filed suit, the controlling 

group of Commissioners issued a Statement of Reasons thoroughly explaining their reasoning for 

voting to dismiss plaintiffs’ administrative complaint. See Ex. A, Statement of Reasons.

In their Statement of Reasons, Commissioners Petersen and Hunter explained that they

voted against finding reason to believe that CTR or HFA violated the law because (1) CTR’s 

“internet communications in support of HFA were not in-kind contributions even if they were 

coordinated with Hillary for America” because they were not “public communications”; and (2) 

“speculative information and materials stolen by Russian intelligence operatives and published by 

Wikileaks does not provide reason to believe that [CTR]’s expenditures for other activities were 

excessive or prohibited in-kind contributions to [HFA].” Id. at 2.

Defendant-Intervenors moved to intervene on October 1, 2019, and simultaneously sought 

to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and (6). Plaintiffs then 

filed an amended complaint on October 29, 2019 to address the Statement of Reasons. In response, 

Defendant-Intervenors supplemented their motion to intervene to move to dismiss the amended 

complaint. On November 15, 2019, this Court granted Defendant-Intervenors’ Motion to 

Intervene. ECF No. 19. On January 6, 2020, the FEC filed a certified list of administrative record 

documents. ECF No. 25. Pursuant to this Court’s November 21, 2019 Order ECF No. 22, 

Defendant-Intervenors now file this Amended Motion to Dismiss. 

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ARGUMENT

I. Plaintiffs Lack Standing to Challenge the Dismissal of their Administrative 

Complaint.

A. Plaintiffs are Required to Establish Article III Standing. 

Plaintiffs allege that the dismissal of their administrative complaint was arbitrary, 

capricious, and contrary to law, and has deprived them of “access [to] information” “regarding the 

scale and scope of CTR’s expenditures coordinated with the Clinton campaign.” Am. Compl., ECF 

No. 15, at ¶¶ 30, 31. However, these allegations are insufficient to demonstrate standing in this 

action.

While “[a]ny person” who believes that the Act has been violated may file an 

administrative complaint with the FEC, 52 U.S.C. § 30109(a)(1), only complainants who have 

constitutional standing may seek judicial review of the FEC’s actions under 52 U.S.C. 

§ 30109(a)(8). Courts have repeatedly held that in challenges to the dismissal of an administrative 

complaint brought under 52 U.S.C. § 30109(a)(8), plaintiffs cannot rely on the statute alone to 

satisfy Article III standing requirements. See Common Cause, 108 F.3d at 419 (“Section 

[30109(a)(8)(A)] does not confer standing; it confers a right to sue upon parties who otherwise 

already have standing.”); see also Citizens for Responsibility & Ethics in Washington v. FEC, 799 

F. Supp. 2d 78, 85 (D.D.C. 2011) (“CREW 2011”) (“Having the right to file an administrative 

complaint with the FEC does not necessarily give Plaintiffs standing to seek judicial review of the 

disposition of that complaint in this Court . . .”); Judicial Watch, Inc. v. FEC, 180 F.3d 277 (D.C. 

Cir. 1999) (stating plaintiff’s “standing to sue . . . must be based upon an injury stemming from the 

FEC’s dismissal of [its] administrative complaint”) (emphasis added).

To demonstrate Article III standing, a plaintiff must specifically establish that: “(1) [the 

plaintiff] has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or 

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imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action 

of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be 

redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 

528 U.S. 167, 180–81 (2000) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). The 

D.C. Circuit has cautioned that in cases like this one, where plaintiffs’ “asserted injury arises from 

the government’s allegedly unlawful regulation (or lack of regulation) of someone else,” standing

is “substantially more difficult” to prove. Common Cause, 108 F.3d at 417 (quoting Lujan, 504 

U.S. at 562). Further, a “deficiency on any one of the three prongs suffices to defeat standing.” 

CREW 2011, 799 F. Supp. 2d at 85 (quoting U.S. Ecology, Inc. v. U.S. Dept. of Interior, 231 F.3d 

20, 24 (D.C. Cir. 2000)). 

An organizational plaintiff may have standing to sue on its own behalf “to vindicate 

whatever rights and immunities the association itself may enjoy” or, under proper conditions, to 

sue on behalf of its members asserting the members’ individual rights. Common Cause, 108 F.3d 

at 417 (citation omitted). Where an organization is suing on its own behalf, it must establish 

“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 . . . . Indeed, [t]he organization must allege that discrete programmatic 

concerns are being directly and adversely affected by the challenged action.” Id. (quoting Nat’l 

Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433 (D.C. Cir. 1995).2 

 

2 To assert associational standing, an organization must demonstrate that “(a) its members would 

otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane 

to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires 

the participation of individual members in the lawsuit.” Common Cause, 108 F.3d at 417 (quoting 

Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)). Here, CLC has not 

alleged associational standing because it correctly does not claim to be a trade association or to 

have any members. 

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B. Plaintiffs Have Not Suffered a Legally Cognizable Injury Sufficient to Confer 

Article III standing.

Both Plaintiffs—CLC and Ms. Kelley—allege that they have suffered an informational 

injury as a result of the FEC’s dismissal of plaintiffs’ administrative complaint. CLC alleges that 

this informational injury has harmed its ability to carry out a central part of its mission, and Ms. 

Kelley alleges that it has harmed her informational interests as a voter. Am. Compl., ECF No. 15, 

¶ 31. For the reasons stated below, both arguments are without merit. 

1. Plaintiffs’ Desire for a Legal Determination on Coordination is not a 

Legally Cognizable Injury.

