Case 1:21-cv-02128-RJL Document 32 Filed 02/01/22 Page 1 of 25 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

END CITIZENS UNITED PAC, 

Plaintiff, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant, 

and 

NEW REPUBLICAN PAC, 

Intervenor-Defendant. 

Civil Action No. 1:21-cv-2128-RJL 

Reply in Support of IntervenorDefendant’s Cross-Motion for Summary 

Judgment 

REPLY IN SUPPORT OF INTERVENOR-DEFENDANT’S CROSS-MOTION 

FOR SUMMARY JUDGMENT 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:21-cv-02128-RJL Document 32 Filed 02/01/22 Page 2 of 25 

TABLE OF CONTENTS 

TABLE OF AUTHORITIES...........................................................................................................ii 

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

I. Plaintiff Does Not Have Standing to Challenge the FEC’s Dismissal.........................1 

A. Plaintiff Lacks Competitive Standing.................................................................2 

B. Plaintiff Has Not Suffered an Informational Injury............................................3 

II. The FEC’s Exercise of Prosecutorial Discretion in Dismissing Plaintiff’s 

Complaint is Not Reviewable.......................................................................................6 

A. Plaintiff Cannot Subdivide the FEC’s Dismissal into Reviewable and 

Nonreviewable Parts...........................................................................................7 

B. The FEC Correctly Exercised Its Prosecutorial Discretion ................................8 

C. Plaintiff’s Assertion of “Erroneous Legal Reasoning” is Incorrect and 

Not a Basis for Judicial Review........................................................................12 

D. Plaintiff Has Offered No Feasible Test for Evaluating “Pretext” in this 

Context..............................................................................................................

.......................................

..........................................

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14 

III. The FEC’s Dismissal of Plaintiff’s Complaint was Lawful 16 

A. The Commission Did Not Make Any Legal Errors 16 

B. The Commission was Justified in Relying Upon the Hazelwood 

Affidavit 17 

C. The Commission Adequately Explained Its Reasons for Dismissing 

Plaintiff’s Coordinated Communications Claim ..............................................

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.............................................................................................................................

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18 

D. Plaintiff’s Remaining Arguments Are Meritless 18 

CONCLUSION 19 

CERTIFICATE OF SERVICE 21 

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Case 1:21-cv-02128-RJL Document 32 Filed 02/01/22 Page 3 of 25 

TABLE OF AUTHORITIES 

CASES 

Air Transp. Ass'n of Am., Inc. v. Nat'l Mediation Bd., 663 F.3d 476 (D.C. Cir. 2011).................

...............................................................................

....................................................................passim 

.....................................................................................

..................................................

.......................................

.................................................................

.......................

15 

CREW v. FEC, 892 F.3d 434 (D.C. Cir. 2018) 8 

*CREW v. FEC, 993 F.3d 880 (D.C. Cir. 2021) 

Campaign Legal Ctr. v. FEC, No. 21-5081 6 

Campaign Legal Ctr. v. FEC, 520 F. Supp. 3d 38 (D.D.C. 2021) 3 

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) 15 

Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997) 1 

Crossroads Grassroots Policy Strategies v. FEC, 788 F.3d 312 (D.C. Cir. 2015) 10 

Dept' of Com. v. New York, 139 S. Ct. 2551 (2019)................................................................15, 

...................................................................................................

.......................

.........................................................................1, 

......................................................................

.........................................................................14, 16, 

........................................................................

............................................................2, 17, 

19 

FEC v. Akins, 524 U.S. 11 (1998) 7 

FEC v. National Republican Senatorial Comm., 966 F.2d 1471 (D.C. Cir. 1992) 10 

Gottlieb v. FEC, 143 F.3d 618 (D.C. Cir. 1998) 2 

Hassan v. FEC, 893 F. Supp. 2d 248 (D.D.C. 2012) 2 

*Heckler v. Chaney, 470 U.S. 821 (1985) 19 

In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000) 10 

La Botz v. FEC, 889 F. Supp. 2d 51 (D.D.C. 2012) 18 

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

................................................................................

..........................

........................................................................................................................

.............................

1 

Nader v. FEC, 725 F.3d 226 (D.C. Cir. 2013) 3 

Nat. Law Party of the United States v. FEC , 111 F. Supp. 2d 33 (D.D.C. 2000) 2 

Campaign Legal Ctr. v. FEC, No. 20-cv-730, 2021 U.S. Dist. LEXIS 248159 (D.D.C. 

Dec. 30, 2021) 4 

Public Citizen v. FEC, 2021 U.S. Dist. LEXIS 49769 (D.D.C. Mar. 17, 2021) 7 

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Public Citizen v. FERC, 839 F.3d 1165 (D.C. Cir. 2016).......................................................10, 

.....................................................................................1, 

...............................................................4, 

...........................................................................................................................

...........................................................................................................................

...........................................................................................................................

........................................................

..................

....................................

