Case 1:22-cv-03319-CRC Document 19 Filed 03/16/23 Page 1 of 55 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CAMPAIGN LEGAL CENTER and 

DEMOCRACY 21, 

Plaintiffs, 

Case No. 22-3319 

v. 

Hon. Christopher R. Cooper 

FEDERAL ELECTION COMMISSION, 

Defendant. 

PLAINTIFFS’ RESPONSE IN OPPOSITION TO 

DEFENDANT’S MOTION TO DISMISS 

Tara Malloy (DC Bar No. 988280) 

tmalloy@campaignlegalcenter.org 

Megan P. McAllen (DC Bar No. 1020509) 

CAMPAIGN LEGAL CENTER 

1101 14th St. NW, Suite 400 

Washington, D.C. 20005 

(202) 736-2200 

Fred Wertheimer (DC Bar No. 154211) 

DEMOCRACY 21 

2000 Massachusetts Avenue N.W. 

Washington, DC 20036 

(202) 355-9600 

Donald J. Simon (DC Bar No. 256388) 

SONOSKY, CHAMBERS, SACHSE, 

ENDRESON & PERRY, LLP 

1425 K Street N.W., Suite 600 

Washington, DC 20005 

(202) 682-0240 

Attorneys for Plaintiffs 
Case 1:22-cv-03319-CRC Document 19 Filed 03/16/23 Page 2 of 55 

TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES ...................................................................................................... iv 

TABLE OF ABBREVIATIONS................................................................................................. ix 

SUMMARY OF ARGUMENT.....................................................................................................1 

BACKGROUND ............................................................................................................................5 

I. Statutory and Regulatory Background .........................................................................................5 

A. Federal candidates are required to report all “contributions” and “expenditures,” both 

during candidacy and in any “testing the waters” phase preceding candidacy....................5 

B. FECA’s “soft money” prohibitions prevent circumvention of its contribution limits

and disclosure requirements.................................................................................................7 

C. FECA’s treatment of in-kind contributions .........................................................................8 

D. The statutory framework for FEC administrative complaints .............................................9 

II. Factual Background...................................................................................................................10 

A. Initiation of Administrative Proceedings ...........................................................................10 

B. Commission review of the administrative complaints.......................................................12 

1. First General Counsel’s Report.....................................................................................12 

2. Commission Votes..........................................................................................................15 

C. Delay Case .........................................................................................................................17 

1. Intervenor’s Motion to Dismiss .....................................................................................17 

2. Plaintiffs’ Motion for Reconsideration ..........................................................................19 

3. Final Ruling ...................................................................................................................20 

III. Procedural history ....................................................................................................................20 

LEGAL STANDARD ..................................................................................................................21 

ARGUMENT................................................................................................................................22 

I. Plaintiffs’ standing arguments are not precluded.....................................................................22 

II. Plaintiffs have established Article III standing based on informational injury .......................26 

A. Plaintiffs have been deprived of information that FECA requires to be disclosed with 

respect to Bush’s campaign spending prior to June 2015..................................................27 

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1. The RTR Committees’ reports cannot “cure” the informational injury arising from 

Bush’s failure to report all campaign spending before June 2015...............................27 

2. The public file provides new information about Bush’s undisclosed pre-June 2015 

spending ......................................................................................................................33 

B. Plaintiffs have been deprived of information about the in-kind contributions made by 

RTR Super PAC and received by Bush following the commencement of his candidacy .35 

III. Plaintiffs’ inability to access FECA disclosure information directly and concretely injures 

their interests ..........................................................................................................................38 

A. There is no reason to doubt that undisclosed information here would help CLC and 

Democracy 21 advance their missions...............................................................................38 

B. The FEC’s dismissal of plaintiffs’ complaints has caused organizational injury by 

depriving plaintiffs of key information .............................................................................40 

IV. Plaintiffs’ injuries are fairly traceable to the dismissal of their administrative complaints 

and redressable by a favorable court decision ........................................................................42 

V. The FEC’s attempt to invent a “futility” excuse for its unlawful dismissal of plaintiffs’ 

complaints is frivolous.............................................................................................................42 

CONCLUSION ............................................................................................................................45 

CERTIFICATE OF SERVICE ..................................................................................................47 

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TABLE OF AUTHORITIES 

Page 

Cases: 

Ashcroft v. Iqbal, 556 U.S. 662 (2009)..........................................................................................21 

Action Alliance of Senior Citizens of Greater Philadelphia v. Heckler, 

789 F.2d 931 (D.C. Cir. 1986).................................................................................................41 

Akins v. FEC, 736 F. Supp. 2d 9 (D.D.C. 2010)............................................................................45 

Allen v. McCurry, 449 U.S. 90 (1980)...........................................................................................24 

Barr v. Clinton, 370 F.3d 1196 (D.C. Cir. 2004)...........................................................................21 

Canonsburg General Hospital v. Sebelius, 989 F. Supp. 2d 8 (D.D.C. 2013) ........................22, 25 

CLC v. FEC, 31 F.4th 781 (D.C. Cir. 2022) (“CLC II”)........................................................ passim 

CLC v. FEC, 507 F. Supp. 3d 79 (D.D.C. 2020) (“CLC I”)......................................................2, 19 

CLC v. FEC, 952 F.3d 352 (D.C. Cir. 2020) ...............................................................21, 26, 38, 39 

CLC v. FEC, 520 F. Supp. 38 (D.D.C. 2021) (“Right to Rise I”)........................ 2-3, 17, 18, 31, 37 

CLC v. FEC, 578 F. Supp. 3d 1 (D.D.C. 2021) (“Right to Rise II”).................................19, 32, 33, 

Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997) ...................................................26, 35, 39 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) ...............................................................10 

CREW v. American Action Network, 410 F. Supp. 3d 1 (D.D.C. 2019)........................................38 

CREW v. FEC, 209 F. Supp. 3d 77 (D.D.C. 2016)........................................................................44 

Dozier v. Ford Motor Co., 702 F.2d 1189 (D.C. Cir. 1983).................................................... 25-26 

FEC v. Akins, 524 U.S. 11 (1998)..........................................................................26, 27, 39, 44, 45 

FEC v. Legi-Tech, Inc., 75 F.3d 704 (D.C. Cir. 1996) ..................................................................43 

Fogg v. Ashcroft, 254 F.3d 103 (D.C. Cir. 2001) ..........................................................................43 

Friends of Animals v. Jewell, 824 F.3d 1033 (D.C. Cir. 2016) .....................................................21 

GAF Corp. v. United States, 818 F.2d 901 (D.C. Cir. 1987)...................................................25, 35 

Graphic Commc’ns Int’l Union, Loc. 554 v. Salem-Gravure Div. of World Color Press, Inc., 

843 F.2d 1490 (D.C. Cir. 1988)...........................................................................................4, 25 

Hancock v. Urban Outfitters, Inc., 830 F.3d 511 (D.C. Cir. 2016) ...............................................21 

Hurd v. District of Columbia, 864 F.3d 67 (D.C. Cir. 2017).........................................................24 

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Jerome Stevens Pharmaceuticals, Inc. v. FDA, 402 F.3d 1249 (D.C. Cir. 2005) .........................21 

Keats v. Sebelius, No. 13-1524, 2019 WL 1778047 (D.D.C. Apr. 23, 2019)................................43 

MacKenzie v. Fudge, No. 1:20-cv-411-TNM, 2021 WL 1061220 (D.D.C. Mar. 18, 2021)...24, 25 

Martin v. Department of Justice, 488 F.3d 446 (D.C. Cir. 2007)..................................................25 

Montana v. United States, 440 U.S. 147 (1979) ............................................................5, 26, 32, 37 

National Ass’n of Home Builders v. EPA, 786 F.3d 34 (D.C. Cir. 2015)..................................3, 23 

National Parks Conservation Ass’n v. United States, 177 F. Supp. 3d 1 (D.D.C. 2016)..............43 

Palacios v. Modly, No. 19-CV-450-CRC, 2020 WL 3972016 

(D.D.C. July 14, 2020)............................................................................................. 3, 22-23, 37 

People for the Ethical Treatment of Animals v. USDA, 797 F.3d 1087 

(D.C. Cir. 2015) .................................................................................................................40, 41 

Safadi v. Novak, 574 F. Supp. 2d 52 (D.D.C. 2008)......................................................................23 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) .................................................................7 

Stewart v. Nat’l Educ. Ass’n, 471 F.3d 169 (D.C. Cir. 2006)........................................................21 

Taylor v. Sturgell, 553 U.S. 880 (2008).........................................................................................33 

U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18 (1994)..........................................20 

Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001)....................................................................20 

Statutes and Regulations: 

52 U.S.C. § 30101(2) .......................................................................................................................5 

52 U.S.C. § 30101(8)(A)..................................................................................................................8 

52 U.S.C. § 30102(e)(1).........................................................................................................1, 6, 16 

52 U.S.C. § 30103............................................................................................................................1 

52 U.S.C. § 30103(a) .....................................................................................................................16 

52 U.S.C. § 30104......................................................................................................1, 6, 16, 28, 34 

52 U.S.C. § 30104(b) ...........................................................................................................8, 13, 28 

52 U.S.C. § 30104(b)(2)(D).................................................................................................8, 30, 36 

52 U.S.C. § 30104(b)(3)(B) .............................................................................................................8 

52 U.S.C. § 30104(b)(4)(H)(i) ...................................................................................................9, 36 

52 U.S.C. § 30104(b)(5)(A).................................................................................................9, 30, 36 

52 U.S.C. § 30104(b)(6)(B)(i) .............................................................................................9, 30, 36 

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52 U.S.C. § 30109(a)(1)...................................................................................................................9 

52 U.S.C. § 30109(a)(3)...................................................................................................................9 

52 U.S.C. § 30109(a)(4)(A) .............................................................................................................9 

52 U.S.C. § 30109(a)(4)(B)(ii) ..................................................................................................9, 17 

52 U.S.C. § 30109(a)(8).....................................................................................................42, 43, 45 

52 U.S.C. § 30109(a)(8)(A) ...............................................................................................10, 17, 44 

52 U.S.C. § 30109(a)(8)(C) .....................................................................................................10, 42 

52 U.S.C. § 30109(a)(12)(A) .....................................................................................................2, 13 

52 U.S.C. § 30116..........................................................................................................................16 

52 U.S.C. § 30116(a)(1)...................................................................................................................7 

52 U.S.C. § 30116(a)(1)(C) .............................................................................................................7 

52 U.S.C. § 30116(a)(3)...................................................................................................................7 

52 U.S.C. § 30116(a)(7)(B)(i)..........................................................................................................8 

52 U.S.C. § 30118(a) .......................................................................................................................7 

52 U.S.C. § 30125(e) .....................................................................................................8, 11, 12, 15 

52 U.S.C. § 30125(e)(1).............................................................................................................7, 37 

11 C.F.R. § 100.3(a).........................................................................................................................5 

11 C.F.R. § 100.72...........................................................................................................................6 

11 C.F.R. § 100.72(a).....................................................................................................................13 

11 C.F.R. § 100.131...................................................................................................................6, 13 

11 C.F.R. § 101.3...................................................................................................................1, 7, 28 

11 C.F.R. § 104.13...........................................................................................................................8 

11 C.F.R. § 104.13(a)...........................................................................................................9, 30, 36 

11 C.F.R. § 110.2(a)(1)....................................................................................................................6 

11 C.F.R. § 111.20(a).................................................................................................................9, 17 

11 C.F.R. § 111.21.........................................................................................................................13 

11 C.F.R. § 9034.10.........................................................................................................................6 

Administrative Record Authorities: 

Certification, MURs 6915 & 6927 (dated Dec. 14, 2018), 

https://www.fec.gov/files/legal/murs/6927/6927_16.pdf ........................................................16 

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Certification, MURs 6915 & 6927 (dated Dec. 7, 2018), 

https://www.fec.gov/files/legal/murs/6927/6927_15.pdf ........................................................16 

First General Counsel’s Report, MURs 6915 & 6927 (Feb. 8, 2017),

https://www.fec.gov/files/legal/murs/6927/6927_14.pdf ..........................................................1 

Statement of Reasons of Comm’r Ellen L. Weintraub 1, MURs 6915 & 6927 (Sept. 30, 

2022), https://www.fec.gov/files/legal/murs/6927/6927_27.pdf .............................................15 

Other Materials: 

FEC Advisory Op. 2010-11 (2010) .................................................................................................7 

FEC, Instructions for FEC Form 3P and Related Schedules, https://www.fec.gov/resources/cms 

content/documents/fecfrm3pi.pdf (updated May 2016) ............................................................8 

Jeb 2016, Inc., Statement of Organization, FEC Form 1 (June 15, 2015), https://docquery.fec. 

gov/pdf/751/15031431751/15031431751.pdf .........................................................................12 

Jeb Bush, Statement of Candidacy, FEC Form 2 (June 15, 2015), https://docquery.fec.gov/pdf/ 

747/15031431747/15031431747.pdf.......................................................................................12 

Payments Received for Testing the Waters Activities, 50 Fed. Reg. 9992 (Mar. 13, 1985)...........6 

Public Financing of Presidential Candidates and Nominating Conventions, 

68 Fed. Reg. 47386 (Aug. 8, 2003)............................................................................................6 

Right To Rise USA, Receipts, Jan. 1 – June 14, 2015, FEC, https://www.fec.gov/data/ 

receipts/?data_type=processed&committee_id=C00571372&two_year_transaction_ 

period=2016&min_date=01%2F01%2F2015&max_date=06%2F14%2F2015 (last 

visited March 14, 2023) .................................................................................................................12 

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TABLE OF ABBREVIATIONS 

CREW Citizens for Responsibility and Ethics in Washington 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

MUR Matter Under Review 

OGC Office of General Counsel (FEC) 

RTR Right to Rise 

TTW “Testing the waters”

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SUMMARY OF ARGUMENT 

As far back as March 2015, plaintiffs Campaign Legal Center (“CLC”) and Democracy 21 

began sounding the alarm that former Florida Governor John Ellis “Jeb” Bush had commenced an 

active, but undeclared, presidential campaign starting in at least January of that year—without 

properly registering his candidacy or disclosing his spending in that period. See 52 U.S.C. 

