IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

END CITIZENS UNITED PAC, 

Plaintiff, 

 

v. 

Case No. 1:21-cv-2128-RJL 

FEDERAL ELECTION COMMISSION, 

Defendant, 

and 

NEW REPUBLICAN PAC,

Defendant-Intervenor. 

PLAINTIFF’S COMBINED MEMORANDUM OF POINTS AND AUTHORITIES IN 

OPPOSITION TO NEW REPUBLICAN PAC’S CROSS-MOTION FOR SUMMARY 

JUDGMENT AND REPLY IN SUPPORT OF PLAINTIFF’S MOTION FOR DEFAULT 

JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY JUDGMENT

Case 1:21-cv-02128-RJL Document 30 Filed 01/25/22 Page 1 of 30
ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES......................................................................................................... iii

TABLE OF ABBREVIATIONS .....................................................................................................v

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

ARGUMENT...................................................................................................................................3

I. Plaintiff Has Standing..........................................................................................................3

A. Plaintiff Has Suffered Competitive Injuries ...............................................................4

B. Plaintiff Has Suffered Informational Injuries.............................................................5

1. The Dismissals Deprive ECU of Information About Scott and the Scott 

Campaign’s Fundraising and Spending After Scott Became a Candidate in 

2017....................................................................................................................5

2. The Dismissals Deprive ECU of Concrete Information About the Details 

of New Republican’s Contributions to the Scott Campaign Through 

Coordinated Communications ...........................................................................7

II. The Dismissals of Plaintiff’s Claims Are Reviewable ........................................................8

A. If the Commission Dismisses One Claim on the Basis of Prosecutorial 

Discretion, the Court Can Still Review the Dismissals of Other Claims....................8

B. The Dismissals Are Reviewable Because the FEC Declined to Exercise Its 

Prosecutorial Discretion............................................................................................10

C. The Purported Exercise of Prosecutorial Discretion Relied on Erroneous Legal 

Reasoning..................................................................................................................16

D. Pretextual Invocations of Prosecutorial Discretion Are Reviewable........................19

III. The Dismissals of Plaintiff’s Claims Were Contrary to Law ............................................20

A. Plaintiff’s Motion Identified Several Legal Errors Committed by the Controlling 

Commissioners..........................................................................................................20

B. The Affidavit Relied Upon by the Controlling Commissioners Does Not Justify 

the Dismissals...........................................................................................................21

C. The Controlling Commissioners Offered No Valid Explanation for Their 

Decision to Dismiss Plaintiff’s Coordinated-Communications Allegations ............23

D. Intervenor’s Other Defenses of the Controlling Commissioners’ Decision Fail......24

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

Case 1:21-cv-02128-RJL Document 30 Filed 01/25/22 Page 2 of 30
iii

TABLE OF AUTHORITIES

Cases Pages

Burlington Truck Lines, Inc. v. United States, 371 U.S. 156 (1962).............................................24

Campaign Legal Center v. FEC, 520 F. Supp. 3d 38 (D.D.C. 2021)..............................................6

*Campaign Legal Center v. FEC, 952 F.3d 352 (D.C. Cir. 2020)..................................................5

Campaign Legal Center v. FEC, No. 20-cv-00730, 2021 WL 6196985

(D.D.C. Dec. 30, 2021)....................................................................................................................6

Citizens for Responsibility & Ethics in Washington v. FEC,

892 F.3d 434 (D.C. Cir. 2018).....................................................................................................2, 9

Citizens for Responsibility & Ethics in Washington v. American Action Network,

410 F. Supp. 3d 1 (D.D.C 2019)..............................................................................................14, 15

Citizens for Responsibility & Ethics in Washington v. FEC,

971 F.3d 340 (D.C. Cir. 2020).......................................................................................................13

Citizens for Responsibility & Ethics in Washington v. FEC,

993 F.3d 880 (D.C. Cir. 2021)...............................................................................2, 8, 9, 10, 11, 19

*Department of Commerce v. New York, 139 S. Ct. 2551 (2019)...........................................18, 19

*Department of Homeland Security v. Regents of the University of California,

140 S. Ct. 1891 (2020)...................................................................................................................23

Environmental Defense Fund v. Environmental Protection Agency,

922 F.3d 446 (D.C. Cir. 2019).........................................................................................................5

FEC v. Akins, 524 U.S. 11 (1998)....................................................................................8, 9, 19, 20

Giffords v. FEC, No. 19-cv-1192 (D.D.C. Oct. 14, 2021).......................................................14, 15

*La Botz v. FEC, 889 F. Supp. 2d 51 (D.D.C. 2012) ..........................................................4, 21, 22

Michigan v. Environmental Protection Agency, 576 U.S. 743 (2015) ..........................................23

Motor Vehicle Manufacturers Association of the United States v. State Farm Mutual Automobile 

Insurance Company, 463 U.S. 29 (1983) ......................................................................................24

*Nader v. FEC, 725 F.3d 226 (D.C. Cir. 2013)...............................................................................4

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986).......................................................................19, 24

*Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) .................................................................................4

Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001)......................................................................7

Case 1:21-cv-02128-RJL Document 30 Filed 01/25/22 Page 3 of 30
iv

Regulations & Statutes

11 C.F.R. § 5.4...............................................................................................................................13

*11 C.F.R. § 100.72.......................................................................................................................16

*11 C.F.R. § 100.131.....................................................................................................................16

11 C.F.R. § 109.21...........................................................................................................................7

11 C.F.R. § 111.9...........................................................................................................................13

11 C.F.R. § 111.20.........................................................................................................................13

52 U.S.C. § 30104............................................................................................................................7

52 U.S.C. § 30106..........................................................................................................................11

52 U.S.C. § 30109....................................................................................................................12, 13

Fed. R. Civ. P. 55.............................................................................................................................3

Other Authorities

Certification, MUR 6589 (American Action Network, et al.) (June 26, 2014), 

https://eqs.fec.gov/eqsdocsMUR/14044361924.pdf......................................................................15

Certification, MUR 6589 (American Action Network, et al.) (Oct. 19, 2016), 

https://eqs.fec.gov/eqsdocsMUR/16044401006.pdf......................................................................15

Certification, MURs 7350, 7351, 7357 & 7382 (Cambridge Analytica LLC, et al.)

(Apr. 12, 2019), https://www.fec.gov/files/legal/murs/7350/7350_27.pdf ...................................14

Certification, MURs 7350, 7351, 7357 & 7382 (Cambridge Analytica LLC, et al.)

(July 30, 2019), https://www.fec.gov/files/legal/murs/7350/7350_29.pdf....................................14

Certification, MURs 7350, 7351, 7357 & 7382 (Cambridge Analytica LLC, et al.)