11 

Spokeo v. Robbins, 578 U.S. 330 (2016) 3 

*Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001) 6 

STATUTES 

52 U.S.C. § 30106 9 

52 U.S.C. § 30107 9 

53 U.S.C. § 30109 9 

OTHER AUTHORITIES 

Fed. Election Comm’n, Filing FEC-1230048, (May 9, 2018) 5 

Fed. Election Comm’n, New Republican PAC Filing FEC-1237886, (June 14, 2018) 5 

Fed. Election Comm’n, Filing FEC-1247735 Schedule E, (July 15, 2018) 5 

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Case 1:21-cv-02128-RJL Document 32 Filed 02/01/22 Page 5 of 25 

INTRODUCTION 

Intervenor-Defendant contends, and D.C. Circuit precedent makes clear, that Plaintiff lacks 

standing to challenge the FEC’s dismissal of its administrative complaint. Plaintiff argues, in 

opposition to a mountain of contrary precedent, that it does. Similarly, Intervenor-Defendant 

asserts that D.C. Circuit precedent is correct in shielding from judicial review FEC dismissals 

based upon prosecutorial discretion. At its core, Plaintiff’s argument is that the applicable caselaw 

is wrong and a different standard is needed. This Court should reaffirm its own caselaw on these 

issues, reject the Plaintiff’s arguments as contrary to that precedent, and grant IntervenorDefendant’s Cross-Motion for Summary Judgment. 

I. Plaintiff Does Not Have Standing to Challenge the FEC’s Dismissal 

“Congress cannot erase Article III’s standing requirements by statutorily granting the right 

to sue to a plaintiff who would not otherwise have standing.” Spokeo v. Robbins, 578 U.S. 330, 

339 (2016). While the Federal Election Campaign Act (“FECA”) provides Plaintiff with a cause 

of action, parties bringing complaints under the FECA must make a separate showing of standing. 

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

otherwise already have standing.” Common Cause v. FEC, 108 F.3d 413, 419 (D.C. Cir. 1997). 

When an “‘asserted injury arises from the government’s allegedly unlawful regulation (or lack of 

regulation) of someone else,’ standing will often be difficult to establish.” Gottlieb v. FEC, 143 

F.3d 618, 621 (D.C. Cir. 1998) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992)). 

Plaintiff has failed to establish Article III standing under either of the theories that it advances. 

A. Plaintiff Lacks Competitive Standing 

Plaintiff’s claim of standing under a “competitive disadvantage” theory is premised on the 

incorrect assumption that it is a political competitor of Senator Scott, the Scott Campaign, or 

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Intervenor-Defendant. It is not. Plaintiff is not a candidate for office or a candidate campaign 

committee—it is a PAC. ECF No. 31 at 6. To invoke competitive standing, Plaintiff must 

demonstrate that it “personally competes in the same arena with the same party to whom the 

government has bestowed the allegedly illegal benefit.” Gottlieb, 143 F.3d at 621. Spending in the 

same election in which a particular candidate is running is not enough. 

Likewise, Plaintiff’s claims of standing misread the applicable precedents. Legitimate 

competitive standing cases are those in which “already established candidates” challenge an 

“‘assertedly illegal benefit’ being conferred upon someone with whom those candidates compete.” 

Hassan v. FEC, 893 F. Supp. 2d 248, 254 n.6 (D.D.C. 2012) (emphasis added); see also La Botz 

v. FEC, 889 F. Supp. 2d 51, 56 (D.D.C. 2012) (“La Botz was no mere bystander—he was a 

candidate for office.”); Nat. Law Party of the United States v. FEC , 111 F. Supp. 2d 33, 47 (D.D.C. 

2000) (finding competitive standing where the political candidates and their party affiliates 

“directly competed for the alleged benefit of participating in the presidential debates” (emphasis 

added)). Not only are Plaintiff and Intervenor-Defendant not direct competitors, they are different 

kinds of entities that are subject to different rules. Intervenor-Defendant is a super PAC which is 

prohibited from coordinating its activities with candidates, but which may raise unlimited funds, 

whereas Plaintiff is a traditional PAC that can contribute directly to the candidates it supports, but 

must operate under FECA’s contribution limits.1 The two are not comparable, and they are not 

competitors. 

Under Plaintiff’s expansive view of competitive standing, any two committees that happen 

to spend money in the same election race funding messages supporting rival political candidates 

1 Of course, at all times pertinent to this inquiry End Citizens United PAC had the option of 

establishing a non-contribution account under the Carey decision to raise and spend unlimited 

dollars as well, but simply chose not to do so. 

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would be automatically rendered direct competitors themselves, regardless of whether they were 

otherwise ideologically aligned. Because there is no limiting principle to Plaintiff’s proposed 

sweeping expansion of the competitive standing doctrine and because the principle it espouses is 

contrary to Circuit precedent, this Court should reject it. 

Plaintiff also misinterprets its standing in light of Nader v. FEC, 725 F.3d 226 (D.C. Cir. 

2013). Plaintiff alleges that it intends to spend in the 2024 Florida U.S. Senate election in which 

Senator Scott will be competing, and that it therefore “satisf[ies] the causation and redressability 

requirements” that would entitle it to standing. ECF No. 31 at 9. But Plaintiff here lacks the same 

necessary element that doomed Nader’s own claim: “a favorable decision here will not redress the 

injuries [it] claims.” Id. at 228; see also Spokeo, 578 U.S. at 339 (redressability is a necessary 

element of standing). Even if Plaintiff’s allegations concerning Defendants’ conduct in 2017 and 

2018 are correct, and they are not, Plaintiff has not offered any reason to believe that the required 

FEC reports will not be filed in 2023 and 2024. Plaintiff offers only unadorned speculation 

regarding the impact its allegations will have on the 2024 election cycle; yet, when its claims are 

boiled down, what it really alleges is a prior violation of the law. This is insufficient for purposes 

of standing in ongoing or future elections. 