A plaintiff can only claim an informational injury sufficient for standing in limited 

circumstances. To assert an informational injury, plaintiffs must allege that they are “directly 

deprived of information that must be disclosed under a statute.” CREW v. U.S. Dep’t of the 

Treasury, IRS, 21 F. Supp. 3d 25, 32 (D.D.C. 2014); ASPCA v. Feld Entm’t, Inc., 659 F.3d 13, 23 

(D.C. Cir. 2011) (“For purposes of informational standing, a plaintiff ‘is injured-in-fact . . . because 

he did not get what the statute entitled him to receive.’”) (quoting Zivotofsky v. Sec’y of State, 444

F.3d 614, 618 (D.C. Cir. 2006)). But not just any information will do.

In evaluating whether a complainant has suffered an informational injury sufficient to 

confer standing to seek judicial review under 52 U.S.C. § 30109(a)(8), “the nature of the 

information allegedly withheld is critical to the [court’s] standing analysis.” Common Cause, 108 

F.3d at 417. If the information allegedly withheld is already available to plaintiffs or is information 

as to whether a violation of the law has occurred, then plaintiffs have not suffered an injury in fact 

sufficient to confer standing. Id. Indeed, courts have repeatedly held that a plaintiff does not suffer 

an injury in fact to establish standing if it merely seeks 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) (no informational standing to pursue a legal determination that expenditures were 

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“coordinated” when all relevant expenditures had been publicly disclosed); 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”). In other words, a plaintiff has no legally cognizable interest in 

learning solely “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) (internal 

quotation marks omitted). See also Common Cause, 108 F.3d at 418 (“Nothing in FECA requires 

that information concerning a violation of the Act as such be disclosed to the public. Indeed, even 

if FECA did require such disclosure, we doubt whether this requirement could create standing. To 

hold that a plaintiff can establish injury in fact merely by alleging that he has been deprived of the 

knowledge as to whether a violation of the law has occurred would be tantamount to recognizing 

a justiciable interest in the enforcement of the law. This we cannot do.”).

The D.C. Circuit’s decision in Wertheimer v. FEC controls this case. It exemplifies the 

correct analysis of standing where the facts indicate that the only information plaintiffs have been 

deprived of is a legal determination of whether a violation of the law has occurred. Like the 

plaintiffs here, the complainants in Wertheimer alleged that the Commission failed to identify

certain expenditures made to benefit presidential candidates as impermissible coordinated 

expenditures. Wertheimer, 268 F.3d at 1071-73. The only difference between Wertheimer and this

case is that in Wertheimer the alleged impermissible coordinated contributions were made by

political parties, not a Carey committee. The D.C. Circuit held, however, that plaintiffs failed to 

satisfy their burden of demonstrating an injury in fact because they not only failed “to show . . . 

that they [we]re directly being deprived of any information,” but also that “the legal ruling they

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[sought] might lead to additional factual information.” Id. at 1074. Appellants’ counsel “did not 

dispute that all political parties currently report all disbursements or that each transaction 

appellants allege is illegal is reported in some form.” Id. The only “fact” that was not disclosed 

was the “fact” of coordination. Id. at 1075. But the court held that “coordination” is a legal 

conclusion, and appellants “d[id] not really seek additional facts but only the legal determination 

that certain transactions constitute coordinated expenditures.” Id. This was insufficient to establish 

standing then, and it remains insufficient now. 

Just as in Wertheimer, the plaintiffs in this case seek only a legal determination of 

coordination. See Am. Compl., ECF No. 15, at ¶ 95 (plaintiffs seek information “about which 

transactions CTR in fact ‘coordinated’ with the Clinton campaign”). In other words, plaintiffs do 

not currently lack factual information; they merely disagree with the Commission about the legal 

consequences of the information they already have. For example, plaintiffs cannot deny that every

CTR expenditure they seek to have re-classified as an in-kind contribution has been publicly 

disclosed on CTR’s FEC reports. And, plaintiffs readily admit that they knew CTR was 

coordinating its activities with HFA. Am. Compl., ECF No. 15, at ¶¶ 2, 65; see also Admin. 

Compl., ECF No.15-1, at ¶¶10-12, 20, 24. The only missing link here is a legal finding of 

coordination that could have enforcement consequences for Defendant-Intervenors before the 

Commission. Plaintiffs want to know which CTR expenditures were allegedly coordinated with 

HFA and which were not. But this is a legal determination and the type of informational injury 

that is expressly insufficient to confer standing. 

Moreover, the Commission already made the decision to dismiss plaintiffs’ administrative 

complaint because CTR’s activities were not “coordinated communications” or coordinated 

expenditures under the Act, Commission regulations or policy, or relevant case law. Accordingly, 

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plaintiffs have not been deprived of any relevant information about the “scale and scope” of CTR’s 

support of HFA. Just because plaintiffs may disagree with the Commission’s legal analysis does 

not mean that they were deprived of information sufficient to establish a legally cognizable injury.

Indeed, plaintiffs lack standing because they were not deprived of any such information. 

2. The Information Plaintiffs Claim to Seek is Already Available to 

Them. 

Well-established circuit precedent provides that plaintiffs seeking judicial review under 52 

U.S.C. § 30109(a)(8) lack standing where the information they purport to seek is already available 

to them. See, e.g., Judicial Watch v. FEC, 293 F. Supp. 2d 41, 47 (D.D.C. 2003) (holding that a 

plaintiff who alleged reporting violations regarding his own contributions to a candidate lacked 

standing because he was “already aware of the facts underlying his own alleged contributions” and 

his judicial-review action was unlikely to produce additional facts of which the plaintiff was not 

already knowledgeable); CREW 2011, 799 F. Supp. 2d at 89 (holding that plaintiffs lacked a 

cognizable informational injury where they failed to “allege any specific factual information . . . 

that [wa]s not already publicly available”); see also CREW v. FEC, 475 F.3d 337, 339-40 (D.C. 

