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USCA Case #22-5336 Document #2000702 Filed: 05/24/2023 Page 1 of 89 

ORAL ARGUMENT NOT YET SCHEDULED 

No. 22-5336 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

CAMPAIGN LEGAL CENTER AND 

CATHERINE HINKLEY KELLY, 

Plaintiff-Appellees, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellant, 

HILLARY FOR AMERICA AND 

CORRECT THE RECORD, 

Intervenor-Defendant Appellees. 

On Appeal from the United States District Court 

for the District of Columbia 

BRIEF FOR THE FEDERAL ELECTION COMMISSION 

Lisa J. Stevenson Greg J. Mueller 

Acting General Counsel Attorney 

lstevenson@fec.gov gmueller@fec.gov 

Kevin Deeley Federal Election Commission 

 Associate General Counsel 1050 First Street NE 

kdeeley@fec.gov Washington, DC 20463 

(202) 694-1650 

May 24, 2023 
USCA Case #22-5336 Document #2000702 Filed: 05/24/2023 Page 2 of 89 

APPELLANT FEDERAL ELECTION COMMISSION’S 

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

(A) Parties and Amici. Campaign Legal Center and Catherine Hinkley 

Kelly are the plaintiffs in the district court and appellees in this Court. The 

FEC is the defendant in the district court and an appellant in this Court. Hillary 

for America and Correct the Record were intervenor-defendants in the district 

court and are appellees here. The Institute for Free Speech was an amicus 

curiae in the district court. 

(B) Ruling Under Review. The Federal Election Commission appeals 

the December 8, 2022 final order and judgment of the United States District 

Court for the District of Columbia (Boasberg, J.), which granted the plaintiffappellees motion for summary judgment and denied Correct the Record and 

Hillary for America’s motion for summary judgment. The Memorandum 

Opinion is available at Campaign Legal Center, v. Federal Election 

Commission, Civ. No. 19-2336, 2022 WL 17496220, (D.D.C. Dec. 8, 2022). 

(C) Related Cases. This case was previously before this Court on 

appeal in Campaign Legal Center v. Federal Election Commission, No. 21-

5081. The Court’s opinion reversing the district court’s dismissal in that prior 

appeal is available at 31 F.4th 781 (D.C. Cir. 2022). Following the decision of 

the district court, Campaign Legal Center filed a lawsuit purporting to invoke a 

right to file a lawsuit against Correct the Record and Hillary for America 

pursuant to 52 U.S.C. § 30109(a)(8)(C) to remedy the alleged campaign finance 
USCA Case #22-5336 Document #2000702 Filed: 05/24/2023 Page 3 of 89 

violation involved in the administrative decision under review in this appeal. 

Campaign Legal Ctr v. Correct the Record & Hillary for Am., No. 23-cv00075, (D.D.C. January 10, 2023). The FEC is not aware of any other related 

cases at this time. 
 

USCA Case #22-5336 Document #2000702 Filed: 05/24/2023 Page 4 of 89 

TABLE OF CONTENTS 

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

STATEMENT OF JURISDICTION.................................................................2 

STATEMENT OF THE ISSUES......................................................................2 

STATUTES AND RULES ...............................................................................3 

STATEMENT OF THE CASE ........................................................................3 

I. STATUTORY AND REGULATORY 

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

A. Commission .................................................................................3 

B. Enforcement and Judicial Review ................................................4 

C. FECA Provisions Defining Coordinated 

Expenditures and the Internet Exemption ....................................6 

D. Administrative Proceedings .........................................................9 

E. District Court Proceedings and the 

 Initial Appeal..............................................................................11 

SUMMARY OF ARGUMENT ......................................................................15 

STANDARDS OF REVIEW..........................................................................16 

ARGUMENT ..................................................................................................16 

I. COMPLAINANTS LACK ARTICLE III STANDING 

TO SEEK RELIEF REGARDING PORTIONS OF 

 THEIR ADMINISTRATIVE COMPLAINT .......................................16 
USCA Case #22-5336 Document #2000702 Filed: 05/24/2023 Page 5 of 89 

A. Standards.... ............................................................................... 17 

B. Complainants Do Not Have Standing to 

Ask This Court to Seek Relief Regarding Claims of 

Violations of Contribution Limits or 

 Source Restrictions By Others ................................................... 21 

II. THE DISMISSAL OF MUR 7146 WAS NOT 

 CONTRARY TO LAW........................................................................ 26 

A. The District Court Failed to Apply FECA’s 

Highly Deferential “Contrary to Law” 

 Standard of Review .................................................................... 27 

B. The Controlling Group of Commissioners’ 

Application of the Internet Exemption 

for Input Costs Was Reasonable ................................................ 30 

1. The Internet-Exemption 

Regulations Are Entitled to 

Deference and Are Valid ................................................. 31 

2. The Controlling Group Reasonably 

Construed the Regulation to 

Exclude Input Costs ......................................................... 33 

a. The Exclusion of Input Costs 

Was Consistent with Expressed 

Purposes of the Rulemakings................................. 35 

b. The Input-Cost Conclusion Was 

Supported by Prior Commission 

Matters ................................................................... 37 

c. Excluding Input Costs Was 

Neither Plainly Erroneous 

Nor Inconsistent With the 

Regulation and Should Be 

Given Controlling Weight ...................................... 39 

ii 
 

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C. The Controlling Commissioners Reasonably 

Determined There Was Insufficient 

Evidence to Find Reason to Believe 

Other Expenses Were In-Kind Contributions ............................ 41 

III. THE COMMISSION HAS NOT FORFEITED AN 

APPEAL AND, IN ANY EVENT, CONSIDERATION 

IS WARRANTED HERE BY EXCEPTIONAL 

CIRCUMSTANCES ............................................................................. 44 

A. The Issues Raised Here Were Pressed 

and Decided by the District Court .............................................. 45 

B. This Case Presents “Exceptional 

Circumstances” That Permits This Court to 

Consider Otherwise Forfeited Issues ......................................... 52 

CONCLUSION ............................................................................................... 54 

iii 
USCA Case #22-5336 Document #2000702 Filed: 05/24/2023 Page 7 of 89 

TABLE OF AUTHORITIES 

Page(s) 

Cases 

Airmotive Eng’g Corp. v. FAA, 

882 F.3d 1157 (D.C. Cir. 2018) .................................................................. 44 

Allen v. Wright, 

468 U.S. 737 (1984) .................................................................................... 18 

Am. Soc’y for Prevention of Cruelty to Animals v. Feld Ent., Inc., 

659 F.3d 13 (D.C. Cir. 2011) ...................................................................... 24 

Arbaugh v. Y&H Corp., 

546 U.S. 500 (2006) .................................................................................... 46 

Arpaio v. Obama, 

797 F.3d 11 (D.C. Cir. 2015) ...................................................................... 17 

Attias v. Carefirst, Inc., 

865 F.3d 620 (D.C. Cir. 2017) .................................................................... 17 

Blackmon-Malloy v. United States Capitol Police Bd., 

575 F.3d 699 (D.C. Cir. 2009) .................................................................... 45 

Bowles v. Seminole Rock & Sand Co., 

325 U.S. 410 (1945) .................................................................................... 27 

Camp v. Pitts, 

411 U.S. 138 (1973) .................................................................................... 47 

Campaign Legal Ctr. v. FEC, 

466 F. Supp. 3d 141 (D.D.C.) ............................................................... 11, 12 

Campaign Legal Ctr v. FEC, 31 F.4th 781 (D.C. Cir. 2022) ........................ 12 

Carter/Mondale Presidential Comm., Inc. v. FEC, 

775 F.2d 1182 (D.C. Cir. 1985) .................................................................. 30 

iv 
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Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 

467 U.S. 837 (1984) .................................................................................... 29 

Citizens for Resp. & Ethics in Wash. v. FEC, 

267 F. Supp. 3d 50 (D.D.C. 2017) .................................................. 21, 23, 24 

Citizens for Resp. & Ethics in Wash, v. FEC, 

475 F.3d 337 (D.C. Cir. 2007) ................................................................ 5, 28 

Combat Veterans for Congress Political Action Comm. v. FEC, 

795 F.3d 151 (D.C. Cir. 2015) .................................................................... 48 

Common Cause v. FEC, 

842 F.2d 436 (D.C. Cir. 1988) ............................................................ 5, 6, 28 

Common Cause v. FEC, 

108 F.3d 413 (D.C. Cir. 1997) ............................................................. 22, 24 

Consarc Corp. v. Iraqi Ministry, 

27 F.3d 695 (D.C. Cir. 1994) ...................................................................... 50 

Citizens for Responsibility and Ethics in Wash. v. FEC, 

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

(“Commission on Hope”) .............................................................................. 5 

DaimlerChrysler Corp. v. Cuno, 

547 U.S. 332, (2006) ................................................................................... 21 

Davis v. FEC, 

554 U.S. 724 (2008) .............................................................................. 18, 20 

Dep’t of Nat. Res. & Env’t Control v. E.P.A., 

785 F.3d 1 (D.C. Cir. 2015) ........................................................................ 19 

Disner v. United States, 

888 F. Supp. 2d 83 (D.D.C. 2012) .............................................................. 19 

FCC v. Fox Television Stations, Inc., 

567 U.S. 239 (2012) .................................................................................... 39 

v 
USCA Case #22-5336 Document #2000702 Filed: 05/24/2023 Page 9 of 89 

FEC v. Cruz, 

142 S. Ct. 1638 (2022) ................................................................................ 20 

FEC v. Democratic Senatorial Campaign Comm., 

454 U.S. 27 (1981) .................................................................................. 5, 29 

FEC v. Nat’l Republican Senatorial Comm., 

966 F.2d 1471 (D.C. Cir. 1992) ........................................................ 5, 10, 33 

FEC v. Nat’l Rifle Ass’n of Am., 

254 F.3d 173 (D.C. Cir. 2001) .................................................................... 29 

Finca Santa Elena, Inc. v. U.S. Army Corps. of Eng’rs, 

873 F. Supp. 2d 363 (D.D.C. 2012) ............................................................ 24 

Gates v. Syrian Arab Republic, 

646 F.3d 1 (D.C. Cir. 2011) ........................................................................ 50 

Hagelin v. FEC, 

441 F.3d 237 (D.C. Cir. 2005) .................................................................... 16 

Hormel v. Helvering, 

312 U.S. 552 (1941) .................................................................................... 47 

In re Carter-Mondale Reelection Comm., Inc., 

642 F.2d 538 (D.C. Cir. 1980) .................................................................... 53 

In re Sealed Case, 

223 F.3d 775 (D.C. Cir. 2000) .................................................................... 29 

Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, 

878 F.3d 371 (D.C. Cir. 2017) .................................................................... 19 

Judicial Watch, Inc. v. United States Secret Serv., 

726 F.3d 208 (D.C. Cir. 2013) .................................................................... 16 

Kisor v. Wilkie, 

139 S. Ct. 2400 (2019) .......................................................................... 27, 34 

vi 
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Loper Bright Enterprises, Inc. v. Raimondo, 

45 F.4th 359 (D.C. Cir. 2022) ..................................................................... 30 

Lujan v. Defs. of Wildlife, 

504 U.S. 555 (1992) .................................................................. 17, 18, 21, 22 

Marshall Cty. Health Care Auth. v. Shalala, 

988 F.2d 1221 (D.C. Cir. 1993) .................................................................. 47 

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 

463 U.S. 29 (1983) ...................................................................................... 28 

Nat Res. Def. Counsel Inc. v. Env’t Prot. Agency, 

824 F.2d 1146 (D.C. Cir. 1987) .................................................................. 46 

Orloski v. FEC, 

795 F.2d 156 (D.C. Cir. 1986) ........................................................ 28, 29, 30 

Potter v. District of Columbia, 

558 F.3d 542 (D.C. Cir. 2009) .................................................................... 46 

Prime Rate Premium Fin. Corp. v. Larson, 

930 F.3d 759 (6th Cir. 2019) ....................................................................... 49 

Pulliam v. Pulliam, 

478 F.2d 935 (D.C. Cir. 1973) .................................................................... 50 

Roosevelt v. E.I Du Pont de Nemours & Co., 

958 F.2d 416 (D.C. Cir. 1992) .............................................................. 45, 52 

Sargent v. Dixon, 

130 F.3d 1067 (D.C. Cir. 1997) .................................................................. 21 

Shatsky v. Palestine Liberation Org., 

955 F.3d 1016 (D.C. Cir. 2020) .................................................................. 47 

Shays v. FEC, 

337 F. Supp. 2d 28 (D.D.C. 2004) ............................................................. 32 

vii 
 

USCA Case #22-5336 Document #2000702 Filed: 05/24/2023 Page 11 of 89 

Simon v. E. Ky. Welfare Rights Org., 

426 U.S. 26 (1976) ...................................................................................... 18 

Solar Energy Indus. Ass’n v. FERC, 

59 F.4th 1287 (D.C. Cir. 2023) ................................................................... 30 

Stelly v. Duriso, 

982 F.3d 403 (5th Cir. 2020) ........................................................... 49, 50, 51 

TransUnion LLC v. Ramirez, 

141 S. Ct. 2190 (2021) ................................................................................ 18 

United States v. Miranda, 

780 F.3d 1185 (D.C. Cir. 2015) .................................................................. 46 

United States v. Williams, 

504 U.S. 36 (1992) ...................................................................................... 45 

Van Hollen v. FEC, 

811 F.3d 486 (D.C. Cir. 2016) .................................................................... 48 

Wagner v. FEC, 

793 F.3d 1 (D.C. Cir. 2015) .................................................................. 19, 24 

Wertheimer v. FEC, 

268 F.3d 1070 (D.C. Cir. 2001) ............................................................ 22, 24 

Statutes 

28 U.S.C. § 1331 .............................................................................................. 2 

28 U.S.C. § 1291 .............................................................................................. 2 

28 U.S.C. § 1294(1) ......................................................................................... 2 

52 U.S.C. § 30101(8)(A)(i) .............................................................................. 6 

52 U.S.C. § 30101(8)(A) ............................................................................... 31 

52 U.S.C. § 30101(9)(A) ................................................................................ 31 

viii 
 

 

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52 U.S.C. § 30101(22) ......................................................................... 7, 31, 33 

52 U.S.C. § 30104 .......................................................................................... 12 

52 U.S.C. § 30104(b) ............................................................................... 22, 23 

52 U.S.C. § 30106(a)(1) ................................................................................. 48 

52 U.S.C. § 30106(b)(1) .............................................................................. 3, 4 

52 U.S.C. § 30107(e) ..................................................................................... 53 

52 U.S.C. § 30109(a)(1) ................................................................................... 4 

52 U.S.C. § 30109(a)(2) ................................................................................... 9 

52 U.S.C. § 30109(a)(8) ......................................................... 2, 4, 5, 11, 26, 29 

52 U.S.C. § 30109(a)(8)(A) ......................................................................... 4, 6 

52 U.S.C. § 30109(a)(8)(C) ........................................................... 6, 26, 28, 53 

52 U.S.C. § 30111(e) ..................................................................................... 39 

52 U.S.C. § 30116(a) ..................................................................................... 22 

52 U.S.C. § 30116(a)(7)(B)(i) .......................................................... 3, 6, 31, 42 

52 U.S.C. § 30116(f) ...................................................................................... 23 

52 U.S.C. § 30122 .......................................................................................... 23 

52 U.S.C. § 30106(c) .............................................................................. 11, 48 

52 U.S.C. § 30107(a)(6) ........................................................................... 11, 48 

52 U.S.C. § 30118(a) ............................................................................... 22, 23 

ix 
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Rules 

Fed. R. App. P. 32(a)(5) ................................................................................... 1 

