Case 1:22-cv-03319-CRC Document 1 Filed 10/28/22 Page 1 of 30 

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CAMPAIGN LEGAL CENTER

1101 14th Street NW, Ste. 400

Washington, DC 20005

DEMOCRACY 21

2000 Massachusetts Avenue, NW

Washington, DC 20036

Plaintiffs,

v.

FEDERAL ELECTION COMMISSION

1050 First Street, NE

Washington, DC 20463

Defendant.

Civil Action No. __________

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1. Plaintiffs Campaign Legal Center (“CLC”) and Democracy 21 bring this action

against the Federal Election Commission (“FEC” or “Commission”) for declaratory and injunctive

relief pursuant to 52 U.S.C. § 30109(a)(8)(A), challenging as contrary to law the FEC’s dismissal

of two administrative complaints that plaintiffs filed in 2015 alleging that former Florida Governor

John Elias “Jeb” Bush and Right to Rise Super PAC, Inc. (“RTR Super PAC”; collectively,

“respondents”) had violated the Federal Election Campaign Act (“FECA” or “Act”) by raising

more than $100 million in illegal soft money to support Bush’s ill-fated 2016 presidential run.1

1 Right to Rise Super PAC later filed an amended Statement of Organization changing its name to

Right to Rise USA. See Right to Rise USA Statement of Organization, FEC (June 12, 2015),

https://docquery.fec.gov/pdf/367/15951468367/15951468367.pdf. RTR Super PAC is distinct

from Right to Rise PAC, Inc., a multicandidate committee also established by Bush and registered

with the FEC on the same date. See Right to Rise PAC, Inc., Statement of Organization, FEC (Jan.

6, 2015), https://docquery.fec.gov/pdf/812/15031363812/15031363812.pdf.

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2. The Commission’s August 29, 2022 dismissal of plaintiffs’ complaints came only

after an extraordinary seven-and-a-half year delay to take action on or resolve the complaints. It

followed more than a dozen split votes among the Commissionersthat failed to garner the requisite

four votes for agency action, see 52 U.S.C. § 30106(c). The Commission has not provided a

Statement of Reasons for its failure to find “reason to believe” a FECA violation occurred, as

required when the Commission acts contrary to the written recommendations of its Office of

General Counsel (“OGC”) to allow for judicial review, Common Cause v. FEC, 842 F.2d 436, 449

(D.C. Cir. 1988), and without which the dismissal fails the basic requirements of reasoned

decisionmaking, see Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986).

3. Plaintiffs filed their first administrative complaint on March 31, 2015, alleging that

Governor Bush had illegally delayed announcing his candidacy, and had engaged in significant

“testing the waters” and/or campaign activities using funds raised outside the Act’s contribution

restrictions (i.e., “soft money”), see 52 U.S.C. §§ 30116(a), 30118(a), prior to commencement of

his formal candidacy. Admin. Compl. ¶¶ 1-2, MUR 6927 (Mar. 31, 2015), https://www.fec.gov/

files/legal/murs/6927/6927_01.pdf.

2 The complaint further alleged that he failed to timely file his

statement of candidacy, register his campaign committee, and report his activities as FECA

requires, see 52 U.S.C. §§ 30102(e), 30103, 30104. Ex. 1, Admin. Compl. ¶¶ 2, 49.

4. Plaintiffs filed a second administrative complaint with the FEC on May 27, 2015,

alleging that Bush had violated 52 U.S.C. § 30125(e) by “establish[ing],” “financ[ing],”

“maintain[ing],” and “controll[ing]” RTR Super PAC, which “act[ed] on his behalf” by raising

2 Plaintiffs’ March 31, 2015 administrative complaint and its May 27, 2015 supplement are

attached hereto as Exhibits 1 and 2, respectively. Other documents in the public file for Matter

Under Review (“MUR”) 6927 are available on the FEC’s website, at https://www.fec.gov/data/

legal/matter-under-review/6927.

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and spending almost $100 million in soft money raised outside FECA limits to promote Bush’s

presidential campaign; and that RTR Super PAC violated section 30125(e) by raising and spending

soft money on behalf of Bush. Ex. 2, Suppl. Admin. Compl. ¶ 1, MUR 6927 (May 27, 2015),

https://www.fec.gov/files/legal/murs/6927/6927_07.pdf.

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5. The Commission failed to take action on plaintiffs’ administrative complaints for

over seven years, even though its OGC recommended commencing an investigation, and all

Commissioners serving in 2018 apparently agreed that there was “reason to believe” FECA was

violated with respect to at least two of plaintiffs’ allegations, specifically, that: (1) Bush had failed

to timely file his statement of candidacy and register his campaign committee, and (2) Bush had

failed to comply with FECA contribution restrictions and disclosure requirements in conducting

testing-the-waters and/or campaign activity in his pre-candidacy period.4 Nonetheless, the

Commission failed to muster the four votes necessary to formally find reason to believe these

violations occurred and to initiate an investigation.