§§ 30102(e)(1), 30103, 30104; 11 C.F.R. § 101.3. This subterfuge would continue until June of 

2015, when Bush finally announced his candidacy and registered with the Federal Election 

Commission (“FEC”). As plaintiffs would assert in their two administrative complaints filed with 

the FEC in 2015,1 these delaying tactics enabled Bush to establish, and begin fundraising for, the 

ostensibly independent Right to Rise Super PAC, Inc. (“RTR Super PAC”)—unconstrained by the 

contribution limits and “soft money” restrictions that apply to federal candidates under the Federal 

Election Campaign Act (“FECA”). 

Only seven years later, when the FEC dismissed plaintiffs’ administrative complaints and 

released its confidential case files, would plaintiffs learn that the FEC’s Office of General Counsel 

(“OGC”) had corroborated their concerns. In its First General Counsel’s Report, OGC had advised 

the Commission to find reason to believe that Bush had failed to disclose his spending for travel 

and personal appearances between December 2014 and June 2015—likely because many of these 

expenses had been paid for by RTR Leadership PAC, another committee established by Bush. First 

General Counsel’s Report 45, MURs 6915 & 6927 (Feb. 8, 2017), 

https://www.fec.gov/files/legal/murs/6927/6927_14.pdf (“OGC Rpt.”). Even more surprisingly, 

plaintiffs would learn that in the years preceding the dismissal, all four FEC Commissioners to 

1 These administrative complaints are attached as Exhibits 1 and 2 to plaintiffs’ complaint initiating 

this action. See Compl. (Oct. 28, 2022), Exs. 1 & 2, ECF No. 1-1 & 1-2 (Oct. 28, 2022). 

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consider the matter had agreed with these OGC recommendations, voting at various times to find 

“reason to believe” that Bush had illegally delayed the announcement of his candidacy and failed 

to disclose his receipt of in-kind contributions paying for his pre-candidacy campaign expenses. 

Given the apparent consensus that there was reason to believe Bush committed significant 

disclosure violations, plaintiffs’ claim that they suffered informational injury by reason of these 

reporting failures would seem to be beyond dispute. But this has not been plaintiffs’ experience. 

Lacking any knowledge about either OGC’s findings or the Commissioners’ assessment of their 

administrative complaints—because FECA enforcement proceedings are kept confidential until 

complete, see 52 U.S.C. § 30109(a)(12)(A)—plaintiffs litigated their standing for over three years 

in a previous “delay” case challenging the FEC’s inaction on their complaints. See Compl., CLC 

v. FEC/ Right to Rise, No. 1:20-cv-730-CRC (D.D.C. Mar. 13, 2020), ECF No. 1. The standing 

question there, however, was muddied by the FEC’s failure to appear in its own defense and the 

intervention of RTR Super PAC, which alleged that it had paid for and reported Bush’s undisclosed

campaign activities, thereby supposedly remedying plaintiffs’ informational injury. But those 

allegations, as plaintiffs learned when the FEC case file was finally released, were cast in 

considerable doubt by the Super PAC’s contradictory statements during the FEC proceedings. 

The analysis of plaintiffs’ standing was also complicated by shifting Circuit precedent on 

the scope of a FECA complainant’s informational rights in cases alleging that a political committee

provided undisclosed in-kind support to a federal candidate, through coordinated expenditures or 

otherwise. In finding that CLC and Democracy 21 lacked informational standing in the delay suit, 

the Court cited a district court decision, CLC v. FEC, 507 F. Supp. 3d 79, 88 (D.D.C. 2020) (“CLC 

I”), to hold that “plaintiffs have no legally cognizable interest in labeling spending ‘coordinated’

if that spending has already been disclosed in some format.” CLC v. FEC (Right to Rise I), 520 F. 

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Supp. 38, 48 (D.D.C. 2021). But in 2022, following the Court’s final ruling on plaintiffs’ 

informational standing in the delay case, CLC I was reversed by the D.C. Circuit. See CLC v. FEC, 

31 F.4th 781 (D.C. Cir. 2022) (“CLC II”). As the Court of Appeals made clear, a plaintiff’s 

inability to obtain complete and accurate disclosure information about reportable campaign 

contributions or spending qualifies as a cognizable injury-in-fact. That injury is not remedied when 

a political committee reports its in-kind contributions to a candidate as part of its “aggregated 

expenditures,” without “[breaking] down its expenditures to show which were coordinated 

contributions” and thereby “reveal[ing] the amounts of any coordinated contributions.” Id. at 783, 

784. Deprivation of this disclosure was a “quintessential informational injury.” Id. at 784. 

* * * * * 

Perhaps this history explains why the FEC’s pending motion to dismiss, ECF No. 12, does 

not attempt to make any substantive argument that plaintiffs have failed to show informational 

injury sufficient to demonstrate standing in this case. Instead, the Commission attempts to cut off 

briefing on this question altogether—by arguing that plaintiffs should be barred from even 

attempting to establish standing because the delay case “already concluded that plaintiffs lack an 

informational or organizational injury, which is preclusive here.” FEC Mot. 13. 

But issue preclusion does not apply here. The FEC fails to meet its burden to show that (1) 

plaintiffs are attempting to relitigate the “precise issues of jurisdiction adjudicated” in a prior case,

Nat’l Ass’n of Home Builders v. EPA, 786 F.3d 34, 41 (D.C. Cir. 2015) (emphasis added) (citations 

omitted); (2) that these precise arguments for standing were “actually and necessarily determined 

by a court . . . in that prior case,” Palacios v. Modly, No. 19-cv-450-CRC, 2020 WL 3972016, at 

*2 (D.D.C. July 14, 2020), aff’d sub nom. Palacios v. Harker, No. 20-5289, 2021 WL 1051220 

(D.C. Cir. Mar. 8, 2021), and (3) that preclusion would “not work a basic unfairness to the party 

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bound by the first determination,” id. 

Most glaringly, the FEC all but ignores the intervening decision in CLC II that squarely 

addresses the informational standing analysis—as well as the subsequent release of the case file 

that likewise changes the factual record. Plaintiffs, almost by necessity, cannot make the same 

“precise” arguments for standing in this case because the legal landscape has shifted substantially 

since the delay case, and so too have their bases for informational standing. 

Here, plaintiffs assert three arguments for informational injury, two of which were not 

raised in or decided by in the delay case, and a third that should be allowed under the third prong 

of this standard, because disregarding “an intervening change in legal principles” would work a 

basic unfairness on plaintiffs. Graphic Commc’ns Int’l Union, Loc. 554 v. Salem-Gravure Div. of 

World Color Press, Inc., 843 F.2d 1490, 1493 (D.C. Cir. 1988). 

First, plaintiffs suffer informational injury due to Bush’s failure to report all his preannouncement campaign activity, including any in-kind contributions from RTR Super PAC and 

RTR Leadership PAC (collectively, the “RTR Committees”) in the form of payments for Bush’s

travel in this period. As the intervening CLC II decision makes clear, the RTR Committees’ 

disclosure reports, even insofar as they purport to include disbursements related to this activity, 

cannot “cure” plaintiffs’ injury, because those reports do not contain all information that FECA 

requires with respect to these in-kind contributions to the Bush campaign. This was not an 

argument plaintiffs made—or could have made—in the delay case given its reliance on CLC II. 

Second, and relatedly, plaintiffs can now identify, drawing on materials in the recently 

released public MUR file, additional specific campaign-related trips and events in the preannouncement period, the costs of which Bush failed to disclose. This evidence was not before 

this Court in the delay case, and this precise claim to injury was therefore not raised or decided. 

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Third, with regard to the period after Bush’s June 2015 announcement of candidacy, CLC 

II and FECA make clear that any expenditures that RTR Super PAC coordinated with the Bush 

campaign, or any campaign expenses the Super PAC otherwise paid for, would have to be reported 

as in-kind contributions to the campaign, with itemized information about their dates, amounts, 

and purposes. Neither respondent reported any such contributions. Although plaintiffs made this 

argument in the delay case, issue preclusion does not apply where there have been “significant 

changes in controlling facts or legal principles.” Montana v. United States, 440 U.S. 147, 157 

(1979). 

Having thus demonstrated informational injury anew, plaintiffs also satisfy all other 

elements of Article III standing: CLC and Democracy 21 have been deprived of statutorily required 

information; there is no reason to doubt the information withheld is useful to both plaintiffs in 

carrying out their organizational work and advancing their missions; plaintiffs’ injury is fairly 

traceable to the FEC’s dismissal of their administrative complaints; and the injury is redressable

by this Court. Plaintiffs are not precluded from making this showing. The FEC’s motion should be

denied, and this court should reject its challenge to plaintiffs’ informational standing. 

BACKGROUND 

I. Statutory and Regulatory Background 

A. Federal candidates are required to report all “contributions” and “expenditures,” 

both during candidacy and in any “testing the waters” phase preceding candidacy. 

The term “candidate” is defined in FECA to mean “an individual who seeks nomination 

for election, or election, to Federal office,” and an individual is deemed to seek nomination for

election, or election “if such individual has received contributions aggregating in excess of $5,000

or has made expenditures aggregating in excess of $5,000.” 52 U.S.C. § 30101(2); 11 C.F.R. 

§ 100.3(a). 

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No later than 15 days after becoming a candidate, the individual must “file a Statement of 

Candidacy designating his principal campaign committee,” 52 U.S.C. § 30102(e)(1), and such 

committee must register with the FEC no later than 10 days thereafter, id. § 30103. The candidate’s 

authorized committee must then file regular, comprehensive reports disclosing all receipts and 

disbursements, id. § 30104, including receipt of in-kind contributions. 

However, “[t]hrough its regulations, the Commission has established limited exceptions to

these automatic thresholds which permit an individual to test the feasibility of a campaign for 

Federal office”—i.e., to “test the waters” (“TTW”)—“without becoming a candidate under the 

Act.” See Payments Received for Testing the Waters Activities, 50 Fed. Reg. 9992-93 (Mar. 13, 

1985). The TTW regulations create “limited exceptions” to the definitions of “contribution” and

“expenditure,” allowing would-be candidates to engage in pre-candidacy activities without 

triggering “candidate” status when the funds they raise or spend for this purpose exceed the $5,000 

registration threshold. 11 C.F.R. §§ 100.72, 100.131. Importantly, however, such individuals must 

keep records of their TTW activities, and if they later become candidates, they are required to 

report all funds received or payments made in connection with “testing the waters” as 

“contributions or expenditures under the Act” in “the first report filed by the principal campaign 

committee . . . regardless of the date the funds were received.” Id. § 100.72. 

Any payments by federal political committees for TTW-related activities benefiting 

presidential candidates, made before the individual announces their candidacy, constitute in-kind 

“contributions” from the political committee to the candidate. Id. §§ 110.2(a)(l), 9034.10; see also 

Public Financing of Presidential Candidates and Nominating Conventions, 68 Fed. Reg. 47386, 

47387, 47407 (Aug. 8, 2003). When the individual becomes a candidate, these payments must be 

reported as in-kind contributions to the campaign in the campaign committee’s first disclosure 

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report. 11 C.F.R. § 101.3. 

B. FECA’s “soft money” prohibitions prevent circumvention of its contribution limits 

and disclosure requirements. 

In the 2015-16 election cycle, FECA limited an individual’s contribution to a presidential 

candidate to $2,700 in an election, see 52 U.S.C § 30116(a)(l), and prohibited candidates from 

accepting any contributions from corporations or labor unions, id. § 30118(a). 