Fed. R. App. P. 32(a)(7)(B) ............................................................................. 1 

Fed. R. App. P. 32(f) ........................................................................................ 1 

Fed. R. App. P 32(a)(6) .................................................................................... 1 

Fed. R. Civ. P. 12(b)(1) .................................................................................. 19 

Fed. R. Civ. P. 55(d) ...................................................................................... 51 

Regulations 

11 C.F.R. § 100.26 ..................................................................... 7, 8, 10, 32, 33 

11 C.F.R. § 100.52(d)(1) .................................................................................. 7 

11 C.F.R. § 109.20 ........................................................................................... 3 

11 C.F.R. § 109.20(a) ................................................................................... 6, 7 

11 C.F.R. § 109.21 ..................................................................................... 8, 34 

11 C.F.R. § 109.21 ......................................................................................... 34 

11 C.F.R. § 111.4 ........................................................................................... 25 

11 C.F.R. § 100.94 .......................................................................................... 8 

11 C.F.R. §§ 109.20(b) ....................................................................... 7, 34, 42 

11 C.F.R. § 109.21 ................................................................................. 7, 8, 34 

Other Authorities 

Internet Communications, 

71 Fed. Reg. 18,589 ...................................................... 7, 8, 9, 10, 35, 36, 40 

x 
 

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FEC, Advisory Opinion 2008-10 (VoterVoter.com) 

 2008 WL 4754871 (Oct. 24, 2008) ............................................................. 37 

Factual & Legal Analysis, MUR 6477 

(Turn Right USA) (July 17, 2012) ....................................................... 37, 38 

Factual & Legal Analysis, MUR 6414 

(Russ Carnahan in Congress Committee) (July 17, 2012) .......................... 38 

Factual & Legal Analysis, MUR 6657 

(Akin for Senate) (Sept 17, 2013) .............................................................. 38 

xi 
 

 

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GLOSSARY 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

J.A. Joint Appendix 

xii 
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INTRODUCTION 

Defendant-appellant Federal Election Commission (“FEC” or 

“Commission”) dismissed an administrative complaint filed by the Campaign 

Legal Center and Catherine Hinkley Kelly (“Complainants”). The controlling 

group of Commissioners’ rationale for this dismissal was based in part on their 

interpretation of FEC regulations — the “internet exemption” — that exclude 

certain internet communications not placed for a fee from the definition of a 

coordinated communication, therefore excluding such communications from 

certain of the Federal Election Campaign Act’s (FECA) limitations and 

prohibitions. 

The district court erroneously concluded that the controlling 

Commissioners’ rationale was contrary to law (1) because it was based on an 

impermissible interpretation of the internet exemption and (2) the analysis of the 

record failed to weigh certain evidence of coordination between Hillary for 

America and Correct the Record (collectively here “Respondents”). 

The question this case presents is whether the controlling Commissioners’ 

decision reasonably interpreted this regulation and properly weighed the evidence 

before them in reaching their conclusions. The answer to both questions is “yes.” 

These Commissioners properly applied a regulation within the scope of their 

expertise, and reasonably assessed whether the record established any connection 
USCA Case #22-5336 Document #2000702 Filed: 05/24/2023 Page 17 of 89 

between the Respondents’ coordination and the relevant transactions. The 

controlling group considered the information in the record that the district court 

identified and reached a different conclusion, one that is entitled to deference here. 

The nonjurisdictional issues raised here were presented to the district court 

and are properly considered here. 

STATEMENT OF JURISDICTION 

On December 8, 2022, the district court issued a final district court judgment 

finding that a Commission dismissal of an administrative complaint was contrary 

to law. See 52 U.S.C. § 30109(a)(8). (J.A. 11.) The district court had jurisdiction 

under 28 U.S.C. § 1331 over alleged reporting violations for which there are 

claims of informational injury, but lacked subject matter jurisdiction over alleged 

violations of FECA limits. (See infra Part I.) Complainants timely appealed on 

December 21, 2022. (J.A. 11.) This Court has jurisdiction from a final district 

court judgment finding Commission action contrary to law under 28 U.S.C. §§ 

1291, 1294(1) but, like the district court, possesses subject matter jurisdiction only 

with respect to the alleged reporting violations at issue. 

STATEMENT OF THE ISSUES 

1. Whether the district court had subject matter jurisdiction to issue an 

unqualified remand order regarding a multi-count administrative complaint without 

2 
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considering whether plaintiff-appellees had standing to pursue each count of that 

administrative complaint. 

2. Whether the district court committed reversible error when it 

determined that the controlling rationale supporting the FEC’s dismissal was based 

on an impermissible interpretation of FECA and implementing regulations and 

remanded the case to the agency. 

3. Whether the district court erred in concluding that the controlling 

rationale supporting the FEC’s dismissal improperly weighed allegations regarding 

alleged coordination between the Respondents. 

STATUTES AND RULES 

The relevant statutory and regulatory provisions are set out in the Addendum 

to this brief. 

STATEMENT OF THE CASE 

I. STATUTORY AND REGULATORY BACKGROUND 

A. Commission 

The FEC is a six-member, independent agency vested with statutory 

authority over the administration, interpretation, and civil enforcement of FECA. 

Congress authorized the Commission to “administer, seek to obtain compliance 

with, and formulate policy with respect to” FECA, 52 U.S.C. § 30106(b)(1); “to 

make, amend, and repeal such rules . . . as are necessary to carry out the provisions 

3 
 

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of [FECA],” id. §§ 30107(a)(8), 30111(a)(8); and to investigate possible FECA 

violations, id. § 30109(a)(1)-(2). The FEC has “exclusive jurisdiction” to initiate 

civil enforcement actions for FECA violations. Id. §§ 30106(b)(1), 30109(a)(6). 

B. Enforcement and Judicial Review 

Any person may file an administrative complaint with the Commission 

alleging a FECA violation. 52 U.S.C. § 30109(a)(1). After considering these 

allegations and any response, the FEC determines whether there is “reason to 

believe” that the respondent violated FECA. Id. § 30109(a)(2). If the Commission 

so finds, then it conducts “an investigation of such alleged violation” to determine 

whether there is “probable cause to believe” that a FECA violation has occurred. 

Id. § 30109(a)(2), (4). If probable cause is found, the Commission is required to 

attempt to reach a conciliation agreement with the respondent. Id. § 

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

FECA provides that the agency may institute a de novo civil enforcement action. 

Id. § 30109(a)(6)(A). At each stage, the affirmative vote of at least four 

Commissioners is required for the agency to proceed. Id. § 30109(a)(2), 

(a)(4)(A)(i), (a)(6)(A). 

If the Commission dismisses an administrative enforcement matter, a party 

“aggrieved” by the dismissal may file suit to seek judicial review to determine 

whether the decision was “contrary to law.” 52 U.S.C. § 30109(a)(8)(A), (C). By 

4 
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statute, the judicial task in such an action “is limited.” Common Cause v. FEC, 

842 F.2d 436, 448 (D.C. Cir. 1988) (describing 52 U.S.C. § 30109(a)(8) (formerly 

2 U.S.C. § 437g(a)(8))). As the Supreme Court has explained, the Commission 

“has the ‘sole discretionary power’ to determine in the first instance whether or not 

a civil violation of the Act has occurred” and “Congress wisely provided that the 

Commission’s dismissal of a complaint should be reversed only if ‘contrary to 

law.’” FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981); 

see Citizens for Resp. & Ethics in Wash, v. FEC, 475 F.3d 337, 340 (D.C. Cir. 

2007) (“[J]udicial review of the Commission’s refusal to act on complaints is 

limited to correcting errors of law.”). 

In cases where an administrative enforcement matter is dismissed after 

Commissioners divided evenly on a staff recommendation to proceed, the 

“Commissioners who voted to dismiss must provide a statement of their reasons” 

in order “to make judicial review a meaningful exercise.” FEC v. Nat’l Republican 

Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992). “Since those 

Commissioners constitute a controlling group for purposes of the decision, their 

rationale necessarily states the agency’s reasons for acting as it did.” Id.; Citizens 

for Resp. and Ethics in Washington, 892 F.3d 434, 437-38 (D.C. Cir. 2018) 

(“Commission on Hope”) (explaining that under Circuit precedent, “for purposes of 

judicial review, the statement or statements of those naysayers — the so-called 

5 
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‘controlling Commissioners’ — will be treated as if they were expressing the 

Commission’s rationale for dismissal” (quoting Common Cause, 842 F.2d at 449)). 

If a court finds a reviewable dismissal decision to be “contrary to law,” the 

court can “direct the Commission to conform” with its ruling “within 30 days.” 

52 U.S.C. § 30109(a)(8)(C). If the Commission fails to conform, the complainant 

may bring “a civil action to remedy the violation involved in the original 

[administrative] complaint.” Id. 

C. FECA Provisions Defining Coordinated Expenditures and the 

Internet Exemption 

Under FECA, a “contribution” includes “any gift, subscription, loan, 

advance, or deposit of money or anything of value made by any person for the 

purpose of influencing any election for Federal office.” 52 U.S.C. § 

30101(8)(A)(i). FECA defines “expenditure” similarly as “any purchase, payment, 

distribution, loan, advance, deposit, or gift of money or anything of value, made by 

any person for the purpose of influencing any election for Federal office.” Id. § 

30101(9)(A)(i). “[E]xpenditures made by any person in cooperation, consultation, 

or concert with, or at the request or suggestion of, a candidate, his authorized 

political committees, or their agents, shall be considered to be contributions made 

to such candidate.” Id. § 30116(a)(7)(B)(i). Expenditures made in this way are 

called “coordinated expenditures.” 11 C.F.R. § 109.20(a) (defining “coordinated” 

6 
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as “made in cooperation, consultation or concert with, or at the request or 

suggestion of . . . a political party committee.”). 

Commission regulations provide that “the term anything of value includes all 

in-kind contributions,” which include “the provision of any goods or services 

without charge or at a charge that is less than the usual and normal charge,” 11 

C.F.R. § 100.52(d)(1), and, as relevant here, coordinated expenditures. See id. § 

109.20(b) (providing that an expenditure that is coordinated, but not made for a 

coordinated communication as defined in FEC regulations, “is either an in-kind 

contribution to, or a coordinated party expenditure with respect to, the candidate or 

political party committee with whom or with which it was coordinated”). 

The FEC regulations that limit regulation of unpaid internet activity in key 

respects are collectively known as the “internet exemption.” FECA defines 

“public communication” in relevant part as “general public political advertising,” 

52 U.S.C. § 30101(22), which the Commission construed as not including 

“communications over the Internet, except for communications placed for a fee on 

another person’s Web site.” See 11 C.F.R. § 100.26; Internet Communications, 71 

Fed. Reg. 18,589, 18,603-07, 18,613 (Apr. 12, 2006). 

The Commission’s regulations construing coordination requirements set 

forth different requirements for “coordinated communications” and other 

coordinated expenditures. 11 C.F.R. §§ 109.20(b), 109.21. Under those 

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regulations, a “coordinated communication” is an in-kind contribution to a 

candidate if it satisfies a three-pronged test, including a payment prong, a content 

prong, and a conduct prong. See 11 C.F.R. § 109.21. As relevant here, the content 

prong of that test is satisfied only if the communication is a “public 

communication.” Id. § 109.21(c)(2)-(5). Since information that is uploaded to the 

internet without charge or placed on a person’s own site is not “advertising” and 

thus outside the definition of “public communication,” such communications do 

not fit within the “coordinated communication” definition and therefore are not 

deemed in-kind contributions. 

As a result, certain internet communications are not defined as in-kind 

contributions to a campaign, provided they were not placed for a fee, even if that 

campaign coordinates with the party making such communications. See 11 C.F.R. 

§ 100.26 (excluding “communications over the Internet, except for 

communications placed for a fee on another person’s Web site” from the definition 

of “public communication”). The Commission also excluded “uncompensated 

Internet activity” in its construction of the definitions of “contributions” or 

“expenditures.” 11 C.F.R. §§ 100.94, 100.155. The Commission thereby created a 

“broad exemption” to enable individuals to participate in unpaid online electoral 

activity without fear of implicating the federal campaign finance laws. 71 Fed. 

Reg. at 18,603. 

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D. Administrative Proceedings 

Complainants filed an administrative complaint with the Commission in 

2016, alleging that the Respondents in this case violated campaign finance 

reporting requirements, contribution limits, and source restrictions in the FECA. 

(J.A. 112-63.) The administrative complaint alleged in four counts that 

Respondent Correct the Record made, and Respondent Hillary for America 

received, in-kind contributions with funds from prohibited sources and in excess of 

the contribution limits in the Act. (J.A. 149-60.) In particular, the administrative 

complaint alleged that campaign had received prohibited and excessive 

contributions in kind in the form of opposition research, message development, 

surrogate support, video production, and press outreach. (Id.) The administrative 

complaint also alleged in two distinct counts FECA reporting violations for failure 

to disclose the alleged prohibited and excessive contributions. (JA 159-60.) 

When the Commission considered the administrative complaint filed by the 

complainant, it voted 2-2 at the first step of the enforcement process, the 

determination whether based on Complainants’ allegations there was “reason to 

believe” a FECA violation occurred and to open an investigation. (J.A. 263.) See 

52 U.S.C. § 30109(a)(2); Add. 5 (explaining FEC enforcement procedures). The 

FEC thus fell short of the required four votes to make such a finding. 52 U.S.C. 

§ 30109(a)(2). 

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The two Commissioners who voted against further enforcement issued a 

Statement of Reasons explaining the basis of their vote. (See Statement of Reasons 

of Vice Chairman Matthew S. Petersen and Commissioner Caroline C. Hunter 

(J.A. 267-84).) “Since those Commissioners constitute a controlling group for 

purposes of the decision, their rationale necessarily states the agency’s reasons for 

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

These controlling Commissioners principally concluded that certain of the 

conduct challenged in Complainants’ administrative complaint was exempt from 

FECA’s limits on in-kind contributions and disclosure requirements because they 

fell within the “internet exemption” that excludes unpaid internet communications 

from the definitions for advertising and public communication that are subject to 

the agency’s coordinated communication regulation. J.A. 278-80; see 11 C.F.R. § 

100.26; Internet Communications, 71 Fed. Reg. at 18,603-07. 

The controlling Commissioners also concluded that the record did not 

suggest that the Respondents coordinated on any activity beyond that which was 

exempt from regulation, and therefore there was no other activity to be reported or 

subjected to FECA’s contribution limits. (J.A. 280-83.) 

Then-Chair Ellen L. Weintraub separately issued a statement of reasons 

concluding that there was reason to believe violations had been committed. 