6. Nor did the Commissioners at any point issue the requisite Statement of Reasons

explaining their votes for or against a reason-to-believe finding. On May 13, 2022, three of the

currently serving Commissioners who voted to close the file and dismiss the complaints issued a

statement asserting that they were unable to provide the basis for their predecessors’ 2018 reasonto-believe votes, but characterized those votes as controlling. By its express terms, their Statement

thus does not purport to provide any explanation for the Commission’s substantive decision.

3 The FEC treated plaintiffs’ May 27 administrative complaint as a supplement to the March 31

complaint and designated both as MUR 6927.

4 See First General Counsel’s Report (“OGC Rpt.”), MURs 6915 & 6927 (Feb. 8, 2017), https://

www.fec.gov/files/legal/murs/6927/6927_14.pdf; Certification, MURs 6915 & 6927 (Dec. 6,

2018; dated Dec. 7, 2018), https://www.fec.gov/files/legal/murs/6927/6927_15.pdf; Certification,

MURs 6915 & 6927 (Dec. 13, 2018; dated Dec. 14, 2018), https://www.fec.gov/files/legal/murs/

6927/6927_16.pdf.

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7. Plaintiffs have suffered, because they, as well as the public, have been deprived of

FECA-required disclosure regarding: (1) Bush’s “testing the waters” and/or campaign

expenditures in the period prior to his official declaration of candidacy in June 2015; and (2) the

dates, amounts and purposes of any in-kind contributions made by RTR Super PAC to Bush’s

campaign arising from the extensive involvement of Bush and his agents in RTR’s formation and

operations, and the possible coordination of their activities. The deprivation of this information is

traceable to FEC’s seven-year delay and dismissal of plaintiffs’ administrative complaints, and

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

using it to support their programmatic activities. Ex. 1, Admin. Compl. ¶¶ 34-36, 49.

8. The FEC’s failure to act also allows wealthy donors, including corporations and

unions, to sidestep FECA’s contribution limits and disclosure requirements by making unlimited

contributions to super PACs established, financed, maintained, or controlled by their favored

federal candidate. Without enforcement of FECA provisions, such as section 30125(e), designed

to prevent such circumvention of the contribution limits, “the integrity of our system of

representative democracy is undermined.” Buckley v. Valeo, 424 U.S. 1, 26-27 (1976) (per

curiam).

9. By failing to act on plaintiffs’ complaints for seven years and then dismissing them

without providing any rationale for failing to find reason to believe, the Commission has acted

contrary to law and failed to satisfy Circuit precedent requiring that controlling FEC

Commissioners explain their actions. Common Cause, 842 F.2d at 449. This failure encourages

the use of candidate-controlled super PACs like RTR Super PAC as vehicles for the wholesale

evasion of FECA’s contribution limits and disclosure requirements, particularly in the period prior

to a formal acknowledgement of candidacy.

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JURISDICTION AND VENUE

10. This Court has both subject matter jurisdiction over this action and personal

jurisdiction over the parties pursuant to 52 U.S.C. § 30109(a)(8)(A). This Court also has

jurisdiction over this action pursuant to 28 U.S.C. § 1331.

11. Venue in this district is proper under 52 U.S.C. § 30109(a)(8)(A) and 28 U.S.C.

§ 1391(e).

THE PARTIES

12. Plaintiff CLC is a nonpartisan, nonprofit organization that works to strengthen

American democracy through, among other activities, local, state, and federal efforts to ensure that

the public has access to information regarding the financing of U.S. election campaigns.

13. As part of this effort, CLC conducts research, authors reports and articles, and

regularly provides expert analysis to the media. CLC is also involved in litigation throughout the

country regarding campaign finance matters; files FEC complaints requesting that enforcement

actions be taken against individuals or organizationsthat violate the law; participatesin rulemaking

and advisory opinion proceedings before the FEC to ensure that the agency is properly interpreting

and enforcing federal election laws; and engages in legislative advocacy for reform measures at

the federal, state, and local levels.

14. CLC relies on the accurate and complete reporting of campaign finance information

to carry out activities central to its mission, including the production of reports and other materials

to educate the public about campaign spending and the true sources and scope of candidates’

financial support.

15. CLC expends significant resources assisting reporters and other members of the

media in their investigative research into candidates’ financial support and relationships with

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donors, to ensure that the public is equipped with the information necessary to evaluate different

candidates and messages and to cast informed votes.

16. CLC also uses its analyses of federal campaign finance disclosure information to

support its administrative practice at the FEC and before state and local campaign finance agencies,

and to defend campaign finance laws in its active docket of cases in federal and state courts.

17. When inadequate disclosure of federal campaign finance activity makes it difficult

to ascertain the origin or nature of a candidate’s financial support, as occurs when a candidate’s

fundraising and other operations are illegally outsourced to an “independent” super PAC without

full disclosure, reporters often contact CLC for guidance as to whether or where they can find the

campaign finance information that is not being properly reported. This work requires CLC to divert

resources and funds from other organizational needs.