A “super PAC” is a political committee that may raise contributions outside the limits and 

source restrictions that otherwise apply to committees, id. § 30116(a)(1)(C), (a)(3), provided it 

makes only independent expenditures and does not contribute to or coordinate with candidates. 

See also SpeechNow.org v. FEC, 599 F.3d 686, 689 (D.C. Cir. 2010) (en banc); FEC Advisory 

Op. 2010-11. Because super PACs effectively operate outside of FECA’s contribution limits and 

source restrictions, they present a potential avenue for the influx of unregulated “soft money”

contributions to candidates, particularly when the super PAC has close ties with a candidate. 

But FECA contains provisions to prevent such abuses, including the candidate soft-money 

prohibition in Section 30125(e)(l) providing: 

A candidate, individual holding Federal office, agent of a candidate or individual 

holding Federal office, or an entity directly or indirectly established, financed, 

maintained or controlled by or acting on behalf of 1 or more candidates or 

individuals holding Federal office, shall not 

(A) solicit, receive, direct, transfer, or spend funds in connection with an 

election for Federal office . . . unless the funds are subject to the limitations, 

prohibitions, and reporting requirements of this Act; . . . 

52 U.S.C. § 30125(e)(l) (emphasis added). 

By prohibiting a federal candidate from establishing or operating soft-money entities like 

super PACs, Section 30125(e)(l) prevents candidates’ use of such vehicles to circumvent the 

contribution limits or to evade FECA’s disclosure requirements. Because at least some 

expenditures made by a super PAC “established, financed, maintained or controlled” by a

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candidate would necessarily be coordinated with that candidate, Section 30125(e) also works as a 

prophylactic measure to prevent excessive the coordinated expenditures and in-kind contributions 

that might otherwise result. 

C. FECA’s treatment of in-kind contributions 

A person’s provision of anything of value to a candidate without charge or for less than the 

usual and normal charge is an in-kind contribution subject to FECA contribution restrictions and 

reporting requirements. See 52 U.S.C. §§ 30101(8), 30104(b), 30116(a)(7)(B); 11 C.F.R. 

§§ 100.52(d), 104.13. Thus, if a political committee pays for services rendered to a candidate’s

campaign, whether during candidacy or in any TTW phase, the payment is an in-kind contribution 

subject to FECA’s contribution limits, source restrictions, and disclosure requirements. 

All expenditures made “in cooperation, consultation, or concert, with, or at the request or 

suggestion of, a candidate, his authorized political committees, or their agents” (i.e., coordinated 

expenditures) are likewise treated as in-kind contributions to that candidate. 52 U.S.C. 

§ 30116(a)(7)(B)(i). This is because coordinated expenditures function as “disguised

contributions”—and failing to regulate them as such creates a risk of corruption and conceals the 

true sources of candidates’ support. Buckley v. Valeo, 424 U.S. 1, 46-47 (1976). 

For each reporting period, a candidate-authorized committee must disclose the total 

contributions received from other committees, including in-kind contributions in the form of 

coordinated expenditures. 52 U.S.C. § 30104(b)(2)(D). The candidate’s report must itemize each 

committee contribution, and state its date, value, and whether it was in support of the candidate’s

primary or general election. Id. § 30104(b)(3)(B); see Instructions for FEC Form 3P and Related 

Schedules, https://www.fec.gov/resources/cms-content/documents/fecfrm3pi.pdf (updated May 

2016). In addition, because in-kind contributions received by a campaign are also deemed 

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“expenditures” of that campaign, the report must disclose an in-kind contribution not only as a 

contribution received, but also as an expenditure made by the candidate, with information about 

its date, amount, and purpose. 11 C.F.R. § 104.13(a). 

Likewise, for each reporting period and for the entire election cycle, a non-candidate 

committee must disclose its total contributions to other committees, including in-kind 

contributions, and itemize all contributions made to other committees, stating for each the date, 

amount, and recipient’s name and address. 52 U.S.C. § 30104(b)(6)(B)(i), (4)(H)(i). In addition, 

because in-kind contributions by a committee are also expenditures of that committee, the report 

must disclose the person to whom each expenditure is made and its date, amount, and purpose. Id. 

§ 30104(b)(5)(A). 

C. The statutory framework for FEC administrative complaints 

Any person may file a complaint with the FEC alleging a violation of the Act. 52 U.S.C. 

§ 30109(a)(1). After reviewing the complaint and the recommendations of its OGC, the 

Commission votes on whether there is sufficient “reason to believe” the Act was violated to justify 

an investigation. After any investigation, if the Commission finds probable cause to believe a 

FECA violation occurred, it seeks a conciliation agreement with the respondent, which may 

include civil penalties. Id. § 30109(a)(3), (4)(A), (5). If the Commission is unable to enter a 

conciliation agreement, it may institute a civil action in federal district court. Id. § 30109(a)(6)(A). 

If, at any of these decision-making junctures, fewer than four Commissioners vote to 

proceed, the Commission will vote on whether to dismiss the complaint. Only once the matter is 

closed will the FEC place materials from the administrative case file on the public record. 52 

U.S.C. § 30109(a)(4)(B)(ii); 11 C.F.R. § 111.20(a). In cases of deadlock, the controlling group of 

Commissioners who voted not to proceed must issue a Statement of Reasons to serve as the basis 

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for any judicial review. Common Cause v. FEC, 842 F.2d 436, 449 (D.C. Cir. 1988). 

“Any party aggrieved” by the Commission’s dismissal of its complaint may seek review in 

this Court to determine whether the dismissal was “contrary to law.” 52 U.S.C. § 30109(a)(8)(A). 

If the court finds that the FEC’s action was “contrary to law,” it will order the FEC “to conform 

with such declaration within 30 days.” 52 U.S.C. § 30109(a)(8)(C). If the FEC fails to conform, 

FECA authorizes the complainant to bring a private right of action “to remedy the violation 

involved in the original complaint.” Id. 

II. Factual Background 

A. Initiation of Administrative Proceedings 

CLC and Democracy 21 filed two FEC complaints against RTR Super PAC and Bush on 

March 31, 2015 and May 27, 2015, which collectively alleged that Bush, largely due to his direct 

and indirect role in establishing and operating RTR Super PAC, had failed to comply with 

applicable FECA contribution restrictions and disclosure requirements, both before Bush formally 

announced his candidacy on June 15, 2015 and for the duration of his official campaign. 

Plaintiffs’ March 2015 complaint detailed the activities in which Bush, his agents, and the

Super PAC reportedly engaged, and alleged that this provided reason to believe Bush had been 

first “testing the waters” and then actively campaigning without formally declaring his candidacy 

or filing required disclosure reports. As the complaint alleged, in the early months of 2015, Bush 

engaged in a quantum of fundraising confirming that he had moved beyond pre-candidacy or even 

testing the waters, and was operating as an active candidate. For example, news reports and Bush’s

own Twitter account documented that Bush engaged in extensive fundraising across the country 

for the Super PAC in February and March of 2015. ECF No. 1-1 ¶¶ 10-11. In the same period, 

Bush was also engaged in a number of activities that were indistinguishable from those of a 

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candidate: he traveled to early primary states like South Carolina and met with potential donors 

and staff; he spoke at the Conservative Political Action Conference and acknowledged he was 

considering a presidential candidacy; and he appeared at the Iowa agriculture summit alongside 

other Republican presidential hopefuls. Id. ¶¶ 12, 17-19. 

On May 27, 2015, plaintiffs filed a second administrative complaint, supplementing the 

March complaint with further evidence that Bush had indeed become a federal candidate as defined 

by FECA, and alleging that as a candidate, Bush had violated 52 U.S.C. § 30125(e) because he 

and his agents had “directly or indirectly established, financed, maintained or controlled” RTR 

Super PAC, and the Super PAC was soliciting, receiving, directing, or spending contributions that 

did not comply with federal contribution limits and source prohibitions. ECF No. 1-2 ¶¶ 37-44. 

Plaintiffs also detailed the active role that Bush and his associates played in creating RTR 

Super PAC and directing its design, staffing, and operations. As early as February and March 2015, 

Bush and his aides were choosing close Bush associates to be senior staff for the Super PAC. Id. 

¶¶ 12-15. By April and May 2015, Bush and his aides were reportedly shaping strategy for the 

Super PAC and considering how to operate it most effectively alongside the campaign. Id. ¶¶ 16-

19. For example, in a “concept . . . in development for months,” Bush was planning to “delegat[e]

many of the nuts-and-bolts tasks of seeking the White House” to the Super PAC and to have the 

PAC perform “many of the duties typically conducted by a campaign.” Id. ¶ 17. 

On June 15, 2015—nineteen days after plaintiffs filed their second complaint—Bush filed 

a statement of candidacy with the FEC and designated Jeb 2016, Inc. as his principal campaign 

committee (“Jeb 2016”).

2 Bush and his associates had raised approximately $90 million for RTR 

2 Jeb Bush, Statement of Candidacy, FEC Form 2 at 1 (June 15, 2015), https://docquery.fec.gov/ 

pdf/747/15031431747/15031431747.pdf; Jeb 2016, Inc., Statement of Organization, FEC Form 1 

at 1 (June 15, 2015), https://docquery.fec.gov/pdf/751/15031431751/15031431751.pdf. 

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Super PAC by that date.3 The Super PAC reported making its first purportedly independent 

expenditures supporting Bush on June 26, 2015; from that date through February 2016, RTR Super 

PAC reported to the FEC a total of $86.8 million in expenditures supporting Bush or attacking his 

opponents in the Republican presidential primary. OGC Rpt., Factual and Legal Analysis at 13. 

B. Commission review of the administrative complaints 

1. First General Counsel’s Report 

On February 8, 2017, after reviewing plaintiffs’ administrative complaints and the 

respondents’ written responses, OGC issued its report recommending that the Commission find 

reason to believe that: (1) Bush failed to timely register as a candidate, and his authorized campaign 

committee, Jeb 2016, failed to timely register and report with the Commission; (2) Bush received 

excessive, unreported in-kind contributions from RTR Leadership PAC because the PAC paid for 

his TTW and/or campaign activity, in particular his travel and speaking events; and (3) Bush 

violated 52 U.S.C § 30125(e) by establishing, financing, maintaining, or controlling RTR Super 

PAC, and the Super PAC violated this provision by soliciting and receiving soft money on behalf 

of the Bush campaign. See OGC Rpt. 45.4 

OGC’s findings of fact and conclusions of law largely corroborated the allegations in 

plaintiffs’ administrative complaints, although it compiled a record that exceeded the information 

available to plaintiffs. Importantly, however, OGC’s findings and reports were entirely

confidential, and by law, the Commission cannot release any materials from the case file until the 

3 Right to Rise USA, Receipts, Jan. 1 – June 14, 2015, FEC, https://www.fec.gov/data/receipts/ 

?data_type=processed&committee_id=C00571372&two_year_transaction_period=2016&min_ 

date=01%2F01%2F2015&max_date=06%2F14%2F2015 (last visited March 14, 2023). 

4 The Commission considered plaintiffs’ complaints in conjunction with a separate complaint filed

by Brad Woodhouse and American Democracy Legal Fund, which made similar allegations about 

Bush and RTR Super PAC in connection to the 2016 election cycle. OGC Rpt. 1. 

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proceedings are resolved. 52 U.S.C. § 30109(a)(12)(A); 11 C.F.R. § 111.21. 

First, OGC recommended finding reason to believe that Bush began spending funds to test 

the waters of a 2016 presidential candidacy in May 2014, and that Bush had decided to run for 

president at least as early as January 2015. OGC Rpt. 3. 

It noted that after Bush’s December 16, 2014 Facebook post announcing his exploratory 

efforts, he began travelling extensively and speaking at numerous events. Shortly thereafter, on 

January 6, 2015, Bush and his associates also formed two committees, RTR Super PAC and RTR 

Leadership PAC. Id. at 6 n.18. On January 20, 2015, Bush and his “operatives” reportedly 

announced plans to hold 60 fundraising events in cities across the country in coordination with 

both RTR Committees. Id. at 8. 

As OGC observed, most of the money Bush raised in this period went into the coffers of 

RTR Super PAC, which had already amassed over $100 million in funds by June 2015 that would 

be used to support Bush’s candidacy. Id. at 9. OGC regarded Bush’s substantial participation in 

the Super PAC’s fundraising efforts from January to June 2015 as further evidence that he had 

decided to run in January 2015, particularly given that the Super PAC’s admitted purpose was to 

support Bush’s eventual candidacy, not to explore the feasibility of a campaign. Id. at 15. 

Second, OGC recommended finding reason to believe that Jeb 2016 violated 52 U.S.C. 