(Aug. 22, 2019), https://www.fec.gov/files/legal/murs/7350/7350_37.pdf...................................14

Factual and Legal Analysis, MUR 5363 (Sharpton et al.) (Nov. 13, 2003) ..................................17

FEC Advisory Opinion 2015-09 (Senate Maj. Pac, et al.) (Nov. 13, 2015)..................................17

Statement of Reasons of Vice Chairman Matthew S. Petersen and Commissioners Caroline C. 

Hunter, Donald F. McGahn, and Ellen L. Weintraub, MUR 5934 (Thompson)

(Mar. 10, 2009) ........................................................................................................................17, 18

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v 

TABLE OF ABBREVIATIONS

CLC Campaign Legal Center 

CREW Citizens for Responsibility and Ethics in Washington 

ECU End Citizens United PAC

FEC Federal Election Commission

FECA Federal Election Campaign Act 

MUR Matter Under Review

PAC Political Committee

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INTRODUCTION

This case challenges the dismissals of allegations raised in two administrative complaints 

filed with the Federal Election Commission (“FEC” or “Commission”) by Plaintiff End Citizens 

United PAC (“ECU”) alleging that its political competitors Rick Scott for Florida (“Scott 

Campaign”), New Republican PAC (“New Republican”), and then-Florida Governor (now U.S. 

Senator) Rick Scott (collectively, “the administrative respondents”) had violated the Federal 

Election Campaign Act (“FECA” or “the Act”). ECU’s complaints documented how Scott and his 

campaign failed to timely file documentation of Scott’s candidacy and required financial 

disclosures (“the Candidacy Filing claims”), how the administrative respondents had violated 

FECA’s soft-money prohibition, and how New Republican made unlawful in-kind contributions 

to the Scott Campaign in the form of coordinated communications. Despite the voluminous record 

evidence supporting ECU’s claims, three Commissioners (“the controlling Commissioners”)

voted—contrary to the recommendation of the agency’s General Counsel—to dismiss the 

complaints, relying in part on a purported invocation of the FEC’s prosecutorial discretion.

In its response to Plaintiff’s motion for default judgment or, in the alternative, summary 

judgment, New Republican, having intervened as a defendant in this action, makes only a cursory 

effort to defend those dismissals on the merits. Instead, as in its earlier motion to dismiss, 

Intervenor dedicates most of its energy to arguments that ECU lacks standing to bring this case 

and that the underlying FEC dismissals are not reviewable. Those arguments fail.

As Plaintiff’s motion and its response to New Republican’s motion to dismiss explained, 

ECU has standing because the dismissals of its allegations injure it both competitively and 

informationally. New Republican’s response adds nothing new to its already-rebutted arguments 

on the former injury and fails to engage with ECU’s submissions on the latter. In particular, 

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contrary to Intervenor’s assertions, Plaintiff has repeatedly described the concrete information of 

which the dismissals deprive it.

Intervenor’s efforts to cast the FEC’s decision as unreviewable fare no better. New 

Republican submits that the D.C. Circuit’s decisions in Citizens for Resp. & Ethics in Wash.

[(“CREW”)] v. FEC, 993 F.3d 880 (D.C. Cir. 2021) (“CREW 2021”), and CREW v. FEC, 892 F.3d 

434, 440-42 (D.C. Cir. 2018) (“CREW 2018”), preclude review here, but Plaintiff’s earlier filings 

explain why review of the dismissals in this case is entirely consistent with those precedents. First, 

the controlling Commissioners purported to exercise the FEC’s prosecutorial discretion with 

respect to only the Candidacy Filing claims, leaving ECU’s other claims reviewable—

notwithstanding New Republican’s implausible argument that references to prosecutorial 

discretion in dismissing one allegation render the separate dismissals of distinct claims 

unreviewable. Second, the Commission—under its ordinary majority-vote procedures—explicitly 

declined to exercise its prosecutorial discretion in this case, making the controlling 

Commissioners’ purported invocation of that discretion ineffective. Third, the controlling 

Commissioners’ decision relied on erroneous legal reasoning, and Intervenor’s attempts to defend 

that reasoning are unavailing. Finally, the controlling Commissioners’ purported reliance on 

prosecutorial discretion was pretextual and therefore, under controlling Supreme Court precedent, 

contrary to law. The dismissals are therefore reviewable by this Court.

Intervenor closes with a brief effort to defend the dismissals on the merits, but that effort, 

too, falls short. The response neglects most of Plaintiff’s argument and important portions of the 

factual record. Like the controlling Commissioners, for instance, Intervenor fails to discuss events 

during 2017, which were the primary focus of ECU’s allegations. Moreover, the justifications that 

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3

Intervenor offers for the controlling Commissioners’ decision are unpersuasive and, in places, 

irrelevant because the Commissioners did not offer those justifications at the time of their decision.

Accordingly, Plaintiff is entitled to default judgment because the sole defendant named in 

its complaint has failed to appear or defend this action and Plaintiff has established a “right to 

relief” on the administrative record. Fed. R. Civ. P. 55. Alternatively, ECU is entitled to summary 

judgment because there is no genuine dispute of material fact1 and the underlying FEC dismissals 

were contrary to law. Correspondingly, because the dismissals were contrary to law, Intervenor’s 

cross-motion for summary judgment must fail. Plaintiff therefore respectfully requests that the 

Court grant its motion for default judgment or, in the alternative, summary judgment and deny 

New Republican’s cross-motion for summary judgment.

ARGUMENT

I. Plaintiff Has Standing

As Plaintiff explained in its motion and in its response to Intervenor’s motion to dismiss, 

ECU has standing to seek judicial review of the underlying FEC dismissals because those 

dismissals injure it both competitively and informationally. See ECF No. 25 at 14-22; ECF No. 23 

at 17-23. Intervenor’s response largely repeats the standing arguments raised in its motion to 

dismiss, which posit that ECU has not suffered any injury. As explained below, as well as in 

Plaintiff’s earlier filings, Intervenor’s arguments are meritless.

1 Intervenor’s response claims that “genuine issues of material fact” preclude summary 

judgment for Plaintiff. ECF No. 26-1 at 16-17. However, New Republican never identifies what 

those issues are. Indeed, it is not clear what those issues could be, since, as Intervenor

acknowledges, “FEC dismissals of administrative complaints are reviewed on the administrative 

record.” ECF No. 26-1 at 16 (emphasis added). Plaintiff’s motion explained why, on that record, 

the Commission’s actions were contrary to law.

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A. Plaintiff Has Suffered Competitive Injuries

Plaintiff’s motion and its response to Intervenor’s motion to dismiss explain why ECU has 

suffered competitive injuries under Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005). See ECF No. 23 

at 17-19; ECF No. 25 at 15-22. New Republican’s response fails to engage with Plaintiff’s

arguments on this point. See ECF No. 26-1 at 17-18. Although Intervenor cites the dissent in Shays

to argue that this form of standing is rare, see ECF No. 26-1 at 17 (citing Shays, 414 F.3d at 120 

n.4 (Henderson, J., dissenting)), the Shays majority opinion and decisions from this district and 

circuit applying it belie that conclusion and confirm that ECU has competitor standing in this case,

see, e.g., La Botz v. FEC, 889 F. Supp. 2d 51, 56 (D.D.C. 2012); see also ECF No. 25 at 15-17 

(collecting cases).