B. Plaintiff Has Not Suffered an Informational Injury 

Plaintiff continues to rely heavily on Campaign Legal Ctr. v. FEC, 520 F. Supp. 3d 38, 45-

46 (D.D.C. 2021), to support its claim of informational injury. But the court that decided that case 

subsequently reconsidered its holding in light of additional relevant information, see No. 20-cv730, 2021 U.S. Dist. LEXIS 248159 (D.D.C. Dec. 30, 2021), and the latter decision is much closer 

to the facts here. 

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Plaintiff is adamant that there are additional FEC reports that should have been filed to 

report Senator Scott’s activities in 2017 and early 2018 before he declared his candidacy for the 

U.S. Senate, yet Plaintiff is conspicuously silent concerning which transactions should have 

supposedly appeared on those reports. ECF No. 31 at 10. This is because all the funds raised during 

the relevant timeframe have already been reported on Intervenor-Defendant’s own FEC reports. 

In this regard, this case is no different from the reconsidered decision cited by Plaintiff: In both, 

the relevant spending had already been reported by the super PAC that eventually supported the 

targeted candidate’s candidacy, and “Plaintiff ha[s] not identified any other pre-candidacy events, 

travel, or speaking engagements from which the Court could infer the existence of still-undisclosed 

spending.” 2021 U.S. Dist. LEXIS 248159, at *13. “Without such allegations, the complaint does 

not contain more than the ‘unsupported inference’ that there is more spending to be disclosed.” Id. 

Plaintiff further attempts to distinguish its case from Wertheimer v. FEC, 268 F.3d 1070 

(D.C. Cir. 2001), but it is not clear on what conceivable basis they are differentiable. Wertheimer 

involved an allegation by plaintiffs that “the two major political parties were funding campaign 

advertisements furthering the election of their respective [] nominees in close coordination with 

those candidates[,]” and sought “a declaration that expenditures by political parties that further 

the election of their respective [] candidates, and that are coordinated with those [] candidates, 

constitute contributions to and expenditures by such [] candidates[.]” Id. at 1071. The court ruled 

against plaintiffs because it determined that they did “not really seek additional facts but only the 

legal determination that certain transactions constitute coordinated expenditures.” Id. at 1075. 

Plaintiff seeks the exact same determination as the plaintiffs in Wertheimer, and the result should 

be the same. 

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In Plaintiff’s own words, it seeks “information about in-kind contributions from New 

Republican to the Scott Campaign in the form of coordinated communications.” ECF No. 31 at 

12. But Plaintiff never identifies any unreported information that it alleges should have been 

reported—instead, it alleges that certain commercials, produced and reported by IntervenorDefendant, “qualified as in-kind contributions” and therefore “must be disclosed by both parties 

as contributions.” Id. A review of Intervenor-Defendant’s public FEC reports reveals ample 

information about the commercials in question; the reports identify the media consultants paid to 

produce Intervenor-Defendant’s advertising and the specific dates on which the relevant 

transactions were made.2 The relevant details were even reported twice, once on IntervenorDefendant’s 24- and 48- hour reports and then again on its Schedule E filings that accompanied 

its regular FEC reports.3 Specifically, Plaintiff claims that “FECA-compliant FEC disclosure 

would inform ECU which of New Republican’s expenditures (and in what amounts) paid for the 

commercials’ production, which consultants or contractors were involved, and when each of the 

foregoing transactions took place.” ECF No. 31 at 12. This exact information appears in New 

Republican’s FEC reports. A review of New Republican’s publicly available FEC reports reveals 

that all New Republican’s expenditures for “media production” were paid to “SRCP Media” and 

all expenditures for “media placement” were paid to “Matson Media LLC.” See supra note 3. The 

itemized disclosure of each such transaction includes, among other things, the date of the 

2 See, e.g., Fed. Election Comm’n, Filing FEC-1230048, (May 9, 2018), 

https://docquery.fec.gov/cgi-bin/forms/C00544544/1230048/se (disclosing expenditures for 

“media placement” and “media production”); Fed. Election Comm’n, New Republican PAC Filing 

FEC-1237886, (June 14, 2018), https://docquery.fec.gov/cgi-bin/forms/C00544544/1237886/se 

(same). 

3 Fed. Election Comm’n, Filing FEC-1247735 Schedule E, (July 15, 2018), 

https://docquery.fec.gov/cgi-bin/forms/C00544544/1247735/se (collecting all independent 

expenditures during the second quarter of 2018). 

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disbursement or obligation, the date the commercial was publicly distributed or disseminated, and 

which candidate was supported or opposed. Id. Thus, Plaintiff already knows “which of New 

Republican’s expenditures (and in what amounts) paid for the commercials’ production, which 

consultants or contractors were involved, and when each of the foregoing transactions took place.” 

ECF No. 31 at 12. All information that Plaintiff claims is missing is already public and has been 

for years. 

Of course, Plaintiff never alleges that Intervenor-Defendant failed to report its own 

expenditures on the commercials in question, only that it believes the expenditures should have 

been “disclosed by both parties as contributions.” Id. But there is no separate reporting category 

for expenditures that the payor maintains were independent, as Intervenor-Defendant does, but 

which third-party groups allege were coordinated. In other words, Plaintiff seeks only a “legal 

determination that certain transactions”—i.e., expenditures for Intervenor-Defendant’s 

commercials—“constitute coordinated expenditures.” Wertheimer, 268 F.3d at 1075. This is 

precisely the kind of “legal determination” that Wertheimer precludes.4

II. The FEC’s Exercise of Prosecutorial Discretion in Dismissing Plaintiff’s 

Complaint is Not Reviewable 

D.C. Circuit precedent is clear: FEC decisions to dismiss administrative complaints that 

are predicated on an exercise of the agency’s prosecutorial discretion, whether in whole or in part, 

are not subject to judicial review. CREW v. FEC, 993 F.3d 880, 882 (D.C. Cir. 2021) (“CREW 

2021”). Here, the controlling Commissioners clearly explained in their Statement of Reasons that 

they voted against proceeding with an investigation of Plaintiff’s complaint in an exercise of 

4 Although appellants in separate litigation have recently raised the question of Wertheimer’s scope 

before the D.C. Circuit, see Campaign Legal Ctr. v. FEC, No. 21-5081, Wertheimer remains the 

law of this Circuit and should be applied in this instance. 