§ 30104(b) and 11 C.F.R. §§ 100.72(a) and 100.131(a) by failing to properly report all of Bush’s 

pre-candidacy activity, and in particular, failed to report significant in-kind contributions from 

RTR Leadership PAC in the form of payments for Bush’s pre-June 2015 travel. 

In support of this recommendation, OGC noted that shortly after Bush’s June 2015 official 

declaration of candidacy, Jeb 2016 filed its first disclosure report covering Bush’s spending from 

May 2014 through June 2015, disclosing $516,870 for research and polling, consulting, and legal 

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fees, but only a single payment of $1,089 for travel expenses. OGC Rpt. 6. In contrast, RTR 

Leadership PAC reported spending $4,896,426 between January and June 2015, id. at 7, with travel 

expenses totaling over $800,000, id. at 29-30. 

Indeed, respondents had conceded that RTR Leadership PAC funded some portion of 

Bush’s travel and event schedule between January and June 2015, but argued that Bush was 

appearing at such events as RTR’s Chairman. Id. at 29. As OGC rejoined, however, video footage 

of these events showed at least nine instances of Bush speaking about his campaign for office, 

without any references to RTR Leadership PAC or its work. Id. at 11, 29. OGC thus rejected 

Bush’s contention that any references to his candidacy were merely “incidental” and not indicative

of a campaign purpose. 

As for RTR Super PAC, OGC found the record unclear as to whether the Super PAC may 

have funded any of Bush’s pre-candidacy activities. It noted that respondents “denied that the 

Super PAC paid for [TTW] expenses,” further explaining that “[w]hereas the Respondents admit 

that RTR [Leadership] PAC paid for Bush’s travels, the Super PAC makes no such admission.”

Id. at 32. OGC thus recommended deferring any action on these allegations, while noting that if 

its recommended investigation into Bush’s TTW activities uncovered evidence that either RTR

Leadership PAC or Super PAC paid for additional campaign expenses, it would “make the 

appropriate recommendation” then. Id. at 34. 

Third, because OGC found that “Bush became a candidate at least as early as January 

2015,” id. at 4, it found reason to believe that RTR Super PAC was established, financed, 

maintained, and controlled by Bush, and solicited and received non-federal funds while Bush was 

a candidate. The first basis for this conclusion was that OGC found “significant commonalities, 

including common or overlapping officers or employees,” between the Super PAC and RTR

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Leadership PAC, an entity Bush admitted he established and controlled. Id. at 21. OGC also found 

that prior to June 2015, it appeared that the Super PAC and the Bush campaign were coordinating 

their efforts. For example, Bush provided the Super PAC with material specifically intended to 

ensure the Super PAC could effectively support Bush’s candidacy, including hours of interview 

footage that the Super PAC team could use in campaign commercials in the future. Bush was also 

an “integral” part of RTR’s fundraising, noting that Bush’s involvement may have gone beyond

merely serving as a featured speaker at Super PAC fundraisers and included a substantive role in 

planning fundraisers as well. Id. at 22. 

2. Commission Votes 

As Commissioner Weintraub would later explain in her Statement of Reasons regarding 

the dismissal, the Commission’s consideration of plaintiffs’ complaint was marked by

extraordinary stalemate and political infighting, even as judged against the Commission’s long

history of voting deadlocks and inaction. Statement of Reasons of Comm’r Ellen L. Weintraub 1, 

MURs 6915 & 6927 (Sept. 30, 2022), https://www.fec.gov/files/legal/murs/6927/6927_27.pdf. 

She recounted that her “colleagues were willing to acknowledge that Bush and his campaign filed

a late statement of candidacy, and possibly received excessive in-kind contributions in the form of 

subsidized travel expenses, [but] they would not lift a finger to investigate the question that really 

mattered here—whether candidate Bush established, financed, maintained, or controlled the Right 

to Rise USA super PAC.” Id. Essentially, although all then-serving Commissioners agreed that 

there was reason to believe that Bush illegally delayed announcing his candidacy and failed to 

fully report his pre-announcement campaign activity, they differed on whether to proceed with 

respect to the alleged soft-money violations under 52 U.S.C. § 30125(e). Consequently, the 

Commission held no vote—at least on the same motion—in which all four then-Commissioners 

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found reason to believe that the two pre-candidacy violations occurred, despite the apparent 

consensus on these two charges. Compl. ¶ 87, ECF No. 1. 

On December 6, 2018, the Commission voted on OGC’s three recommendations as a 

package, considering whether to find reason to believe that: (1) Bush failed to timely declare his 

candidacy in violation of 52 U.S.C. § 30102(e)(l), and his campaign committee failed to register 

and file disclosure reports in violation of 52 U.S.C. §§ 30103(a) and 30104; (2) Bush violated 52 

U.S.C. § 30116 by accepting excessive contributions from RTR Leadership PAC in the period 

prior to the commencement of his official candidacy; and (3) Bush and RTR Super PAC violated 

the soft money restrictions at 52 U.S.C. § 30125(e). The vote split 2-2, with Commissioners 

Walther and Weintraub voting affirmatively for the motion, and Commissioners Hunter and 

Petersen dissenting. See Certification, MURs 6915 & 6927 (dated Dec. 7, 2018), https://www.fec. 

gov/files/legal/murs/6927/6927_15.pdf. 

On December 13, 2018, the vote flipped. The Commission again voted on reason to 

believe, but only on the two pre-candidacy charges, and not on the soft money-related violations 

under 52 U.S.C. § 30125(e). This resulted in a reversed split 2-2 vote, with Commissioners Hunter 

and Petersen voting affirmatively for the motion, and Commissioners Walther and Weintraub 

dissenting. Certification, MURs 6915 & 6927 (dated Dec. 14, 2018), 

https://www.fec.gov/files/legal/murs/6927/6927_23.pdf. 

This gridlock on the substantive “reason to believe” question was followed by successive

failed votes over the next three years on whether to close the file and dismiss plaintiffs’ complaints. 

Compl. ¶¶ 89-91. On August 29, 2022, the Commission finally voted 4-1 to close the case file and 

thereby dismiss plaintiffs’ complaints. Id. ¶ 92. At no point did any Commissioner issue a 

Statement of Reasons explaining their votes for or against finding reason to believe. Id. ¶ 88. 

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C. Delay Case 

Plaintiffs were aware of none of these developments as they occurred—because FEC 

enforcement proceedings are conducted confidentially, with no information made public, 

including the Commission’s legal analyses, factual findings, or vote records, until the matter is 

finally resolved. See 52 U.S.C. § 30109(a)(4)(B)(ii); 11 C.F.R. § 111.20(a). 

Consequently, on March 13, 2020, CLC and Democracy 21 filed suit under 52 U.S.C. 

§ 30109(a)(8)(A), arguing that the FEC’s failure to act on plaintiffs’ administrative complaints for 

more than 120 days since their filing was contrary to law. See Compl., No. 1:20-cv-730-CRC 

(D.D.C. Mar. 13, 2020), ECF No. 1. The Commission’s vote on whether to authorize a defense of 

suit also split 2-2, and thus the FEC did not appear in the lawsuit and was declared in default on 

March 5, 2021. Compl. ¶ 65. However, RTR Super PAC moved to intervene and its motion was 

granted. Id. 

1. Intervenor’s Motion to Dismiss. On February 19, 2021, this Court held that plaintiffs 

lacked informational standing to pursue their FECA claim as it related to any alleged coordinated 

spending between RTR Super PAC and the Bush campaign after his formal announcement of 

candidacy. Right to Rise I, 520 F. Supp. at 47-48. Plaintiffs had argued that they had suffered 

informational injury because neither respondent had disclosed “[RTR]’s in-kind contributions to 

the Bush campaign arising from Bush’s extensive involvement in [RTR]’s operations.” Pls.’ Opp’n

to Mot. to Dismiss 21, No. 1:20-cv-730-CRC (D.D.C. July 9, 2020), ECF No. 13 (“MTD Opp.”).

The Court rejected this basis for plaintiffs’ standing, citing the now-overturned district court 

decision in CLC I for the proposition that “plaintiffs lack standing to determine which of Right to 

Rise’s disbursements were coordinated with the Bush campaign,” Right to Rise I, 520 F. Supp. 3d 

at 48. 

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The Court also concluded, however, that plaintiffs had sufficiently alleged an informational 

injury relating to the five-month period from January 2015 to June 2015, in which Governor Bush 

was concededly testing the waters, see id. at 45-46—and during which, plaintiffs alleged, Bush 

had crossed over into de facto candidacy but had failed to disclose all campaign-related spending. 

Regardless of whether “Bush was either a de-facto candidate or testing the waters at some point 

prior to June 2015,” the Court held, “plaintiffs have alleged an informational injury because further

disclosures would be required.” Id. at 46. 

Intervenor RTR Super PAC moved for reconsideration of the February 2021 order on 

grounds that (1) the pre-June 2015 activities at issue were publicly disclosed on the first campaign 

finance report filed by Bush’s campaign committee, and (2) any TTW/campaign activities in that 

period that Bush had failed to report had been paid for by RTR Super PAC or RTR Leadership 

PAC, and these payments were reflected in the RTR Committees’ disclosure reports. RTR Mot. 

for Recons. 9, No. 1:20-cv-730-CRC (D.D.C. Mar. 5, 2021), ECF No. 19; RTR Reply Supp. Mot. 

for Recons. 5-6, No. 1:20-cv-730-CRC (D.D.C. Mar. 26, 2021), ECF No. 22. 

In response, plaintiffs argued that although Bush had indisputably paid for and reported 

some pre-June 2015 campaign activity, he had reported virtually no spending for his extensive 

travel and public appearances. At the Court’s request, see Hr’g Tr. 14:14-15, No. 1:20-cv-730-

CRC (D.D.C. Apr. 27, 2021), ECF No. 39, plaintiffs then identified five Bush appearances 

between January and June 2015 that he had not reported, see id. at 14:16-25. Supplemental briefing 

was ordered by the Court, id. at 24:23-25:13, in which intervenor RTR Super PAC attempted to 

demonstrate that certain disbursements reported in the RTR Committees’ existing FEC reports 

indeed paid for at least some of the expenses arising from these five events. See, e.g., RTR Suppl. 

Br., No. 1:20-cv-730-CRC (D.D.C. May 11, 2021), ECF No. 28. 

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On reconsideration, the Court dismissed the case without prejudice for lack of standing 

with respect to all of plaintiffs’ claims, principally on the strength of intervenor’s assertions that

any unreported TTW or campaign spending by Bush had been paid for and reported by the RTR 

Committees. See CLC v. FEC, 578 F. Supp. 3d 1, 583 (D.D.C. 2021) (Right to Rise II) (“The Court 

now agrees with RTR that the spending related to the [] campaign events plaintiffs identified has 

been fully disclosed.”).

2. Plaintiffs’ Motion for Reconsideration. On February 2, 2022, plaintiffs moved for 

reconsideration of the December order requesting that this Court clarify its ruling on plaintiffs’ 

organizational standing. While this motion was pending, in April 2022, the D.C Circuit reversed 

CLC I, upon which this Court had relied in its February 19 decision to find that plaintiffs lacked 

an informational injury. See CLC II, 31 F.4th 781. Plaintiffs raised this decision in a notice of 

supplemental authority filed in the delay case on May 3, 2022. See Pls.’ Notice of Suppl. Auth.,

ECF No. 37. 

In CLC I, the plaintiffs had challenged the FEC’s dismissal of their administrative

complaint against a super PAC, Correct the Record, and Hillary Clinton’s 2016 presidential 

campaign, claiming informational standing based on the respondents’ failure to disclose which of

Correct the Record’s reported expenditures—or which portions thereof—were coordinated with 

Clinton and thus in-kind contributions to her campaign. 507 F. Supp. 3d at 87. After the district 

court concluded that plaintiffs lacked standing, CLC II reversed. The Court of Appeals noted that 

Correct the Record had reported its spending, including its coordinated spending, only as “‘lump 

sum’ disbursements . . . for various overhead expenses.” Id. at 790. FECA, however, required the 

committee to report itemized information about the amounts, dates, and purposes of all in-kind 

contributions it made to the campaign. Thus, if plaintiffs prevailed in their challenge, FECA would 

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require disclosure “to reveal which portion of each [Correct the Record] expenditure funded 

coordinated activities,” which in turn “would result in disclosure of the numerical amounts of any 

coordinated expenditures that were contributions to the Clinton campaign.” Id. “Those amounts, 

currently unknown, constitute factual information core to [plaintiffs’] established interests in 

knowing ‘who is funding presidential candidates’ campaigns.’” Id. at 790-91 (citation omitted).5 

According to the D.C. Circuit, the Super PAC’s failure to “disaggregate” even “already-reported 

expenditures to show which portions of those expenditures were coordinated contributions and 

which were not” was “a cognizable informational injury.” CLC II, 31 F.4th at 788. 