18. Plaintiff Democracy 21 is a nonprofit, nonpartisan organization dedicated to

making democracy work for all Americansthrough support of campaign finance and other political

reforms. To accomplish these goals, it conducts public education efforts, participates in litigation

involving the constitutionality and interpretation of campaign finance laws, and engages in efforts

to help ensure that campaign finance laws are properly enforced and implemented. It also

participates in rulemaking and advisory opinion proceedings, and other administrative matters, at

the FEC.

19. Like CLC, Democracy 21 relies on the accurate and complete reporting of

campaign finance information to carry out activities central to its mission, including its public

education efforts, reports, and statements about campaign spending and the sources and scope of

candidates’ financial support. Democracy 21 also expends significant resources to assist members

of the media with research into issues of campaign financing and the relationships between

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candidates and donorsto ensure that the public is broadly and accurately informed on these matters.

Democracy 21 also uses its analyses of federal campaign finance disclosure information to support

its administrative efforts at the FEC, including its participation in advisory opinion and rulemaking

proceedings, as well as the filing of administrative complaints. It also uses such disclosure

information in litigation to defend the constitutionality of the campaign finance laws in court.

20. When such disclosure information is unavailable, inadequate, or inaccurate, such

as when candidates are allowed to use supposedly “independent” outside spending groups as de

facto coordinated arms of their campaigns, it impedes the ability of Democracy 21 to fulfill its

mission and causes Democracy 21 to divert resources and funds from other organizational needs

in order to provide the public with accurate information about the facts and implications of how

the financing of federal campaigns is occurring.

21. CLC and Democracy 21 also suffer due to Bush’s apparent failure to provide all

FECA-required information about his testing-the-waters and/or campaign activity conducted prior

to his announcement of candidacy on June 15, 2015, and in particular, information about any inkind contributions Bush received in the form of payments by RTR Super PAC and RTR Leadership

PAC for his travel and public events prior to June 2015.

22. CLC and Democracy 21 also have been deprived of complete and accurate

disclosure information in connection with the fundraising and other activities undertaken by Bush

and/or his agents to establish and finance RTR Super PAC, as well as of information regarding the

nature of the relationship between RTR Super PAC and the Bush campaign.

23. Plaintiffs lack information, for instance, about whether RTR Super PAC was

affiliated with Bush’s campaign committee, 52 U.S.C. § 30116(a)(5), or whether contributors to

RTR Super PAC “earmarked” their money specifically for support of the Bush campaign, id.

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§ 30116(a)(8). The dismissal also deprives plaintiffs of FECA-required information regarding the

amounts, dates, and purposes of RTR Super PAC’s in-kind contributions to the Bush campaign,

including in the form of coordinated expenditures. 52 U.S.C. § 30116(a)(7)(B)(i). See also CLC v.

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

24. Defendant FEC is an independent federal agency charged with the administration

and civil enforcement of FECA. 52 U.S.C. § 30106(b).

STATUTORY AND REGULATORY BACKGROUND

A. Regulation of the “testing the waters” phase preceding federal candidacy

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

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

nomination for election, or election “if such individual has received contributions aggregating in

excess of $5,000 or has made expenditures aggregating in excess of $5,000.” 52 U.S.C.

§ 30101(2); 11 C.F.R. § 100.3(a). “Contributions” and “expenditures” are defined as any “gift” or

“payment” made “for the purpose of influencing any election for Federal office.” 52 U.S.C.

§ 30101(8)(A) (defining “contribution”), (9)(A) (defining “expenditure”).

26. No later than 15 days after becoming a candidate for federal office, the candidate

must file a Statement of Candidacy designating his principal campaign committee, 52 U.S.C.

§ 30102(e)(1), and such committee must register with the FEC no later than 10 days thereafter, id.

§ 30103. The candidate’s authorized committee must then file regular, comprehensive reports

disclosing all receipts and disbursements, id. § 30104, including the receipt of in-kind

contributions.

27. However, “[t]hrough its regulations, the Commission has established limited

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

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campaign for Federal office”—i.e., to “test the waters”—“without becoming a candidate under the

Act.” See Payments Received for Testing the Waters Activities, 50 Fed. Reg. 9992, 9993 (Mar.

13, 1985) (emphasis added).

28. The “testing the waters” regulations create “limited exceptions” to the definitions

of “contribution” and “expenditure,” allowing would-be candidates to engage in pre-candidacy

activities without triggering “candidate” status when the funds they raise or spend for this purpose

exceed the $5,000 candidate registration threshold. 11 C.F.R. §§ 100.72, 100.131.

29. Importantly, however, individuals testing the waters may only “use funds

permissible under the Act,” 11 C.F.R. § 100.72(a), i.e., funds that comply with the federal

contribution limits and source restrictions.