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prosecutorial discretion. Given the applicable precedent and the fact that they “exercised their 

prosecutorial discretion to dismiss this matter, the Controlling Commissioners’ analysis is not 

subject to judicial review.” Public Citizen v. FEC, 2021 U.S. Dist. LEXIS 49769, at *15 (D.D.C. 

Mar. 17, 2021). Plaintiff’s novel theories to the contrary are each unavailing and should be 

rejected. 

A. Plaintiff Cannot Subdivide the FEC’s Dismissal into Reviewable and 

Nonreviewable Parts 

Plaintiff cites FEC v. Akins, 524 U.S. 11 (1998), for the proposition that this Court can 

“allow[] judicial review of one claim in an FEC administrative complaint to proceed even after the 

FEC dismissed another claim in the same complaint as an exercise of prosecutorial discretion.” 

ECF No. 31 at 14. This overstates the holding in Akins, which can be easily summarized: Parties 

have “Article III standing to challenge a Commission nonenforcement decision when that decision 

was based upon an ‘agency misinterpret[ation of] the law.’” CREW 2021, 993 F.3d at 893 (quoting 

Akins, 524 U.S. at 25). That’s it. Furthermore, unlike in this case, “in Akins . . . the Commission 

did not invoke enforcement discretion as a basis for dismissal, and so the court had no reason to 

consider whether such an invocation would bar judicial review.” Id. When prosecutorial discretion 

is exercised, the outcome is necessarily different as it was in CREW 2021. Id. (noting that 

“prosecutorial discretion did not shield the Commission's decision from judicial review in Akins 

because the Commission had not relied on it[,]” while holding that the court could not exercise 

judicial review in a scenario where it had). 

The scenario presented here is no different than that in CREW 2021. There, the FEC 

declined to pursue an enforcement action for two reasons: “because the non-profit organization 

was not a ‘political committee’ under the Act and because, exercising ‘prosecutorial discretion,’ 

the Commission did not find proceeding with enforcement to be an appropriate use of its 

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resources.” Id. at 882. Indeed, the controlling Commissioners in CREW 2021 “dedicated most of 

the[ir] statement to legal analysis of the alleged violations,” only mentioning prosecutorial 

discretion “[i]n the final paragraph.” Id. at 883. Nevertheless, the D.C. Circuit declined to review 

the decision because it “lack[ed] the authority to second guess a dismissal based even in part on 

prosecutorial discretion.” Id. at 882 (emphasis added). Plaintiff errs in asserting that the 

Commission’s legal reasoning in this case is in any way separable from its decision to exercise 

prosecutorial discretion. It is not. 

“[E]ven if some statutory interpretation could be teased out of the Commissioners’ 

statement of reasons,” it is still a mistake to “subject[] the dismissal of [Plaintiff’s] complaint to 

judicial review. The law of ‘this circuit rejects the notion of carving reviewable legal rulings out 

from the middle of non-reviewable actions.’” CREW v. FEC, 892 F.3d 434, 442 (D.C. Cir. 2018) 

(“CREW 2018”) (internal citation omitted). As demonstrated in CREW 2018 and CREW 2021, 

Commissioners frequently discuss legal interpretations to explain their rationale for invoking 

prosecutorial discretion, and there is no way for a reviewing court to discern where legal analysis 

ends and prudential concerns begin. 

B. The FEC Correctly Exercised Its Prosecutorial Discretion 

Plaintiff ignores the plain language of FECA when it suggests that “the Commission may 

exercise its powers only by a majority vote,” ECF No. 31 at 16, and ignores D.C. Circuit precedent 

when it claims that the FEC may exercise prosecutorial discretion only when four Commissioners 

vote to do so. 

To the contrary, the FECA specifically distinguishes between the powers of the 

Commission which may be exercised by “a majority vote of the members of the Commission” and 

those which require “the affirmative vote of 4 members of the Commission.” 52 U.S.C. § 

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30106(c). These are separate thresholds which should not be conflated simply because they 

sometimes coincide; sometimes, when the Commission is not at its full capacity of six members, 

three members will constitute a majority, but three members can never exercise power which is 

expressly entrusted only to four commissioners. Nine powers of the Commission are enumerated 

in 52 U.S.C. § 30107(a). Read in conjunction with Section 30106(c), the first five enumerated 

powers (subsections (1) – (5)) may be exercised by a majority, and the last four (subsections (6) – 

(9)) require the vote of four Commissioners. One of the latter powers requiring the vote of four 

Commissioners is the power “to conduct investigations and hearings expeditiously, to encourage 

voluntary compliance, and to report apparent violations to the appropriate law enforcement 

authorities.” 52 U.S.C. § 30107(a)(9). The power “to conduct investigations” refers to the 

Commission’s complaint-based enforcement authority, which Section 30109(a)(1) further 

specifies requires “an affirmative vote of 4 of its members” to find “reason to believe that a person 

has committed, or is about to commit, a violation of this Act” to “make an investigation of such 

alleged violation.” 