Cir. 2007) (“CREW 2007”) (holding that plaintiffs lacked standing in part because “any citizen 

who wants to learn the details of the transaction . . . can do so by visiting the Commission’s 

website, which contains the [sought after] list and a good deal more”).

Here, plaintiffs claim that they have been deprived of information regarding the “scale and 

scope” of CTR’s expenditures coordinated with HFA. Am. Compl., ECF No. 15, at ¶ 30.

3 But

 

3 Plaintiffs also allege that they are “harmed by the FEC’s failure to require CTR and [HFA] to 

disclose the extent of their coordinated activity” and that “the dismissal of [their] administrative 

complaint has deprived [them], as well as the public, of disclosure information regarding the scale 

and scope of CTR’s expenditures coordinated with [HFA].” Am. Compl., ECF No. 15, at ¶¶ 28, 

30. But this is just another way of plaintiffs alleging that they have been deprived of a legal 

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plaintiffs’ claim of an “informational injury” is belied by the administrative record, which 

demonstrates that the information plaintiffs claim to seek is already available to them, and has

already been used by them. In fact, plaintiffs allege in exhaustive detail that they “documented 

how CTR spent millions on opposition research, message development, surrogate training and 

booking, professional video production, and press outreach for the benefit of the Clinton 

campaign—and noted that, by its own admission, CTR did at least some portion of this in 

coordination with the Clinton campaign.” Id. at ¶ 63. Specifically, plaintiffs alleged in their 

administrative complaint that the following CTR activities were done in support of and in 

coordination with HFA: the production of web videos; the publication of websites in support of 

HFA; tweeting a message about Secretary Clinton; posting positive comments about Secretary

Clinton on social media platforms; the commission and distribution on its website of a poll 

regarding Secretary Clinton’s debate performance; sending emails to supporters; contacting 

reporters with information supporting HFA or criticizing Secretary Clinton’s opponents; providing 

on-camera media training to supporters of HFA and connecting those supporters to local media 

outlets; and hiring “trackers” to attend and film campaign events for candidates for president.

4

 

determination of coordination. Moreover, plaintiffs’ alleged harms on behalf of the general public 

and their claim that dismissal of their complaint “undermined FECA’s purposes, including [the] 

goal[] of preventing the corruptive impact of large ‘disguised’ contributions,” see id. ¶¶ 10, 30, are 

not cognizable injuries. The Supreme Court has “consistently held that a plaintiff raising only a 

generally available grievance about government—claiming only harm to his and every citizen’s 

interest in proper application of the Constitution and laws, and seeking relief that no more directly 

and tangibly benefits him than it does the public at large—does not state an Article III case or 

controversy.” Lujan, 504 U.S. at 573-74; see also CREW v. Fed. Election Comm’n, 401 F. Supp. 

2d 115, 122 (D.D.C. 2005) (“It 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.”) (citation 

omitted).

4 Admin. Compl., ECF No. 15-1, at ¶¶ 5, 15-17, 19, 21, 22-23, 25, 26, 28-29, 30-32, 34, 35, 37, 

43, 46-48, 49, 52, 53, 55-56, 58, 60, 61, 64-65, 66, 67.

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Plaintiffs cannot now claim to be unaware of the scale and scope of CTR’s work or the 

extent of HFA’s involvement. They are not and have never been in the dark about the “true sources 

and scope” of Secretary Clinton’s financial support as they relate to CTR. See Am. Compl., ECF 

No. 15, at ¶ 16. And plaintiff Kelley cannot claim to have been deprived of information that she 

would have used to evaluate Secretary Clinton’s candidacy for office. All of the information about 

CTR’s political activity has been disclosed on its FEC reports and publicly available news reports, 

many of which plaintiffs used to initiate the administrative complaint in this action. Plaintiffs do 

not seek any additional information other than a legal finding of coordination. 

This court has dismissed similar claims in which plaintiffs alleged an informational injury 

by stating that they were deprived of information that was already available to them. See e.g., 

CREW, 401 F. Supp. 2d at 123; All. for Democracy v. FEC, 362 F. Supp. 2d 138, 145 (D.D.C. 

2005) (concluding that “the plaintiffs lack standing because they already have the information they

are seeking and therefore have not suffered an informational injury”); Judicial Watch, 293 F. Supp. 

2d at 47 & n.9 (holding that plaintiff lacked a cognizable information injury where he was already 

“aware of the facts” concerning certain allegedly unreported contributions, and where the 

underlying administrative complaint was “unlikely” to “yield additional facts about [the] alleged 

reporting violations”) (citing Wertheimer, 268 F.3d at 1074-75); see also CREW 2007, 475 F.3d 

at 339-40 (affirming dismissal and holding that plaintiffs lacked standing in part because “any

citizen who wants to learn the details of the transaction . . . can do so by visiting the Commission’s 

website”). This case compels the same result.

3. Plaintiff CLC Does Not Allege a Concrete and Demonstrable Injury to 

Its Activities.

Plaintiff CLC argues that the alleged informational injury discussed above should confer 

upon it organizational standing. Am. Compl., ECF No. 15, at ¶ 24. But CLC fails in that argument. 

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As discussed above, the type of informational injury that CLC alleges to have suffered is 

insufficient to confer standing. But even if it were, CLC has not demonstrated that the alleged lack 

of information sufficiently injured its organizational interests. The extent of CLC’s vague claim to 

organizational standing is captured in one paragraph of plaintiffs’ complaint: “When inadequate 

disclosure of federal campaign finance activity makes it difficult to ascertain the origin and 

magnitude of a candidate’s financial support, as occurs when a candidate’s fundraising and media 

operations are illegally outsourced to an ‘independent’ super PAC without disclosure, reporters 

often contact CLC for guidance as to whether or where they find the campaign finance information 

that is not being properly reported. This work requires CLC to divert resources and funds from 

other organizational needs.” Am. Compl., ECF No. 15, at ¶ 24. 