As Plaintiff noted in its response to New Republican’s motion to dismiss, Nader v. FEC, 

725 F.3d 226 (D.C. Cir. 2013), the holding of which Intervenor again misrepresents, see ECF No. 

26-1 at 17, supports ECU’s standing in this case. See ECF No. 25 at 16-17. Nader explained that 

an individual whose administrative complaint was dismissed by the FEC may be able to claim 

competitor standing as long as he can satisfy the causation and redressability requirements for 

standing by showing that the dismissal impairs his ability to compete politically in the future. See

725 F.3d at 229 (“Nader might have been able to establish standing as a competitor if he had shown 

that the FEC’s determination injured his ability to fight the next election.”). ECU has documented

how the dismissals in this case injure it in its ongoing competitive relationship with the 

administrative respondents, which will extend through at least the 2024 election cycle. See, e.g., 

ECF No. 25 at 17; Corrected Decl. of Tiffany Muller, ECF No. 24-1, ¶¶ 6, 11-14. Far from 

precluding Plaintiff’s argument for competitor standing, then, Nader buttresses it.

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For these reasons, and those described in its earlier filings, ECU has therefore suffered 

competitive injuries that give it standing to bring this action.

B. Plaintiff Has Suffered Informational Injuries

“The law is settled that 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.” Campaign Legal Ctr. 

[(“CLC”)] v. FEC, 952 F.3d 352, 356 (D.C. Cir. 2020) (quoting Env’t Def. Fund v. EPA, 922 F.3d 

446, 452 (D.C. Cir. 2019)). Plaintiff has described how the dismissals deprived ECU of 

information of which FECA requires disclosure, and Intervenor’s arguments that Plaintiff has not 

suffered any informational injury miss the mark.

1. The Dismissals Deprive ECU of Information About Scott and the Scott 

Campaign’s Fundraising and Spending After Scott Became a 

Candidate in 2017

First, ECU has been denied the information contained in disclosure reports that Scott and 

the Scott Campaign should, on Plaintiff’s view of the law, have begun filing after Scott became a 

candidate as early as May 2017. See ECF No. 25 at 22-24; ECF No. 23 at 19-20. Scott did not 

declare candidacy and start reporting his campaign’s financial activity until April 2018, and so, 

under Plaintiff’s allegations, Scott failed to file up to four quarterly reports that would have 

disclosed months of the Scott Campaign’s financial activity. See ECF No. 25 at 23-24. Intervenor’s 

repeated suggestions that this case involves only an alleged failure to report pre-candidacy, testingthe-waters expenses, see ECF No. 26-1 at 18-20, therefore misunderstands and understates the 

nature of Plaintiff’s injury.

As Plaintiff’s motion explained, a plaintiff suffers an informational injury when a campaign 

fails to file financial disclosures covering the period after the candidate entered the race or began 

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testing the waters. CLC v. FEC, 520 F. Supp. 3d 38, 45-46 (D.D.C.) (“To the extent that Bush was 

either a de-facto candidate or testing the waters at some point prior to June 2015, then plaintiffs 

have alleged an informational injury because further disclosures would be required.”), 

reconsidered, No. 20-cv-00730, 2021 WL 6196985 (D.D.C. Dec. 30, 2021). In CLC, the plaintiffs 

alleged that Jeb Bush’s 2016 presidential campaign’s first FEC report failed to contain retroactive 

financial disclosures covering a period when he was testing the waters for a presidential run, 

thereby depriving them of information.

2 See id. at 45. The injury in this case is even clearer: 

Plaintiff has alleged that Scott and the Scott Campaign entirely failed to file required reports (and 

other forms) after Scott, on Plaintiff’s view of the law, became a candidate in 2017, and explained 

how this failure deprived ECU of information of which FECA requires disclosure. See, e.g., ECF 

No. 25 at 22-25; ECF No. 23 at 19-20, 23-27; Compl., ECF No. 1, ¶¶ 11, 54. 

The CLC court’s reconsideration of its original ruling does not change this conclusion. As 

Intervenor acknowledges, the CLC court reconsidered its initial standing determination—though 

not its reasoning—“after the intervenor-defendant demonstrated that the supposedly missing 

information had in fact been reported by an entity other than Governor Bush’s campaign.” ECF 

No. 26-1 at 19-20 (citing CLC, 2021 WL 6196985); see also CLC, 2021 WL 6196985, at *4 

(recounting the evidence offered by the intervenor-defendant to show full reporting). In this case, 

Intervenor has not taken any similar steps to rebut Plaintiff’s allegations that Scott and the Scott 

Campaign failed to file required disclosures and thereby deprived ECU of information of which 

2 Intervenor’s response wrongly suggests that Plaintiff misstated CLC’s holding when 

Plaintiff explained that “Bush’s failure to begin reporting on the proper date had deprived” the 

CLC plaintiffs of information. ECF No. 26-1 at 19 (quoting ECF No. 23 at 29). In context, this 

statement referred to Bush’s failure to disclose financial information stretching back as far as 

FECA required, not to a failure to file separate reports. See ECF No. 23 at 29.

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FECA requires disclosure. The reconsidered CLC opinion thus does nothing to undermine ECU’s 

standing.

2. The Dismissals Deprive ECU of Concrete Information About the 

Details of New Republican’s Contributions to the Scott Campaign 

Through Coordinated Communications

The dismissals also injure ECU by depriving it of information about in-kind contributions 

from New Republican to the Scott Campaign in the form of coordinated communications. See ECF 

No. 25 at 25-26; ECF No. 23 at 20-21. Specifically, Plaintiff has alleged that commercials aired 

by New Republican in May and June of 2018 were coordinated with the Scott Campaign, and 

therefore qualified as in-kind contributions that, under FECA, must be disclosed by both parties 

as contributions. See 52 U.S.C. § 30104(a); 11 C.F.R. § 109.21. Because New Republican would 

need to report its spending on these commercials separately from other expenditures, including 

truly independent expenditures made by the super PAC to benefit the Scott Campaign, proper

disclosure would reveal concrete information about the commercials’ production that ECU cannot 

discern from current reporting. For example, FECA-compliant disclosure would inform ECU 

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

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

transactions took place. As Plaintiff has further explained, the fact that proper disclosure would 

reveal this new information to ECU distinguishes this case from Wertheimer v. FEC, 268 F.3d 

1070 (D.C. Cir. 2001), where the plaintiffs already knew all conceivable factual information about 

the allegedly coordinated transactions at issue and sought only a declaration that the expenditures 

were coordinated. See id. at 1074-75; ECF No. 25 at 25-26; ECF No. 23 at 21.