3. Final Ruling. On July 14, 2022, this Court rejected CLC’s motion for reconsideration. 

In so holding, it also explicitly declined to reassess its earlier ruling based on the intervening 

decision in CLC II, finding that this subsequent decision was not properly before the Court. See 

Mem. Op. & Order, No. 1:20-cv-730-CRC (D.D.C. July 14, 2022), ECF No. 39. Before plaintiffs’

deadline to appeal this ruling expired, the Commission voted on August 29, 2022 to dismiss the 

underlying administrative complaints, thereby mooting the delay case. 

III. Procedural History 

Plaintiffs initiated this action on October 28, 2022 to challenge the FEC’s unlawful

dismissal of their two administrative complaints. Compl., ECF No. 1. The FEC appeared and 

moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 12. 

5 CLC II also explained that Wertheimer v. FEC, 268 F.3d 1070, 1075 (D.C. Cir. 2001) would bar 

a finding of informational injury only when the plaintiff seeks purely “duplicative” information 

that is already available “from a different source.” Id. at 791 (citing Wertheimer, 268 F.3d at 1075). 

Wertheimer would thus apply “only if Correct the Record had disclosed its coordinated 

contributions to the Clinton campaign and designated them as such, and [plaintiffs] were simply 

seeking reciprocal disclosure from Clinton’s campaign of those same transactions.” Id. at 791-92. 

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LEGAL STANDARD 

To demonstrate Article III standing, plaintiffs must establish three elements: (1) “injury in

fact”; (2) causation; and (3) redressability. Friends of Animals v. Jewell, 824 F.3d 1033, 1040-41 

(D.C. Cir. 2016). With respect to informational standing, “a denial of access to information 

qualifies as an injury in fact where a statute (on the claimants’ reading) requires that the 

information be publicly disclosed and there is no reason to doubt their claim that the information 

would help them.” CLC v. FEC, 952 F.3d 352, 356 (D.C. Cir. 2020) (citation omitted). 

While plaintiffs bear the burden of proving that the Court has jurisdiction to hear their 

claims, on a motion to dismiss, plaintiffs “need only ‘state[] a plausible claim’ that each element 

of standing is satisfied.” Hancock v. Urban Outfitters, Inc., 830 F.3d 511, 513 (D.C. Cir. 2016) 

(alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)). In evaluating a 

motion to dismiss, courts review the complaint liberally and grant plaintiffs the benefit of all 

inferences that can be derived from the facts alleged. Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. 

Cir. 2004). For purposes of the Rule 12(b)(1) motion, the Court “may consider materials outside

the pleadings.” Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). 

“To survive a motion to dismiss” under Rule 12(b)(6), “a complaint must contain sufficient

factual matter . . . to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 

(citation omitted). The Court “must take all of the factual allegations in the complaint as true,” id., 

and “constru[e] the complaint liberally in the plaintiff’s favor.” Stewart v. Nat’l Educ. Ass’n, 471 

F.3d 169, 173 (D.C. Cir. 2006). For a Rule 12(b)(6) motion, the Court may only “consider the facts

alleged in the complaint, documents attached thereto or incorporated therein, and matters of which 

it may take judicial notice.” Id. 

ARGUMENT 

Plaintiffs satisfy all three elements of Article III standing. Plaintiffs have been deprived of 

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information about Bush’s campaign contributions and expenditures that he failed to report; there 

is no reason to doubt this information is useful to CLC and Democracy 21 in advancing their 

missions and conducting their programmatic activities; and plaintiffs’ injury is fairly traceable to 

the FEC’s action—or inaction—and redressable by this Court. 

The FEC does not make any substantive challenge to plaintiffs’ standing but instead rests 

its motion entirely on the proposition that plaintiffs are barred from making any arguments to 

establish standing due to the purported preclusive effects of the delay case judgment. But it is clear 

that several of plaintiffs’ arguments for informational standing are different here, and necessarily 

so, given that they rely on the intervening decision in CLC II and new evidence in the now-public 

case file. Furthermore, even insofar as plaintiffs press similar theories of injury, these intervening 

changes to the law and facts materially change the “legal landscape” in which plaintiffs are

operating, and the doctrine of preclusion therefore does not apply. 

I. Plaintiffs’ standing arguments are not precluded. 

Three elements must be satisfied for a final judgment to preclude litigation of an issue in a 

subsequent case: “[1], the same issue now being raised must have been contested by the parties

and submitted for judicial determination in the prior case; [2] the issue must have been actually 

and necessarily determined by a court of competent jurisdiction in that prior case[; and] [3] 

preclusion in the second case must not work a basic unfairness to the party bound by the first 

determination.” Canonsburg Gen. Hosp. v. Sebelius, 989 F. Supp. 2d 8, 17 (D.D.C. 2013), aff’d 

sub nom. Canonsburg Gen. Hosp. v. Burwell, 807 F.3d 295 (D.C. Cir. 2015). See also Palacios, 

2020 WL 3972016, at *2. The FEC has failed to satisfy a single element of this test. 

First, issue preclusion “only applies when the issues presented in each matter are identical.”

Safadi v. Novak, 574 F. Supp. 2d 52, 55 (D.D.C. 2008) (emphasis added). Accordingly, when 

applying issue preclusion to “threshold jurisdictional issues like standing,” a jurisdictional decision

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“will not bar relitigation of the cause of action originally asserted,” but only “the precise issues of 

jurisdiction adjudicated.’” Nat’l Ass’n of Home Builders, 786 F.3d at 41 (emphasis added) (quoting 

Cutler v. Hayes, 818 F.2d 879, 888 (D.C. Cir. 1987)). 

Of plaintiffs’ three theories for standing here, only one—pertaining to respondents’ failure

to report post-candidacy coordinated spending as FECA requires—was “raised” in substantially

similar form in the delay litigation and “necessarily decided” by the district court. The other two 

grounds for standing here assert either new legal arguments, in reliance on CLC II, see infra at 27-

33, or present new factual allegations of injury, see infra at 33-35. The FEC errs in suggesting that 

a prior judgment on so capacious a legal inquiry as “standing” is necessarily preclusive in 

subsequent litigation concerning the same party, regardless whether the factual and legal basis for 

the party’s standing may have changed. A judgment in a prior case will bar relitigation of only the 

“the precise issues of jurisdiction adjudicated,’” Nat’l Ass’n of Home Builders, 786 F.3d at 41. 

Indeed, this is necessarily the case because “a difference in pertinent facts, sufficient to 

substantially change the issue, renders the doctrine of issue preclusion inapplicable.” Safadi, 574 

F. Supp. 2d at 55-56. 

Second, when the focus is narrowed to the “precise” arguments for informational standing 

that plaintiffs assert here, the FEC has not shown that they were “actually and necessarily 

determined” by this Court in the delay case. For instance, even if plaintiffs’ notice of supplemental 

authority in the delay suit can be seen as “raising” the intervening decision in CLC II, see supra at 

19-20, it is crystal clear that this Court did not “decide” that decision’s effect on the standing 

analysis. The Court acknowledged that CLC II “bears directly on plaintiff’s first theory of 

standing—informational injury,” but deemed it beyond the scope of the pending motion for 

reconsideration, and therefore expressly stated that “the Court declines to consider it.” Mem. Op. 

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at 11, No. 1:20-cv-730-CRC, ECF No. 39 (emphasis added). The FEC debates whether plaintiffs 

should have appealed this decision and the degree to which such an appeal would be futile as moot, 

see FEC Mot. 19, but this entire discussion is beside the point.6 Only those precise issues and 

arguments actually decided by the prior court can have preclusive effect. 

Indeed, the FEC’s focus on what arguments or appeals plaintiffs should have made or what 

determinations this Court could have issued betrays that it entirely misapprehends—or 

misapplies—the doctrine of issue preclusion. Its arguments sound more in claim preclusion, where 

“a final judgment on the merits of an action precludes the parties or their privies from relitigating 

issues that were or could have been raised in that action.” Allen v. McCurry, 449 U.S. 90, 94 (1980) 

(emphasis added). A litigant cannot escape the effects of claim preclusion, or res judicata, “merely 

by raising a new legal theory or seeking a different remedy in a new case.” MacKenzie v. Fudge, 

No. 1:20-cv-411-TNM, 2021 WL 1061220, at *4 (D.D.C. Mar. 18, 2021), aff’d, No. 21-5069, 

2021 WL 3716796 (D.C. Cir. July 23, 2021), cert. denied, 142 S. Ct. 1144 (2022). But the FEC 

does not assert claim preclusion, nor could it, as this doctrine only encompasses merits judgments. 

The “preclusive effect” of a “jurisdictional judgment,” by contrast, “is limited to matters actually 

6 The FEC argues that the prospect that plaintiffs’ appeal of an already moot case might have

resulted in vacatur of the relevant order is reason for this Court to disregard the “change in the

law” effected by CLC II. FEC Mot. 19. Apart from this argument’s irrelevance to the application 

of preclusion doctrine here, the FEC also misapprehends the equitable purpose of vacatur in 

those circumstances: namely, to protect the party seeking relief from an adverse judgment from 

unfair outcomes when “mootness results from the unilateral action of the party who prevailed in 

the lower court.” U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 23 (1994). Cf. 

Hurd v. District of Columbia, 864 F.3d 671, 681 (D.C. Cir. 2017) (“The Munsingwear rule 

involves ‘equitable’ considerations and it gives way when ‘fairness’ requires.”). Here, the FEC 

unilaterally mooted the delay case when it dismissed the underlying administrative complaints—

perhaps strategically—after final judgment in the delay case in which it defaulted. The 

Commission cannot justify invoking a form of relief meant to shield a non-prevailing party from 

this type of gamesmanship as reason to block that party from raising intervening changes in the 

governing law that indisputably “bear[] directly on [their] . . . theory of standing.” See Mem. Op. 

& Order at 11, No. 1:20-cv-730-CRC (D.D.C. July 14, 2022), ECF No. 39 

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raised and necessarily decided; it does not extend to matters that could have been raised, as would 

the preclusive effect of a judgment on the merits.” GAF Corp. v. United States, 818 F.2d 901, 913 

(D.C. Cir. 1987) (emphasis added). The FEC conflates these two doctrines in a misguided attempt 

to bar plaintiffs here from “raising a new legal theory” or pressing undecided issues—neither of 

which are barred by an earlier jurisdictional judgment. MacKenzie, 2021 WL 1061220, at *4. 

Third, “if the first two prerequisites for application of the issue preclusion doctrine are met, 

the plaintiff ‘must be permitted to demonstrate . . . that he did not have a fair opportunity 

procedurally, substantively, and evidentially to pursue his claim the first time.’” Canonsburg Gen. 

Hosp., 989 F. Supp. 2d at 17 (citations omitted). In addition to a plaintiff’s lack of opportunity to 

pursue a claim the first time, “a sufficient shift in the legal landscape” can “make application of

issue preclusion unfair.” Id. at 20. Indeed, “issue preclusion does not apply when there has been 

an intervening change in legal principles.” Graphic Commc’ns Int’l Union, 843 F.2d at 1493. This 

is clearly the effect of the CLC II decision. The FEC makes a feeble effort to claim that the 

“decision did not alter the controlling law,” FEC Mot. 18, but CLC II expressly reversed CLC I, a 

decision upon which the Court in the delay case had relied in rejecting plaintiffs’ theories of

informational injury. It would be hard to imagine a more impactful “shift in the legal landscape”

than a reversal of a decision upon which the prior court decision had rested. Thus, even if the FEC 

has satisfied the first two elements of issue preclusion—which it has not—finding preclusion here 

would “work a basic unfairness” on plaintiffs. Martin v. Dep’t of Justice, 488 F.3d 446, 454 (D.C. 

Cir. 2007). 

Finally, even if the FEC had met all—or any—of the three of elements of this test, the 

“curable defect” exception would apply to certain of plaintiffs’ claims. This exception permits 

relitigation of claims of jurisdiction that would normally be barred by issue preclusion when a 

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“‘precondition requisite’ to the court’s proceeding with the original suit was not alleged or proven, 

and is supplied in the second suit.” Dozier v. Ford Motor Co., 702 F.2d 1189, 1192 (D.C. Cir. 

1983) (citations omitted). When a case is dismissed for lack of jurisdiction, a “curable defect” is

one in which the “jurisdictional deficiency [found by the court in the original suit] could be 

remedied by occurrences subsequent to the original dismissal.” Id. 

Plaintiffs here are proceeding under a distinct cause of action and challenging an entirely 

different agency action as contrary to law—FEC dismissal, not delay—where the challenged 

dismissal both postdated final judgment in the delay suit and occasioned the release of new and 

significant factual material in the administrative record. Insofar as plaintiffs rely upon OGC’s

factual findings, respondents’ sworn responses to the administrative complaints, or other materials 

in the newly-released MUR file to augment earlier arguments or to make new standing arguments, 

this exception applies. Indeed, it is fundamental to the doctrine of issue preclusion that “changes 

in facts essential to a judgment will render collateral estoppel inapplicable in a subsequent action 

raising the same issues.” Montana, 440 U.S. at 159. 