30. This “testing the waters” exception is no longer “applicable” once individuals

“decide[] to become candidates,” nor does it extend to “activities relevant to conducting a

campaign.” 11 C.F.R. § 100.72(b). The regulation provides several non-exhaustive “[e]xamples of

activities that indicate that an individual has decided to become a candidate,” id., including when

an individual: “raises funds in excess of what could reasonably be expected to be used for

exploratory activities or undertakes activities designed to amass campaign funds that would be

spent after he or she becomes a candidate,” id. § 100.72(b)(2); “makes or authorizes written or oral

statements that refer to him or her as a candidate for a particular office,” id. § 100.72(b)(3); or

“conducts activities in close proximity to the election or over a protracted period of time,” id.

§ 100.72(b)(4).

31. If the individual’s activities and statements indicate that she has effectively become

a candidate, she must designate a principal campaign committee and timely file the required FEC

reports disclosing all receipts and disbursements. 52 U.S.C. §§ 30102(e)(1), 30103, 30104.

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32. All funds received or payments made in connection with “testing the waters”

conducted pursuant to 11 C.F.R. §§ 100.72(a) and 100.131(a) are “considered contributions or

expenditures under the Act,” and must be reported in the first report filed by the candidate’s

principal campaign committee with the FEC. 11 C.F.R. § 101.3. For each such contribution or

expenditure made to test the waters, the report must disclose its date, amount, and the name of the

relevant contributor or payment recipient. Id.

B. FECA’s “soft money” restrictions

33. In the 2015-16 election cycle, FECA limited to $2,700 the size of a contribution

that a presidential candidate can accept from an individual donor. 52 U.S.C § 30116(a)(l); Archive

of contribution limits, 2015-16, https://www.fec.gov/help-candidates-and-committees/candidatetaking-receipts/archived-contribution-limits/#2015-2016. FECA also prohibits candidates from

accepting any contributions from corporations or labor unions. 52 U.S.C § 30118(a). Money raised

outside the contribution limits and source requirements are commonly referred to as “soft money.”

34. An independent expenditure-only committee, or “super PAC,” is a political

committee that may raise contributions outside the limits and source restrictions that otherwise

apply to political committees, 52 U.S.C. § 30116(a)(1)(C), provided they make only independent

expenditures and do not contribute to, or coordinate their spending with, candidates.

35. Single-candidate super PACs, i.e., super PACs devoted to advocating the election

of a single candidate, like RTR Super PAC, provide a potential avenue for donors to circumvent

the contribution limits by directing unlimited, otherwise illegal soft-money contributions to PACs

connected to their preferred candidates.

36. The “soft money” prohibition in Section 30125(e)(l) is meant to counter the

circumvention of FECA’s contribution limits and source requirements, and provides:

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

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

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

individuals holding Federal office, shall not -

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

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

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

52 U.S.C. § 30125(e)(1) (emphasis added).

37. This prohibition is broadly drafted. It applies to any candidate for Federal office or

Federal officeholder or to any “agent” of a candidate or of an officeholder, as well as to any “entity

directly or indirectly established, financed, maintained or controlled by or acting on behalf of” a

candidate or officeholder. 52 U.S.C. § 30125(e)(1). Such candidates, officeholders, agents, and

entities cannot “solicit, receive, direct, transfer or spend funds in connection with an election for

Federal office” unless those funds comply with the contribution limits and prohibitions, and

reporting requirements, of federal law. Id.

38. Thus, section 30125(e) makes clear that candidates cannot do indirectly what they

cannot do directly: candidates and their campaign committee are prohibited from directly raising

or spending soft money.

39. The Commission has promulgated regulations to implement this provision. See 11

C.F.R. §§ 300.60, 300.61. The regulations apply to “Federal candidates” and to “[e]ntities that are

directly or indirectly established, financed, maintained or controlled by, or acting on behalf of, one

or more Federal candidates or individuals holding Federal office.” Id. § 300.60(a), (d). Such

candidates and entities shall not “solicit, receive, direct, transfer, spend or disburse funds in

connection with an election for Federal office” unless such funds “consist of Federal funds that

are subject to the limitations, prohibitions and reporting requirements of the Act.” Id. § 300.61.

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C. FECA’s regulation of in-kind contributions

40. Because a PAC “established, financed, maintained or controlled” by a candidate

would likely be operating on behalf of, or in coordination with, the candidate, section 30125(e)

also works as a prophylactic measure to prevent the coordinated expenditures and other in-kind

contributions that might otherwise result.

41. The payment for any goods or services for a candidate’s campaign is an “in-kind”

contribution under the Act. See 52 U.S.C. § 30101(8)(A)(ii); 11 C.F.R. § 104.13. Thus, if a PAC

pays for services rendered to a candidate’s campaign, it constitutes an in-kind contribution subject

to FECA’s contribution limits, source restrictions, and disclosure requirements. 52 U.S.C.

§§ 30104, 30116(a)(1)(A), 30118(a); 11 C.F.R. §§ 104.13, 109.20(b).