Intervenor’s response does not engage with this argument, summarily insisting that ECU 

seeks only “a legal determination.” ECF No. 26-1 at 21. But the amount New Republican spent on 

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these coordinated communications, as opposed to other expenditures, is not a legal determination.

The identities of the consultants that New Republican paid to produce these particular commercials 

are not legal determinations. The dates of the transactions that went into creating these 

commercials are not legal determinations. Rather, all these details are archetypal examples of 

information of which FECA requires disclosure. See, e.g., FEC v. Akins, 524 U.S. 11, 21 (1998).

The dismissals therefore deprived ECU not of a mere legal determination, but of concrete 

information to which the statute entitles ECU. 

Instead of responding to Plaintiff’s showing that this case is distinguishable from 

Wertheimer, Intervenor resorts to claiming that Plaintiff’s motion “acknowledge[d]” that 

Wertheimer “preclude[s]” this argument for informational standing by noting in a footnote “that

‘Wertheimer’s scope is currently before the D.C. Circuit.’” ECF No. 26-1 at 21 (quoting ECF No. 

23 at 30 n.4). Not so. Plaintiff’s proper indication to the Court that additional interpretation of 

Wertheimer might be forthcoming is in no way a concession that ECU lacks standing under current 

law. On the contrary: pursuant to the authorities discussed above, the dismissals of Plaintiff’s 

allegations create informational injuries that confer standing on ECU.

II. The Dismissals of Plaintiff’s Claims Are Reviewable

Plaintiff’s motion and its response to Intervenor’s motion to dismiss explained that the 

FEC’s dismissals of ECU’s allegations are reviewable notwithstanding the controlling 

Commissioners’ purported invocation of the Commission’s prosecutorial discretion. See ECF No. 

23 at 36-45; ECF No. 25 at 27-34. None of Intervenor’s counterarguments rebut that conclusion.

A. If the Commission Dismisses One Claim on the Basis of Prosecutorial 

Discretion, the Court Can Still Review the Dismissals of Other Claims

As Intervenor’s response acknowledges, an FEC “nonenforcement decision is 

reviewable . . . if the decision rests solely on legal interpretation,” as opposed to prosecutorial 

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discretion. ECF No. 26-1 (quoting CREW 2021, 993 F.3d at 884). And, as Plaintiff’s motion 

explained, see ECF No. 23 at 37, and as Intervenor’s response does not dispute, see ECF No. 26-

1 at 26-27, the controlling Commissioners attempted to invoke the FEC’s prosecutorial discretion 

only as a reason to dismiss the Candidacy Filing claims and not as a justification for dismissing 

ECU’s other allegations. As a result, the dismissals of the other allegations, which were based 

solely on legal interpretation, remain reviewable even if the purported exercise of prosecutorial 

discretion bars review of the Candidacy Filing claims—although, as discussed below, it does not.

This conclusion follows from both common sense and the fact—recognized in CREW 2018—that 

the Supreme Court in Akins allowed judicial review of one claim in an FEC administrative 

complaint to proceed even after the FEC dismissed another claim in the same complaint as an 

exercise of prosecutorial discretion. See Akins, 524 U.S. at 25; CREW 2018, 892 F.3d at 438 n.6

Notwithstanding Akins and CREW 2018, Intervenor argues that, because the controlling 

Commissioners claimed to exercise the FEC’s prosecutorial discretion to dismiss one of ECU’s 

allegations, this Court cannot review the dismissals of ECU’s other claims, either. See ECF No. 

26-1 at 26-27. This view is incorrect.

Intervenor’s argument fails because it conflates two different scenarios: In the first, the 

Commission dismisses a single administrative claim both on the basis of legal analysis and as an 

exercise of prosecutorial discretion. This situation is the one addressed by CREW 2018 and CREW 

2021. See CREW 2021, 993 F.3d at 883; CREW 2018, 892 F.3d at 438. In the second scenario, the 

Commission dismisses two distinct claims, one on the basis of legal analysis and the second by 

purporting to invoke its prosecutorial discretion. These are the facts of Akins—and this case. See

Akins, 524 U.S. at 25; CREW 2018, 892 F.3d at 438 n.6; ECF No. 23 at 37. CREW 2021, which 

involved the first scenario, found that review was unavailable in that case because reviewing the 

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dismissal at issue would require the court to judge the FEC’s exercise of discretion, and examining 

only the agency’s legal reasoning would constitute an impermissible advisory opinion because 

prosecutorial discretion provides an alternative basis for the dismissal. See 993 F.3d at 885, 889.

These concerns do not apply, however, in the second scenario. Reviewing the dismissal of 

the claim dismissed solely on legal grounds does not require evaluating the Commission’s exercise 

of prosecutorial discretion to dismiss the distinct second claim. And review of the dismissal does 

not risk an advisory opinion, since the FEC has not given alternative, discretionary grounds for its 

decision. In other words, review in a case like this one does not require a court to “carve out” 

reviewable agency action from the Commission’s exercise of discretion, id. at 886, because the 

agency’s own explanation has already distinguished the reasons for each dismissal. As a result,

where, as here, the Commission offers prosecutorial discretion as a reason to dismiss only some 

claims in an administrative complaint, a court can—and, under FECA, must—review the 

dismissals of other claims.

Because, as Plaintiff’s motion explained, see ECF No. 23 at 37, the controlling 

Commissioners purported to exercise the Commission’s prosecutorial discretion to dismiss only 

the Candidacy Filing claims, the dismissals of ECU’s other allegations remain reviewable.

B. The Dismissals Are Reviewable Because the FEC Declined to Exercise Its 

Prosecutorial Discretion

Although the three controlling Commissioners purported to exercise the FEC’s 

prosecutorial discretion to dismiss the Candidacy Filing claims, that purported invocation was 

ineffective, as Plaintiff’s motion explained, because the full Commission had already declined to 

exercise such prosecutorial discretion when a vote to dismiss pursuant to Heckler v. Chaney failed 

3-3. See ECF No. 23 at 37-41; see AR188. In response, Intervenor does not dispute, as Plaintiff 

explained, see ECF No. 23 at 38, that one of the Commission’s “powers” is its ability to exercise 

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its prosecutorial discretion, and that, under FECA, the Commission may exercise its powers only 

by a majority vote. Yet Intervenor puts forth a labyrinthine effort that attempts, but fails, to avoid 

the straightforward result that a non-majority of the Commission’s members cannot exercise a 

power that requires approval by a majority of the Commissioners.