To the extent that the FECA does not specify exactly what happens when the Commission 

lacks four votes to proceed with an enforcement matter, the courts have logically filled in the 

blanks. As the D.C. Circuit recognized in CREW 2021, “[t]he statute specifically enumerates 

matters for which the affirmative vote of four members is needed and dismissals are not on this 

list, which suggests that they are not included under the standard construction that expressio unius 

est exclusio alterius. A decision to initiate enforcement, but not to decline enforcement, requires 

the votes of four commissioners.” 993 F.3d at 891. The D.C. Circuit has also referred to “FECA’s 

legal requirement to dismiss complaints in deadlock situations[.]” Public Citizen v. FERC, 839 

F.3d 1165, 1171 (D.C. Cir. 2016). 

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These observations accord with decades of D.C. Circuit precedent recognizing that a 

deadlocked enforcement vote constitutes a final agency action to dismiss a matter. See CREW 

2021, 993 F.3d at 898 (“[T]he members who voted against proceeding further ... established the 

official position of the Commission on the [administrative respondent’s] matter and definitively 

foreclosed further action against [administrative respondent] on [administrative complainant’s] 

complaint.”) (emphasis added); Public Citizen, 839 F.3d at 1170 (“[T]he statute compels FEC to 

dismiss complaints in deadlock situations” and “the treatment of probable cause deadlocks as 

agency action is baked into the very text of the statute”); Crossroads Grassroots Policy Strategies 

v. FEC, 788 F.3d 312, 315 (D.C. Cir. 2015) (“If four of the six Commissioners conclude there is 

reason to believe a violation was committed, a full FEC investigation commences. Conversely, if 

there are fewer than four votes, the FEC dismisses the administrative complaint.”) (internal citation 

omitted; In re Sealed Case, 223 F.3d 775, 779 (D.C. Cir. 2000) (referring to “a no-action decision 

by three commissioners”); FEC v. National Republican Senatorial Comm., 966 F.2d 1471, 1476 

(D.C. Cir. 1992) (“[W]hen the Commission deadlocks 3-3 and so dismisses a complaint”). 

This treatment of deadlocked enforcement votes also reflects Congress’s unique, but 

intentional, structuring of the FEC: 

Congress uniquely structured the FEC toward maintaining the status quo, 

increasing the appropriateness of recognizing deadlocks as agency action in that 

specific context. As an initial matter, FEC always includes six Commissioners, 

distinguishing it from the vast majority of agencies with an odd number of 

members. No more than three FEC Commissioners may be affiliated with the same 

political party. 52 U.S.C. § 30106(a)(1). The voting and membership requirements 

mean that, unlike other agencies—where deadlocks are rather atypical—FEC will 

regularly deadlock as part of its modus operandi. Taken together, FEC's 

structural design and FECA’s legal requirement to dismiss complaints 

in deadlock situations mark FECA as an exception to the rule. 

Public Citizen, Inc., 839 F.3d at 1171. Plaintiff clearly disagrees with Congress’s policy judgment 

in this regard, but that does not make their claim cognizable. 

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Contrary to Plaintiff’s assertions, under FECA and D.C. Circuit precedent, a lack of four 

votes to proceed with enforcement, i.e., any vote to dismiss, whether based on substantive legal 

reasons, prosecutorial discretion, or a combination of the two, results in dismissal. Thus, it is 

necessarily the case that fewer than four Commissioners, e.g., the three Commissioners who voted 

to dismiss in the present matter, have the power to dismiss an enforcement matter. To the extent 

that FEC practice fails to conform with statutory requirements, those practices are invalid and 

beyond the Commission’s authority to implement. For many years, the FEC’s “close the file” vote 

following a deadlock was simply an automatic step taken as a routine matter and its legal 

significance, or lack thereof, never presented an issue. Recently, however, certain Commissioners 

have effectively “weaponized” what was once an automatic and ministerial step by refusing to 

vote to “close the file” after a Commission deadlock, which presents the issue of whether it is the 

deadlock vote or the vote to close the file which has the legal effect of dismissing an enforcement 

matter. Under both the statute and applicable precedent, it is the deadlocked vote which 

“foreclose[s] further action” and which must necessarily end the Commission’s consideration of a 

matter through dismissal. To the extent that certain Commissioners contend that a failed vote to 

“close the file” means the matter has not been lawfully dismissed, that position is without support 

and contrary to FECA. 

Plaintiff contends that Giffords v. FEC supports its position, but the question of the legal 

effect of a “deadlock” vote, and whether a vote to “close the file” has any legal effect, was 

specifically noted by Judge Sullivan as a matter to be litigated in a separate proceeding. Tr. of 

Video Status Conf. 9-10, No. 1:19-1192, (Nov. 1, 2021) (“[I]f the Court hypothetically today were 

to say to the plaintiff, Proceed with your private action, then that would be a legitimate issue to be 

raised by defense counsel, that it was premature at that point.”). In the present matter, Plaintiff’s 

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Case 1:21-cv-02128-RJL Document 32 Filed 02/01/22 Page 16 of 25 

claim that “a majority of the Commission must approve the agency’s use of its power of 

prosecutorial discretion” is contrary to FECA’s plain language and structure, and inconsistent with 

well-established D.C. Circuit precedent. ECF No. 31 at 16. This claim should therefore be rejected. 