42. Importantly, this principle also applies in the pre-candidacy “testing the waters”

phase. Any payments by federal political committees to fund testing-the-waters activities

benefiting a federal candidate made before the individual announces their candidacy constitute

“in-kind contributions” from the political committee to the candidate. 11 C.F.R. §§ 110.2(l),

9034.10; see also Public Financing of Presidential Candidates and Nominating Conventions, 68

Fed. Reg. 47386, 47387, 47407 (Aug. 8, 2003) (addressing “situations where unauthorized

political committees closely associated with a particular individual planning to run for President

defray costs that are properly treated as in-kind contributions” “during the ‘testing the waters’

phase and before”). When the individual becomes a candidate, these payments must be reported

as in-kind contributions to the campaign. 11 C.F.R. § 101.3.

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

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

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

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

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

true sources of candidates’ support. Buckley, 424 U.S. at 46-47.

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

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

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

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

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

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

2016).

45. Likewise, for each reporting period and for the entire election cycle, a noncandidate committee must disclose its total contributions to other committees, including in-kind

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

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

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

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

§ 30104(b)(5)(A).

D. The statutory framework for FEC administrative complaints.

46. Any person may file a complaint with the FEC alleging a violation of the Act. 52

U.S.C. § 30109(a)(1).

47. After reviewing the complaint, any response from the person or entity alleged to

have violated the Act, and the recommendations of its OGC, the Commission votes on whether

there is sufficient reason to believe the Act was violated to justify an investigation. 52 U.S.C.

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§ 30109(a)(2). A reason-to-believe finding is appropriate where a complaint “credibly alleges” a

violation of the FECA “may have occurred.” FEC, Statement of Policy Regarding Commission

Action in Matters at the Initial Stage in the Enforcement Process, 72 Fed. Reg. 12545, 12545 (Mar.

16, 2007).

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

violation occurred, 52 U.S.C. § 30109(a)(3), it seeks a conciliation agreement with the respondent,

which may include civil penalties, id. § 30109(a)(4)(A), (5). If the Commission is unable to correct

the violation and enter a conciliation agreement, it may institute a civil action in federal district

court. Id. § 30109(a)(6)(A). All of these decisions require four affirmative votes. Id. § 30106(c).

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

to proceed despite a recommendation from OGC to take action, the controlling group of

Commissioners who voted against proceeding must issue a Statement of Reasons to serve as the

basis for any judicial review. Common Cause, 842 F.2d at 449.

50. If the Commission cannot muster four votes to proceed at any of these decisionmaking junctures, the Commission can elect either to vote again at a later date to take action, or to

vote to dismiss the complaint. If four or more Commissioners vote to dismiss the proceedings, the

matter is closed, and the MUR file is placed on the public record.

51. If four commissioners fail to find reason to believe a FECA violation has occurred

and the Commission then dismisses the matter, the complainant, as a “party aggrieved” by the

dismissal, may seek judicial review in the United States District Court for the District of Columbia.

52 U.S.C. § 30109(a)(8).

52. The district court reviewing the FEC’s dismissal of a complaint may declare the

FEC’s actions “contrary to law,” 52 U.S.C. § 30109(a)(8)(C), and order the FEC “to conform with

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such declaration within 30 days,” id. If the FEC fails to abide by the court’s order, the Act provides

the complainant with a private right of action, brought in the complainant’s own name, “to remedy

the violation involved in the original complaint.” Id.

FACTUAL BACKGROUND

A. CLC’s and Democracy 21’s administrative complaints

53. CLC and Democracy 21 filed an FEC complaint against former Florida Governor

John Ellis “Jeb” Bush on March 31, 2015, alleging that there was reason to believe Bush had

become a federal candidate under FECA but had failed to register or file required disclosure reports

disclosing his activities to “test the waters” for his presidential campaign, and that he had financed

his campaign and testing-the-waters activities with illegal “soft money” outside of applicable

FECA contribution limits and source restrictions. The FEC designated the complaint Matter Under

Review (“MUR”) 6927.

54. The March complaint noted that as early as December 16, 2014, Bush publicly

announced on Facebook that he had “decided to actively explore the possibility of running for

President of the United States.” Ex. 1, Admin. Compl. ¶ 4. Shortly thereafter, on January 6, 2015,

Bush and his associates formed two PACs: the Right to Rise Super PAC and a multicandidate

committee (which Bush referred to as his “leadership PAC”), also named Right to Rise. Id.; see

also OGC Rpt. 6 n.18. According to reports, Bush’s team set an initial fundraising goal of $100

million, and dozens of PAC fundraising events were soon scheduled for the first months of 2015.

Id. ¶¶ 6-8, 11.

55. Citing news reports, the complaint alleged that Bush engaged in a quantum of

fundraising in the early months of 2015 that demonstrated that he had moved beyond precandidacy or even “testing the waters,” and was operating as an active candidate. Ex. 1, Admin.

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Case 1:22-cv-03319-CRC Document 1 Filed 10/28/22 Page 16 of 30 

Compl. ¶¶ 10-11. Bush, who was reportedly on “a nonstop fundraising tour” for the Super PAC,

see id. ¶ 11, attended and spoke at numerous fundraising events, including a $100,000-per-ticket

fundraiser for the Super PAC in New York City in February and a $25,000-minimum event in Bel

Air on March 31. Id. ¶¶ 11, 13.