Contrary to Intervenor’s claims, see ECF No. 26-1 at 1-2, 28, the rule that a majority of the 

Commission must approve the agency’s use of its power of prosecutorial discretion does not 

violate FECA’s requirement that four affirmative votes are necessary only to proceed with an 

enforcement action. As Plaintiff’s motion explained, the legal effect of the FEC’s decision not to 

exercise its power of prosecutorial discretion follows directly from FECA’s ordinary majority-vote 

requirement. See 52 U.S.C. § 30106(c); ECF No. 23 at 37-41; see also CREW 2021, 993 F.3d at 

891 (observing that “dismissals are not on [the] list” of “matters for which [FECA requires] an 

affirmative vote of four [Commissioners]” and contrasting that four-vote requirement with 

“FECA’s general rule that the Commission must make decisions by majority vote”). For instance, 

had one of the Commissioners who voted against the motion to dismiss under Heckler abstained 

from the vote instead, the motion would have been approved with majority support, 3-2, without 

needing four votes. Acknowledging that the FEC declined, by a vote of 3-3, under its ordinary 

majority-vote rule, to exercise its prosecutorial discretion in this case is therefore not, as Intervenor 

suggests, an attempt to circumvent CREW 2021 or FECA’s text. Rather, the rule that the 

controlling Commissioners cannot invoke the agency’s power to dismiss allegations as a matter of 

prosecutorial discretion when the agency voted against doing so follows directly from CREW 

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2021’s emphasis on FECA’s distinction between a four-vote requirement and a majority-vote 

requirement.3

Again ignoring the majority-vote rule, New Republican takes the contradictory position 

that the agency’s failed 3-3 vote to dismiss under Heckler did not prevent three Commissioners

from later claiming to dismiss the matter under Heckler, because the failed vote to dismiss was

actually a dismissal. See, e.g., ECF No. 29 at 29 (claiming that “a 3-3 vote to dismiss an 

enforcement matter has the legal effect of dismissing that matter”). Intervenor extends the “heads 

I win, tails you lose” logic of its novel claim even further and asserts that “any time three or more 

Commissioners vote against proceeding in an enforcement matter,” no matter the vote, it dismisses 

the matter, regardless of whether the three Commissioners were in the majority. ECF No. 26-1 at 

28-29; see also id. at 3-4. But Intervenor’s untenable argument fails because it is not supported by

FECA and is contrary both to Commission regulations and practice and to case law. 

First, there is no basis in either FECA or Commission regulations for New Republican’s 

position that failed motions to dismiss under Heckler actually dismiss a matter. New Republican 

repeatedly asserts that an enforcement matter is automatically dismissed if there is a failed reasonto-believe or dismissal vote without citing any statutory or regulatory authority. E.g., ECF No. 26-

1 at 2, 28-29. The only provision Intervenor cites as allegedly supporting its argument is 52 U.S.C. 

§ 30109(a)(2), see, e.g., ECF No. 26-1 at 28, which requires four affirmative votes for the

Commission to find reason to believe a violation has occurred—but which does not say that a 

3 A Commission vote not to exercise its prosecutorial discretion would not prevent

controlling Commissioners from explaining their legal reasons for not proceeding with a matter in 

their Statement of Reasons. Intervenor’s claimed concern about the ability of controlling 

Commissioners to produce the required Statement of Reasons, see ECF No. 26-1 at 29, is therefore 

baseless—as this matter illustrates, given that the “Controlling Statement of Reasons includes legal 

analysis of the merits of Plaintiff’s administrative complaint,” ECF No. 26-1 at 27. 

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matter is dismissed when a dismissal or reason-to-believe vote fails. See 52 U.S.C. § 30109(a)(2).

Instead, FECA specifically references the possibility of a “vote to dismiss” an administrative 

complaint in a separate portion of the statute that gives no indication that such a vote is in any way 

related to the reason-to-believe vote. Compare id. § 30109(a)(1) (discussing “a vote to dismiss”), 

with id. § 30109(a)(2) (separately discussing reason-to-believe votes).

Second, and in contrast, FEC regulations and practice make clear that a failed reason-tobelieve or dismissal-under-Heckler vote does not automatically dismiss a complaint. For example, 

11 C.F.R. § 5.4(a)(4), provides for public disclosure of investigatory materials from an 

enforcement case within thirty days after the parties are notified “that the Commission has voted 

to close [the] enforcement file.” Moreover, 11 C.F.R. § 111.20(a) describes a Commission “finding

of no reason to believe,” not a lack of four votes, as method by which the FEC “terminates its 

proceedings.” Id. (emphasis added); see also 11 C.F.R. § 111.9(b) (same). Commission practice 

similarly demonstrates that a failed reason-to-believe or dismissal-under-Heckler vote does not 

constitute a dismissal. Indeed, in the enforcement matter at issue here, the Commissioners 

deadlocked in a series of 3-3 reason-to-believe, no-reason-to-believe, and Heckler votes, see

AR186-89, each of which would nonsensically qualify as an independent dismissal of the matter 

under New Republican’s theory. Yet, as New Republican acknowledges, see ECF No. 26-1 at 4, 

the matter was not dismissed until after a majority of the Commission subsequently voted 5-1 to 

“[c]lose the file,” see AR189. As New Republican further admits, the D.C. Circuit has recognized 

that it is the Commission’s “‘typical practice,’” after the Commissioners deadlock 3-3, to then hold 

a separate vote “to dismiss the administrative complaint.” ECF No. 26-1 at 4 (quoting CREW v. 

FEC, 971 F.3d 340, 346 (D.C. Cir. 2020)). Intervenor also concedes that, “historically,” the 

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Commission’s vote to close the file “signal[s] the end of the FEC’s consideration of an 

administrative complaint.” ECF No. 26-1 at 4. 

Despite these concessions, New Republican protests that the vote to close the file in this 

matter was “not required” and “without legal effect.” ECF No. 26-1 at 4. But those claims are

legally unsupported and impossible to reconcile with decades of practice by the Commission, 

which surely would be surprised to learn that its votes to close the file in thousands of enforcement 

matters were all meaningless. To take one example, in Matters Under Review (“MURs”) 7350, 

7351, 7357, and 7382, the Commission initially failed to find reason to believe that a number of 

respondents had violated FECA and Commission regulations,4 then later reversed course and 

found reason to believe that many of those respondents had violated those same laws in the same 

matters.

5 If New Republican’s view of the law were correct, those later reason-to-believe findings 

would not have been possible.

Third, case law undermines Intervenor’s argument. In Giffords v. FEC, No. 19-cv-1192 

(D.D.C. Oct. 14, 2021), a court in this District held that the FEC’s three-year delay in adjudicating 

the plaintiff’s administrative complaints was contrary to law even though the record showed that 

the Commission had failed four timesto find reason to believe a violation occurred. See Unredacted 

Mem. Op. at 9-10, 31, Giffords, No. 19-cv-1192, ECF No. 88. Yet those votes did not dismiss the

matter; instead, the Commission had also “rejected a motion to close the enforcement matters, and 

thereby dismiss Plaintiff’s administrative complaints.” Id. at 10. The court concluded that the 

4 See Certification, MURs 7350, 7351, 7357 & 7382 (Cambridge Analytica LLC, et al.) 

(Apr. 12, 2019), https://www.fec.gov/files/legal/murs/7350/7350_27.pdf.