C. Plaintiff’s Assertion of “Erroneous Legal Reasoning” is Incorrect and Not a Basis 

for Judicial Review 

Plaintiff further alleges that this Court has the power to peer behind the controlling 

Commissioners’ invocation of prosecutorial discretion because they made a “legal error” in 

assuming that the inquiry into when an individual becomes a candidate within the meaning of 

FECA “depends on that individual’s subjective intent,” and note that Intervenor “does not dispute 

that FEC dismissals premised on erroneous legal conclusions are reviewable.” Id. at 21. Plaintiff 

is correct that Intervenor does not dispute the applicable law, but it does object to Plaintiff’s 

assertion that the controlling Commissioners made a mistake. 

Put simply, the question of when an individual decides to run for a particular office is an 

inherently subjective determination which is normally exhibited by objectively discernible factors. 

Classifying this as an “objective” or “subjective” test fails to capture its nuances, because the 

inquiry properly involves elements of both. The FEC has repeatedly explained that under its testing 

the waters regulation, the question of when an individual finally becomes a candidate rests on 

“when he or she makes a private determination that he or she will run for federal office.” Advisory 

Op. 2015-09 at 5. Because none of the Commissioners are mind-readers, this evaluation 

necessarily requires that they “look for objective evidence to show a subjective intent by the 

individual that an activity occurred for the purpose of determining the viability of a candidacy.” 

MUR 6928, Controlling Statement of Reasons of Vice Chairman Matthew S. Petersen and 

Commissioner Caroline C. Hunter at 9. Plaintiff goes astray when it assumes that research into 

objective indicia of candidacy is easy, when it remains “a highly fact-intensive inquiry.” Id. 

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Plaintiff mischaracterizes the controlling Commissioners’ reasoning in MUR 5934. 

Plaintiff claims that “[i]n analyzing statements by Thompson about his potential candidacy, . . . 

the Commissioners did not try to deduce what Thompson meant by those statements or whether 

he subjectively believed them to be true, but instead looked at the meaning those statements 

conveyed to third parties.” ECF No. 31 at 22-23. Not only does Plaintiff once again try to cleanly 

divide the inseparable “objective” and “subjective” elements of the testing-the-waters inquiry, but 

it also incorrectly describes the Statement of Reasons it purports to explain. In that case, the 

controlling Commissioners determined that Thompson’s statement that he would “tell people that 

I am thinking about [running for President] and see what kind of reaction I get” was commensurate 

with an effort to “gauge the level of support that might be achieved and determine the viability of 

the candidacy”—i.e., to use the objective response of potential supporters to come to a subjective 

determination about candidacy viability. Statement of Reasons of Vice Chairman Matthew S. 

Petersen and Commissioners Caroline C. Hunter, Donald F. McGahn, and Ellen L. Weintraub at 

2, MUR 5934 (Thompson) (Mar. 10, 2009). Similarly, Thompson is quoted as telling an audience 

that he was “testing the waters” and “the waters feel pretty warm to me.” Id. Again, this is clearly 

an example of an individual evaluating the objective response of voters to come to a subjective 

determination about whether he should become a candidate. 

Plaintiff claims that the controlling Commissioners’ alleged mistake “underlay all the 

reasons those Commissioners gave for purporting to exercise the FEC’s prosecutorial discretion.” 

ECF No. 31 at 23. Not so—not only was the Statement of Reasons an accurate characterization of 

FEC precedents in this area, but it was also far from the only rationale offered for the 

Commission’s decision. The controlling Commissioners observed that an inquiry into Scott’s 

“subjective intent” in this matter would require investigating “core constitutionally protected 

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activity,” i.e. Scott’s advocacy concerning political issues, which is “not an action [they] could 

take lightly.” AR at 212. They further explained that this “wide-ranging, costly, and invasive 

investigation” would be “expensive and resource-consuming” at a time when “the Commission is 

still working through a substantial backlog of cases that accumulated while it lacked a quorum.” 

Id. The Commission correctly understood that any investigation in this matter would be timeconsuming and resource-intensive and made its decision to invoke prosecutorial discretion on that 

basis. 

Agency decisions concerning whether to proceed with an enforcement action inevitably 

involve the weighing of multiple considerations, including “whether agency resources are best 

spent on this violation or another, whether the agency is likely to succeed if it acts, . . . and, indeed, 

whether the agency has enough resources to undertake the action at all.” Heckler v. Chaney, 470 

U.S. 821, 831-32 (1985). Taking all these factors into account is difficult, which is why it is a task 

consigned to agency discretion. Here, the Commission evaluated the law correctly and applied it 

prudently. 

D. Plaintiff Has Offered No Feasible Test for Evaluating “Pretext” in this Context 

Plaintiff argues that agency enforcement dismissals based upon prosecutorial discretion 

must be reviewable for “pretext,” or else “Commissioners can always pretextually invoke 

prosecutorial discretion, and every such invocation renders a decision completely unreviewable,” 

thereby making “judicial review . . . a nullity” in the context of FECA. ECF No. 31 at 25. This 

contention, if taken seriously, reflects a rather dim view of the FEC’s Commissioners, but also 

disregards traditional separation of powers considerations. In Department of Commerce v. New 

York, the Supreme Court specifically noted that “in reviewing agency action, a court is ordinarily 

limited to evaluating the agency’s contemporaneous explanation in light of the existing 

administrative record. That principle reflects the recognition that further judicial inquiry into 

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‘executive motivation’ represents ‘a substantial intrusion’ into the workings of another branch of 

Government and should normally be avoided.” 139 S. Ct. 2551, 2573 (2019) (internal citation 

omitted). Plaintiff has presented no evidence suggesting that a “judicial inquiry into ‘executive 

motivation’” is warranted here. Id. Moreover, Department of Commerce involved a challenge to 

agency rulemaking, rather than an agency’s dismissal of an enforcement action on the grounds of 

prosecutorial discretion. The two situations are not analogous. 