Again, CLC’s standing allegations are belied by other allegations in plaintiffs’ amended

complaint. First, as a factual matter, all of CTR’s and HFA’s political activities were publicly 

disclosed, so the assertion that HFA’s operations were outsourced to a Super PAC without 

disclosure is fundamentally inaccurate. Second, to the extent that reporters were contacting CLC 

for guidance about HFA’s and CTR’s activity, CLC could have easily pointed them to the 

organizations’ FEC reports or to any of the many press reports about CTR and HFA that plaintiffs 

cited in their administrative complaint before the Commission. The idea that CLC was injured by

having to provide such information to reporters is erroneous. Finally, as a legal matter, the asserted 

injury claimed by CLC is simply not sufficient to meet the requirements for organizational 

standing. CLC’s amended complaint does not allege that its resources have been depleted. Nor 

does CLC allege concrete and direct harm to its programmatic activities. See Common Cause, 108 

F.3d at 417.

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CLC makes the general assertion that it uses information obtained from campaign finance 

reports in preparing testimony or public comment for Congress or for state and local legislatures 

and agencies, as well as to produce in-depth research reports and publications, op-eds, blog posts, 

and other commentary. Am. Compl., ECF No. 15, at ¶ 21. These allegations amount to little more 

than general information about the way CLC does its work, without offering any specific 

information as to how any particular scheduled testimony or activity was hampered by the alleged 

inadequate disclosure of Defendant-Intervenors. Indeed, plaintiffs in this case lack organizational 

standing for the same reasons the plaintiffs in CREW failed to establish standing: they have not 

suffered any direct or concrete injury to their programmatic activities. CREW, 401 F. Supp. 2d 

115. In CREW, the district court found that the plaintiff non-profit organization had not sufficiently 

identified any programmatic activities adversely affected by the Commission’s dismissal of its 

administrative complaint, nor could it since the organization already possessed the information it 

sought. Id. at 121. Similarly, here, plaintiffs have not “specified any programmatic concerns that 

have been concretely and directly impacted adversely by the FEC’s actions,” nor have they

articulated a “particular plan” for using any information they might gain access to if they prevailed 

in this action. Id. at 122-23. Furthermore, while the court in CREW acknowledged “that it may be 

difficult to detail how information will be used when a plaintiff does not yet possess that 

information,” here, as in CREW, “such hardship is not implicated [because plaintiffs are] already 

privy to the information that [they could] seek[].” Id. Plaintiffs lack any injury in fact sufficient to 

confer organizational standing.5

 

5 Plaintiffs have also failed to meet the causation and redressability requirements for Article III 

standing. “When plaintiffs’ claim hinges on the failure of the government to prevent another 

party’s injurious behavior, the ‘fairly traceable’ and redressability inquiries appear to merge.” 

Freedom Republicans, Inc. v. FEC, 13 F.3d 412, 418 (D.C. Cir. 1994). Both causation and 

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II. Plaintiffs’ Claims Brought under the Administrative Procedure Act Should be 

Dismissed Because FECA Provides an Adequate Judicial Review Mechanism.

Plaintiffs also claim that the Commission’s dismissal of their administrative complaint and 

its longstanding interpretation of regulations regarding internet communications under 11 C.F.R. 

§§ 100.26, 109.20, and 109.21 violate the APA. Am. Compl., ECF No. 15, ¶¶ 106, 111–12 (citing 

5 U.S.C.§ 706). Because it is well-established that FECA provides an adequate remedy for claims 

that a Commission dismissal or interpretation of a regulation is contrary to law, however, the APA 

provides no distinct cause of action in this situation, and plaintiffs’ claims under the APA should 

be dismissed.

Judicial review under the APA is available only for agency action “made reviewable by

statute” and for “final agency action for which there is no other adequate remedy.” 5 U.S.C. § 704. 

As such, the APA “does not provide additional judicial remedies in situations where the Congress 

has provided special and adequate review procedures.” Bowen v. Massachusetts, 487 U.S. 879, 

903 (1988) (internal quotation marks omitted). Where alternative review procedures exist, 

“Congress did not intend to permit a litigant challenging an administrative denial to utilize 

simultaneously both the [separate statutory] review provision and the APA.” El Rio Santa Cruz 

Neighborhood Health Ctr. v. U.S. Dep’t of Health & Human Servs., 396 F.3d 1265, 1270 (D.C. 

Cir. 2005) (internal quotation marks omitted) (alterations omitted). “When considering whether an 

alternative remedy is ‘adequate’ and therefore preclusive of APA review, [courts] look for ‘clear 

 

redressability focus on the causal connection between the plaintiffs’ injury and the defendant’s 

allegedly unlawful act. See id. Causation “turns on the causal nexus between the agency action and 

the asserted injury, while redressability centers on the causal connection between the asserted 

injury and judicial relief.” Id. (citing Allen v. Wright, 468 U.S. 737, 753 n.19 (1984)). Here, 

plaintiffs cannot demonstrate how the Commission’s dismissal of their administrative complaint 

is “fairly traceable” to any deprivation of information. Further, as discussed above, the judicial 

relief requested by plaintiffs will not lead to the disclosure of any additional information. 

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and convincing evidence’ of ‘legislative intent’ to create a special, alternative remedy and thereby 

bar APA review.” CREW v. U.S. Dep’t of Justice, 846 F.3d 1235, 1244 (D.C. Cir. 2017) (quoting 

Garcia v. Vilsack, 563 F.3d 519, 523 (D.C. Cir. 2009)). In particular, the D.C. Circuit has identified 

that intent “where Congress has provided ‘an independent cause of action or an alternative review 

procedure.’” Id. at 1245.