5 See Certification, MURs 7350, 7351, 7357 & 7382 (Cambridge Analytica LLC, et al.) 

(July 30, 2019), https://www.fec.gov/files/legal/murs/7350/7350_29.pdf; Certification, MURs 

7350, 7351, 7357 & 7382 (Cambridge Analytica LLC, et al.) (Aug. 22, 2019), 

https://www.fec.gov/files/legal/murs/7350/7350_37.pdf.

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FEC’s failure to act on the complaint after those failed votes was contrary to law, retained 

jurisdiction until the FEC “t[ook] final agency action with respect to [the underlying] 

administrative complaints,” and ordered the agency to conform to the judgment within thirty days. 

See id. at 30-31. If each of the four failed reason-to-believe votes had automatically dismissed the 

complaint, the court’s decision and order would be nonsensical—the FEC would have already

taken final action on the underlying complaints four times over.

Against this weight of authority, New Republican can point only to dicta conflating a 

deadlocked reason-to-believe vote with a vote to dismiss a complaint by closing the file in contexts 

where the distinction made no difference. See ECF No. 26-1 at 3-4. CREW v. American Action 

Network, 410 F. Supp. 3d 1 (D.D.C. 2019), is typical: That case stemmed from a MUR that resulted 

in two deadlocked reason-to-believe votes; after each failed vote, the Commission summarily 

voted to “[c]lose the file”—that is, dismiss the complaint. See id. at 9-11.

6 American Action 

Network’s suggestion, quoted in Intervenor’s response, that “[i]f fewer than four Commissioners 

find ‘reason to believe[,]’ . . . the complaint is dismissed,” 410 F. Supp. 3d at 8; ECF No. 26-1 at 

3-4, thus reflects the fact that, in that case, the distinction between a failed reason-to-believe vote 

and a vote to close the file made no difference—one simply followed the other. Indeed, it is little 

wonder that past decisions have not discussed the difference between a failed reason-to-believe 

vote and a vote to dismiss a complaint; as Intervenor acknowledges, a successful vote to dismiss

has “historically been a customary, routine,” and “pro forma” practice after a failed reason-tobelieve vote. ECF No. 26-1 at 4. 

6 Certification, MUR 6589 (American Action Network, et al.) (Oct. 19, 2016), 

https://eqs.fec.gov/eqsdocsMUR/16044401006.pdf; Certification, MUR 6589 (American Action 

Network, et al.) (June 26, 2014), https://eqs.fec.gov/eqsdocsMUR/14044361924.pdf.

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In sum, the controlling Commissioners’ purported invocation of prosecutorial discretion to 

dismiss the Candidacy Filing claims was ineffective, given that a majority of the Commissioners 

had already declined to support a motion to exercise that very discretion, and the motion 

necessarily failed without majority support.

C. The Purported Exercise of Prosecutorial Discretion Relied on Erroneous 

Legal Reasoning

Intervenor’s response does not dispute that FEC dismissals premised on erroneous legal 

conclusions are reviewable. See ECF No. 26-1 at 31. Plaintiff’s motion and response to 

Intervenor’s motion to dismiss explained the legal errors underlying the controlling 

Commissioners’ reasoning. See ECF No.25 at 30-33; ECF No. 23 at 41-43. Intervenor’s 

counterarguments are unavailing.

First, the controlling Commissioners erred in concluding that whether an individual has 

moved beyond testing the waters and become a candidate depends on that individual’s subjective 

intent, and Intervenor’s arguments in defense of this reasoning are without merit. The language of 

the relevant regulations makes the objectivity of the candidacy inquiry clear: those rules examine 

whether the individual has engaged in “activities that indicate that [that] individual has decided to 

become a candidate.” 11 C.F.R. §§ 100.72(b), 100.131(b). In other words, while the activities 

listed in the testing-the-waters regulations may serve as proxies for an individual’s subjective 

intent, the ultimate inquiry turns on whether the potential candidate has engaged in those 

activities—an objective fact—and not the individual’s subjective state of mind.

Commission precedent unambiguously adopts this interpretation. In resolving a MUR 

involving allegations that Al Sharpton had become a candidate earlier than his FEC filings 

indicated, the Commission explained that “[e]ven if Sharpton subjectively did not irrevocably 

decide to run for President until [a later date], the Commission’s regulations look objectively to 

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candidate activities, not to the stage of an individual’s subjective decisionmaking process, in 

determining whether the ‘testing the waters’ exemption applies.” Factual and Legal Analysis at 7-

8, MUR 5363 (Sharpton et al.) (Nov. 13, 2003). The language from this MUR quoted in 

Intervenor’s response is consistent with this view, explaining that “when an individual raises or 

spends more than $5,000 and engages in activities indicating that he or she has decided to run for 

a particular office, or in activities relevant to conducting a campaign, the individual is deemed to 

[have become a candidate].” Id. at 2. In other words, the prerequisite to candidacy status is not 

having subjectively decided to run, but “engag[ing] in activities indicating that he or she has 

decided to run.” Id. Again, the inquiry is objective, not subjective.7

The enforcement matter cited by Intervenor in its response further evidences the objective 

nature of the inquiry. See Statement of Reasons of Vice Chairman Matthew S. Petersen and 

Commissioners Caroline C. Hunter, Donald F. McGahn, and Ellen L. Weintraub, MUR 5934 

(Thompson) (Mar. 10, 2009). That matter involved allegations that Fred Thompson had moved 

beyond the testing-the-waters exemptions and became a candidate in the 2008 presidential election

earlier than he had indicated in his FEC filings. See id. at 1. In analyzing the allegations, the 

controlling Statement of Reasons did not probe Thompson’s state of mind or analyze his subjective 

intent. See id. at 1-3. Rather, it assessed whether, from an objective standpoint, Thompson had 

engaged in activities indicating that he had decided to become a candidate. See id. In analyzing 

statements by Thompson about his potential candidacy, for example, the Commissioners did not 

try to deduce what Thompson had meant by those statements or whether he subjectively believed 

7 FEC Advisory Opinion 2015-09 (Senate Maj. Pac, et al.) similarly calls for an objective 

inquiry. While that opinion indicates that a subjective intent to run would suffice to make an 

individual a candidate, see id. at 5, it also explains that the Commission will look ultimately at 

“objective indication[s]” of candidates’ intent to run, even when the candidate asserts a subjective 

intent not to do so, id. at 6.