While dressed up in the legal language of “pretext” and “reviewability,” what Plaintiff 

really asks the Court to do is accept its contention that the controlling Commissioners have lied 

and that their stated reasons for invoking prosecutorial discretion were disingenuous. This would 

be an extraordinary leap. As the Supreme Court explained, “we have recognized a narrow 

exception to the general rule against inquiring into ‘the mental processes of administrative 

decisionmakers.’ On a ‘strong showing of bad faith or improper behavior,’ such an inquiry may 

be warranted and may justify extra-record discovery.” Dep’t of Com., 139 S. Ct. at 2573-74; see 

also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971) (“[S]uch inquiry 

into the mental processes of administrative decisionmakers is usually to be avoided” and “there 

must be a strong showing of bad faith or improper behavior before such inquiry may be made”). 

Plaintiff cannot seriously believe that extra-record discovery in this matter would yield any 

evidence that the controlling Commissioners acted in bad faith or behaved improperly. It has 

certainly presented no “significant showing ... that [Plaintiff] will find material in the agency’s 

possession indicative of bad faith or an incomplete record.” Air Transp. Ass’n of Am., Inc. v. Nat’l 

Mediation Bd. 663 F.3d 476, 479 (D.C. Cir. 2011). The full administrative record has been 

produced and the controlling Statement of Reasons speaks for itself—the Commissioners’ decision 

to rely on prosecutorial discretion was explained in reasonable terms in reliance upon the 

longstanding precedent of Heckler v. Chaney. Plaintiff claims that CREW 2021 differentiated 

between FEC dismissals that are “genuinely based on prosecutorial discretion” and those that are 

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ostensibly not, ECF No. 31 at 24-25, but no such distinction appears on the face of the opinion. 

The rule the CREW 2021 court laid out is black-and-white: “When a Commission decision rests 

even in part on prosecutorial discretion . . . we cannot review it under the ‘contrary to law’ 

standard.” 993 F.3d at 884-85. That clear standard leaves no wiggle room. 

But no matter whether agency prosecutorial discretion dismissals are reviewable for 

“pretext” as a purely legal matter, there is absolutely nothing in the present record that suggests 

the controlling Commissioners acted in bad faith in dismissing Plaintiff’s administrative 

complaint. Once again, Plaintiff confuses a policy disagreement with a cognizable claim—it 

simply disagrees with the Commission’s decision to dismiss its complaint. 

III. The FEC’s Dismissal of Plaintiff’s Complaint was Lawful 

Plaintiff concludes by identifying several alleged legal errors in the Commission’s 

consideration and dismissal of its administrative complaint, none of which are correctly 

characterized as errors. 

A. The Commission Did Not Make Any Legal Errors 

Plaintiff incorrectly claims that its “coordinated-communications allegations presented an 

independent legal issue from [its] other claims[,]” and therefore could have still been investigated 

even if its other claims “failed on the merits.” ECF No. 31 at 25-26. But the controlling 

Commissioners explained that an investigation in this matter “would have necessitated a wideranging, costly, and invasive investigation into both Scott and New Republican’s activities during 

[the disputed] period of time, and possibly after.” AR at 212. Even if implicating different legal 

questions, the various claims in Plaintiff’s administrative complaint were not separable because 

substantial agency resources would have to have been expended to assess their veracity, thereby 

justifying the Commission’s exercise of prosecutorial discretion. 

Plaintiff characterizes the dismissal as an “attempt” to invoke prosecutorial discretion, ECF 

No. 31 at 26, but it was a successful one. As explained supra, it is not necessary for the full 

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Case 1:21-cv-02128-RJL Document 32 Filed 02/01/22 Page 21 of 25 

Commission—or even a majority of four Commissioners—to choose to exercise prosecutorial 

discretion for that decision to be legally effective. “[T]he members who voted against proceeding 

further . . . established the official position of the Commission on the [administrative respondent’s] 

matter and definitively foreclosed further action against [administrative respondent] on 

[administrative complainant’s] complaint.” CREW 2021, 993 F.3d at 898. The Statement of the 

three controlling Commissioners is sufficient. 

B. The Commission was Justified in Relying Upon the Hazelwood Affidavit 

Plaintiff objects to the Commission’s reliance on an affidavit submitted by Blaise 

Hazelwood, executive director of New Republican PAC, as unreliable. ECF No. 31 at 26-27. In 

support of this argument Plaintiff cites La Botz v. FEC, 889 F. Supp. 2d 51, claiming that case 

stands for the proposition that affidavits should be discounted when “‘written in summary fashion,’ 

[] produced after the FEC’s inquiry had commenced, and [] contradicted by some 

contemporaneous evidence.” ECF No. 31 at 26-27 (quoting 889 F. Supp. 2d at 61-62). But the 

court in La Botz identified “two serious flaws” with the affidavit it was reviewing: It was “unclear 

from the face of the affidavit why the declarant has first-hand knowledge of the assertions or is 

otherwise competent to testify to such[,]” and it “was only submitted after the FEC inquiry had 

commenced.” 889 F. Supp. 2d at 61-62. 