56. Citing news reports, the March complaint also alleged that Bush was engaged in a

number of activities in February and March 2015 that are associated with primary candidates: he

traveled to early primary states like South Carolina and met with potential donors and staff; he

spoke at the Conservative Political Action Conference and functionally acknowledged he was

testing the waters for a presidential candidacy; he attended the Iowa agriculture summit and spoke

about his policy positions alongside other Republican presidential hopefuls; and he was announced

as a speaker for the Iowa Republican Party’s Lincoln dinner scheduled later that spring. Ex. 1,

Admin. Compl. ¶¶ 12, 17-19.

57. On these grounds, the complaint argued there was reason to believe that Bush had

already become a “candidate” under FECA but had failed to timely comply with the candidate

registration and disclosure requirements established by 52 U.S.C. §§ 30102(e), 30103, and 30104,

and 11 C.F.R. § 101.3; and that Bush, prior to candidacy, had financed undisclosed testing-thewaters or campaign activities with funds not compliant with FECA, see 52 U.S.C §§ 30116(a)(l),

30118. Ex. 1, Admin. Compl. ¶¶ 48-49.

58. On May 27, 2015, CLC and Democracy 21 filed a second complaint with the FEC

against respondents Governor Bush and RTR Super PAC, alleging that while Bush held himself

out as a candidate for the Republican nomination for U.S. President, Bush and his agents

established RTR Super PAC, and thereafter both directly and indirectly financed, maintained, and

controlled RTR Super PAC. See, e.g., Ex. 2, Suppl. Admin. Compl. ¶¶ 1, 9, 11.

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59. Citing news reports, the administrative complaint detailed the involvement of Bush

and his close advisors in “establishing” RTR Super PAC. See Ex. 2, Suppl. Admin. Compl. ¶¶ 11-

19. For example, Bush and his agents reportedly took a direct role in recruiting high-level staff for

RTR Super PAC, such as by installing Mike Murphy, one of Bush’s top advisers, at its helm. See

id. ¶ 12.

60. The supplemental administrative complaint also alleged that Jeb Bush directly or

indirectly “controlled” and “maintained” RTR Super PAC while a candidate for office, citing

reports that, among other things, Bush’s advisers were “overseeing the operations of” RTR Super

PAC, Ex. 2, Suppl. Admin. Compl. ¶ 11, that Bush attempted to delay a formal announcement of

his candidacy to maximize his soft-money fundraising for RTR Super PAC, id. ¶¶ 12, 16-18, and

that Bush and RTR Super PAC developed a division of labor between his official authorized

committee and the super PAC to operate as a unified campaign effort, id. ¶¶ 16-18

61. The supplemental administrative complaint also alleged that Bush and his agents

“financed” RTR Super PAC, and that Bush himself, see id. ¶ 20, his advisors, id. ¶ 24, and

members of his family personally conducted fundraising for RTR Super PAC, id. ¶ 26.

62. The supplemental complaint urged the Commission to find reason to believe that

Bush had violated 52 U.S.C. § 30125(e) by establishing, financing, maintaining, and controlling

the RTR Super PAC, Inc., and that RTR Super PAC violated section 30125(e) by raising and

spending soft money on behalf of Bush, and to commence an investigation into these allegations.

63. On June 5, 2015, shortly after plaintiffs filed their supplemental complaint, Bush

signed hisstatement of candidacy, and publicly declared his candidacy and registered his campaign

committee on June 15, 2015. See OGC Rpt. 5. Over the course of the 2015-2016 election cycle,

Right to Rise Super PAC spent over $86 million on behalf of Jeb Bush’s presidential run. Right to

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Rise USA Financial Summary 2015-16, FEC, https://www.fec.gov/data/committee/C00571372/

?cycle=2016 (last visited Oct. 28, 2022).

B. CLC’s and Democracy 21’s Delay Case

64. By March 2020, over four years had elapsed since the filing of plaintiffs’

administrative complaints without any final agency action on the complaints. Accordingly, on

March 13, 2020, CLC and Democracy 21 filed an action under 52 U.S.C. § 30109(a)(8)(A) based

on unlawful agency delay, arguing that the FEC’s failure to act on plaintiffs’ administrative

complaints after more than 120 days since their filing was contrary to law. See Compl., CLC v.

FEC/ Right to Rise, No. 1:20-cv-00730-CRC (D.D.C. Mar. 13, 2020), ECF No. 1.

65. The FEC failed to appear in the lawsuit and was declared in default on March 5,

2021. One of the administrative respondents, RTR Super PAC, sought and was granted leave to

intervene on June 8, 2020.

66. Plaintiffs’ delay suit was dismissed without prejudice on standing grounds,

although in denying plaintiffs’ subsequent motion for reconsideration of the dismissal, the Court

acknowledged that intervening D.C. Circuit authority had reversed a lower court decision upon

which it had relied. See Mem. Op. & Order, CLC v. FEC/ Right to Rise, No. 1:20-cv-00730-CRC

(D.D.C. July 14, 2022), ECF No. 39 (citing CLC v. FEC, 31 F.4th 781 (D.C. Cir. 2022)).