FECA’s detailed provisions for judicial review of Commission enforcement dismissals 

provide the clear and convincing evidence of legislative intent necessary to preclude APA review. 

See 52 U.S.C. § 30109(a)(8). FECA permits complainants aggrieved by a Commission dismissal 

to file a petition for judicial review in this district within 60 days of the dismissal. 52 U.S.C. § 

30109(a)(8)(A)-(B). On review, the district court may “declare that the dismissal of the complaint 

is . . . contrary to law” and “direct the Commission to conform with such declaration within 30 

days.” Id. § 30109(a)(8)(C). Should the Commission fail to conform with the Court’s declaration, 

FECA grants the original complainant the right to bring “a civil action to remedy the violation 

involved in the original complaint.” Id. Because FECA contains this explicit and detailed review 

provision, there is clearly an “adequate remedy” as described in the APA, 5 U.S.C. § 704. 

Further, FECA’s overall structure and legislative history confirm Congress’s intent to limit 

the scope of judicial review of matters within the FEC’s area of responsibility. FECA grants the 

Commission “exclusive jurisdiction with respect to the civil enforcement” of the statute. 52 U.S.C. 

§ 30106(b)(1). As the D.C. Circuit has explained, section 30109(a)(8) is “as specific a mandate as 

one can imagine.” Perot v. FEC, 97 F.3d 553, 559 (D.C. Cir. 1996) (per curiam). And it establishes 

a specific system of judicial review that “funnels all challenges to the FEC’s handling of 

complaints through the U.S. District Court for the District of Columbia.” CREW v. FEC, 164 F. 

Supp. 3d 113, 119 (D.D.C. 2015) (“CREW 2015”) (citing 52 U.S.C. § 30109(a)(8)(A)). “The 

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legislative history of [FECA] confirms that ‘[t]he delicately balanced scheme of procedures and 

remedies set out in the Act is intended to be the exclusive means for vindicating the rights and 

declaring the duties stated therein.’” Stockman v. FEC, 138 F.3d 144, 154 (5th Cir. 1998) 

(alteration in original) (quoting 120 Cong. Rec. 35,314 (1974) (remarks of Rep. Hayes, Conference 

Committee Chairman)).

When evaluating potential APA review of the Commission’s administrative enforcement

and interpretation of regulations, this Court has accordingly found the judicial-review procedures 

in 52 U.S.C. § 30109(a)(8) to be exclusive and has dismissed parallel claims brought under the 

APA. See CREW v. FEC, 363 F. Supp. 3d 33, 44 (D.D.C. 2018) (“Undertaking judicial review 

under the APA would enable administrative complainants to make an end run around the scheme 

established by Congress . . . .”); CREW v. FEC, 243 F. Supp. 3d 91, 104 (D.D.C. 2017) (“CREW 

2017”) (FECA provides an adequate remedy so there is no parallel claim for relief under the APA); 

CREW 2015, 164 F. Supp. 3d at 115, 120 (“This [section 30109(a)(8) judicial review mechanism] 

precludes review of FEC enforcement decisions under the APA,” including when the decision 

“resulted in the announcement of a new principle or interpretation” of a regulation). The Fifth 

Circuit similarly found “substantial evidence that Congress set forth the exclusive means for 

judicial review under [FECA]” in section 30109(a)(8). Stockman, 138 F.3d at 156.

Because 52 U.S.C. § 30109(a)(8) provides the exclusive mechanism for challenging the 

Commission’s dismissal of plaintiffs’ administrative complaint and limits the scope of relief 

available to plaintiffs in this action, the portion of plaintiffs’ claims that purports to rely on the 

APA are thus precluded as a matter of law and should be dismissed. See CREW 2017, 243 F. Supp. 

3d at 104-05 (dismissing “the portions” of two counts “seeking relief under the APA”).

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III. Plaintiffs Cannot Show that the Commission’s Dismissal of the Complaint in MUR 

7146 was Contrary to Law, Arbitrary, or Capricious.

Lastly, plaintiffs ask this Court to declare that the Commission’s decision to dismiss their 

administrative complaint was “arbitrary, capricious, and contrary to law” under 52 U.S.C. § 

30109(a)(8)(A). But plaintiffs have not alleged any reasons sufficient to meet their heavy burden. 

Despite plaintiffs’ disagreement with the Commission’s legal analysis, the fact remains that the 

Commission’s dismissal of plaintiffs’ administrative complaint is supported by Commission 

precedent, well-reasoned, and lawful. 

A. Standard of Review Under 52 U.S.C. § 30109(a)(8)(A)

When reviewing the Commission’s dismissal of an administrative complaint under 

52 U.S.C. § 30109(a)(8)(A), “[a] court may not disturb a Commission decision to dismiss a 

complaint unless the dismissal was based on an ‘impermissible interpretation of the [FECA] . . . 

or was arbitrary or capricious, or an abuse of discretion.” Common Cause, 108 F.3d at 415 (internal 

citation omitted); see also Akins v. FEC, 736 F. Supp. 2d 9, 19 (D.D.C. 2010); Hagelin v. FEC, 

411 F.3d 237, 242 (D.C. Cir. 2005); FEC v. DSCC, 454 U.S. 27, 37 (1981). The “arbitrary and 

capricious” standard of review is “highly deferential” and “presume[s] the validity of agency

action.” Am. Horse Prot. Ass’n, Inc. v. Yeutter, 917 F.2d 594, 596 (D.C. Cir. 1990). Reversal is 

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

made a clear error in judgment. Hagelin, 411 F.3d at 242. Similarly, the court gives “‘substantial 

deference’ to an agency’s interpretation of its own regulation, and [it] will accept the agency’s 

view unless it is ‘plainly erroneous or inconsistent with the regulation.’” Pursuing Am.’s Greatness 

v. FEC, 831 F.3d 500, 506 (D.C. Cir. 2016) (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 

504, 512 (1994); Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597 (2013)).