II. Plaintiffs have established Article III standing based on informational injury. 

“[A] plaintiff suffers an ‘injury in fact’ when the plaintiff fails to obtain information which 

must be publicly disclosed pursuant to a statute.” FEC v. Akins, 524 U.S. 11, 21 (1998). Consistent 

with Akins, the D.C. Circuit has recognized that plaintiffs are injured in fact when an alleged FECA 

violation causes the concealment of information that the Act requires to be disclosed, including, 

for example, “how much money a candidate spent in an election,” Common Cause v. FEC, 108 

F.3d 413, 418 (D.C. Cir. 1997), the sources of political contributions funneled through corporate 

straw donors, CLC, 952 F.3d at 354, and itemized information about the amounts, dates, and 

purposes of any in-kind contributions received by a federal candidate, CLC II, 31 F.4th at 785. 

Plaintiffs CLC and Democracy 21 assert that they have suffered informational injury 

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because, first, Bush failed to report all his campaign activity in the pre-candidacy period prior to 

June 2015, in particular, his spending for travel and public speaking events, and under CLC II, the 

RTR Committees’ disclosure reports cannot remedy this injury. Relatedly, drawing on the OGC 

report, plaintiffs can identify additional specific trips and events in the pre-candidacy period that 

Bush failed to disclose. Second, any expenditures that RTR Super PAC coordinated with the Bush 

campaign, or any Bush campaign expenses the Super PAC otherwise paid for, were required under 

FECA to be disclosed as in-kind contributions to Bush’s campaign, with itemized information 

about the dates, amounts, and purposes of each such contribution or transfer. But neither of the 

RTR committees nor Bush’s campaign reported making or receiving any such contributions, and 

CLC II confirms that plaintiffs’ failure to receive such statutorily required disclosure inflicts

cognizable informational harm. 

The deprivation of this information constitutes informational injury, see Akins, 524 U.S. at 

21, and directly and concretely injures plaintiffs’ interests in disseminating this information to 

voters and using it to support their programmatic activities. 

A. Plaintiffs have been deprived of information that FECA requires to be disclosed 

with respect to Bush’s campaign spending prior to June 2015. 

Bush’s failure to report all of his pre-candidacy expenditures as FECA requires, in 

particular his receipt of in-kind contributions from the RTR committees covering his expenses for 

travel and public events from December 2014 to June 2015, constitutes informational injury to 

plaintiffs. The RTR Committees’ reports filed with the FEC in 2015 and 2016 do not supply the 

outstanding information FECA requires—i.e., itemized information about the amounts, dates, and 

purposes of any such in-kind contributions—or otherwise “cure” plaintiffs’ injury. 

1. The RTR Committees’ reports cannot “cure” the informational injury arising 

from Bush’s failure to report all campaign spending before June 2015. 

a. Contemporaneous reports suggested that Bush began testing the waters in May 

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2014, and Bush confirmed as much in the FEC proceedings. OGC Rpt. 5. As OGC later found, 

there was also reason to believe Bush was operating as a “candidate” within the meaning of FECA 

“at least since January 2015.” Id. at 15. Thus, for more than a year preceding his June 15 

announcement, Bush was either already a federal candidate or engaging in extensive TTW 

activities with an eye to becoming one. 

There is also reason to believe that Bush failed to report all of his campaign activity in this 

period in violation of 52 U.S.C. § 30104(b). Federal law requires the reporting of all 

“contributions” and “expenditures” connected to any TTW activity, and upon the commencement 

of a candidacy, regular reporting of all campaign receipts and disbursements, including in-kind 

contributions from individuals or other committees. See id. § 30104; 11 C.F.R. § 101.3. The Bush 

campaign reported only $1,089 for “in-kind (ttw): travel/airfare/lodging”7 in the period prior to 

June 2015, an amount that cannot possibly account for Bush’s extensive cross-country travel to 

attend numerous fundraising events, speaking appearances and other political meetings prior to 

June 2015. OGC Rpt. 3, 29-30. 

Finally, as OGC found, there is reason to believe that these travel and event expenses were 

subsidized by the RTR Committees and, in particular, that Bush failed to report significant in-kind 

contributions from RTR Leadership PAC in the form of payments for Bush’s pre-candidacy travel. 

Id. at 27-32. Although the Bush campaign reported scarcely more than a thousand dollars on travel, 

RTR Leadership PAC, by contrast, reported disbursements for travel totaling over $800,000 in the 

same period. Id. at 29-30. And in the administrative proceedings, the Leadership PAC ultimately 

“concede[]d” that it “funded Bush’s travel,” id. at 29, even as it “deni[ed]” that it “funded Bush’s

See Jeb 2016, Inc., 2015 July Quarterly Report, at 1,688, (filed July 15, 2015; amended Jan. 

31, 2016), https://docquery.fec.gov/pdf/580/201601319005221580/201601319005221580.pdf. 

28 

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testing the waters activities,” id. at 28. It declined, however, to provide any information about the 

specific in-kind contributions it made to the Bush campaign in connection to its spending on travel, 

nor did it amend its FEC disclosure reports to include this information. 

OGC found that the record was unclear as to whether RTR Super PAC may have funded 

any of Bush’s campaign activities in this period. OGC thus recommended no action “at this time”

on these allegations, noting, however, that if its recommended investigation into Bush’s precandidacy activities uncovered evidence that the Super PAC paid for Bush expenses, it would 

“make the appropriate recommendation” at that time. Id. at 34. It is thus eminently plausible to 

conclude that both RTR Committees paid for at least some travel-related expenses incurred by the 

Bush campaign; in fact, RTR Super PAC maintained that it had covered Bush’s travel expenses in 

the delay litigation even as this testimony contradicted its statements to the FEC.8 

b. CLC II controverts the RTR Committees’ arguments that plaintiffs did not suffer 

informational injury because Bush’s undisclosed campaign spending is reflected in some form in 

the committees’ existing FEC reports. Even if this were true—and plaintiffs dispute that intervenor 

provided any sworn testimony or other evidence in the delay case sufficient to show that the RTR 

Committees in fact reported all undisclosed Bush campaign activity—CLC II makes clear that a 

committee’s reporting of its general disbursements does not rectify the informational harm caused 

by its failure to report alleged in-kind contributions to a candidate with the itemized information 

8 In the delay litigation, RTR Super PAC claimed that it had paid for certain unreported TTW 

activities by Bush, see, e.g., RTR Suppl. Br. 12, 1:20-cv-730-CRC (D.D.C. May 11, 2021), ECF 

No. 28 (claiming RTR Super PAC covered catering costs of January 20, 2015 bundler event); RTR 

Reply Supp. Mot. for Recons. 8 (noting that “the extensive Bush travel reported in Plaintiffs’ news

articles was on behalf of Right to Rise and paid for and reported by Right to Rise”). But in the 

administrative proceedings RTR Super PAC denied paying for any Bush TTW expenses. See OGC 

Rpt. 32 (“The Respondents deny that the Super PAC paid for [TTW] expenses. Whereas the 

Respondents admit that RTR [Leadership] PAC paid for Bush’s travels, the Super PAC makes no

such admission.”).

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FECA requires. 31 F.4th at 790. 

Under FECA, when a political committee makes an in-kind contribution to a candidate 

committee, both the political committee and the candidate committee must disclose the transaction 

as a contribution and an “expenditure,” along with itemized information about its date, amount, 

and purpose. See 52 U.S.C. § 30104(b)(2)(D), (4)(H)(i), (5)(A), (6)(B)(i); 11 C.F.R. § 104.13(a). 

FECA thus requires complete, itemized disclosure of a political committee’s in-kind contributions 

to a presidential candidate by both the committee and the candidate. 

To return to the example of Bush’s travel expenses in the pre-candidacy period, if these 

costs were paid for by RTR Leadership PAC, rather than by Bush himself, then the PAC was 

required to report them as in-kind contributions to the Bush campaign, disaggregated from its 

undifferentiated reported disbursements for “travel”—and, perhaps more importantly, the Bush 

campaign was also required to report receiving those contributions. For example, RTR Leadership 

PAC reported hundreds of thousands of dollars of its own travel-related disbursements in that 

period—spanning over 900 entries on its mid-year report. It is undisputed that RTR Leadership 

PAC also conducted fundraising and events unrelated to Bush, and indeed, made over $283,800 in 

contributions to other federal committees and candidates in 2015. OGC Rpt. 7. Thus, RTR 

Leadership PAC’s disbursements—including its travel disbursements—are likely allocable to both 

its Bush-related activities and its other organizational activities, including its fundraising and 

support of other federal candidates. But none of the Leadership PAC’s reporting is broken down 

to indicate which of its disbursements—or which portions of any particular disbursement—

represent an in-kind contribution to Bush in the form of payment for his travel or other expenses. 

But to fully account for the missing disclosure information in a way that meets FECA 

requirements, the RTR Committees’ reports would have to disclose, at a minimum: (1) which 

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reported expenditures related to travel expenses incurred by Bush in connection to campaign 

activity; (2) how these expenditures for “travel” should be allocated between expenses incurred by 

Bush and, e.g., expenses incurred by other committee staff; and (3) the dates, amounts, and 

purposes of any such in-kind contributions to the Bush campaign, as “disaggregated” from the 

committees’ undifferentiated reported travel expenditures. CLC II, 31 F.4th at 788, 792. So, for 

instance, it would not be sufficient for RTR Leadership PAC to point to its reported disbursement 

of $4,337.30 to Aventura Worldwide Transportation for “Travel” on February 10, 20159 and allege 

that this expenditure in some manner covered a Bush travel expense. Instead, this lump sum 

disbursement would have to be broken down to reveal what amount constituted an in-kind 

contribution to Bush. If, hypothetically, we assume $999 of the $4,337.30 disbursement covered 

Bush’s personal transportation costs, then the Leadership PAC would have to report making, and 

Bush have to report receiving, an in-kind contribution of $999 for “travel” on February 10, 2015. 

Thus, under CLC II, the RTR Committees’ reports are insufficient to satisfy their disclosure 

obligations under FECA—even assuming they generally accounted for Bush’s outstanding travel 

and event expenses “in some form”—and fail to cure plaintiffs’ informational injury.

c. The FEC may argue that plaintiffs raised similar factual and legal allegations in the 

delay case. But insofar as this Court in the delay case made findings with respect to whether Bush 

had disclosed all his pre-candidacy spending, the record points in plaintiffs’ favor: there was reason

to believe, the Court noted, that Bush had not disclosed all of his pre-June 2015 campaign 

spending, particularly the area of travel. Right to Rise I, 520 F. Supp. 3d. at 45-46; Right to Rise 

9 A search of the FEC’s databases for the Leadership PAC’s disbursements to “Aventura 

Worldwide Transportation” produces a list of over 20 transactions, see 

https://www.fec.gov/data/disbursements/?data_type=processed&committee_id=C00571380&rec 

ipient_name=Aventura (last searched Mar. 15, 2023). 

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II, 578 F. Supp. 3d at 582. Indeed, intervenor RTR conceded this was the case, and claimed instead 

that the RTR Committees had paid for certain outstanding expenses arising from Bush campaign 

events that plaintiffs identified. Id. at 582-83. Insofar as there is any preclusive effect of Court’s 

findings on this front, it cuts in favor of plaintiffs. 

The reason this Court subsequently found on reconsideration that plaintiffs lacked 

informational injury is because intervenor purported to testify that the RTR Committees had paid 

for and reported any TTW or campaign expenses not reported by Bush, thus providing plaintiffs 

with all information they were due under FECA. Id. at 582-83. What plaintiffs argue now—given 

that “legal principles have changed significantly since the [delay case] judgment,” Montana, 440 

U.S. at 155—is that intervenor’s allegations in the delay litigation regarding the RTR Committees’ 

existing reports are irrelevant to whether this information is “available” to plaintiffs, because even 

assuming the reliability of intervenor’s allegations, these reports did not provide the information 

in the form and with the detail that FECA requires. Indeed, the RTR Committees at no point even 

claimed their reports met this standard.10 

The key argument plaintiffs make here simply could not have been made in the delay case 

because the authority upon which it relies, CLC II, 31 F.4th 781, was not issued until after the 

district court’s Reconsideration order. It was the D.C. Circuit decision that made clear that even if 

a Super PAC reported its coordinated expenditures or other in-kind contributions to a candidate 

“in some form”—typically as “aggregated expenditures” by the PAC—reporting would not satisfy 

FECA disclosure requirements or vitiate plaintiffs’ informational standing. Id. at 783. To be sure, 

plaintiffs brought the CLC II decision to the Court’s attention in the delay case, see Pls.’ Notice of

10 RTR Super PAC acknowledged that no committee report designated any disbursements for 

Bush’s travel or other expenses. Hr’g Tr. 18:6-12. 