67. However, on August 29, 2022, before the deadline to appeal the district court’s

ruling expired, the FEC dismissed plaintiffs’ underlying administrative complaints.

C. Administrative Proceedings

68. The administrative proceedings in MUR 6927 became public, for the first time,

following the dismissal of plaintiffs’ administrative complaints. See 52 U.S.C.

§ 30109(a)(4)(B)(ii); 11 C.F.R. § 111.20(a). The release of this MUR file revealed both that the

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Case 1:22-cv-03319-CRC Document 1 Filed 10/28/22 Page 19 of 30 

Commission’s OGC had made findings of fact that largely corroborated the allegations in

plaintiffs’ administrative complaints, and that four Commissioners reviewing the matter had voted

at various times to find reason to believe with respect to at least some of the alleged FECA

violations.

Office of General Counsel Report

69. For instance, the MUR file showed that on February 8, 2017, after reviewing

plaintiffs’ administrative complaints and the respondents’ written responses, OGC issued its report

recommending that the Commission find reason to believe that: (1) Bush failed to timely register

as a candidate, and his authorized campaign committee, Jeb 2016, Inc. (“Jeb 2016”) failed to timely

register and report with the Commission; (2) Bush received excessive, unreported in-kind

contributions from RTR Leadership PAC because it paid for testing-the-waters and/or campaign

activity, in particular his travel and speaking events; and (3) Bush violated 52 U.S.C § 30125(e)

by establishing, financing, maintaining, or controlling RTR Super PAC, and the Super PAC

violated this provision by soliciting and receiving soft money on behalf of the Bush campaign. See

OGC Rpt. 4-5.5

70. First, based on Bush’s public statements, the quantity and nature of his activities

and fundraising after May 2014, and his relationship with RTR Super PAC and RTR Leadership

PAC, OGC recommended finding reason to believe that Bush had decided to run for President at

least as early as January 2015, and therefore had violated 52 U.S.C. § 30102(e)(l) and 11 C.F.R.

§ 101.l(a) by failing to timely file a statement of candidacy and designating a principal campaign

committee. OGC Rpt. 12-19.

5 The Commission considered plaintiffs’ complaints alongside a separate complaint filed by Brad

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

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

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Case 1:22-cv-03319-CRC Document 1 Filed 10/28/22 Page 20 of 30 

71. OGC found that Bush began spending funds to test the waters of a 2016 presidential

candidacy in May 2014. OGC Rpt. 28. It also noted that after a December 16, 2014 Facebook post

announcing these exploratory efforts Bush announced his “plan to establish a Leadership PAC,”

and RTR Leadership PAC registered with the FEC shortly thereafter on January 6, 2015. Id. at 6-

7. On January 6, 2015, the same day that the leadership PAC registered, RTR Super PAC registered

with the FEC as an independent expenditure-only political committee. Id. at 7.

72. OGC found that Bush traveled extensively and spoke at numerous events in the

months following his December 2014 announcement. On January 20, 2015, Bush and his

“operatives” reportedly announced plans to hold 60 fundraising events in cities across the country

in coordination with both RTR Leadership PAC and RTR Super PAC. OGC Rpt. 8.

73. OGC observed that most of the money Bush raised in this period went into the

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

that would be used to support Bush’s candidacy. OGC Rpt. 9. Once Bush declared his candidacy

in June, the pace of the Super PAC’s fundraising slowed considerably, and it reported receipts of

only about $15 million in the period between June and December 2015. Id. at 10.

74. OGC found that Bush’s substantial participation in RTR Super PAC’s fundraising

efforts from January to June 2015 provided strong reason to believe he had decided to run for

President in January 2015. In support of its conclusion, OGC noted that the Super PAC’s admitted

purpose was to support Bush’s eventual candidacy, not to explore the feasibility of a campaign,

OGC Rpt. 15, and RTR Super PAC’s fundraising declined noticeably after June 2015 when it

simultaneously began spending funds on advertising and other activities in support of Bush’s

candidacy, id. at 16.

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75. Second, OGC recommended finding reason to believe that Jeb 2016 violated 52

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

Bush’s testing-the-waters activity, and in particular, failed to report significant in-kind

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

OGC Rpt. 27-32.

76. OGC noted that shortly after Bush’s June 2015 official declaration of candidacy,

Jeb 2016 filed its first disclosure report covering Bush’s spending in his testing-the-waters period

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

fees. The report disclosed only a single payment of $1,089 for travel expenses. OGC Rpt. 6. In

contrast, RTR Leadership PAC reported spending $4,896,426 between January and June 2015, id.

at 7, with travel expenses totaling over $800,000, id. at 29-30.