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The Supreme Court has held that the Commission is “precisely the type of agency to which 

deference should presumptively be afforded.” DSCC, 454 U.S. at 37. Congress vested the 

Commission with “primary and substantial responsibility for administering and enforcing the Act,” 

providing the agency with “extensive rulemaking and adjudicative powers,” and the authority to 

“formulate general policy with respect to the administration of [the] Act.” Buckley v. Valeo, 424 

U.S. 1, 109, 110, 111, n.153 (1976). Accordingly, when determining whether the Commission’s 

decision to dismiss was “contrary to law,” the task for a court is “not to interpret the statute as it 

[thinks] best but rather the narrower inquiry into whether the Commission’s construction was 

‘sufficiently reasonable’ to be accepted by a reviewing court.” DSCC, 454 U.S. at 39 (citations 

omitted). Under this highly deferential standard of review, plaintiffs cannot meet their burden and 

the amended complaint should be dismissed.

B. The Commission’s Dismissal of Plaintiffs’ Administrative Complaint Was Not 

Contrary to Law, Arbitrary, or Capricious.

Plaintiffs fail to reasonably allege that the Commissioners’ decision to dismiss their 

administrative complaint was arbitrary, capricious, or contrary to law. Plaintiffs allege that the 

controlling group of Commissioners’ interpretation of the exemption of certain internet 

communications under 11 C.F.R. § 100.26 is “unprecedented.” Am. Compl., ECF No. 15, ¶ 90.

However, despite plaintiff’s allegations to the contrary, the Statement of Reasons is legally and 

factually sound, and based in large part on Commission precedent.6 As Commissioners Hunter and 

 

6 Plaintiffs’ speculative allegation that the controlling group of Commissioners issued the 

Statement of Reasons as “post hoc rationalization” of its dismissal decision is irrelevant and does 

not support a finding that the dismissal was arbitrary, capricious, or contrary to law. Am. Compl., 

ECF No. 15, ¶ 103. Moreover, plaintiffs’ argument that certain of CTR’s spending was 

“retrospectively” associated with an internet communication is at odds with their allegations that 

CTR set out to spend money on activities that can be legally coordinated with a campaign, such as 

social media. Id. ¶¶ 65, 66.

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Petersen explained at the outset of their Statement, they “approached [the] matters deliberately and 

with caution.” Ex. A, Statement of Reasons at 1. They were “[m]indful that every action the 

Commission takes implicates core constitutionally protected activity,” and thus “chose to rely on 

precedent whenever possible rather than adopt aggressive or novel legal theories.” Id. Moreover, 

the Commission “thoroughly analyzed the information presented in the complaints in light of the 

Commission’s precedent” and found that the legal issues presented “lend themselves to 

consideration under the Commission’s traditional coordination framework.” Id at 17.

The controlling group agreed with Defendant-Intervenors that their activities were not 

prohibited by the Act or Commission regulations. “Specifically, (1) Correct the Record’s internet 

communications in support of Hillary for America do not appear to be in-kind contributions to 

Hillary for America even if coordinated with Hillary for America and (2) speculative information 

and materials stolen by Russian intelligence operatives and published by WikiLeaks does not 

provide reason to believe that Correct the Record’s expenditures were excessive or prohibited inkind contributions to Hillary for America”

7

Id. at 2. The controlling group divided their analysis 

into two main parts, each of which is addressed in turn below: (1) whether CTR’s expenditures for 

online communications were coordinated; and (2) whether CTR’s expenditures for other 

activities—its surrogacy program, research and tracking, and contacts with reporters—were 

coordinated.

 

7 Contrary to the plaintiffs’ allegations, the Commissioners did not find that the OGC’s reliance 

on this stolen information was “dispositive” of dismissal of the administrative complaint. Am. 

Compl., ECF No. 15, ¶ 96. Rather, the Commissioners excluded the information from its analysis, 

and, notably, Commission Chair Ellen Weintraub agreed. Ex. A, Statement of Reasons, at 2 n.4; 

Am. Compl., ECF No. 15, ¶ 100.

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1. CTR’s Expenses for Online Communications are Properly Exempt 

from the Definition of “Contribution.”

With respect to CTR’s expenses for online communications, plaintiffs fail to sufficiently

allege that the Commissioners’ interpretation of the applicable regulations is arbitrary, capricious, 

or contrary to law. Indeed, the Statement of Reasons belie plaintiffs’ allegations that their 

interpretation is “unbounded,” “unprecedented,” or “inconsistent with the plain language of 

FECA.” Am. Compl., ECF No. 15, ¶¶ 90-92. To the contrary, the controlling Commissioners’ 

Statement of Reasons is based on the plain text of 11 C.F.R. § 109.21, which makes clear that 

coordination is not prohibited on communications other than “public communications.” Ex. A, 

Statement of Reasons at 12. The controlling group recognized that the definition of “public 

communication” excludes all internet communications “except for communications placed for a 

fee on another persons’ Web site.” 11 C.F.R. § 100.26. Consequently, an internet communication 

will not be regulated as a “public communication” unless the speaker posts it on a third party’s 

online platform and pays a fee to do so. Ex. A, Statement of Reasons at 9. In general, in order for 

a communication to be “coordinated” under the three-part test for determining whether a 

communication is coordinated, the communication must meet the definition of “public 

communication.” Because unpaid internet communications are not “public communications,” they 

are generally excluded from being treated as coordinated communications (and thus in-kind 

contributions). The controlling group noted that this exclusion is deliberate; in the Commission’s

2006 rulemaking, which was focused on internet communications, the Commission recognized the 

internet as a “unique and evolving mode of mass communication and political speech that is 

distinct from other media” and “warrants a restrained regulatory approach.” Id. at 9. The

Commission agreed with Defendant-Intervenors that CTR’s internet communications, which were 

not placed for a fee on a third party’s website, were not “coordinated communications.” And 

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contrary to plaintiffs’ allegations, the controlling group relied on the plain text of 11 C.F.R. § 

109.21, an extensive underlying rulemaking record, and subsequent Commission advisory

opinions and enforcement actions in making this determination. Id. at 12.