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Suppl. Auth. at 2, 4, but this Court explicitly “decline[d] to consider it.” Mem. Op. at 11, No. 1:20-

cv-730-CRC, ECF No. 39. Issue preclusion, however, bars only “successive litigation of an issue

of fact or law actually litigated and resolved in a valid court determination.” Taylor v. Sturgell, 

553 U.S. 880, 892 (2008) (emphasis added) (internal quotation marks omitted). 

2. The public file provides new information about Bush’s undisclosed pre-June 2015 

spending. 

a. In the delay case, the Court suggested that plaintiffs should identify with specificity 

those trips or events they contended Bush failed to report to substantiate their claims to 

informational injury. Hr’g Tr. 14:14-15; Right to Rise II, 578 F. Supp. 3d at 582-83. As a result, 

the parties there litigated whether intervenor had offered sufficient evidence to show that the RTR 

Committees had paid for and reported Bush’s costs associated with five specific pre-candidacy 

events: (a) a January 20, 2015 meeting in Washington between Bush and “Republican lobbyists”;

(b) Bush’s February 27, 2015 speech at CPAC; (c) the March 7, 2015 Iowa agricultural summit;

(d) a March 27, 2015 “Chamber of Commerce breakfast meeting” in Greenville, South Carolina; 

and (e) the May 16, 2015 annual Lincoln Dinner hosted by the Iowa Republican Party. Right to 

Rise II, 578 F. Supp. 3d at 582-83. 

Insofar as this approach still governs the standing inquiry here, plaintiffs can now identify 

from the recently-released public case file several additional Bush campaign events that his 

campaign failed to report. As OGC explained, after analyzing video footage of multiple 

appearances by Bush at events paid for by RTR Leadership PAC, it determined that nine such 

events should be deemed campaign appearances by Bush, and not events in which he appeared 

merely “as a representative” of RTR. OGC Rpt. 11, 29 & Appendix. These include: 

• March 13, 2015: Bush attended a House Party hosted by Fergus Cullen in Dover, NH (OGC 

Rpt. App. 16-18). 

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• March 16, 2015: Bush appeared at David Young Fundraiser in Urbandale, IA (id. at 19-

20). 

• March 18, 2015: Bush spoke at the Horry GOP Breakfast in South Carolina (id. at 21-23). 

• April 17, 2015: Bush appeared at GOP summit in Nashua, NH (id. at 24-27). 

• April 17, 2015: Bush appeared at a “Politics & Eggs” event in Nashua, NH (id. at 28-31). 

• May 18, 2015: Bush gave a speech at the RNC’s Annual Spring Meeting in Scottsdale, AZ

(id. at 25-40). 

• May 22, 2015: Bush attended the Southern Republican Leadership Conference in 

Oklahoma City, OK (id. at 41-42). 

As with all of Bush’s campaign travel during this period, the expenses he incurred traveling to and

attending these campaign events were not reported by his own campaign. Instead, as suggested by 

OGC, some of these costs were likely paid for by RTR Leadership PAC, OGC Rpt. 28-30—

although it is impossible to discern the true magnitude of those ostensible payments, because 

neither Bush nor the Leadership PAC reported them as FECA requires, 52 U.S.C. § 30104. 

Plaintiffs suffer injury because they have been deprived of such information. 

Plaintiffs maintain that under CLC II, the RTR Committees’ existing reports do not, and 

cannot, cure their informational injury because even if their undifferentiated disbursements for 

“travel” reflect payments for these Bush expenses “in some form,” they fail to account for the

Committees’ in-kind contributions to Bush with the itemized information that FECA requires. But 

even if this Court does not interpret CLC II in this manner, there is no evidence that the RTR 

Committees’ reports in fact reported payments in connection to this list of undisclosed Bush 

campaign events—or at least, there is no way to ascertain whether the committees’ undesignated 

disbursements for “travel” or related purposes covered these outstanding events. 

b. This “precise” argument is not precluded. Plaintiffs did not raise, and the parties

did not litigate, whether the RTR Committees paid for and reported the expenses described above 

in the delay litigation. As the D.C. Circuit has repeatedly stressed, “The preclusive effect of the 

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first jurisdictional judgment is limited to matters actually raised and necessarily decided; it does 

not extend to matters that could have been raised, as would the preclusive effect of a judgment on 

the merits.” GAF Corp., 818 F.2d at 913 (emphasis added). The FEC’s speculation about whether

plaintiffs could have or should have previously identified these events is beside the point. Because 

this precise argument was not made, the doctrine of preclusion does not apply here. 

And if the FEC were to object that this claimed injury is too granular, its quarrel would not 

be with plaintiffs, but with this Circuit’s precedent. “The nature of the information allegedly 

withheld is critical to the standing analysis.” Common Cause, 108 F.3d at 417. Indeed, the 

specificity required in the informational standing analysis led to this Court’s request in the delay

case that plaintiffs identify the particular trips they believed Bush failed to report in the pre-June 

2015 period. The Commission defaulted in that case, and cannot now attempt to bar plaintiffs from 

raising different undisclosed Bush events in the manner prescribed by the Court to establish 

informational injury. 

B. Plaintiffs have been deprived of information about the in-kind contributions made 

by RTR Super PAC and received by Bush following the commencement of his 

candidacy. 

By virtue of Bush’s reported involvement in the founding and operation of RTR Super 

PAC, it is likely that some, or even most, of the Super PAC’s spending paid for goods and services 

coordinated with, or otherwise rendered to, the Bush campaign—and any such spending had to be 

reported as itemized in-kind contributions to the campaign as FECA requires. But neither RTR 

Super PAC nor the Bush campaign disclosed any such in-kind contributions made or received, 

depriving plaintiffs of information they are entitled to under FECA. 

a. OGC recommended finding reason to believe that Bush had decided to run for 

President at least as early as January 2015, but failed to timely file a statement of candidacy and 

designate a principal campaign committee. OGC Rpt. 12-19. Thus, according to OCG, any 

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expenditure by RTR Leadership PAC or RTR Super PAC after January 2015 that was made “in

cooperation, consultation or concert with, or at the request or suggestion of” Bush or his agents 

constituted an in-kind contribution to his campaign. Because Bush failed to report the in-kind 

contributions that arose from the likely coordinated spending between RTR Super PAC and his 

campaign, he deprived plaintiffs, and the public, of information to which FECA entitled them. 

Further, OGC’s finding that Bush likely commenced his candidacy in January 2015 

provides further evidence that such coordination did in fact occur. As OGC noted, prior to June 

2015, “Bush and/or his staff appear to have collaborated with the Super PAC in discussing broad

campaign strategy and allowing the Super PAC to film video footage of himself to be used for 

commercials after he officially declared his candidacy.” Id. at 9. Indeed, there was evidence that 

in the pre-candidacy period, staff was not even attempting to avoid “coordination.” For example, 

twelve days after Bush filed his Statement of Candidacy, officers of the Super PAC reportedly 

announced during a conference call with donors that they “‘can’t coordinate anymore’ with the 

campaign,” id. at 9 n.38, suggesting that the Super PAC’s leadership was aware that their close 

relationship with the campaign prior to Bush’s announcement of candidacy would likely support 

a finding of coordination. 

RTR Super PAC failed to report any coordinated expenditures as in-kind contributions to 

the Bush campaign with the information FECA requires. See 52 U.S.C. § 30104(b)(2)(D), 

(4)(H)(i), (5)(A), (6)(B)(i); 11 C.F.R. § 104.13(a). It is true that disclosing such contributions 

would be tantamount to admitting to illegal coordinated activity and associated violations of 

FECA’s contribution restrictions, given that Bush and his agents were prohibited by 52 U.S.C. 

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§ 30125(e)(l) from establishing or financing RTR Super PAC in the first place.

11 But as OGC 

found, there is reason to believe that such violations in fact occurred, and so plaintiffs are entitled 

to all reportable information that arises from this illegal undertaking. Here, as in CLC II, plaintiffs 

are deprived of information as to which of a super PAC’s purported “independent” disbursements 

were actually coordinated expenditures or otherwise represented in-kind contributions to a 2016 

presidential campaign. 

b. Plaintiffs did make this argument in the delay case—and at length, see MTD Opp’n

supra, at 21-24—but this Court rejected this basis for plaintiffs’ standing in its February 2021

order, citing CLC I for the proposition that “there is no statutory right to determining whether an 

expenditure should be deemed a ‘coordinated’ contribution.’” Right to Rise I, 520 F. Supp. 3d at 

47-48. But because CLC I was subsequently reversed, precluding this argument now would “work 

a basic unfairness” on plaintiffs, Palacios, 2020 WL 3972016, at *2. See also Montana, 440 U.S. 

at 157 (noting issue preclusion applicable only “absent significant changes in controlling facts or 

legal principles”). It is also reason for this Court to hold differently now. 

There is no question that CLC II directly applies to the reasoning of the February 2021 

order in the delay case. As in CLC II, “[i]f [plaintiffs] win on the merits, [respondent] would be

required to disaggregate its reporting to show the actual amounts of various expenditures that were 

in-kind contributions” to a candidate’s campaign. 31 F.4th at 790. Plaintiffs would thereby “gain 

access to FECA-required information about coordinated [in-kind] contributions from [RTR Super 

PAC] to the [Bush] campaign.” Id. And, as CLC II made clear, Wertheimer would bar standing 

only if plaintiffs were seeking purely “duplicative” reporting from one coordinating committee of

11 It is likely that RTR Super PAC would forfeit its status as an “independent expenditure-only 

committee,” or super PAC, by making contributions to federal candidates, instead of exclusively 

making independent expenditures as it pledged to do as a condition of its status. 

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transactions already reported by the other. Id. at 791. But here, neither Bush nor RTR Super PAC 

have itemized or reported any of the in-kind contributions that plaintiffs allege occurred. Under 

CLC II, the Super PAC’s failure to report these in-kind contributions with itemized information 

about their dates, amounts, and purposes as FECA requires constitutes cognizable informational 

injury. 

III. Plaintiffs’ inability to access FECA disclosure information directly and concretely 

injures their interests. 

A plaintiff suffers an injury in fact when it shows that it has been deprived of information 

that must be publicly disclosed pursuant to a statute and “there is no reason to doubt [the plaintiff’s] 

claim that the information would help them.” CLC, 952 F.3d at 356 (citation omitted). “The

helpfulness of the information does not depend on the plaintiff’s status as a voter,” CREW v. Am. 

Action Network, 410 F. Supp. 3d 1, 13 (D.D.C. 2019), but on whether the information sought 

would be “useful” to plaintiffs and “to others to whom they would communicate it.” Id. 

A. There is no reason to doubt that undisclosed information here would help CLC and 

Democracy 21 advance their missions. 

CLC’s and Democracy 21’s injuries in this case are concrete and directly impact their 

organizational missions to “strengthen democracy” and “mak[e] democracy work for all citizens.”

See Compl. ¶¶ 12, 18. 

In pursuing their missions, CLC and Democracy 21 are uniquely positioned among 

nonprofit organizations in their focus on issues of campaign finance and political disclosure and 

their concentration on legal work and public education in these areas. Even as plaintiffs have been 

challenged in their claims to informational injury in various FECA cases, their organizations’ 

ongoing use of FECA information in an array of programmatic activities has repeatedly been 

affirmed by the courts. As the D.C. Circuit found in a recent case concerning the disclosure of 

contributor information, there is “no reason to doubt” that the disclosure CLC and Democracy 21 

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sought “would further their efforts to defend and implement campaign finance reform.” CLC, 952 

F.3d at 356; see also CLC II, 31 F.4th at 783 (noting that the outstanding information would “help

[Appellants] (and others to whom they would communicate it) to evaluate candidates for public 

office, . . . and to evaluate the role that [Correct the Record’s] financial assistance might play in a 

specific election”) (quoting Akins, 524 U.S. at 21). 

So too here. “There is ‘no reason to doubt’ that the disclosures [plaintiffs] seek would 

further their efforts to defend and implement campaign finance reform.” CLC, 952 F.3d at 356. 

Indeed, the incredible scale of the potential violations in this case makes it evident that knowing 

such information is critical not only to defend and implement campaign finance reform but also to 

realize FECA’s purpose of informing voters about “how much money a candidate spent in an 

election.” Common Cause, 108 F.3d at 418. In the 2016 cycle, the Bush campaign reported raising 

$32 million, whereas RTR Super PAC reported raising more than $118 million. OGC Rpt. 10. 

Depending on the extent to which RTR Super PAC’s disbursements should have been considered 

spending by the Bush campaign, Bush’s true 2016 cycle spending could be anywhere between $35

million and $153 million. 