(See Statement of Reasons of Chair Ellen L. Weintraub (J.A. 285-95).) In her 

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statement she explained her view that Correct the Record’s stated purpose was to 

coordinate its activities, and that just because some disbursements were dedicated 

to communications disseminated via the internet, that did not mean that all of 

Respondent Correct the Record’s expenditures were exempt from the 

Commission’s definition of coordinated, in-kind contributions. 

E. District Court Proceedings and the Initial Appeal 

Complainants sought judicial review of the dismissal under 52 U.S.C. 

§ 30109(a)(8). After failing to garner the necessary four votes, the FEC did not 

appear to defend the agency in the district court. 52 U.S.C. §§ 30106(c), 

30107(a)(6). The district court granted the Respondents’ motion to appear in the 

lawsuit and defend the dismissal. (J.A. 5.) The case proceeded without the 

Commission’s involvement through final judgment at the district court. 

Initially, the district court found that the Complainants had alleged 

informational injury sufficient to establish standing, but it then reconsidered that 

decision and found that information had been disclosed, even if not in the form 

Complainants sought, and therefore the Complainants lacked standing to challenge 

the dismissal. See Campaign Legal Ctr. v. FEC, 466 F. Supp. 3d 141, 152 

(D.D.C.), on reconsideration in part, 507 F. Supp. 3d 79 (D.D.C. 2020), rev’d and 

remanded, 31 F.4th 781 (D.C. Cir. 2022). 

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Complainants hinged their entire case for standing before this Court on the 

two counts of their administrative complaint alleging reporting violations. 

Appellants’ Opening Br., Campaign Legal Ctr. v. FEC, No. 21-5081, Doc. 

#1906933 at 2 (July 19, 2021) (describing the charge that Respondents “had 

violated 52 U.S.C. § 30104 by failing to disclose any of the in-kind contributions 

made by [Correct the Record] or received by [Hillary for America” and citing to 

“Counts IV & V” of the administrative complaint). The district court’s conclusion 

that Complainants lacked standing to sue was reversed by this Court, which 

concluded Complainants had informational standing reasoning that while “Correct 

the Record has disclosed its aggregated expenditures publicly . . . it has not broken 

down its expenditures to show which were coordinated contributions, . . . factual 

information that is subject to disclosure under the statute.” CLC v. FEC, 31 F.4th 

at 783–84. Consistent with the briefing from Complainants, the opinion’s apparent 

base was exclusively Complainants’ reporting counts. The case was then 

remanded back to the district court. 

Complainants and Respondents then prepared summary judgment briefs 

arguing whether the controlling dismissal rationale was contrary to law. (J.A. 11.) 

On December 8, 2022, the district court granted summary judgment to 

Complainants, concluding that the controlling Commissioners’ rationale was 

contrary to law in two respects. 

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First, the district court concluded that the controlling commissioners 

contravened the plain language of the statute when it found the majority of Correct 

the Record’s expenses could not be in-kind contributions because they reflected the 

input costs of creating the communication to be placed on the internet for no fee 

and fit within the internet exemption. (J.A. 99-100.) The district court relied on 

broad statements of the Respondents’ purpose when it rejected the controlling 

commissioners’ rationale rooted in a lack of information showing that Correct the 

Record did not receive fair market compensation from Hillary for America and that 

the record did not suggest that Respondents coordinated on anything beyond the 

unpaid internet communications that Commission regulations exempted from 

regulation. (Id.) 

 Second, the district court concluded that the controlling Commissioners’ 

analysis of the record was arbitrary and capricious because it did not properly 

weigh certain evidence of coordination between the Respondents. (J.A. 102-05.) 

It noted “[t]hey did not meaningfully consider these broad statements of intent to 

coordinate and instead looked for ‘transaction-by-transaction’ evidence of 

coordination.” (J.A. 104.) The court referenced statements by Hillary for America 

in a memorandum that “proposed countering attacks on Clinton ‘through work of 

[Correct the Record] and other allies’” and another memo referenced that “having 

[Correct the Record] pay a governor to work as a surrogate to make sure her work 

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“met our needs/requests.” (J.A. 103.) It did not credit the controlling group’s 

analysis of whether “specific conduct occurred with respect to particular 

expenditures.” (J.A. 104, 282.) 

As relief, the district court ordered the Commission to conform with its 

ruling within 30 days. (J.A. 88.) The district court did not specify the counts of 

the administrative complaint that were subject to the remand order and made no 

apparent effort to tailor the relief ordered with the basis for standing identified by 

this Court. 

On December 21, 2022, while the conformance period remained open, the 

Commission filed a timely appeal and sought a stay of the district court’s order. 

(J.A. 109.) The district court acknowledged that “the present case involves serious 

legal questions about the metes and bounds of the FEC’s internet exemption,” but 

denied the FEC’s motion for a stay on February 1, 2023 on the basis of other 

considerations. (Mem. Op., at 5, No. 19-2336, (Feb. 1, 2023) (ECF No. 80).) 

 One of the Complainants, Campaign Legal Center, filed a private suit under 

2 U.S.C. § 30108 against the Respondents, Correct the Record and Hillary for 

America. See Civ. No. 23-75 (D.D.C. Jan. 10, 2023) (ECF No. 1). The district 

court stayed that action on April 7, 2023, recognizing that a decision in this appeal 

“would necessarily influence” the private suit. Mem. Op., Campaign Legal Ctr. v. 

Correct the Record, No. 23-75, at 8 (Apr. 2, 2023) (ECF No. 17). 

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The Complainants also filed before this Court a motion to dismiss this 

appeal, arguing that Commission had forfeited arguments it had not raised below. 

That motion was opposed by the Commission, has been referred to this merits 

panel, and is addressed below. See infra Part III. 

SUMMARY OF ARGUMENT 

The district court’s decision should be reversed and remanded. First, the 

district court insufficiently parsed this Court’s previous ruling and failed to address 

Complainants’ standing to challenge violations of the contribution limits and 

source restrictions in FECA as it ordered a remand to the FEC. Complainants lack 

standing for violations other than disclosure violations because an informational 

injury sufficient to establish standing for a disclosure violation, does not 

automatically establish standing for alleged violations of the contribution limits or 

source restrictions in FECA. Second, the District Court incorrectly determined that 

the Commission’s dismissal of MUR 7146 was contrary to law by failing to defer 

to the controlling commissioners’ reasoned application of agency precedent; 

incorrectly concluded that “input costs” could not be exempt under the internet 

exemption; failed to credit the controlling group’s application of the text of statute 

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USCA Case #22-5336 Document #2000702 Filed: 05/24/2023 Page 31 of 89 

and regulations; and failed to adequately credit the controlling group’s evaluation 

of evidence. 

The nonjurisdictional issues raised here were pressed and decided by the 

district court and would not, in any event, be forfeited given the exceptional 

circumstances connected with the composition of the Commission during the 

pendency of this case. 

STANDARDS OF REVIEW 

This Court reviews the district court’s summary judgment ruling de novo. 

Judicial Watch, Inc. v. U. S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013); 

Hagelin v. FEC, 411 F.3d 237, 242 (D.C. Cir. 2005). 

ARGUMENT 

I. COMPLAINANTS LACK ARTICLE III STANDING TO SEEK 

RELIEF REGARDING PORTIONS OF THEIR ADMINISTRATIVE 

COMPLAINT 

The Complainants must establish standing for each violation on which it 

asserts the Commission acted contrary to law. The fact that the Complainants may 

have an informational injury with respect to a particular claim in its administrative 

complaint — i.e. that the Respondents failed to file required information in reports 

to the FEC — does not mean it also has standing to seek a court order compelling 

the Commission to act on other administrative claims for which it lacks 

constitutional injury. Though Complainants’ court complaint intersperses 

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reporting violations within the two counts of the Amended Complaint, it also 

focuses on alleged violations of contribution limits and source restrictions for 

which it has not established standing. Only two out of the six counts in the 

administrative complaint at issue are for reporting violations. But the 

Complainants must establish standing for each alleged violation for which it seeks 

redress. Merely mentioning a reporting violation within a particular count of a 

court complaint seeking judicial does not satisfy the requirement that 

Complainants demonstrate jurisdiction over each alleged violation within the sixcount administrative complaint. 

A. Standards 

Complainants bear the burden of demonstrating that it has properly invoked 

this Court’s subject-matter jurisdiction. See Arpaio v. Obama, 797 F.3d 11, 19 

(D.C. Cir. 2015); Attias v. Carefirst, Inc., 865 F.3d 620, 625 (D.C. Cir. 2017). 

To have Article III standing a plaintiff must establish: (1) it has “suffered an 

‘injury in fact[,]” which the Supreme Court defines as “an invasion of a legally 

protected interest which is (a) concrete and particularized, and (b) actual or 

imminent, not [merely] conjectural or hypothetical,” Lujan v. Defs. of Wildlife, 504 

U.S. 555, 560 (1992) (internal citations and quotation marks omitted); (2) that 

there is a “causal connection between the injury and the conduct complained of[,]” 

which requires the injury to be “fairly traceable to the challenged action of the 

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defendant, and not the result of the independent action of some third party not 

before the court,” id. (internal quotation marks and alterations omitted); and (3) 

that it is “likely, as opposed to merely speculative, that the injury will be redressed 

by a favorable decision.” Id. at 561 (internal quotation marks omitted). These 

three components of the Article III “case or controversy” requirement are designed 

to ensure that the “plaintiff has alleged such a personal stake in the outcome of the 

controversy as to warrant his invocation of federal court jurisdiction and to justify 

[the] exercise of the court’s remedial powers on his behalf.” Simon v. E. Ky. 

Welfare Rights Org., 426 U.S. 26, 37-38 (1976) (internal quotation marks omitted). 

Moreover, “standing is not dispensed in gross” and “a plaintiff must 

demonstrate standing for each claim he seeks to press and for each form of relief 

that is sought.” Davis v. FEC, 554 U.S. 724, 734 (2008) (internal quotation marks 

and alterations omitted); see Allen v. Wright, 468 U.S. 737, 752 (1984) (“[T]he 

standing inquiry requires careful judicial examination of a complaint’s allegations 

to ascertain whether the particular plaintiff is entitled to an adjudication of the 

particular claims asserted” (emphasis added)); TransUnion LLC v. Ramirez, 141 S. 

Ct. 2190, 2207–08 (2021)) (holding that a plaintiff must establish standing for each 

claim he presses and each form of relief that they seek). 

Accordingly, courts in this Circuit have conducted a separate standing 

analysis of each part of a plaintiff’s claims alleging violations of multiple statutes 

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and regulations, or subparts of such laws. See Del. Dep’t of Nat. Res. & Env’t 

Control v. E.P.A., 785 F.3d 1, 10 (D.C. Cir. 2015) (plaintiff had standing to 

challenge one part of 2013 EPA rule regarding home power generation, but not 

another); Elec. Priv. Info. Ctr. v. Presidential Advisory Comm’n on Election 

Integrity, 878 F.3d 371, 377 (D.C. Cir. 2017) (separately analyzing plaintiff’s 

standing to challenge various subparts of government order regarding EGovernment Act); see also Disner v. United States, 888 F. Supp. 2d 83, 87 (D.D.C. 

2012) (“Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may 

move to dismiss a complaint, or any portion thereof, for lack of subject matter 

jurisdiction.”) (emphasis added). 

In all cases, the claimed injury must be commensurate with the challenged 

statute or regulation. For instance, in Wagner v. FEC, 793 F.3d 1 (D.C. Cir. 2015), 

plaintiffs alleged that FECA’s prohibition on federal contractors making federal 

campaign contributions while they negotiated or performed federal contracts 

violated contractors’ First Amendment and equal protection rights. Id. at 3. 

During the pendency of litigation two plaintiffs completed their contracts, mooting 

their claims. Id. at 4. The remaining plaintiff retained standing. Id. However, 

because his injury was “notably narrower than” those of the dismissed plaintiffs, he 

had standing “only as it applies to contributions to candidates and parties” and not 

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as to contributions to political causes generally. Id. at 4-5 (citing Davis, 554 U.S. 

at 734). 

Furthermore, the Supreme Court has itself made clear that standing to 

challenge FECA and associated Commission regulations requires a separate 

standing analysis for each substantive provision of law at issue. In Davis v. FEC, a 

former Congressional candidate brought a facial constitutional challenge to the 

“Millionaires’ Amendment,” a provision of the Bipartisan Campaign Reform Act 

that modified FECA to relax limits on the ability of the opponent of self-financed 

candidates to raise money from donors and coordinate campaign spending with 

party committees. 554 U.S. at 728-29. After the FEC informed the plaintiff 

candidate that it had reason to believe he had violated the Millionaire’s 

Amendment by failing to report personal expenditures during the 2004 campaign, 

he filed the suit alleging that the Amendment was unconstitutional. Id. The court 

determined that Davis had standing to challenge the disclosure requirements of the 

provision, id. at 733, but it noted that that did “not necessarily mean that [Davis] 

also [had] standing to challenge the scheme of contribution limitations that 

applie[d] when [the provision came] into play.” Id. at 733-34. The court 

ultimately found Davis did have standing to challenge those as well, but it made 

clear that a distinct standing analysis was required. Id. See also FEC v. Cruz, 142 

S. Ct. 1638, 1650 (2022) (noting that a litigant cannot, “by virtue of his standing to 

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challenge one government action, challenge other governmental actions that did 

not injure him” (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353, n.5, 

(2006))). 

B. Complainants Do Not Have Standing to Seek Relief Regarding 

Claims of Violations of Contribution Limits or Source 

Restrictions By Others 

As an initial matter, Complainants cannot rely on their abstract desire to see 

the law enforced against the Respondents in its preferred manner to establish 

Article III standing on its alleged violations of contribution limits or source 

restrictions. Complainants’ interest in “seeing that the laws are enforced” is not 

“legally cognizable within the framework of Article III.” Sargent v. Dixon, 130 

F.3d 1067, 1069 (D.C. Cir. 1997); see Lujan, 504 U.S. at 573-74. As to its claims 

regarding contribution limits and source restrictions, Complaints have not alleged 

that those alleged violations caused it a cognizable injury. Nor could they, because 

even if the Commission brought a successful enforcement action based on 

allegations that the Respondents had violated contribution limits or source 

restrictions, no additional disclosure would result. See Citizens for Resp. & Ethics 

in Wash. v. FEC, 267 F. Supp. 3d 50, 53 (D.D.C. 2017) (“Plaintiffs have alleged 

no facts that they were harmed by the money spent by [administrative respondent] 

or by the direct donations that [administrative respondent’s] employees gave. The 

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particularized harm they plead is not about the money in politics but about the lack 

of information about that money.”). 

To the extent the relief the Complainants seek is for this Court to compel the 

FEC to enforce a contribution limit or source restriction against a committee, such 

concerns cannot be the basis for standing because there is no “justiciable interest in 

having the Executive Branch act in a lawful manner.” Common Cause v. FEC, 108 

F.3d 413, 419 (D.C. Cir. 1997). Complainants have no Article III right to seek “a 

legal conclusion that carries certain law enforcement consequences” for others. 