Plaintiffs’ chief gripe is that the controlling Commissioners allegedly “expanded” the 

internet exemption to encompass expenses incurred by a speaker to produce an internet 

communication. Am. Compl., ECF No. 15, ¶ 91. But as the controlling Commissioners made clear, 

they were relying on the Commission’s repeated interpretations of the internet exemption to arrive 

at this conclusion. Far from treading new ground, the Commission noted that it was following its

“traditional approach” for assessing input costs, which “operates as a bright-line rule and 

recognizes that a speaker will almost always incur expenses to produce an internet communication

even if the speaker does not incur a cost to post the communication online.” Ex. A, Statement of 

Reasons at 12-13.

Indeed, the Commission has been exempting input costs from the definition of 

“contribution” for a decade and a half. Beginning with the 2006 Internet Communication 

rulemaking, the Commission evidenced a clear and deliberate intent to include input costs within 

the scope of the Internet exception. Plaintiff CLC is well aware of this fact because during the 

rulemaking process, CLC submitted a comment on the proposed rule noting that it was standard 

to exempt input costs: “[t]ypically, the Commission treats the costs of producing campaign-related 

materials the same as the costs of distributing the materials.” 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). The commenters then cautioned the 

Commission that the proposed Internet Communication rule, which did not alter the default 

approach, would permit the following fact pattern, which is essentially what happened here:

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an individual in coordination with a candidate [will be able] to spend very large 

sums of money outside the campaign finance laws on the production of ads, if those 

ads are then disseminated on the individual’s own Web site. For instance, a wealthy 

individual could set up a Web site and then spend very large amounts of money in 

coordination with a candidate on the professional creation and production of 

campaign materials—such as campaign videos or other campaign ads—which he 

then disseminates via his own Web site (or by email). Because the distribution 

itself would not be considered a “public communication,” (i.e., it would not be 

distribution “for a fee on another person’s or entity’s Web site”), it would fall 

outside the coordination rules.

Id. 

But the Commission did not change the final Internet Communication rule to alter the 

longstanding approach that production costs are treated the same as distribution costs. See 

generally Explanation and Justification, Internet Communications, 71 Fed. Reg. 18589, 18590-91 

(April 12, 2006). The Commission made a conscious choice to exempt the production or input 

costs of free Internet communications from the coordination regulations and the definition of 

“contribution.” 

Since the time of the Internet Communications rulemaking, the Commission has affirmed 

its approach to exempting input costs time and time again.8 For example, in FEC Advisory Opinion 

2008-10 (VoterVoter.com), the Commission stated 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.” Advisory Op. 2008-10 at 7. This 

statement garnered majority support from the Commissioners, and it even appeared in the FEC’s 

publicly distributed guidance document, the Corporate/Labor Guide Supplement, from 2008 to 

2011, when the Commission stopped publishing the document.9In another advisory opinion 

 

9

See, e.g., FED. ELECTION COMM’N, CORPORATE/LABOR GUIDE SUPPLEMENT 37 

(Aug. 2011), https://web.archive.org/web/20111010191221/http://fec.gov/pdf/corp_supp.pdf; 

FED. ELECTION COMM’N, CORPORATE/LABOR GUIDE SUPPLEMENT 22 (Dec. 2008), 

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published shortly thereafter, the Commission unanimously held that a political committee could 

pay expenses incurred in forwarding emails that solicited contributions on behalf of candidates, 

without making contributions to those candidates, implicitly concluding that the production costs 

incurred when individuals forwarded the emails to their contacts were not contributions, either. 

Id. at 4-5. See Advisory Op. 2011-14 (Utah Bankers Association) at 3, 5. 

The Commission has come to the same result in numerous enforcement actions. See, e.g.,

Factual & Legal Analysis (“F&LA”) at 3, 7-8, MUR 6477 (Turn Right USA) (July 17, 2012) 

(holding in a unanimous decision that an advertisement created by an independent expenditureonly committee and posted to its website and YouTube was not a coordinated communication 

because it was not placed for a fee on another’s website (and therefore was not a public 

communication), despite the fact that the PAC had paid almost $6,000 to a vendor to create the 

ad); F&LA at 5, 6, MUR 6657 (Akin for Senate) (Sept. 17, 2013) (stating bluntly that the FEC

“has narrowly interpreted the term Internet communication ‘placed for a fee,’ and has not 

construed that phrase to cover payments for services necessary to make an Internet 

communication,” and concluding unanimously that payments made by a political committee to 

rent email lists and process contributions for a candidate it supported with free online 

communications were not contributions to the candidate); Statement of Reasons at 2-4, MUR 6729 

(Aug. 6, 2014) (“[i]n light of Checks and Balances’ uncontroverted sworn statements that its 

videos appeared solely on the Internet, and because there was no evidence the videos were posted 

to YouTube or any other website for a fee, we agreed with OGC that the communications 

(including any associated production costs) were exempt from FEC regulation.”); FGCR at 2, 12-

 

https://web.archive.org/web/20090118045249/http://fec.gov/pdf/corp_supp.pdf; see also

Statement of Reasons (“SOR”) of Comm’rs Goodman, Hunter & Petersen, MUR 6729 (Checks 

and Balances for Economic Growth) at 4 n.21 (Oct. 24, 2014). 