The Hazelwood affidavit is easily distinguishable on these metrics. Beginning in February 

2018, two months before Scott’s declaration of candidacy, Ms. Hazelwood “made all decisions 

regarding New Republican PAC’s operations,” giving her ample first-hand knowledge from which 

to testify concerning PAC operations. AR at 73 ¶ 3. And although the Hazelwood affidavit was 

dated after the start of the FEC inquiry in this matter, AR at 74, unlike in La Botz there is no 

“contemporaneous document in the record [that] contradicts the FEC’s conclusion.” 889 F. Supp. 

2d at 62. Furthermore, although the La Botz court held that the FEC dismissal there was not based 

on substantial evidence and remanded the matter to the agency, it specifically noted that “a denial 

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Case 1:21-cv-02128-RJL Document 32 Filed 02/01/22 Page 22 of 25 

of La Botz’s complaint based on prosecutorial discretion might be a wise use of the FEC’s limited 

resources.” Id. at 63, n.6. Hence, unlike in La Botz, here the Commission here relied upon a 

substantially more reliable affidavit and properly exercised its prosecutorial discretion to dismiss 

an administrative complaint. 

C. The Commission Adequately Explained Its Reasons for Dismissing Plaintiff’s 

Coordinated Communications Claim 

Plaintiff claims that “the controlling Commissions’ Statement of Reasons offered no valid 

justification for the dismissal of ECU’s coordinated-communications allegations.” ECF No. 31 at 

28. In fact, the Statement of Reasons offers at least two explanations specifically referencing that 

claim. First, the First General Counsel’s Report in this matter “recommended taking no action at 

this time regarding . . . [the allegation that] communications disseminated by New Republican 

PAC constituted illegal coordination with Scott’s allegedly untimely-filed campaign.” AR at 203 

n.1. Additionally, the sworn affidavit submitted by the PAC’s executive director stated that “she 

had ‘not spoken with, or otherwise communicated with, Governor Rick Scott about any matters 

pertaining to the plans, activities, or strategies of New Republican PAC[.]’” Id. at 207. These were 

sufficient reasons for rejecting the coordinated communications claim. Just because Plaintiff 

disagrees with the explanation offered does not mean the Commission failed to offer one. 

D. Plaintiff’s Remaining Arguments Are Meritless 

Plaintiff concludes by arguing once again that “the controlling Commissioners’ attempt to 

invoke the FEC’s prosecutorial discretion cannot justify the dismissals[,]” and that the dismissal 

violates the “contrary-to-law standard.” ECF No. 31 at 29. The controlling Commissioners’ 

decision to invoke prosecutorial discretion, as explained in their Statement of Reasons, was 

premised on a variety of factors applicable to each of Plaintiff’s claims. For example, the 

controlling Commissioners noted that “the Commission is obligated to make difficult decisions 

about whether or not to enforce against Respondents in Matters nearing the expiration of the statute 

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of limitations.” AR at 212. This is a prudential consideration based upon determinations of 

“whether agency resources are best spent on this violation or another, whether the agency is likely 

to succeed if it acts, . . . and, indeed, whether the agency has enough resources to undertake the 

action at all” which is properly within the agency’s discretion per Heckler v. Chaney. 470 U.S. at 

831-32. 

Finally, in invoking the contrary-to-law standard Plaintiff once again confuses agency 

rulemaking with enforcement actions. The two contexts are different, and therefore warrant 

differing levels of judicial deference. As the D.C. Circuit has consistently and unambiguously 

explained, “[w]hen a Commission decision rests even in part on prosecutorial discretion . . . we 

cannot review it under the ‘contrary to law’ standard.” CREW 2021, 993 F.3d at 884-85. “[F]urther 

judicial inquiry into ‘executive motivation’ represents ‘a substantial intrusion’ into the workings 

of another branch of Government and should normally be avoided.” Dept’ of Com., 139 S. Ct. at 

2573. Plaintiff clearly believes that this legal standard is flawed and needs to be reevaluated, but 

that does not change the applicable law. 

CONCLUSION 

For the foregoing reasons, Intervenor-Defendant’s Cross-Motion for Summary Judgment 

should be granted. 

Dated: February 1, 2022 Respectfully submitted, 

/s/Jason Torchinsky 

Jason Torchinsky (DC Bar No. 976033) J. Michael Bayes (DC Bar No. 501845) 

Jessica F. Johnson (DC Bar No. 976688) Phillip M. Gordon (DC Bar No. 1531277) 

HOLTZMAN VOGEL BARAN Kenneth C. Daines (DC Bar No. 1600753) 

TORCHINSKY & JOSEFIAK, PLLC HOLTZMAN VOGEL BARAN 

2300 N Street NW, Suite 643A TORCHINSKY & JOSEFIAK, PLLC 

Washington D.C. 20037 15405 John Marshall Highway 

Phone: (202) 737-8808 Haymarket, VA 20169 

Fax: (540) 341-8809 Washington D.C. 20037 

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Case 1:21-cv-02128-RJL Document 32 Filed 02/01/22 Page 24 of 25 

Email: jtorchinsky@holztmanvogel.com Phone: (202) 737-8808 

Jessica@holtzmanvogel.com Fax: (540) 341-8809 

Email: mbayes@holtzmanvogel.com 

pgordon@holtzmanvogel.com 

Attorneys for Intervenor-Defendant 

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Case 1:21-cv-02128-RJL Document 32 Filed 02/01/22 Page 25 of 25 

CERTIFICATE OF SERVICE 

I certify that on February 1, 2022, I served the foregoing on all counsel of record through 

this Court’s CM/ECF system. I further certify that on February 2, 2022, I served the foregoing on 

the FEC by USPS First Class mail. 

/s/ Jason Torchinsky 

21