Wertheimer v. FEC, 268 F.3d 1070, 1075 (D.C. Cir. 2001). “While ‘Congress can 

create a legal right . . . the interference with which will create an Article III injury,’ 

. . . Congress cannot . . . create standing by conferring ‘upon all persons . . . an 

abstract, self-contained, noninstrumental ‘right’” to have the Executive follow the 

law. Common Cause, 108 F.3d at 418 (quoting Lujan, 504 U.S. at 573) (internal 

citation omitted). 

Count One of the Amended Complaint alleges the Commission acted 

contrary to law because it did not find that “there ‘was reason to believe’ that 

[Respondent Correct the Record] made excessive and prohibited in-kind 

contributions in violation of 52 U.S.C. §§ 30116(a) and 30118(a), and failed to 

report these contributions in violation of 52 U.S.C. § 30104(b).” (J.A. 64.) Of the 

three statutory violations in the Amended Complaint, only one was a reporting 

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violation for which Complainants have established an informational injury. Count 

One also goes on to allege that Respondent Hillary for America accepted 

“excessive and prohibited in-kind contributions in violation of 52 U.S.C. §§ 

30116(f) and 30118(a), and failed to report these contributions in violation of 52 

U.S.C. § 30104(b).” (J.A. 64.) Likewise, this allegation predominantly focuses on 

violations of the contribution limits and source restrictions, while intermixing a 

reporting violation as well. Count Two of the Amended Complaint does the same 

thing, challenging the application of the coordination regulations by the FEC 

because they allegedly failed to implement the “contribution limits, source 

restrictions, and disclosure requirements.” (J.A. 65.) The court complaint thus 

seeks relief as to all six of the counts in the administrative complaint, only two of 

which are for reporting violations. 

Courts have rejected attempts to establish standing to challenge FEC 

enforcement decisions as to substantive campaign financing limitations or 

prohibitions that do not of their own force mandate the disclosure of information. 

See Citizens for Resp. & Ethics in Wash., 267 F. Supp. 3d at 54 (finding no 

standing where “plaintiffs cannot plausibly allege that an FEC enforcement action 

on [the straw donor prohibition, 52 U.S.C. § 30122] would require [the respondent] 

to disclose any information”). The D.C. Circuit requires such precision in claims 

to standing that even an allegation of a reporting violation is not sufficient for 

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informational injury if the administrative complaint does not seek the required 

reporting as a remedy. Common Cause, 108 F.3d at 418 (reviewing dismissal of 

administrative complaint alleging excessive contributions and failures to report 

them). Just as with the Citizens for Responsibility case, required disclosure cannot 

be “plausibly alleged” as a remedy for the alleged violation of the corporate 

contribution prohibition. Citizens for Responsibility & Ethics in Wash., 267 F. 

Supp. 3d at 54. This Court has already rejected conflation of allegations of 

unlawful coordination and failures to comply with reporting requirements when it 

declined to find standing for transactions already sufficiently reported but arguably 

required to be reported by another party. See Wertheimer, 268 F.3d at 1074-75; 

see also Am. Soc’y for Prevention of Cruelty to Animals v. Feld Ent., Inc., 659 F.3d 

13, 23 (D.C. Cir. 2011) (no standing to challenge prohibition on certain activity 

where even injunction in plaintiffs’ favor “would [not] entitle plaintiffs to any 

information”). 

As noted, courts regularly dismiss portions of claims that have jurisdictional 

defects, while permitting the plaintiff to pursue other portions of those same 

claims. See Wagner, 793 F.3d at 4-5; Finca Santa Elena, Inc. v. U.S. Army Corps. 

of Eng’rs, 873 F. Supp. 2d 363, 371 (D.D.C. 2012) (granting motion to dismiss 

claims as unripe only “to the extent those claims” challenge a certain aspect of a 

project). Plaintiffs’ standing thus must be evaluated as to each substantive 

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statutory provision and regulation for which they allege violations, and those 

portions unsupported by a legally cognizable injury sufficient to establish standing 

must be dismissed. 

This Court should remand for dismissal of claims upon which the 

Complainants have not established an informational injury. If the Complaints were 

allowed to pursue both counts as they stand, an administrative complainant could 

evade the standing rule for at least some allegations through artful pleading of 

disparate violations. The Commission’s procedures for submitting administrative 

complaints contain no rules limiting the joinder of disparate claims. See 11 C.F.R. 

§ 111.4. Under the Complainants’ approach, a savvy litigant could strategically 

allege any reporting violation to join with a claim over which no informational 

injury exists and obtain access to judicial review of both as a result. If 

Complainants here are allowed to pursue their administrative allegations of 

violations of contribution limits and source restrictions for contributions alongside 

claims presenting informational injury, then administrative complainants would be 

entitled to judicial review of every violation asserted in a multi-count 

administrative complaint by establishing an injury on any small part. 

Should the Court in this matter ultimately rule in this case that the 

Commission’s handling of the administrative complaint was contrary to law, the 

practical import of this standing dispute is to affect the scope of conduct the 

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Commission could be required to address under court order. See 52 U.S.C. 

§ 30109(a)(8)(C). Allowing section 30109(a)(8) complainants to establish 

standing in gross would have the downstream effect of broadening the allegations 

the agency would be under order to address beyond the scope of the case or 

controversy in dispute, i.e. the injury establishing the court’s jurisdiction to 

consider plaintiffs’ claims. 

In sum, an allegation that a dismissal is contrary to law under § 30109(a)(8) 

alone does not provide a plaintiff with Article III standing to seek court relief for 

all counts of an administrative complaint. Complainants must instead show how 

the Commission’s dismissal caused a concrete and particularized injury as to each 

alleged violation. Because Complainants have not shown this on their excessive or 

restricted source contribution claims, they lack standing as to those claims. 

For all the foregoing reasons, the Court should hold that the Complainants 

lack standing regarding Counts I-III and VI of their administrative complaint, 

claims regarding contribution source and amount limitations, and direct the district 

court to dismiss the complaint to the extent it seeks an order regarding those 

counts. 

II. THE DISMISSAL OF MUR 7146 WAS NOT CONTRARY TO LAW 

The district court incorrectly determined that the Commission’s dismissal of 

MUR 7146 was contrary to law, based upon three reversible errors. First, the court 

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failed to defer to the controlling commissioners’ reasoned application of FEC 

regulations. Second, based on the proceeding error, the court incorrectly 

concluded that “input costs” could not be exempt under the internet exemption and 

failed to credit the controlling group’s application of the text of statute and 

regulations, instead relying upon its own “bounded analysis” standard. Third, the 

district court relied upon its own evaluation of the Commissioners’ broad, 

generalized statements, and failed to adequately credit the controlling groups’ 

evaluation of the evidence, when determining whether other costs were 

coordinated expenditures. 

A. The District Court Failed to Apply FECA’s Highly Deferential 

“Contrary to Law” Standard of Review 

The district court incorrectly concluded that the controlling Commissioners’ 

interpretation of the internet exemption was contrary to law. (J.A. 98.) On the 

contrary, here the Commissioners reasonably and permissibly interpreted the 

internet exemption as applying to all input costs and other spending at issue in 

plaintiffs’ administrative complaint. Because this case involves a controlling 

group’s application of a Commission regulation, however, judicial review of that 

decision should give “‘controlling weight’” to the controlling group’s 

interpretation “‘unless it is plainly erroneous or inconsistent with the regulation.’” 

Kisor v. Wilkie, 139 S. Ct. 2400, 2415-16 (2019) (quoting Bowles v. Seminole Rock 

& Sand Co., 325 U.S. 410, 414 (1945)). And instead of deferring to the controlling 

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group’s consideration, here the district court substituted its own “bounded” 

analysis. 

It has long been established that judicial review of Commission dismissal 

decisions under FECA is “limited.” Common Cause, 842 F.2d at 448; Citizens for 

Resp. and Ethics in Washington v. FEC, 475 F.3d 337, 340 (D.C. Cir. 2007). A 

court may only set aside a dismissal decision, where that decision is reviewable at 

all, if it is “contrary to law.” 52 U.S.C. § 30109(a)(8)(C). This means that the 

Commission’s decision cannot be disturbed unless it was based on an 

“impermissible interpretation of” FECA or was otherwise “arbitrary or capricious, 

or an abuse of discretion.” Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). 

Courts will not overturn agency decisions absent evidence that the agency “entirely 

failed to consider an important aspect of the problem, offered an explanation for its 

decision that runs counter to the evidence before the agency, or is so implausible 

that it could not be ascribed to a difference in view or the product of agency 

expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. 

Co., 463 U.S. 29, 43 (1983). 

Here, the record illustrates a careful and deliberate analysis. The controlling 

Commissioners state at the outset of their Statement, they “approached [the] 

matters deliberately and with caution” and were “[m]indful that every action the 

Commission takes implicates core constitutionally protected activity,” and thus 

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“chose to rely on precedent whenever possible rather than adopt aggressive or 

novel legal theories.” (J.A. 267.) The controlling group of Commissioners 

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

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

themselves to consideration under the Commission’s traditional coordination 

framework.” (J.A. 283.) 

When the FEC interprets FECA in the context of a section 30109(a)(8) 

dismissal, the D.C. Circuit has held that courts must accord Chevron deference to 

that decision.1 E.g., FEC v. Nat’l Rifle Ass’n of Am., 254 F.3d 173, 185 (D.C. Cir. 

2001); In re Sealed Case, 223 F.3d 775, 779-81 (D.C. Cir. 2000); Orloski, 795 

F.2d at 161-62). The Commission’s decision need only be “sufficiently reasonable 

to be accepted.” FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 

39 (1981) (“DSCC”) (internal quotation marks omitted). It does not need to be 

“the only reasonable one or even the” decision “the [C]ourt would have reached” 

on its own “if the question initially had arisen in a judicial proceeding.” Id. In 

recent decisions, this Circuit has continued to consistently apply Chevron 

deference where an agency offers a reasonable interpretation of ambiguous 

The familiar two-step Chevron framework requires the Court first to 

determine “whether Congress has directly spoken to the precise question at issue” 

and, if not, to defer to the agency’s interpretation as long as it is “based on a 

permissible construction of the statute.” Chevron U.S.A., Inc. v. Nat. Res. Def. 

Council, Inc., 467 U.S. 837, 842-43 (1984). 

29 

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statutory text. See, e.g., Solar Energy Indus. Ass’n v. FERC, 59 F.4th 1287, 1292 

(D.C. Cir. 2023) (applying Chevron deference and upholding FERC’s 

interpretation of Public Utility Regulatory Policies Act); Loper Bright Enter., Inc. 

v. Raimondo, 45 F.4th 359, 369 (D.C. Cir. 2022) (finding “some question” about 

the meaning of a statute enough to trigger Chevron deference). 

When determining whether an FEC decision was arbitrary, capricious, or 

otherwise an abuse of discretion, the Court must be “extremely deferential” to the 

agency’s decision, which “requires affirmance if a rational basis . . . is shown.” 

Orloski, 795 F.2d at 167 (internal quotation marks omitted). Courts must defer to 

the FEC unless the agency fails to meet the “minimal burden of showing a 

coherent and reasonable explanation [for] its exercise of discretion.” 

Carter/Mondale Presidential Comm., Inc. v. FEC, 775 F.2d 1182, 1185 (D.C. Cir. 

1985) (internal quotation marks omitted). 

B. The Controlling Group of Commissioners’ Application of the 

Internet Exemption For Input Costs Was Reasonable 

The district court substituted its judgment for that of the controlling group 

when it incorrectly concluded that the Commission was required to find that 

Correct the Record made excessive and prohibited in-kind contributions to Hillary 

for America because activity was coordinated and not excluded by the internet 

exemption. (J.A. 10-14.) Two FEC Commissioners, enough to block further 

enforcement at the time, concluded there was not “reason to believe” intervenor30 
  

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defendants violated FECA. These controlling Commissioners concluded that the 

majority of Correct the Record’s expenses could not be in-kind contributions 

because they reflected the input costs of creating the communication to be placed 

on the internet for no fee and therefore were excluded by the internet exemption. 

1. The Internet-Exemption Regulations Are Entitled to 

Deference and Are Valid 

FECA regulates “contributions” and “expenditures,” including “anything of 

value [given] by any person for the purpose of influencing any election for Federal 

office.” 52 U.S.C. § 30101(8)(A), (9)(A). Expenditures that are “made by any in 

person in cooperation, consultation, or concert, with, or at the suggestion of, a 

candidate, his authorized political committees, or their agents, shall be considered 

to be a contribution to such candidate.” 52 U.S.C. § 30116(a)(7)(B)(i). FECA 

further provides that ‘‘[t]he term ‘public communication’ means a communication 

by means of any broadcast, cable, or satellite communication, newspaper, 

magazine, outdoor advertising facility, mass mailing, or telephone bank to the 

general public, or any other form of general public political advertising,” 52 U.S.C. 

§ 30101(22). The FEC’s series of regulations to implement these and related 

provisions included efforts to adapt them to the then-nascent democratizing 

possibilities of the Internet. It was not one of the means of communication 

Congress specified would in some cases constitute “general public political 

advertising.” Id. While considering one of the FEC’s efforts, a review in this 

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District found that “all Internet communications do not fall within” the meaning of 

“public communication” and instructed the FEC to delineate which Internet 

communications should be regulated. Shays v. FEC, 337 F. Supp. 2d 28, 67 

(D.D.C. 2004) (“Shays I”), aff’d sub nom. Shays v. FEC, 414 F.3d 76 (D.C. Cir. 

2005 (“Shays II”). 

The Commission’s regulations defining “public communication” fill the gap 

on which Internet activity constitute “general public political advertising” by 

specifying that it is only internet communications “placed for a fee on another 

person’s website.” 11 C.F.R. 100.26. Complainants do not make any direct 

“attack on the facial validity of any regulation” (Mem. Op. at 5 No. 19-2336 

(D.D.C. Feb 12, 2021) (ECF No. 53), as the district court concluded, for good 

reason. The “public communication” definition connects with the coordination 

regulation and, along with an exemption for “uncompensated Internet activity,” 

permitted the development of electoral discourse on blogs and social media while 

limiting the potential that persons would be chilled in such activity for fear of 

being deemed to be prohibited by campaign finance law or required to file 

disclosure reports with the FEC. 

Though not directly challenging the internet exemption, Complainants 

prevailed on the district court to hold that the regulation must be “bounded” in a 

manner that they prefer. (J.A. 99-100.) That holding not only conflicts with the 

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agency’s authority to interpret its own regulations as explained below, see infra 

Part II.B.2, it also conflicts with the agency’s prerogative to interpret FECA 

through the promulgation of the regulation itself. In layering an additional 

bounding requirement without any textual support in the regulation, the district 

court improperly usurped the agency role. See FEC v. Nat’l Republican Senatorial 

Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992) (“NRSC”) (“[I]f the meaning of the 

statute is not clear, a reviewing court should accord deference to the Commission’s 

rationale.”). The agency’s internet exemption was “sufficiently reasonable” to be 

accepted and the judgment should be reversed in order to affirm the agency’s 

authority to promulgate regulations in such circumstances without judicial 

modification. 

2. The Controlling Group Reasonably Construed the 

Regulation to Exclude Input Costs 

Under FEC regulations, internet communications not placed for a fee do not 

constitute in-kind contributions to a campaign. Consistent with FECA’s limitation 

that “public communications” are limited in relevant part to “general public 

political advertising,” 52 U.S.C. § 30101(22), Commission regulations exclude 

unpaid internet communications from the definition of “public communication.” 