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13, MUR 7080 (Babeu for Congress) (December 15, 2016), F&LA at 1 n.1, id. (Oct. 30, 2017)

(noting that the controlling block found that unpaid Facebook posts were not coordinated 

communications because they were unpaid Internet activity even though there was value in the 

time the staff of the Sheriff’s Office spent creating the posts; SOR of Comm’rs Hunter, Goodman 

& Petersen at 5 n.21, MUR 7023 (Kinzler for Congress) (Jan. 23, 2018) (stating that the 

Commissioners had already “considered whether to regulate production costs in the Internet 

Communication rulemaking” and “clarified that production costs are not regulated unless a 

communication is disseminated for a fee on another person’s website.”).

The Commission’s treatment of input costs as exempt from the definition of “contribution” 

pursuant to the Internet exemption is a sensible interpretation of the plain language of the 

regulation that provides that unpaid communications placed on the internet are exempt from the 

definition of “public communication” under 11 C.F.R. § 109.21. If the Commission required 

speakers to allocate overhead expenses across internet communications (or other activities) and 

then exempted only those component fees deemed essential for the internet communication’s 

placement, the Commission “would eviscerate the internet exemption and the deliberate policy

decisions behind it, and potentially chill political speech online.” Statement of Reasons at 13. And 

as the Commission recognized, the Commission has never required speakers to allocate costs in 

that way. Accordingly, it is plaintiffs’ view of the way input costs should be treated that is contrary 

to law, not the Commission’s.

Further, even though plaintiffs allege that the controlling Commissioners have expanded 

the internet exemption to encompass reported disbursements that are not “communicationspecific” such as staff time, computers, software, and other items, Am. Compl., ECF No. 15, ¶ 90, 

they fail to acknowledge that the Commission squarely addressed precisely these types of expenses 

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as “input costs” that are directly related with the costs of producing an internet communication: 

“For example, an organization that has decided to endorse a particular candidate and wishes to 

post a simple notice of the endorsement on its own website will likely incur, at a minimum, costs 

in the form of staff time, computer usage, and electricity. More ambitious forms of notice could 

necessitate additional overhead and other expenses, such as for the travel and the services of 

consultants, graphic designers, videographers, actors, and other specialists.” Ex. A, Statement of 

Reasons at 13 (emphasis added). The law does not provide that only “essential” input costs should 

be exempt under the internet exemption. But even if it did, the costs incurred by CTR to produce 

the communications at issue here were not remote or incidental to the unpaid internet

communications; in many cases, they were costs that CTR would not have incurred but for its 

creation and production of the internet communications.

2. CTR’s Other Expenses Were Either Not Coordinated or were Paid For 

by HFA. 

Plaintiffs’ argument about the Commission’s alleged “expansion” of the internet 

exemption would lead one to believe that the controlling Commissioners found that all of CTR’s 

expenses in support of HFA were not coordinated communications pursuant to the internet 

exemption. Quite the contrary. In fact, the Commission addressed specific expenses that were not 

related to CTR’s online communications, namely its surrogacy program, research and tracking, 

and contacts with reporters. First, with regard to CTR’s surrogacy program, the Commission found 

that plaintiffs’ complaint did not sufficiently allege that the program was coordinated with HFA.

Id. at 14-15. Far from requiring plaintiffs to prove coordination on a transaction-by-transaction 

basis, the controlling Commissioners found that the information plaintiffs put forth to support their 

allegation that the surrogacy program was coordinated actually suggested a lack of coordination. 

Id. at 15 (referencing a news article stating that HFA played “no role” in CTR’s training sessions 

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and acknowledging that HFA had its own surrogate operation). Second, with respect to research 

and tracking, the Commission noted that CTR’s publicly disclosed FEC reports show receipts of 

$275,615.43 from HFA for “research,” and an additional $6,346 from HFA for “research services.”

Id. at 15. CTR and HFA asserted that these payments from HFA fully compensated CTR for any 

tracking and research services it provided to HFA. Id. The Commission found that there was 

nothing in the record to indicate otherwise; accordingly, CTR’s research and tracking services 

could not constitute an in-kind contribution because they were fully paid for by HFA. Id. Plaintiffs’ 

amended complaint does not acknowledge that these expenses were paid for by HFA. Finally, the 

Commission concluded that CTR’s payments to staff to engage in private communications with 

reporters related to HFA did not appear to be “public communications” covered by 11 C.F.R. § 

109.21. Id. at 16. But even if they were, plaintiffs did not present facts to show that these efforts 

were coordinated with HFA. Id. The Commission’s reasoning for dismissal is hardly “plainly

erroneous” or “inconsistent” with its regulations. See Pursuing Am.’s Greatness, 831 F.3d at 506.

As explained in its Statement of Reasons, the Commission’s decision to dismiss plaintiffs’ 

complaint was thoughtful, well-reasoned, and based on Commission precedent. It was far from 

being arbitrary, capricious, or contrary to law. Accordingly, plaintiffs have not met their burden of

stating a claim upon which relief can be granted, and the amended complaint should be dismissed. 

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 26-1 Filed 02/04/20 Page 35 of 37
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February 4, 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 26-1 Filed 02/04/20 Page 36 of 37
CERTIFICATE OF SERVICE

I hereby certify that on February 4, 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 26-1 Filed 02/04/20 Page 37 of 37