Plaintiffs use information from FEC disclosure reports to prepare complaints submitted to 

the FEC and to engage in rulemakings as part of its regulatory practice, to draft briefs and other 

materials submitted to state and federal courts in campaign finance litigation, and to prepare 

testimony submitted to legislators, craft legislation and lobby for its enactment. Compl. ¶¶ 14-16, 

19-20. Plaintiffs also advance their missions by analyzing FECA disclosure information to develop 

a wide variety of public education materials, including fact sheets, reports, and op-eds, to inform 

voters about the sources and extent of candidates’ financial support and the role of outside groups

in elections. Id. 

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When such FECA information is unavailable or inaccurate, such as when candidates are 

allowed to use supposedly “independent” groups as de facto coordinated arms of their campaigns, 

it impedes plaintiffs’ ability to fulfill their missions and harms their efforts to provide the public 

with accurate information about the financing of federal campaigns. Id. ¶¶ 17, 19. 

B. The FEC’s dismissal of plaintiffs’ complaints has caused organizational injury by 

depriving plaintiffs of key information. 

CLC and Democracy 21 have also suffered a distinct organizational injury sufficient to 

confer standing, because the FEC’s failure to act on their complaints has “injured the [plaintiffs’]

interest[s],” and they “used [their] resources to counteract that harm.’” People for the Ethical 

Treatment of Animals v. USDA, 797 F.3d 1087, 1094 (D.C. Cir. 2015) (“PETA”) (internal 

quotation marks omitted). Timely FEC action resolving administrative complaints and remedying 

the FECA violations underlying them is essential to the success of programmatic activities 

advancing plaintiffs’ missions, including their public education work to inform voters about

campaign spending, legislative advocacy to improve campaign finance laws, and watchdog efforts 

to monitor officeholders’ and candidates’ compliance with the law. 

The FEC’s failure to act on plaintiffs’ administrative complaints deprives CLC and

Democracy 21 of required FECA disclosure information that both plaintiffs need to inform the 

public about candidates’ financial support. Compl. ¶¶ 14-15, 19. Moreover, the FEC’s dismissal 

has directly harmed plaintiffs’ watchdog activities by depriving them of information they need to 

conduct their regulatory practices before the FEC and other agencies. To advance their 

organizational missions of promoting government transparency and accountability, plaintiffs 

regularly file complaints against individuals or organizations that violate federal election law and 

participate in rulemaking and advisory opinion proceedings at the FEC to ensure the proper 

interpretation and enforcement of those laws. Id. ¶¶ 16, 19. 

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Plaintiffs’ injury here is analogous to the injury suffered by the PETA plaintiffs. In that 

case, PETA alleged that the USDA’s failure to apply the Animal Welfare Act to birds injured its

organizational interests by depriving PETA of information it needed to conduct public education 

activities central to its mission of preventing animal cruelty and denying it the ability to combat 

bird abuse through USDA enforcement complaints. 797 F.3d at 1094-95. The Court agreed, 

finding that the USDA’s inaction “deprived PETA of key information that it relies on to educate

the public” where public education efforts were “[o]ne of the ‘primary’ ways in which PETA

accomplishe[d] its mission.” Id. at 1094 (citation omitted). The Court concluded that the agency’s

inaction, which resulted in the deprivation of “investigatory information,” resulted in an injury

sufficiently “concrete and specific” to confer organizational standing. Id. at 1095. 

Similarly, persistent agency inaction here prevents plaintiffs from achieving their mission 

of strengthening the U.S. democratic process through public education, regulatory watchdog 

efforts and litigation. The FEC’s extended inaction hinders these efforts by “depriv[ing] [plaintiffs] 

of key information that [they] rel[y] on to educate the public” and to engage in the “normal process 

of submitting [FEC] complaints” and in Commission rulemakings and other proceedings. See 

PETA, 797 F.3d at 1094. These injuries are “both concrete and specific to the work in which

[plaintiffs are] engaged.” Action Alliance of Senior Citizens of Greater Phila. v. Heckler, 789 F.2d 

931, 938 (D.C. Cir. 1986). 

Plaintiffs have also expended resources to counteract these organizational injuries. See 

PETA, 797 F.3d at 1094. For instance, because of the FEC’s failure to compel required disclosure 

relating to the relationship between RTR Super PAC and the Bush campaign and any in-kind 

contributions that resulted, CLC has had to divert resources from other planned organizational 

needs to research relevant law and fill in the gaps to the best of their ability, including by explaining 

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to reporters, researchers, and partner organizations how they might attempt to find information not 

properly reported. Compl. ¶¶ 17, 20. Thus the Commission’s failure to act on the allegations here 

has forced plaintiffs to divert resources from other planned organizational needs to research and 

fill in the missing disclosure information they seek in the complaints, including for the benefit of 

reporters and partner organizations. Id. 

III. Plaintiffs’ injuries are fairly traceable to the dismissal of their administrative 

complaints and redressable by a favorable court decision. 

Finally, plaintiffs meet the causation and redressability requirements for Article III 

standing. Plaintiffs’ informational and organizational injuries flow directly from the FEC’s failure

to act on their administrative complaints, and this Court is empowered under 52 U.SC. 

§ 30109(a)(8)(C) to redress that failure. If the Court agrees that the FEC’s dismissal was contrary 

to law, then it would remand the case and order the FEC to conform to its order. 

IV. The FEC’s attempt to invent a “futility” excuse for its unlawful dismissal of plaintiffs’

complaints is frivolous. 

After arguing that plaintiffs are precluded from even asserting any claims to standing here, 

the FEC also argues that this Court should dismiss this action because remand to the FEC would 

likely be “futile.” FEC Mot. 20. It identifies not a single FECA delay or dismissal case to support 

this novel and extraordinarily self-serving proposition, and that is because there are none. 

Permitting the Commission to sidestep a challenge to its dismissal of an administrative 

complaint by invoking “futility” would eviscerate FECA’s provision of judicial review at 52 

U.S.C. § 30109(a)(8). If the FEC’s claimed reluctance to reconsider or reverse course with respect 

to a previous agency delay or dismissal renders a remand “futile,” then this would be an excuse 

the agency could—and likely would—deploy in each and every FECA challenge to its actions. 

Granting the FEC relief on this basis would not only be contrary to fundamental principles of 

administrative law, but would also perversely reward the agency for shirking its responsibilities 

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under FECA even after a court finds its inaction unlawful. 

There is no “futility” defense in a § 30109(a)(8) action—and unsurprisingly, the FEC cites 

nothing on point. Instead it attempts to rely on authority where remand was “futile” because the 

outcome was mandated by law, see Fogg v. Ashcroft, 254 F.3d 103, 111 (D.C. Cir. 2001) (“the

decision was not only right but legally inevitable”); Nat’l Parks Conservation Ass’n v. United 

States, 177 F. Supp. 3d 1, 35 n.10 (D.D.C. 2016) (any action on remand “would be near impossible 

to square [with] a requirement that the Forest Service’s exercise of its limited authority be done

expeditiously”); or on authority that did not even resolve the question, see Keats v. Sebelius, No. 

13-1524, 2019 WL 1778047, at *7 (D.D.C. Apr. 23, 2019) (raising, but not deciding, whether 

remand would be futile to decide if agency had carried out a legal duty to review employee file for 

employee being tried for possession of child pornography). None of these cases consider an 

argument remotely like the one the FEC tests here: that a legal challenge to an agency decision 

should be dismissed simply because the agency might decline to change its decision in the event 

the Court finds it unlawful. 

Nor does the only FECA-related case the FEC cites, FEC v. Legi-Tech, 75 F.3d 704 (D.C. 

Cir. 1996), support such a claim. The court there found that it would be futile to remand the FEC’s

discretionary decision to file suit against the defendant—because even though the original decision 

was unlawfully voted on by ex-officio members, the FEC had already “ratif[ied]” the decision with 

a properly constituted Commission. Id. at 708. Notably, the court rejected the claim that it had 

“statutory authority to review the FEC’s decision to sue,” and contrasted that with “a decision not 

to sue” and other acts the court recognized were reviewable under 52 U.S.C. § 30109(a)(8). Id. at 

709. In other words, a remand to require reconsideration of an FEC decision to file suit was futile 

precisely because it was not subject to review under FECA; the opposite is true of “an order of the 

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Commission dismissing a complaint,” see id. § 30109(a)(8)(A). 

Indeed, while it is difficult to glean a coherent legal theory from the FEC’s assortment of 

unrelated case law, it appears to be making the same redressability argument that the Supreme 

Court rejected in Akins. See FEC Mot. 22 (claiming that “the record shows that the agency would 

not reach a different outcome” on remand). In Akins, the FEC’s unsuccessful standing challenge 

turned on similar claims about the “obstacles to redressability” for plaintiffs seeking to remedy

informational injuries caused by the FEC’s failure to enforce the law. Pet’r Reply Br., Akins, 524 

U.S. 11 (No. 96-1590), 1997 WL 675443, at *4. The Supreme Court, for its part, agreed that it was 

“possible that even had the FEC agreed with [plaintiffs’] view of the law, it would still have 

decided in the exercise of its discretion not to require [the PAC] to produce the information.” Akins, 

524 U.S. at 25. Notwithstanding that possibility, however, the Court had no trouble finding a 

redressable injury—because “those adversely affected by a discretionary agency decision 

generally have standing to complain that the agency based its decision upon an improper legal 

ground . . . even though the agency . . . might later, in the exercise of its lawful discretion, reach 

the same result for a different reason.” Id. 

The FEC’s “futility” arguments are indistinguishable from the redressability arguments 

rejected in Akins, and fail for the same reasons. The FEC is subject to no mandatory obligation to 

dismiss this matter in the event of a remand; it retains the discretion to take any other enforcement 

actions authorized under FECA. Accordingly, as in Akins, plaintiffs’ standing is not extinguished 

by the possibility that the FEC will decline enforcement for a different reason. See also CREW v. 

FEC, 209 F. Supp. 3d 77, 85 n.3 (D.D.C. 2016) (“[T]he mere fact the FEC has discretion to dismiss 

CREW’s complaint for another reason does not vitiate the redressability of CREW’s claim.”).

Nor is there any free-floating “staleness” defense, as the FEC attempts to assert here—

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while brazenly ignoring that any “staleness” of this matter is entirely due to the FEC’s own inaction 

and delay. See FEC Mot. 22 (noting “more than seven years” had passed since administrative 

complaints filed without acknowledging that the FEC had failed for seven years to resolve 

complaints). But the passage of time alone does not moot an § 30109(a)(8) suit. This is also made 

clear by Akins, where the original administrative complaint was filed on January 9, 1989, and 

involved activity that took place between 1980 and 1990; the Supreme Court nevertheless upheld 

the redressability of the plaintiffs’ informational injury in 1998. See 524 U.S. at 25. And litigation 

spurred by the original Akins complaint continued through 2010, despite involving alleged 

violations that ceased after the 1980s. Akins v. FEC, 736 F. Supp. 2d 9, 13-16 (D.D.C. 2010). The 

FEC cannot invoke its own delay in resolving plaintiffs’ administrative complaints as grounds to 

dismiss plaintiffs’ § 30109(a)(8) action as “futile,” nor to escape its fundamental obligation to 

conduct its proceedings in accordance with standards of reasoned decision-making. 

CONCLUSION 

For these reasons, the FEC’s motion to dismiss should be denied. 

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Dated: March 16, 2023 

Respectfully submitted, 

/s/ Tara Malloy 

Tara Malloy (DC Bar No. 988280) 

tmalloy@campaignlegalcenter.org 

Megan P. McAllen (DC Bar No. 1020509) 

CAMPAIGN LEGAL CENTER 

1101 14th St. NW, Suite 400 

Washington, D.C. 20005 

(202) 736-2200 

Fred Wertheimer (DC Bar No. 154211) 

DEMOCRACY 21 

2000 Massachusetts Avenue N.W. 

Washington, DC 20036 

(202) 355-9600 

Donald J. Simon (DC Bar No. 256388) 

SONOSKY, CHAMBERS, SACHSE, 

ENDRESON & PERRY, LLP 

1425 K Street N.W., Suite 600 

Washington, DC 20005 

(202) 682-0240 

Attorneys for Plaintiffs 

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Case 1:22-cv-03319-CRC Document 19 Filed 03/16/23 Page 55 of 55 

CERTIFICATE OF SERVICE 

I hereby certify that on March 16, 2023, I caused a true and correct copy of the 

foregoing documents to be served upon all counsel of record registered with the Court’s ECF

system, by electronic service via the Court’s ECF transmission facilities. 

Respectfully submitted, 

/s/ Tara Malloy 

Tara Malloy 

CAMPAIGN LEGAL CENTER 

1101 14th St. NW, Suite 400 

Washington, DC 20005 

(202) 736-2200 

47