11 C.F.R. § 100.26 (excluding “communications over the Internet, except for 

communications placed for a fee on another person’s Web site” from the definition 

of “public communication”). The Commission’s regulations construing 

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coordination requirements set forth different requirements for “coordinated 

communications” and other coordinated expenditures. 11 C.F.R. §§ 109.20(b), 

109.21. Under those regulations, a “coordinated communication” is an in-kind 

contribution to a candidate if it satisfies a three-pronged test, including a payment 

prong, a content prong, and a conduct prong. See 11 C.F.R. § 109.21. As relevant 

here, the content prong of that test is satisfied only if the communication is a 

“public communication.” Id. § 109.21(c)(2)-(5). Since information that is 

uploaded to the internet without charge or placed on a person’s own site is not 

“advertising” and thus outside the definition of “public communication,” such 

communications do not fit within the “coordinated communication” definition and 

thus are not deemed in-kind contributions. 

The controlling Commissioners concluded that the “plain text of” the 

coordination regulation dictated that Correct the Record’s expenses for online 

communications, including input costs, were not in-kind contributions. (J.A. 278.) 

The Court need not resolve whether the conclusion is compelled by plain 

regulatory text because the construction at a minimum is a permissible construction 

of the regulations if the treatment of input costs is assumed to be ambiguous. 

Kisor, 139 S. Ct. at 2415. The purposes of the applicable regulations and prior 

Commission authorities support the permissibility of the approach. 

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a. The Exclusion of Input Costs Was Consistent With 

Expressed Purposes of the Rulemakings 

In promulgating several of the regulations at issue here, the Commission 

expressed purposes and made references to effects that are consistent with the 

outcome in the underlying matter. The controlling statement explicitly highlighted 

explanations for the coordination and internet-communication regulations and 

Complainants chose not to facially challenge either of them in the district court. 

When the Commission explained the coordinated communication regulation, 

it stated that the content prong is made up of “‘bright line tests,’” which “‘may 

serve to exclude some communications that are made with the subjective intent of 

influencing a Federal election, thereby potentially narrowing the reach of [the 

provision.’” (J.A. 276 (quoting 68 Fed. Reg. at 426, 428).) In so doing, the 

content prong served as a “‘clear and useful’” way to “‘ensure that the coordination 

regulations do not inadvertently encompass communications that are not made for 

the purpose of influencing a federal election.’” (Id. 276-77 (quoting 68 Fed. Reg. 

at 426, 428).) 

In its rulemaking regarding internet communications, the Commission made 

an explanation for a “restrained regulatory approach” in that context, namely that 

the internet was a “unique and evolving mode of mass communication and political 

speech that is distinct from other media.” (J.A. 275 (citing 71 Fed. Reg. at 

18,589).) The Commission was explicit about how the revised definition of 

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“public communication” would interact with the coordination regulation to exclude 

internet communications not placed for a fee on another person’s website. (Id. 

(citing 71 Fed. Reg. at 18,589 n.2, 18,594).) The regulation’s explanation even 

provided an example, noting that a person’s republication of a candidate’s 

campaign materials on his or her own internet site would not be considered 

coordinated as it would if it aired through other media. (Id. (citing 71 Fed. Reg. at 

18,600).) Complainant Campaign Legal Center submitted a comment on the 

proposed internet communications rule noting that the FEC typically treats the cost 

of producing campaign-related materials the same as the costs of distributing them 

and expressing concern that an individual could spend large sums of money for the 

professional production of campaign ads in coordination with a candidate and post 

the ads on their own website. Democracy 21, et al., Comment on Notice 2005-10: 

Internet Communications (Shays I) at 12 n.10 (June 3, 2005).2

 The Commission 

did not change the final rule in response to the comment and instead maintained its 

approach of treating production and distribution costs the same. Internet 

Communications, 71 Fed. Reg. at 18,590-91. Thus, when the rule was being 

finalized, Campaign Legal Center anticipated essentially the same allowable 

interpretation of the regulation as the controlling group here. 

https://sers.fec.gov/fosers/showpdf.htm?docid=36918. 

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Bright lines to protect and enable speech on the Internet were expressly 

intended by the regulations and the concomitant permission for some electioninfluencing activity to take place were thus features and provide no basis to find an 

application of the regulations infirm. 

b. The Input-Cost Conclusion Was Supported By Prior 

Commission Matters 

The reasonableness of the controlling statement is further confirmed by the 

FEC’s repeated affirmation of its interpretation that input costs are exempted. The 

controlling group pointed to support from both an advisory opinion and past 

enforcement cases. (J.A. 278-79.) 

A few years after the internet exemption was adopted, the FEC specifically 

concluded in the context of expenditures by individuals that “[t]he costs incurred 

by an individual in creating an ad will be covered by the Internet exemption from 

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

airtime for the ad he or she created.” Advisory Opinion 2008-10 

(VoterVoter.com), 2008 WL 4754871 *6 (Oct. 24, 2008). 

Several FEC enforcement matters under review (“MURs”) contained 

explicit similar holdings. The FEC unanimously held, for example that there was 

no reason to believe any violations occurred when a group paid $5,800 to create an 

ad and post it on its own website. Factual & Legal Analysis, MUR 6477 (Turn 

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Right USA) at 3, 7-8 (July 17, 2012);3 Amended Certification, MUR 6477 (July 

26, 2012).4

 In another, the Commission concluded that payments to a vendor, “at 

least in part, to gather some of the information ultimately displayed on the website, 

on the facts presented here, such payments do not amount to the Committee having 

placed an Internet communication on another person’s website for a fee.” Factual 

& Legal Analysis, MUR 6414 (Russ Carnahan in Congress Committee) at 11 (July 

17, 2012).5 

In the greatest detail, the Commission unanimously concluded that one 

group’s payments for “services necessary to make an Internet communication,” 

including $118,000 spent on email list rentals and contribution-processing fees 

were not in-kind contributions under the coordinated communication regulation. 

Factual & Legal Analysis, MUR 6657 (Akin for Senate) at 2, 4-5 (Sept 17, 2013).6 

Those related expenses that the group had “incurred . . . to finance[] email 

solicitations were not in-kind contributions because the emails had not been 

“placed for a fee” on another person’s website. Id. at 5; Vote Certification, MUR 

6657 (Akin for Senate) (Sept. 12, 2013).7 

3 https://www.fec.gov/files/legal/murs/6477/12044314858.pdf. 4 https://www.fec.gov/files/legal/murs/6477/12044314855.pdf. 5 https://www.fec.gov/files/legal/murs/6414/12044320498.pdf. 6 https://www.fec.gov/files/legal/murs/6657/13044343294.pdf. 7 https://www.fec.gov/files/legal/murs/6657/13044343292.pdf. 

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The district court concluded that the Akin for Senate matter involved 

narrower facts more directly connected to specific unpaid internet communication 

than the alleged conduct here, making the differences “one of kind and not of 

degree.” (J.A. 102.) But that weighing of agency authorities in the course of 

applying regulations to new facts is quintessential agency construction to which the 

courts owe deference. The controlling group’s application of the Akin for Senate 

precedent was sufficiently reasonable such that its disturbance by the district court 

was unwarranted.8 

c. Excluding Input Costs Was Neither Plainly Erroneous 

Nor Inconsistent With the Regulation and Should Be 

Given Controlling Weight 

For all the reasons explained above, the controlling statement reasonably and 

permissibly interpreted the internet exemption as applying to all input costs. The 

district court attempted to determine whether that “decision contravenes FECA’s 

plain language” of the statute (J.A. 99.) or the explanation underlying the adoption 

of the internet exemption (J.A. 100-01), while failing to consider adequately how 

the text of the FEC regulations aid in determining whether the controlling 

Commissioners’ reasoning was permissible. The district court in essence jumped 

The controlling statement also relied on statutory protection for those who 

rely on FEC regulations and the potential that a contrary position would constitute 

a due process violation. (See J.A. 280 n.66 (citing, inter alia, 52 U.S.C. § 30111(e) 

and FCC v. Fox Television Stations, Inc., 567 U.S. 239, 254 (2012)).) 

39 

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straight from the facts the Commission considered to the statutory text, which does 

not explicitly address how FECA should apply to internet communications and the 

costs to create them. The district court failed to analyze adequately the regulatory 

text on which the controlling Commissioners relied. 

Reasoning the way it did, the district court concluded that “the internet 

exemption must be meaningfully bounded” to “comply with [FECA’s] statutory 

language.” (J.A. 99.) But Complainants did not facially attack any regulation. 

Rather than determine whether the internet exemption is appropriately “bounded” 

to the statutory text in a manner suggested by Complainants, the district court 

should have deferred to the controlling group’s application of Commission 

regulations. 

The district court rested its conclusion in part on a note in the FEC’s 

explanation for the internet exemption that “‘a political committee’s purchase of 

computers for individuals to engage in Internet activities for the purpose of 

influencing a Federal election, remains an ‘expenditure’ by the political 

committee.’” (J.A. 100 (quoting 71 Fed. Reg. at 18,606).) But where there are 

apparently competing indications from earlier agency documents, the agency 

receives deference on how it resolves them. 

Here, the controlling group examined the requisite regulations and whole 

body of agency authorities and determined that “[r]equiring speakers to further 

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

then exempting only those component fees deemed essential for the internet 

communication’s placement would eviscerate the internet exemption and the 

deliberate policy decisions behind it, and potentially chill political speech online.” 

(J.A. 279.) The controlling Commissioners’ application of agency regulations was 

not plainly erroneous and thus should be given controlling weight and affirmed. 

C. The Controlling Commissioners Reasonably Determined There 

Was Insufficient Evidence to Find Reason to Believe Other 

Expenses Were In-Kind Contributions 

In addition to internet communications, the controlling Commissioners also 

reasonably and permissibly concluded that there was not sufficient evidence 

related to other, non-internet expenses, to find reason to believe FECA violations 

had occurred. (J.A. 102-05.) The district court determined that the Commissioners 

did not “meaningfully consider” that organization’s “broad statements of intent to 

coordinate and instead looked for ‘transaction-by-transaction’ evidence of 

coordination.” (J.A. 104.) The record does not compel the conclusion that 

Respondents’ offline activities — including surrogate training, tracking, and 

research — were in-kind contributions. The district court’s conclusion otherwise 

is erroneous for at least four reasons and should be reversed. 

First, the district court never contested the controlling Commissioners’ legal 

conclusion that an expenditure is only an in-kind contribution if that transaction is 

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coordinated, not if an entity declares its intent to coordinate with a candidate as a 

general matter. The relevant statutory and regulatory language confirms that 

whether an expense is an in-kind contribution depends on whether the 

“expenditure[]” is made “in cooperation, consultation, or concert, with, or at the 

request or suggestion of” the candidate, not whether the outside group intends to 

coordinate generally. 52 U.S.C. § 30116(a)(7)(B)(i); see also 11 C.F.R. 109.20(b) 

(“Any expenditure that is coordinated [is] an in-kind contribution . . . .”). The 

controlling Commissioners’ insistence on assessing whether the record established 

any connection between the Respondents’ coordination and the relevant 

transactions was a reasonable method of implementing that requirement at the 

reason-to-believe stage. 

Second, the expenses may have been reimbursed at market rates. If they 

were reimbursed, the spending would not be an in-kind contribution. Indeed, 

evidence in the record, identified by the controlling commissioners, shows 

reimbursements from the campaign to Correct the Record, which those parties’ 

responses before the Commission claimed fully covered tracking and research 

services. (J.A. 103.) 

Third, the controlling group found that the allegations in the administrative 

complaints were speculative and untethered from evidence. (J.A. at 102.) The 

Complainants only alleged “[i]f any of these expenditures were coordinated,” they 

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then “would constitute in-kind contributions” or that compensation to staff in this 

context “would constitute in-kind contributions ... if the services were conducted at 

the request or suggestion of, or otherwise in coordination” with the campaign. (J.A. 

280.) Correct the Record provided a response to the Commission denying that it 

coordinated its training programs with the campaign. And the controlling group 

noted that Correct the Record claimed it provided training only as a free service to 

local volunteers and did not include or accept suggestions on training from any 

campaign personnel or surrogates. (J.A. 281.) 

Fourth, the controlling statement examined the broad record. For example, 

it noted that a newspaper article attached as evidence to the complaint suggested 

these expenses were not coordinated with the campaign. (J.A. 281.) The article 

states that the campaign played “no role” in Respondents’ training sessions and 

acknowledges that the campaign had its own surrogate operation. (Id.) The 

district court suggested that the controlling Commissioners “fail[ed] to engage” 

with the public information suggesting broad coordination between Correct the 

Record and Hillary for America, but their Statement of Reasons did consider that 

information and simply reached different conclusions than the district court would 

have. Indeed, the controlling Commissioners specifically addressed the statements 

cited by the district court. Compare J.A. 103-04 (citing Correct the Record press 

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release and David Brock interview)] with J.A. 281-82 (quoting the press release 

language cited by the Court) and J.A. 104 (addressing Brock interview). 

In sum, the controlling group reached this conclusion based on their careful 

review of the evidence and were simply unwilling to conclude that Correct the 

Record’s broad statement, to the effect that it would be able to coordinate much or 

most of its activities with the Clinton campaign, established that there was reason 

to believe that all of Correct the Record’s expenses were in-kind contributions. 

Even assuming that reasonable persons could disagree with the controlling 

statement, as the district court did here, the Commissioners nonetheless made a 

“rational connection” between the facts in the record and the conclusions they 

ultimately drew. Airmotive Eng’g Corp. v. FAA, 882 F.3d 1157, 1159 (D.C. Cir. 

2018). The district court’s substitution of its views for that of the Commissioners 

should be reversed. 

III. THE COMMISSION HAS NOT FORFEITED AN APPEAL AND, IN 

ANY EVENT, CONSIDERATION IS WARRANTED HERE BY 

EXCEPTIONAL CIRCUMSTANCES 

The Complainants have moved to dismiss this appeal arguing that the 

Commission forfeited its arguments by not appearing in the district court. This 

Court referred consideration of the arguments presented in that motion to this 

merits panel. (Order (Apr. 10, 2023) (per curiam) (Doc. No. 1994031.) 

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A. The Issues Raised Here Were Pressed and Decided by the District 

Court 

Generally, it “is not [this Court’s] practice to entertain issues first raised on 

appeal.” Roosevelt v. E.I Du Pont de Nemours & Co., 958 F.2d 416, 419 (D.C. 

Cir. 1992). “That rule, however, does not apply where the district court 

nevertheless addressed the merits of the issue.” Blackmon-Malloy v. U.S. Capitol 

Police Bd., 575 F.3d 699, 707 (D.C. Cir. 2009); cf. United States v. Williams, 504 

U.S. 36, 41 (1992) (noting that Supreme Court’s “traditional rule” precluding 

review of questions “not pressed or passed upon below . . . operates (as it is 

phrased) in the disjunctive, permitting review of an issue not pressed so long as it 

has been passed upon”) (internal quotation marks omitted). 