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them to be true, but instead looked at the meaning those statements conveyed to third parties. See 

id. at 2-3. The Statement of Reasons contrasted Thompson’s statements with more definitive 

declarations from earlier enforcement matters not to somehow deduce Thompson’s subjective 

intent, as Intervenor’s response suggests, but rather to demonstrate that his statement was, viewed 

objectively, ambiguous. See id. The Thompson matter thus further demonstrates the controlling 

Commissioners’ misunderstanding of controlling law.

This misunderstanding renders the controlling Commissioners’ decision to dismiss ECU’s 

allegations reviewable because, as Plaintiff’s motion explained, that mistake underlay all the 

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

See ECF No. 23 at 42-43. Intervenor emphasizes the various considerations cited by the Statement 

of Reasonsin favor of dismissal, such as the invasiveness of an investigation into Scott’s subjective 

intent, see ECF No. 26-1 at 31, yet those considerations were ostensibly relevant only because the 

controlling Commissioners believed an inquiry into Scott’s subjective intent would be necessary. 

See AR212. The dismissals thus rested entirely on the controlling Commissioners’ legal error and 

are therefore reviewable.

That error alone would suffice to render the dismissals reviewable. However, the 

controlling Commissioners compounded their mistake by relying on their misunderstanding of the 

testing-the-waters exemptions to conclude that the evidence in the record did not support pursuing 

the matter. See AR212. That assessment of the legal merits of ECU’s allegations rested on the 

controlling Commissioners’ erroneous interpretation of the law governing candidacy and testing 

the waters, and thus provides an additional legal mistake that this Court can review.

In sum, because all of the controlling Commissioners’ reasons for attempting to invoke the 

FEC’s prosecutorial discretion relied on erroneous legal reasoning, the dismissals are reviewable.

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D. Pretextual Invocations of Prosecutorial Discretion Are Reviewable

Plaintiff’s motion explained why the controlling Commissioners’ purported invocation of 

prosecutorial discretion was pretextual, see ECF No. 23 at 44-45, and Intervenor offers no 

meaningful rebuttal to that argument, see ECF No. 26-1 at 35-36. Instead, New Republican argues 

that the “controlling Commissioners’ use of prosecutorial discretion can[not] be reviewed for 

‘pretext.’” ECF No. 26-1 at 35. This argument is meritless and, if accepted, would nullify FECA’s 

judicial review provision.

FEC dismissals of administrative complaints are reviewable for pretext under Department 

of Commerce v. New York, 139 S. Ct. 2551 (2019). In that case, the Supreme Court explained that,

if a statute provides for judicial review of agency action, actions based on pretextual rationales are 

arbitrary and capricious—or, in FECA terms, contrary to law. See id. at 2573-76; see also Orloski

v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). While Department of Commerce did at one point 

distinguish the reviewability of some agency “decision[s] not to institute enforcement actions,” it 

did so not in the context of pretext review, but rather in discussing the Administrative Procedure 

Act’s no-law-to-apply exception to reviewability. 139 S. Ct. at 2568. The Supreme Court explained 

in Akins that that exception does not apply to judicial review under FECA, such that Commission 

dismissals of administrative complaints are reviewable. See 524 U.S. at 26. As a result, this Court 

can review the underlying dismissals for pretext.

Nor did CREW 2021 hold that an invocation of prosecutorial discretion by the controlling 

Commissioners is immune to pretext review. There was no claim in that case that the 

Commission’s invocation of prosecutorial discretion was pretextual; the court thus had no need or 

opportunity to address the issue. See 993 F.3d 880. Moreover, the decision’s reasoning does not 

support a prohibition on pretext review: CREW 2021 concluded that judicial review is unavailable 

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where an FEC dismissal is genuinely based on prosecutorial discretion because a court has no 

standard by which to assess the exercise of that discretion. See, e.g., id. at 885. But where the 

invocation of prosecutorial discretion is pretextual, pretext review under Department of Commerce

provides precisely such a standard. CREW 2021 thus does not bar that review here.

Finally, it is worth considering the implications of New Republican’s argument. If 

Commissioners can always pretextually invoke prosecutorial discretion, and every such invocation 

renders a decision completely unreviewable, Congress’s “explicit[]” decision in FECA to subject 

dismissals to judicial review becomes a nullity. Akins, 524 U.S. at 26; see also Dep’t of Com., 139 

S. Ct. at 2576 (“Accepting contrived reasons would defeat the purpose of [judicial review].”).

Akins and Department of Commerce foreclose that result.

III. The Dismissals of Plaintiff’s Claims Were Contrary to Law

Plaintiff’s motion thoroughly documented the ways in which the controlling 

Commissioners’ decision to dismiss ECU’s allegations at the preliminary reason-to-believe stage 

was contrary to law. See ECF No. 23 at 23-36. Intervenor makes only a cursory attempt to defend 

the dismissals on the merits. See ECF No. 26-1 at 37-41. That attempt does not address most of 

the arguments raised in Plaintiff’s motion, and fails to rebut those it does acknowledge.

A. Plaintiff’s Motion Identified Several Legal Errors Committed by the 

Controlling Commissioners

Intervenor’s response errs in suggesting that Plaintiff’s motion “object[ed] only to the 

controlling Commissioners’ ‘evaluation of the record’” and not to the Commissioners’ legal 

reasoning. ECF No. 26-1 at 41 (quoting ECF No. 23 at 29). Although Plaintiff’s motion identified 

a number of faults in the Commissioners’ evaluation of the record sufficient to render the 

dismissals contrary to law, it also highlighted multiple legal errors in the Commissioners’ analysis.

First, the motion explained that the controlling Statement of Reasons erred in suggesting that the

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merits of the coordinated-communications claims depended on the merits of the Candidacy Filing 

or soft-money allegations. See ECF No. 23 at 35-36. In fact, the coordinated-communications 

allegations presented an independent legal issue from the other claims: New Republican could 

have unlawfully coordinated with Scott and the Scott Campaign even if the Candidacy Filing and 

soft-money allegations failed on the merits. Second, the motion identified a number of legal flaws 

in the controlling Commissioners’ attempt to invoke the agency’s prosecutorial discretion. In 

particular, that attempt was foreclosed by the full Commission’s decision not to exercise that 

discretion, relied on erroneous legal conclusions about the nature of the candidacy inquiry and the 

strength of ECU’s claims, and unlawfully rested on a pretextual rationale. See ECF No. 23 at 37-

45. Intervenor’s response does nothing to address these legal errors, which render the dismissals 

contrary to law.

B. The Affidavit Relied Upon by the Controlling Commissioners Does Not Justify 

the Dismissals

Intervenor, like the controlling Commissioners, repeatedly seeks to justify the dismissals 

by referencing an affidavit submitted by Blaise Hazelwood, who became executive director of 

New Republican in 2018.

8 However, case law from this district indicates that the affidavit offers 

little evidentiary value, and, even if the affidavit were reliable, it fails to address the issues key to 

ECU’s allegations and cannot justify the dismissals.