The district court decision on review here plainly passed upon two of the 

three issues the Commission seeks to raise on appeal: whether the controlling 

rationale supporting dismissal of Complainants’ administrative complaint was 

based on an impermissible interpretation of FECA and FEC regulations and 

whether that rationale’s conclusions about alleged coordination between the 

Respondents was arbitrary and capricious. (J.A. 98-102) (concluding that the 

controlling rationale’s legal conclusions were “contrary to law and thus invalid”); 

J.A. 102-05 (concluding that the controlling Commissioners’ “view of the record” 

was “arbitrary and capricious”).) The third issue the Commission seeks to press on 

appeal involves an attack on the district court’s subject-matter jurisdiction and, 

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because it goes to the court’s power to hear the case, “can never be waived or 

forfeited.” United States v. Miranda, 780 F.3d 1185, 1188 (D.C. Cir. 2015) (citing 

Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006)). 

That is enough to resolve Complainants’ forfeiture argument. But there is 

much more. The Commission’s arguments are also not forfeited because the two 

non-jurisdictional issues it raises were “asserted at the District Court level” — by 

the Respondents. Potter v. District of Columbia, 558 F.3d 542, 550 (D.C. Cir. 

2009) (internal quotation marks omitted). True, the Commission did not muster 

sufficient votes to defend its dismissal in Court. The Respondents, however, 

participated from the earliest stages of this case and pressed each of the nonjurisdictional arguments the Commission raises here. Cf. Nat. Res. Def. Council, 

Inc. v. Env’t Prot. Agency, 824 F.2d 1146, 1151 (D.C. Cir. 1987) (explaining that 

administrative exhaustion requirement does not bar a party that did not participate 

in a rulemaking before an agency from pressing argument on judicial review “if the 

agency has had an opportunity to consider the identical issues . . . but which were 

raised by other parties”) (citation and internal quotation marks omitted). 

Because the Respondents actively raised these issues at the district court, 

Complainants’ arguments as to the policies underlying the forfeiture rule fall flat. 

There is no risk that Complainants could be “‘surprised on appeal by final 

decisions there upon which they have had no opportunity to introduce evidence.’” 

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(Mot. to Dismiss at 8 (Feb. 6, 2023) (Doc. No. 1984805) (quoting Hormel v. 

Helvering, 312 U.S. 552, 556 (1941).) Nor is there any risk of “‘sandbagging the 

district court.’” (Id. (quoting Shatsky v. Palestine Liberation Org., 955 F.3d 1016, 

1031 (D.C. Cir. 2020).) Complainants cannot claim unfair surprise when a party 

raises an issue on appeal that was actually pressed and decided below. See 

Shatsky, 955 F.3d at 1131 (“[G]iven the parties’ full presentation of the issue 

before the district court . . . this case does not implicate concerns about 

sandbagging[.]”). They had every opportunity to develop arguments during three 

years of district court proceedings on these same issues when they were raised by 

the Respondents. 

There is also no concern that Complainants will have been denied an 

opportunity to introduce evidence relevant to any appeal. Because this is a case on 

review of an agency nonenforcement action, the “entire case on review is a 

question of law, and only a question of law.” Marshall Cty. Health Care Auth. v. 

Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993). The record relevant to that 

question is “the administrative record already in existence, not some new record 

made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973). 

Despite its default below, the Commission submitted its certified administrative 

record during district court proceedings, and that record was available to all parties 

through the entire pendency of the litigation. (J.A. 6.) The Commission’s default 

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did not deprive Complainants or the district court of any record-building 

opportunity. 

If anything, the unusual circumstances leading to the Commission’s default 

suggest that permitting its appeal would not incentivize other parties to engage in 

gamesmanship. Unlike other parties that come before the courts, the Commission 

is an even-numbered multimember governmental agency regulating a portion of 

the political system whose membership rules legally mandate that no political party 

can have a majority for significant actions. 52 U.S.C. § 30106(a)(1); Combat 

Veterans for Congress Political Action Comm. v. FEC, 795 F.3d 151, 153 (D.C. 

Cir. 2015); cf. Van Hollen v. FEC, 811 F.3d 486, 499 (D.C. Cir. 2016) (noting the 

FEC’s “unique mandate” whose actions “implicate[] fundamental rights”). The 

balanced structure Congress provided ensures that any Commission decision that 

requires four votes, which includes votes to defend litigation like the one 

Complainants brought here, require bipartisan buy-in. See 52 U.S.C. §§ 30106(c), 

30107(a)(6). But it also increases the chances that an evenly divided Commission 

will be unable to approve certain actions. That dynamic here resulted in a 

Commissioner who had supported Complainants’ position before the agency 

exercising discretion not to authorize the Commission to defend its dismissal in 

court, thereby causing that authorization vote to fail. (J.A. 265-66.) Given the 

Commission’s unusual structure and the uncommon facts here, there is little 

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chance that permitting the Commission to defend itself at this point would have a 

detrimental effect on the administration of justice. 

The Commission’s post-suit conduct also rebuts Complainants’ assertions of 

impropriety. Despite lacking authorization to defend itself in court, the 

Commission prepared and submitted its administrative record, pursuant to court 

order. (J.A. 6.) As Complainants recognized, the composition of the Commission 

changed substantially after the administrative proceedings at issue in this case. 

The agency’s approach to this litigation switched from default to defense at the 

first decisional juncture thereafter. The Commission’s switch from default at 

earlier stages of the litigation was in no sense an attempt at gamesmanship or 

sandbagging but rather a product of changed membership. 

Although not framed in these terms, the natural result of accepting 

Complainants’ arguments on forfeiture, would be to prevent any party from 

appealing an adverse judgment after defaulting without seeking relief in the district 

court. As courts have reasoned, however, “[n]o statute or rule of civil procedure 

requires a defaulting party to first contest the default judgment in district court. In 

particular, Rule 55(c) itself makes clear that a party may move under Rule 60(b) to 

set aside a default judgment, but it does nothing to suggest that the party must do 

so.” Stelly v. Duriso, 982 F.3d 403, 407 (5th Cir. 2020); see Prime Rate Premium 

Fin. Corp. v. Larson, 930 F.3d 759, 768 (6th Cir. 2019) (“[W]e do not see anything 

49 
USCA Case #22-5336 Document #2000702 Filed: 05/24/2023 Page 65 of 89 

in the Federal Rules that requires a party always to file a Rule 60(b) motion in 

order to appeal a default judgment[.]”). This Circuit does not appear to have 

directly addressed this question and there is “a circuit split on whether a party must 

file a Rule 60(b) motion challenging a default judgment in the district court prior to 

appealing,” Stelly, 982 F.3d at 406. The absence of a requirement in the Federal 

Rules suggests that the courts of appeal holding that no such motion is required 

have the better view. 

Although this Circuit has not directly addressed the issue, prior cases have 

declined to dismiss appeals from default judgments entered after a party failed to 

appear or make arguments to the district court prior to the appeal. See Gates v. 

Syrian Arab Republic, 646 F.3d 1, 3 (D.C. Cir. 2011); cf. Consarc Corp. v. Iraqi 

Ministry, 27 F.3d 695, 700 (D.C. Cir. 1994) (concluding that government agency 

not named in original action had not timely challenged default judgment against 

nonappearing foreign entity because the agency “could have intervened after the 

[default] judgment and appealed within the time limit”); Pulliam v. Pulliam, 478 

F.2d 935, 936 (D.C. Cir. 1973) (“[T]he question whether the default judgment was 

properly entered in this case is not before us, since the defendant did not file a 

timely appeal from that judgment.”). The reasoning of these courts makes it clear 

that a party does not automatically forfeit an appeal by not first appearing in the 

district court. 

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This case presents even less reason to require a party to seek relief at the 

district court before filing an appeal because the decision below was a summary 

judgment against the Commission after full briefing of purely legal issues by a 

Respondent.9

 Making a post-judgment motion to ask the district court to 

reconsider its legal analysis on the same basis pressed by the Respondents would 

have been a fruitless exercise and a waste of resources both on behalf of the parties 

and the court. The district court had just rejected those arguments. Making them 

again would have been a needless formality. 

None of which is to say that in the usual case any party may decline to 

appear in the district court and then try the case anew at the court of appeals. Any 

issue capable of being forfeited or waived that is not presented to or decided by the 

district court remains forfeited. A defaulting party is “unable to raise any fact 

questions that were not brought before the district court” and may forfeit other 

defenses not affirmatively pled, but “if the existing record and pleadings do not 

support the judgment, the defaulting party can prevail on appeal without having 

raised the issues first in the district court.” Stelly, 982 F.3d at 407. The 

Commission’s appeal does not exceed those limitations, however, and so there is 

no basis to conclude that it has forfeited its appeal. 

If the district court had resolved this case by issuing a default judgment, it 

would still have had to address the merits of Complainants’ claim because the 

Commission is an agency of the United States. Fed. R. Civ. P. 55(d). 

51 

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USCA Case #22-5336 Document #2000702 Filed: 05/24/2023 Page 67 of 89 

B. This Case Presents “Exceptional Circumstances” That Permits 

This Court to Consider Otherwise Forfeited Issues 

Though the Respondents’ assertion and the district court’s resolution of the 

non-jurisdictional issues the Commission seeks to press here were sufficient to 

preserve those issues for appellate review, this case also presents “exceptional 

circumstances” that would permit this Court to exercise discretion to consider 

otherwise forfeited issues. Roosevelt, 958 F.2d at 419 n.5. The atypical 

circumstances leading to this appeal described above qualify as exceptional. See 

supra pp. 9-14. Again, the Commission seeks to assert purely legal issues that do 

“not depend on any additional facts not considered by the district court.” Id. The 

basic question underlying this appeal — which involves the scope of a 

Commission regulation addressing the applicability of federal campaign finance 

contribution limits and disclosure requirements to communications on the internet 

— is unquestionably one of great importance. Indeed, the district court indicated 

that this case “involves serious legal questions about the metes and bounds of the 

FEC’s internet exemption.” (Mem. Op. at 5, No. 19-2336 (Feb. 1, 2023) 

(ECF No. 80). 

Complainants have argued that this case cannot present exceptional 

circumstances because the controlling rationale did not command four votes and is 

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USCA Case #22-5336 Document #2000702 Filed: 05/24/2023 Page 68 of 89 

therefore not precedential. (Mot. to Dismiss at 13 (Feb. 6, 2023) (Doc. 1984805).) 

While Complainants’ premise regarding administrative authoritativeness may be 

correct, their conclusion does not follow. In this Court, the Commission 

challenges a district court order concluding that its controlling legal analysis is 

contrary to law. Even if the underlying controlling Commissioner rationale is not 

binding in a later agency proceeding, the district court’s opinion has continuing 

legal effect. 

Beyond the effect the district court’s analysis has on the scope of the 

Commission’s internet exemption, its order also continues to undermine the 

Commission’s exclusive enforcement authority. See 52 U.S.C. § 30107(e). 

Congress granted to the Commission exclusive authority to interpret and enforce 

FECA, subject only to the possibility that judicial review might declare its failure 

to act or dismissal “contrary to law.” 52 U.S.C. § 30109(a)(8)(C); see In re 

Carter-Mondale Reelection Comm., Inc., 642 F.2d 538, 544-46 & n.9 (D.C. Cir. 

1980) (discussing importance of FEC’s “exclusive jurisdiction” given “the 

extremely delicate nature of the tremendous power entrusted to it”). Any thirdparty suit improperly authorized by a district court undermines the Commission’s 

interest in that exclusivity. 

The filing of Campaign Legal Center’s private civil action against the 

Respondents after the district court’s order does not divest the Commission of any 

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USCA Case #22-5336 Document #2000702 Filed: 05/24/2023 Page 69 of 89 

interest in this appeal. The very fact of a four-vote Commission majority to vote to 

appeal indicates significant and bipartisan interest in this Court addressing the 

consequential interpretive questions presented regarding the scope of the agency’s 

internet exemption. See supra p. 14. 

CONCLUSION 

For all the foregoing reasons, the Court should reverse the decision below in 

its entirety and remand to the FEC for consideration of allegations regarding 

disclosure violations. 

Respectfully submitted, 

Lisa J. Stevenson 

Acting General Counsel 

Kevin Deeley 

Associate General Counsel 

/s/ Greg J. Mueller 

Greg J. Mueller 

Attorney 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

May 24, 2023 (202) 694-1650 

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ADDENDUM 
USCA Case #22-5336 Document #2000702 Filed: 05/24/2023 Page 71 of 89 

ADDENDUM – TABLE OF CONTENTS 

Federal Statutes 

52 U.S.C. § 30101(8)(A) .......................................................................................... 1 

Federal Regulations 

52 U.S.C. § 30104(b) ............................................................................................... 1 

52 U.S.C. § 30109(a)................................................................................................ 5 

52 U.S.C. § 30116(a)(7)(B)(i) .................................................................................. 9 

11 C.F.R. § 100.26 ................................................................................................. 9 

11 C.F.R. § 104.13(a)............................................................................................. 9 

11 C.F.R. § 109.20 ................................................................................................. 9 

11 C.F.R. § 109.21(a)-(e)....................................................................................... 10 
     

USCA Case #22-5336 Document #2000702 Filed: 05/24/2023 Page 72 of 89 

UNITED STATES CODE 

TITLE 52. VOTING AND ELECTIONS 

Chapter 301—Federal Election Campaigns 

Subchapter 1—Disclosure of Federal Campaign Funds 

§ 30101. Definitions 

When used in this Act: 

* * * 

(8)(A) The term “contribution” includes— 

(i) any gift, subscription, loan, advance, or deposit of money or anything of value 

made by any person for the purpose of influencing any election for Federal office; 

or 

(ii) the payment by any person of compensation for the personal services of 

another person which are rendered to a political committee without charge for any 

purpose. 

* * *

§ 30104. Reporting requirements 

(b) Contents of reports. Each report under this section shall disclose— 

(1) the amount of cash on hand at the beginning of the reporting period; 

(2) for the reporting period and the calendar year (or election cycle, in the 

case of an authorized committee of a candidate for Federal office), the total amount 

of all receipts, and the total amount of all receipts in the following categories: 

(A) contributions from persons other than political committees; 

(B) for an authorized committee, contributions from the candidate; 

(C) contributions from political party committees; 

(D) contributions from other political committees; 

(E) for an authorized committee, transfers from other authorized 

committees of the same candidate; 

(F) transfers from affiliated committees and, where the reporting 

committee is a political party committee, transfers from other political party 

committees, regardless of whether such committees are affiliated; 

(G) for an authorized committee, loans made by or guaranteed by the 

candidate; 

(H) all other loans; 

(I) rebates, refunds, and other offsets to operating expenditures; 

(J) dividends, interest, and other forms of receipts; and 

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USCA Case #22-5336 Document #2000702 Filed: 05/24/2023 Page 73 of 89 

(K) for an authorized committee of a candidate for the office of 

President, Federal funds received under chapter 95 and chapter 96 of Title 26; 

(3) the identification of each— 

(A) person (other than a political committee) who makes a 

contribution to the reporting committee during the reporting period, whose 

contribution or contributions have an aggregate amount or value in excess of 

$200 within the calendar year (or election cycle, in the case of an authorized 

committee of a candidate for Federal office), or in any lesser amount if the 

reporting committee should so elect, together with the date and amount of any 

such contribution; 

(B) political committee which makes a contribution to the reporting 

committee during the reporting period, together with the date and amount of 

any such contribution; 

(C) authorized committee which makes a transfer to the reporting 

committee; 

(D) affiliated committee which makes a transfer to the reporting 

committee during the reporting period and, where the reporting committee is 

a political party committee, each transfer of funds to the reporting committee 

from another political party committee, regardless of whether such 

committees are affiliated, together with the date and amount of such transfer; 

(E) person who makes a loan to the reporting committee during the 

reporting period, together with the identification of any endorser or guarantor 

of such loan, and the date and amount or value of such loan; 

(F) person who provides a rebate, refund, or other offset to operating 

expenditures to the reporting committee in an aggregate amount or value in 

excess of $200 within the calendar year (or election cycle, in the case of an 

authorized committee of a candidate for Federal office), together with the date 

and amount of such receipt; and 

(G) person who provides any dividend, interest, or other receipt to 

the reporting committee in an aggregate value or amount in excess of $200 

within the calendar year (or election cycle, in the case of an authorized 

committee of a candidate for Federal office), together with the date and 

amount of any such receipt; 

(4) for the reporting period and the calendar year (or election cycle, in the 

case of an authorized committee of a candidate for Federal office), the total amount 

of all disbursements, and all disbursements in the following categories: 

(A) expenditures made to meet candidate or committee operating 

expenses; 

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(B) for authorized committees, transfers to other committees 

authorized by the same candidate; 

(C) transfers to affiliated committees and, where the reporting 

committee is a political party committee, transfers to other political party 

committees, regardless of whether they are affiliated; 

(D) for an authorized committee, repayment of loans made by or 

guaranteed by the candidate; 

(E) repayment of all other loans; 

(F) contribution refunds and other offsets to contributions; 

(G) for an authorized committee, any other disbursements; 

(H) for any political committee other than an authorized 

committee— 

(i) contributions made to other political committees; 

(ii) loans made by the reporting committees; 

(iii) independent expenditures; 

(iv) expenditures made under section 30116(d) of this title; and 

(v) any other disbursements; and 

(I) for an authorized committee of a candidate for the office of 

President, disbursements not subject to the limitation of section 30116(b) of 

this title; 

(5) the name and address of each— 

(A) person to whom an expenditure in an aggregate amount or value 

in excess of $200 within the calendar year is made by the reporting committee 

to meet a candidate or committee operating expense, together with the date, 

amount, and purpose of such operating expenditure; 

(B) authorized committee to which a transfer is made by the 

reporting committee; 

(C) affiliated committee to which a transfer is made by the reporting 

committee during the reporting period and, where the reporting committee is 

a political party committee, each transfer of funds by the reporting committee 

to another political party committee, regardless of whether such committees 

are affiliated, together with the date and amount of such transfers; 

(D) person who receives a loan repayment from the reporting 

committee during the reporting period, together with the date and amount of 

such loan repayment; and 

(E) person who receives a contribution refund or other offset to 

contributions from the reporting committee where such contribution was 

reported under paragraph (3)(A) of this subsection, together with the date and 

amount of such disbursement; 

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USCA Case #22-5336 Document #2000702 Filed: 05/24/2023 Page 75 of 89 

(6) (A) for an authorized committee, the name and address of each 

person who has received any disbursement not disclosed under paragraph (5) 

in an aggregate amount or value in excess of $200 within the calendar year 

(or election cycle, in the case of an authorized committee of a candidate for 

Federal office), together with the date and amount of any such disbursement; 

(B) for any other political committee, the name and address of 

each— 

(i) political committee which has received a contribution from 

the reporting committee during the reporting period, together with the 

date and amount of any such contribution; 

(ii) person who has received a loan from the reporting 

committee during the reporting period, together with the date and 

amount of such loan; 

(iii) person who receives any disbursement during the reporting 

period in an aggregate amount or value in excess of $200 within the 

calendar year (or election cycle, in the case of an authorized committee 

of a candidate for Federal office), in connection with an independent 

expenditure by the reporting committee, together with the date, amount, 

and purpose of any such independent expenditure and a statement 

which indicates whether such independent expenditure is in support of, 

or in opposition to, a candidate, as well as the name and office sought 

by such candidate, and a certification, under penalty of perjury, whether 

such independent expenditure is made in cooperation, consultation, or 

concert, with, or at the request or suggestion of, any candidate or any 

authorized committee or agent of such committee; 

(iv) person who receives any expenditure from the reporting 

committee during the reporting period in connection with an 

expenditure under section 30116(d) of this title, together with the date, 

amount, and purpose of any such expenditure as well as the name of, 

and office sought by, the candidate on whose behalf the expenditure is 

made; and 

(v) person who has received any disbursement not otherwise 

disclosed in this paragraph or paragraph (5) in an aggregate amount or 

value in excess of $200 within the calendar year (or election cycle, in 

the case of an authorized committee of a candidate for Federal office), 

from the reporting committee within the reporting period, together with 

the date, amount, and purpose of any such disbursement; 

(7) the total sum of all contributions to such political committee, together 

with the total contributions less offsets to contributions and the total sum of all 

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USCA Case #22-5336 Document #2000702 Filed: 05/24/2023 Page 76 of 89 

operating expenditures made by such political committee, together with total 

operating expenditures less offsets to operating expenditures, for both the reporting 

period and the calendar year (or election cycle, in the case of an authorized 

committee of a candidate for Federal office); and 

(8) the amount and nature of outstanding debts and obligations owed by or 

to such political committee; and where such debts and obligations are settled for less 

than their reported amount or value, a statement as to the circumstances and 

conditions under which such debts or obligations were extinguished and the 

consideration therefor. 

* * *

§ 30109. Enforcement 

(a) Administrative and judicial practice and procedure 

(1) Any person who believes a violation of this Act or of chapter 95 or 

chapter 96 of Title 26 has occurred, may file a complaint with the Commission. Such 

complaint shall be in writing, signed and sworn to by the person filing such 

complaint, shall be notarized, and shall be made under penalty of perjury and subject 

to the provisions of section 1001 of Title 18. Within 5 days after receipt of a 

complaint, the Commission shall notify, in writing, any person alleged in the 

complaint to have committed such a violation. Before the Commission conducts any 

vote on the complaint, other than a vote to dismiss, any person so notified shall have 

the opportunity to demonstrate, in writing, to the Commission within 15 days after 

notification that no action should be taken against such person on the basis of the 

complaint. The Commission may not conduct any investigation or take any other 

action under this section solely on the basis of a complaint of a person whose identity 

is not disclosed to the Commission. 

(2) If the Commission, upon receiving a complaint under paragraph (1) or 

on the basis of information ascertained in the normal course of carrying out its 

supervisory responsibilities, determines, by an affirmative vote of 4 of its members, 

that it has reason to believe that a person has committed, or is about to commit, a 

violation of this Act or chapter 95 or chapter 96 of Title 26, the Commission shall, 

through its chairman or vice chairman, notify the person of the alleged violation. 

Such notification shall set forth the factual basis for such alleged violation. The 

Commission shall make an investigation of such alleged violation, which may 

include a field investigation or audit, in accordance with the provisions of this 

section. 

(3) The general counsel of the Commission shall notify the respondent of 

any recommendation to the Commission by the general counsel to proceed to a vote 

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USCA Case #22-5336 Document #2000702 Filed: 05/24/2023 Page 77 of 89 

on probable cause pursuant to paragraph (4)(A)(i). With such notification, the 

general counsel shall include a brief stating the position of the general counsel on 

the legal and factual issues of the case. Within 15 days of receipt of such brief, 

respondent may submit a brief stating the position of such respondent on the legal 

and factual issues of the case, and replying to the brief of general counsel. Such 

briefs shall be filed with the Secretary of the Commission and shall be considered 

by the Commission before proceeding under paragraph (4). 

(4) (A) (i) Except as provided in clauses (ii) and subparagraph (C), if the 

Commission determines, by an affirmative vote of 4 of its members, that there 

is probable cause to believe that any person has committed, or is about to 

commit, a violation of this Act or of chapter 95 or chapter 96 of Title 26, the 

Commission shall attempt, for a period of at least 30 days, to correct or prevent 

such violation by informal methods of conference, conciliation, and 

persuasion, and to enter into a conciliation agreement with any person 

involved. Such attempt by the Commission to correct or prevent such 

violation may continue for a period of not more than 90 days. The 

Commission may not enter into a conciliation agreement under this clause 

except pursuant to an affirmative vote of 4 of its members. A conciliation 

agreement, unless violated, is a complete bar to any further action by the 

Commission, including the bringing of a civil proceeding under paragraph 

(6)(A). 

(ii) If any determination of the Commission under clause (i) 

occurs during the 45-day period immediately preceding any election, 

then the Commission shall attempt, for a period of at least 15 days, to 

correct or prevent the violation involved by the methods specified in 

clause (i). 

(B) (i) No action by the Commission or any person, and no 

information derived, in connection with any conciliation attempt by the 

Commission under subparagraph (A) may be made public by the 

Commission without the written consent of the respondent and the 

Commission. 

(ii) If a conciliation agreement is agreed upon by the Commission 

and the respondent, the Commission shall make public any conciliation 

agreement signed by both the Commission and the respondent. If the 

Commission makes a determination that a person has not violated this 

Act or chapter 95 or chapter 96 of Title 26, the Commission shall make 

public such determination. 

* * *

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USCA Case #22-5336 Document #2000702 Filed: 05/24/2023 Page 78 of 89 

(5) (A) If the Commission believes that a violation of this Act or of 

chapter 95 or chapter 96 of Title 26 has been committed, a conciliation 

agreement entered into by the Commission under paragraph (4)(A) may 

include a requirement that the person involved in such conciliation agreement 

shall pay a civil penalty which does not exceed the greater of $5,000 or an 

amount equal to any contribution or expenditure involved in such violation. 

(B) If the Commission believes that a knowing and willful violation 

of this Act or of chapter 95 or chapter 96 of Title 26 has been committed, a 

conciliation agreement entered into by the Commission under paragraph 

(4)(A) may require that the person involved in such conciliation agreement 

shall pay a civil penalty which does not exceed the greater of $10,000 or an 

amount equal to 200 percent of any contribution or expenditure involved in 

such violation (or, in the case of a violation of section 30122 of this title, 

which is not less than 300 percent of the amount involved in the violation and 

is not more than the greater of $50,000 or 1,000 percent of the amount 

involved in the violation). 

(C) If the Commission by an affirmative vote of 4 of its members, 

determines that there is probable cause to believe that a knowing and willful 

violation of this Act which is subject to subsection (d), or a knowing and 

willful violation of chapter 95 or chapter 96 of Title 26, has occurred or is 

about to occur, it may refer such apparent violation to the Attorney General 

of the United States without regard to any limitations set forth in paragraph 

(4)(A). 

(D) In any case in which a person has entered into a conciliation 

agreement with the Commission under paragraph (4)(A), the Commission 

may institute a civil action for relief under paragraph (6)(A) if it believes that 

the person has violated any provision of such conciliation agreement. For the 

Commission to obtain relief in any civil action, the Commission need only 

establish that the person has violated, in whole or in part, any requirement of 

such conciliation agreement. 

(6) (A) If the Commission is unable to correct or prevent any violation 

of this Act or of chapter 95 or chapter 96 of Title 26, by the methods specified 

in paragraph (4), the Commission may, upon an affirmative vote of 4 of its 

members, institute a civil action for relief, including a permanent or temporary 

injunction, restraining order, or any other appropriate order (including an 

order for a civil penalty which does not exceed the greater of $5,000 or an 

amount equal to any contribution or expenditure involved in such violation) 

in the district court of the United States for the district in which the person 

against whom such action is brought is found, resides, or transacts business. 

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(B) In any civil action instituted by the Commission under 

subparagraph (A), the court may grant a permanent or temporary injunction, 

restraining order, or other order, including a civil penalty which does not 

exceed the greater of $5,000 or an amount equal to any contribution or 

expenditure involved in such violation, upon a proper showing that the person 

involved has committed, or is about to commit (if the relief sought is a 

permanent or temporary injunction or a restraining order), a violation of this 

Act or chapter 95 or chapter 96 of Title 26. 

(C) In any civil action for relief instituted by the Commission under 

subparagraph (A), if the court determines that the Commission has established 

that the person involved in such civil action has committed a knowing and 

willful violation of this Act or of chapter 95 or chapter 96 of Title 26, the court 

may impose a civil penalty which does not exceed the greater of $10,000 or 

an amount equal to 200 percent of any contribution or expenditure involved 

in such violation (or, in the case of a violation of section 30122 of this title, 

which is not less than 300 percent of the amount involved in the violation and 

is not more than the greater of $50,000 or 1,000 percent of the amount 

involved in the violation). 

(7) In any action brought under paragraph (5) or (6), subpoenas for 

witnesses who are required to attend a United States district court may run into any 

other district. 

(8) (A) Any party aggrieved by an order of the Commission dismissing 

a complaint filed by such party under paragraph (1), or by a failure of the 

Commission to act on such complaint during the 120-day period beginning on 

the date the complaint is filed, may file a petition with the United States 

District Court for the District of Columbia. 

(B) Any petition under subparagraph (A) shall be filed, in the case of 

a dismissal of a complaint by the Commission, within 60 days after the date 

of the dismissal. 

(C) In any proceeding under this paragraph the court may declare that 

the dismissal of the complaint or the failure to act is contrary to law, and may 

direct the Commission to conform with such declaration within 30 days, 

failing which the complainant may bring, in the name of such complainant, a 

civil action to remedy the violation involved in the original complaint. 

(9) Any judgment of a district court under this subsection may be appealed 

to the court of appeals, and the judgment of the court of appeals affirming or setting 

aside, in whole or in part, any such order of the district court shall be final, subject 

to review by the Supreme Court of the United States upon certiorari or certification 

as provided in section 1254 of Title 28. 

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USCA Case #22-5336 Document #2000702 Filed: 05/24/2023 Page 80 of 89 

(10) Repealed. Pub.L. 98-620, Title IV, § 402(1)(A), Nov. 8, 1984, 98 Stat. 

3357 

(11) If the Commission determines after an investigation that any person has 

violated an order of the court entered in a proceeding brought under paragraph (6), 

it may petition the court for an order to hold such person in civil contempt, but if it 

believes the violation to be knowing and willful it may petition the court for an order 

to hold such person in criminal contempt. 

(12) (A) Any notification or investigation made under this section shall 

not be made public by the Commission or by any person without the written 

consent of the person receiving such notification or the person with respect to 

whom such investigation is made. 

(B) Any member or employee of the Commission, or any other 

person, who violates the provisions of subparagraph (A) shall be fined not 

more than $2,000. Any such member, employee, or other person who 

knowingly and willfully violates the provisions of subparagraph (A) shall be 

fined not more than $5,000. 