First, precedent shows that the affidavit deserves little weight during judicial review. La 

Botz v. FEC, 889 F. Supp. 2d 51 (D.D.C. 2012), concluded that a similar affidavit could not justify 

an FEC dismissal. See id. at 61-62. The court explained that the affidavit in that case was “written 

8 Although Hazelwood submitted two affidavits, one in response to each of ECU’s 

complaints, see AR 73-74, 100-101, the controlling Commissioners cited and discussed only the 

first affidavit in their Statement of Reasons, see AR199-200, 205-11.

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in summary fashion,” was produced after the FEC’s inquiry had commenced, and was contradicted 

by some contemporaneous evidence.

9 Id. Hazelwood’s affidavit shares these flaws. It summarily 

asserted that Hazelwood had made “all decisions regarding New Republican PAC’s operations”

since February 2018, AR73 ¶ 3, and was submitted as part of New Republican’s response to ECU’s 

allegations and dated after the beginning of the FEC’s inquiry, AR74. And in addition to being in 

tension with the substantial record evidence of interrelations between the Scott Campaign and New 

Republican, the affidavit contradicted itself by first asserting that Hazelwood had made “all 

decisions regarding New Republican PAC’s operations and activities” during her tenure, then

immediately reversing course and declaring that Hazelwood “was not involved in planning or 

organizing” a fundraiser at Scott’s home in March 2018. AR73 ¶¶ 3, 9. The post hoc, inconsistent

affidavit cannot bear the substantial weight the controlling Commissioners purported—and 

Intervenor now seeks—to place on it.

Moreover, as the FEC General Counsel noted and Plaintiff’s motion explained,

Hazelwood’s affidavit, even if it were reliable, failed to address many central issues and therefore 

cannot justify the dismissals. See ECF No. 23 at 26, 28-29. Perhaps most notably, it discussed only 

the time period after Hazelwood joined New Republican in February 2018. See AR73 ¶¶ 1, 3. The 

affidavit therefore does nothing to rebut ECU’s allegations about events before that time, including 

the period in 2017 when ECU alleged that Scott had become a candidate while chairing and 

controlling New Republican. In addition, Hazelwood did not address whether other individuals 

associated with New Republican and involved in its decisionmaking may have coordinated with 

9 La Botz also noted that it was unclear whether the affiant in that case had personal 

knowledge of some elements of his affidavit. See 889 F. Supp. 2d at 61-62. Hazelwood’s affidavit 

purports to discuss only her own personal activities but, as a result, fails to address many relevant 

facts, as discussed below.

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Scott or the Scott Campaign, or whether the super PAC’s actions were influenced by materials 

developed by Scott during his tenure. Thus, even if the Commissioners could reasonably have 

relied on Hazelwood’s affidavit—which they could not—it would not justify their decision.

C. The Controlling Commissioners Offered No Valid Explanation for Their 

Decision to Dismiss Plaintiff’s Coordinated-Communications Allegations

As Plaintiff’s motion explained, the controlling Commissioners’ Statement of Reasons 

offered no valid justification for the dismissal of ECU’s coordinated-communications allegations.

See ECF No. 23 at 35-36. New Republican’s response cannot fill this gap.

Intervenor suggests that the controlling Commissioners could have relied on Hazelwood’s 

affidavit to dismiss the coordinated-communications allegations, but that suggestion is both 

erroneous and irrelevant. “It is a ‘foundational principle of administrative law’ that judicial review 

of agency action is limited to ‘the grounds that the agency invoked when it took the action.’” Dep’t 

of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1907 (2020) (quoting Michigan 

v. EPA, 576 U.S. 743, 758 (2015)). Here, even if the controlling Commissioners could have relied 

on Hazelwood’s affidavit to justify dismissing the coordinated-communications allegations—

which, as discussed above, they could not—they did not do so. Their Statement of Reasons 

referenced the affidavit only in its summary of the factual record and its discussion of the 

Candidacy Filing claims. See AR206, 211. It at no point connected the affidavit to the coordinatedcommunications allegations; indeed, the only direct reference to those allegations in the Statement 

was in a footnoted summary of the FEC General Counsel’s recommendations. See AR203 n.1.

Intervenor’s suggestion in its response that the controlling Commissioners could have relied on 

the affidavit to dismiss the coordinated-communications allegations does not change the fact that 

the Commissioners did not do so. As a result, the Statement of Reasons offers no valid explanation 

for the dismissal of Plaintiff’s claims.

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D. Intervenor’s Other Defenses of the Controlling Commissioners’ Decision Fail

New Republican also attempts to defend the dismissals by falling back on prosecutorial 

discretion and by calling for an extreme level of deference to the controlling Commissioners’ 

reasoning. Neither argument can save the dismissals.

First, Plaintiff’s motion explained why the controlling Commissioners’ attempt to invoke 

the FEC’s prosecutorial discretion cannot justify the dismissals. See ECF No. 23 at 29, 36-45. That 

purported exercise of discretion extended only to the Candidacy Filing claims and was contrary to 

law because the FEC expressly declined to exercise its discretion and the controlling 

Commissioners’ argument for employing that discretion relied on erroneous legal conclusions and 

pretextual reasoning. Just as it cannot insulate the dismissals from review, the controlling 

Commissioners’ ineffective invocation of prosecutorial discretion cannot justify their decision on 

the merits.

Second, Intervenor concludes by implying that virtually any explanation by the controlling 

Commissioners suffices to survive judicial review. However, the contrary-to-law standard is not a 

rubber stamp: an “agency must examine the relevant data and articulate a satisfactory explanation 

for its action including a ‘rational connection between the facts found and the choice made.’” 

Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) 

(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)); see also Orloski, 

795 F.2d at 161 (arbitrary or capricious FEC action is “contrary to law” under FECA). Plaintiff’s 

motion documented the numerous ways in which the controlling Commissioners’ decision fell 

short of that standard. Accordingly, the dismissals of ECU’s allegations were contrary to law.

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CONCLUSION

For these reasons, as well as those given in Plaintiff’s motion and its response to 

Intervenor’s motion to dismiss, Plaintiff respectfully requests that the Court grant its motion for 

default judgment or, in the alternative, summary judgment and deny Intervenor’s cross-motion for 

summary judgment.

Dated: January 25, 2022 Respectfully submitted,

/s/ Kevin P. Hancock

Adav Noti (D.C. Bar No. 490714)

Kevin P. Hancock*

CAMPAIGN LEGAL CENTER ACTION

1101 14th Street NW, Ste. 400

Washington, DC 20005

(202) 736-2200

anoti@campaignlegalcenter.org

khancock@campaignlegalcenter.org

Counsel for Plaintiff End Citizens United PAC

* Admitted pro hac vice. Barred in the State of 

New York. Not admitted to the D.C. Bar. 

Practicing under the supervision of Adav Noti, 

member of the D.C. Bar.

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