* * * 

§ 30116(a)(7) For purposes of this subsection— 

* * * 

(B)(i) expenditures made by any person in cooperation, consultation, or 

concert, with, or at the request or suggestion of, a candidate, his authorized 

political committees, or their agents, shall be considered to be a contribution 

to such candidate; 

* * * 

8 

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USCA Case #22-5336 Document #2000702 Filed: 05/24/2023 Page 81 of 89 

CODE OF FEDERAL REGULATIONS 

Title 11—FEDERAL ELECTIONS 

Chapter I—Federal Election Commission 

Subchapter A—General 

§ 100.26 Public communication 

Public communication means a communication by means of any broadcast, cable, 

or satellite communication, newspaper, magazine, outdoor advertising facility, mass 

mailing, or telephone bank to the general public, or any other form of general public 

political advertising. The term general public political advertising shall not include 

communications over the Internet, except for communications placed for a fee on 

another person’s Web site. 

* * * 

§ 104.13 Disclosure of receipt and consumption of in-kind contributions. 

(a) (1) The amount of an in-kind contribution shall be equal to the usual and 

normal value on the date received. Each in-kind contribution shall be reported as a 

contribution in accordance with 11 CFR 104.3(a). 

(2) Except for items noted in 11 CFR 104.13(b), each in-kind contribution shall 

also be reported as an expenditure at the same usual and normal value and reported 

on the appropriate expenditure schedule, in accordance with 11 CFR 104.3(b). 

* * * 

§ 109.20 What does “coordinated” mean? 

(a) Coordinated means made in cooperation, consultation or concert with, or at 

the request or suggestion of, a candidate, a candidate’s authorized committee, or a 

political party committee. For purposes of this subpart C, any reference to a 

candidate, or a candidate’s authorized committee, or a political party committee 

includes an agent thereof. 

(b) Any expenditure that is coordinated within the meaning of paragraph (a) of 

this section, but that is not made for a coordinated communication under 11 CFR 

109.21 or a party coordinated communication under 11 CFR 109.37, is either an inkind contribution to, or a coordinated party expenditure with respect to, the candidate 

or political party committee with whom or with which it was coordinated and must 

be reported as an expenditure made by that candidate or political party committee, 

unless otherwise exempted under 11 CFR part 100, subparts C or E. 

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§ 109.21 What is a “coordinated communication”? 

(a) Definition. A communication is coordinated with a candidate, an authorized 

committee, a political party committee, or an agent of any of the foregoing when the 

communication: 

(1) Is paid for, in whole or in part, by a person other than that candidate, 

authorized committee, or political party committee; 

(2) Satisfies at least one of the content standards in paragraph (c) of this section; 

and 

(3) Satisfies at least one of the conduct standards in paragraph (d) of this section. 

(b) Treatment as an in-kind contribution and expenditure; Reporting—(1) 

General rule. A payment for a coordinated communication is made for the purpose 

of influencing a Federal election, and is an in-kind contribution under 11 CFR 

100.52(d) to the candidate, authorized committee, or political party committee with 

whom or which it is coordinated, unless excepted under 11 CFR part 100, subpart 

C, and must be reported as an expenditure made by that candidate, authorized 

committee, or political party committee under 11 CFR 104.13, unless excepted under 

11 CFR part 100, subpart E. 

(2) In-kind contributions resulting from conduct described in paragraphs (d)(4) 

or (d)(5) of this section. Notwithstanding paragraph (b)(1) of this section, the 

candidate, authorized committee, or political party committee with whom or which 

a communication is coordinated does not receive or accept an in-kind contribution, 

and is not required to report an expenditure, that results from conduct described in 

paragraphs (d)(4) or (d)(5) of this section, unless the candidate, authorized 

committee, or political party committee engages in conduct described in paragraphs 

(d)(1) through (d)(3) of this section. 

(3) Reporting of coordinated communications. A political committee, other than 

a political party committee, that makes a coordinated communication must report 

the payment for the communication as a contribution made to the candidate or 

political party committee with whom or which it was coordinated and as an 

expenditure in accordance with 11 CFR 104.3(b)(1)(v). A candidate, authorized 

committee, or political party committee with whom or which a communication paid 

for by another person is coordinated must report the usual and normal value of the 

communication as an in-kind contribution in accordance with 11 CFR 104.13, 

meaning that it must report the amount of the payment as a receipt under 11 CFR 

104.3(a) and as an expenditure under 11 CFR 104.3(b). 

(c) Content standards. Each of the types of content described in paragraphs 

(c)(1) through (c)(5) of this section satisfies the content standard of this section. 

(1) A communication that is an electioneering communication under 11 CFR 

100.29. 

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(2) A public communication, as defined in 11 CFR 100.26, that disseminates, 

distributes, or republishes, in whole or in part, campaign materials prepared by a 

candidate or the candidate’s authorized committee, unless the dissemination, 

distribution, or republication is excepted under 11 CFR 109.23(b). For a 

communication that satisfies this content standard, see paragraph (d)(6) of this 

section. 

(3) A public communication, as defined in 11 CFR 100.26, that expressly 

advocates, as defined in 11 CFR 100.22, the election or defeat of a clearly identified 

candidate for Federal office. 

(4) A public communication, as defined in 11 CFR 100.26, that satisfies 

paragraph (c)(4)(i), (ii), (iii), or (iv) of this section: 

(i) References to House and Senate candidates. The public communication 

refers to a clearly identified House or Senate candidate and is publicly distributed or 

otherwise publicly disseminated in the clearly identified candidate’s jurisdiction 90 

days or fewer before the clearly identified candidate’s general, special, or runoff 

election, or primary or preference election, or nominating convention or caucus. 

(ii) References to Presidential and Vice Presidential candidates. The public 

communication refers to a clearly identified Presidential or Vice Presidential 

candidate and is publicly distributed or otherwise publicly disseminated in a 

jurisdiction during the period of time beginning 120 days before the clearly 

identified candidate’s primary or preference election in that jurisdiction, or 

nominating convention or caucus in that jurisdiction, up to and including the day of 

the general election. 

(iii) References to political parties. The public communication refers to a 

political party, does not refer to a clearly identified Federal candidate, and is publicly 

distributed or otherwise publicly disseminated in a jurisdiction in which one or more 

candidates of that political party will appear on the ballot. 

(A) When the public communication is coordinated with a candidate and it is 

publicly distributed or otherwise publicly disseminated in that candidate’s 

jurisdiction, the time period in paragraph (c)(4)(i) or (ii) of this section that would 

apply to a communication containing a reference to that candidate applies; 

(B) When the public communication is coordinated with a political party 

committee and it is publicly distributed or otherwise publicly disseminated during 

the two-year election cycle ending on the date of a regularly scheduled non– 

Presidential general election, the time period in paragraph (c)(4)(i) of this section 

applies; 

(C) When the public communication is coordinated with a political party 

committee and it is publicly distributed or otherwise publicly disseminated during 

the two-year election cycle ending on the date of a Presidential general election, the 

time period in paragraph (c)(4)(ii) of this section applies. 

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(iv) References to both political parties and clearly identified Federal 

candidates. The public communication refers to a political party and a clearly 

identified Federal candidate, and is publicly distributed or otherwise publicly 

disseminated in a jurisdiction in which one or more candidates of that political party 

will appear on the ballot. 

(A) When the public communication is coordinated with a candidate and it is 

publicly distributed or otherwise publicly disseminated in that candidate’s 

jurisdiction, the time period in paragraph (c)(4)(i) or (ii) of this section that would 

apply to a communication containing a reference to that candidate applies; 

(B) When the public communication is coordinated with a political party 

committee and it is publicly distributed or otherwise publicly disseminated in the 

clearly identified candidate’s jurisdiction, the time period in paragraph (c)(4)(i) or 

(ii) of this section that would apply to a communication containing only a reference 

to that candidate applies; 

(C) When the public communication is coordinated with a political party 

committee and it is publicly distributed or otherwise publicly disseminated outside 

the clearly identified candidate’s jurisdiction, the time period in paragraph 

(c)(4)(iii)(B) or (C) of this section that would apply to a communication containing 

only a reference to a political party applies. 

(5) A public communication, as defined in 11 CFR 100.26, that is the functional 

equivalent of express advocacy. For purposes of this section, a communication is the 

functional equivalent of express advocacy if it is susceptible of no reasonable 

interpretation other than as an appeal to vote for or against a clearly identified 

Federal candidate. 

(d) Conduct standards. Any one of the following types of conduct satisfies the 

conduct standard of this section whether or not there is agreement or formal 

collaboration, as defined in paragraph (e) of this section: 

(1) Request or suggestion. (i) The communication is created, produced, or 

distributed at the request or suggestion of a candidate, authorized committee, or 

political party committee; or 

(ii) The communication is created, produced, or distributed at the suggestion of 

a person paying for the communication and the candidate, authorized committee, or 

political party committee assents to the suggestion. 

(2) Material involvement. This paragraph, (d)(2), is not satisfied if the 

information material to the creation, production, or distribution of the 

communication was obtained from a publicly available source. A candidate, 

authorized committee, or political party committee is materially involved in 

decisions regarding: 

(i) The content of the communication; 

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(ii) The intended audience for the communication; 

(iii) The means or mode of the communication; 

(iv) The specific media outlet used for the communication; 

(v) The timing or frequency of the communication; or 

(vi) The size or prominence of a printed communication, or duration of a 

communication by means of broadcast, cable, or satellite. 

(3) Substantial discussion. This paragraph, (d)(3), is not satisfied if the 

information material to the creation, production, or distribution of the 

communication was obtained from a publicly available source. The communication 

is created, produced, or distributed after one or more substantial discussions about 

the communication between the person paying for the communication, or the 

employees or agents of the person paying for the communication, and the candidate 

who is clearly identified in the communication, or the candidate’s authorized 

committee, the candidate’s opponent, the opponent’s authorized committee, or a 

political party committee. A discussion is substantial within the meaning of this 

paragraph if information about the candidate’s or political party committee’s 

campaign plans, projects, activities, or needs is conveyed to a person paying for the 

communication, and that information is material to the creation, production, or 

distribution of the communication. 

(4) Common vendor. All of the following statements in paragraphs (d)(4)(i) 

through (d)(4)(iii) of this section are true: 

(i) The person paying for the communication, or an agent of such person, 

contracts with or employs a commercial vendor, as defined in 11 CFR 116.1(c), to 

create, produce, or distribute the communication; 

(ii) That commercial vendor, including any owner, officer, or employee of the 

commercial vendor, has provided any of the following services to the candidate who 

is clearly identified in the communication, or the candidate’s authorized committee, 

the candidate’s opponent, the opponent’s authorized committee, or a political party 

committee, during the previous 120 days: 

(A) Development of media strategy, including the selection or purchasing of 

advertising slots; 

(B) Selection of audiences; 

(C) Polling; 

(D) Fundraising; 

(E) Developing the content of a public communication; 

(F) Producing a public communication; 

(G) Identifying voters or developing voter lists, mailing lists, or donor lists; 

(H) Selecting personnel, contractors, or subcontractors; or 

(I) Consulting or otherwise providing political or media advice; and 

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(iii) This paragraph, (d)(4)(iii), is not satisfied if the information material to the 

creation, production, or distribution of the communication used or conveyed by the 

commercial vendor was obtained from a publicly available source. That commercial 

vendor uses or conveys to the person paying for the communication: 

(A) Information about the campaign plans, projects, activities, or needs of the 

clearly identified candidate, the candidate’s opponent, or a political party committee, 

and that information is material to the creation, production, or distribution of the 

communication; or 

(B) Information used previously by the commercial vendor in providing services 

to the candidate who is clearly identified in the communication, or the candidate’s 

authorized committee, the candidate’s opponent, the opponent’s authorized 

committee, or a political party committee, and that information is material to the 

creation, production, or distribution of the communication. 

(5) Former employee or independent contractor. Both of the following 

statements in paragraphs (d)(5)(i) and (d)(5)(ii) of this section are true: 

(i) The communication is paid for by a person, or by the employer of a person, 

who was an employee or independent contractor of the candidate who is clearly 

identified in the communication, or the candidate’s authorized committee, the 

candidate’s opponent, the opponent’s authorized committee, or a political party 

committee, during the previous 120 days; and 

(ii) This paragraph, (d)(5)(ii), is not satisfied if the information material to the 

creation, production, or distribution of the communication used or conveyed by the 

former employee or independent contractor was obtained from a publicly available 

source. That former employee or independent contractor uses or conveys to the 

person paying for the communication: 

(A) Information about the campaign plans, projects, activities, or needs of the 

clearly identified candidate, the candidate’s opponent, or a political party committee, 

and that information is material to the creation, production, or distribution of the 

communication; or 

(B) Information used by the former employee or independent contractor in 

providing services to the candidate who is clearly identified in the communication, 

or the candidate’s authorized committee, the candidate’s opponent, the opponent’s 

authorized committee, or a political party committee, and that information is 

material to the creation, production, or distribution of the communication. 

(6) Dissemination, distribution, or republication of campaign material. A 

communication that satisfies the content standard of paragraph (c)(2) of this section 

or 11 CFR 109.37(a)(2)(i) shall only satisfy the conduct standards of paragraphs 

(d)(1) through (d)(3) of this section on the basis of conduct by the candidate, the 

candidate’s authorized committee, or the agents of any of the foregoing, that occurs 

after the original preparation of the campaign materials that are disseminated, 

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distributed, or republished. The conduct standards of paragraphs (d)(4) and (d)(5) of 

this section may also apply to such communications as provided in those paragraphs. 

(e) Agreement or formal collaboration. Agreement or formal collaboration 

between the person paying for the communication and the candidate clearly 

identified in the communication, or the candidate’s authorized committee, the 

candidate’s opponent, the opponent’s authorized committee, or a political party 

committee, is not required for a communication to be a coordinated communication. 

Agreement means a mutual understanding or meeting of the minds on all or any part 

of the material aspects of the communication or its dissemination. Formal 

collaboration means planned, or systematically organized, work on the 

communication. 

* * * 

15 
 

 

USCA Case #22-5336 Document #2000702 Filed: 05/24/2023 Page 88 of 89 

CERTIFICATE OF COMPLIANCE 

This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B) because the brief contains 11,682 words, excluding the parts of the 

brief exempted by Fed. R. App. P. 32(f). 

The brief also complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type-style requirements of Fed. R. App. P 32(a)(6) because the 

brief uses the proportionally spaced typeface Microsoft Word 14-point Times New 

Roman. 

/s/ Greg J. Mueller 

Greg J. Mueller 

Attorney 

Federal Election Commission 
 

 

USCA Case #22-5336 Document #2000702 Filed: 05/24/2023 Page 89 of 89 

CERTIFICATE OF SERVICE 

I hereby certify that on this 24th day of May 2023, I electronically filed the 

Brief for Federal Election Commission with the Clerk of the United States Court of 

Appeals for the D.C. Circuit by using the Court’s CM/ECF system. Service was 

made on the following through CM/ECF: 

Tara Malloy 

Megan P. McAllen 

Campaign Legal Center 

1101 14th St. NW, Suite 400 

Washington, DC 20005 

I further certify that I also will cause the requisite number of paper copies of 

the brief to be filed with the Clerk. 

 /s/ Greg J. Mueller

 Greg J. Mueller 

Federal Election Commission 

 1050 First Street NE 

 Washington, DC 20463 

 (202) 694-1650 

gmueller@fec.gov