77. OGC noted that respondents conceded that RTR Leadership PAC funded some

portion of Bush’s travel and event schedule between January and June 2015 but argued that Bush

was appearing at such events as RTR’s Chairman. OGC Rpt. 29. But OGC noted that publicly

available video footage of these events showed at least nine instances of Bush speaking about his

possible run for office, without any references to RTR Leadership PAC or its work. Id. at 19. OGC

thus rejected Bush’s contention that any references to his candidacy were merely “incidental” and

not indicative of a testing-the-waters purpose.

78. OGC found that the evidence was unclear as to whether RTR Leadership PAC paid

for any expenses that would qualify as a non-travel testing-the-waters expenditure. OGC Rpt. 31.

It also found the record unclear as to whether RTR Super PAC may have funded any of Bush’s

activities to test the waters. OGC thus recommended no action “at this time” on these allegations,

noting however, that if its recommended investigation into Bush’s testing-the-waters activities

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Case 1:22-cv-03319-CRC Document 1 Filed 10/28/22 Page 22 of 30 

uncovered evidence that RTR Leadership PAC or Super PAC paid for additional testing-the-waters

expenses, it would “make the appropriate recommendation” then. Id. at 34.

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

January 2015,” OGC Rpt. 20, it found reason to believe that RTR Super PAC was established,

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

Bush was a candidate in violation of 52 U.S.C. § 30125(e). OGC Rpt. 19-27.

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

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

Leadership PAC, an entity Bush admitted he established and controlled. OGC Rpt. 21. Indeed, the

record indicated that the same person, Charles Spies, established both PACs. Id. at 22.

81. Second, OGC found that prior to June 2015, Bush provided the Super PAC with

material specifically intended to ensure the Super PAC could effectively support Bush’s

candidacy, including hours of interview footage that the Super PAC team could use in campaign

commercials in the future.

82. Third, OGC found that Bush was an “integral” part of RTR’s fundraising, noting

that Bush’s involvement may have gone beyond merely serving as a featured speaker at Super

PAC fundraisers and included a substantive role in planning fundraisers as well. OGC Rpt. 22.

83. In addition, OGC found that the record indicated that RTR Super PAC was an entity

“acting on behalf” of Bush for purposes of section 30125(e), given that Bush acknowledged that

RTR Super PAC was formed to support his candidacy, and there was no evidence that the Super

PAC made any expenditures to further the election of any other candidate. OGC Rpt. 23-24.

84. RTR Super PAC ultimately spent a total of $86.8 million in purportedly

independent expenditures to support Bush or to defeat his opponents in the Republican presidential

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Case 1:22-cv-03319-CRC Document 1 Filed 10/28/22 Page 23 of 30 

primary. Right to Rise USA Financial Summary 2015-16, FEC, https://www.fec.gov/data/

committee/C00571372/?cycle=2016 (last visited Oct. 28, 2022).

Commission Votes

85. The release of the MUR file following the August 29, 2022 dismissal also showed

that on December 6, 2018, the Commission voted on whether to find reason to believe that: (1)

Bush failed to timely declare his candidacy in violation of 52 U.S.C. § 30102(e)(l), and that the

Jeb 2016 committee failed to timely register in violation of 52 U.S.C. §§ 30103(a) and 30104; (2)

Bush and Jeb 2016 violated 52 U.S.C. § 30116 by accepting excessive contributions from RTR

Leadership PAC in the period prior to the commencement of his official candidacy; and (3) Bush

and RTR Super PAC violated the soft money restrictions at 52 U.S.C. § 30125(e). The vote split

2-2, with Commissioners Walther and Weintraub voting affirmatively for the motion, and

Commissioners Hunter and Petersen dissenting. See Certification, MURs 6915 & 6927 (dated Dec.

7, 2018), https://www.fec.gov/files/legal/murs/6927/6927_15.pdf.

86. As the MUR file showed, on December 13, 2018, the Commission again voted on

reason to believe, but only on the pre-candidacy charges, and not on the soft money-related

violations connected to 52 U.S.C. § 30125(e). This time the split 2-2 vote was reversed, with

Commissioners Hunter and Petersen voting affirmatively for the motion, and Commissioners

Walther and Weintraub dissenting. See Certification, MURs 6915 & 6927 (dated Dec. 14, 2018),

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

87. Thus, as Commissioner Weintraub would later explain, all four Commissioners

found reason to believe with respect to the alleged violations relating to Bush’s announcement of

candidacy and acceptance of undisclosed excessive contributions prior to candidacy, but differed

on whether to find reason to believe with respect to the soft money-related violations of 52 U.S.C.

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§ 30125(e). As a result, the Commission held no vote—at least on the same motion—in which all

four then-Commissioners voted to find reason to believe that the two pre-candidacy violations

occurred, despite the apparent consensus on these two charges. Statement of Reasons of Comm’r

Ellen L. Weintraub (“Weintraub Stmt.”) 1, 3, MURs 6915 & 6927 (Sept. 30, 2022),

https://www.fec.gov/files/legal/murs/6927/6927_27.pdf.

88. No Commissioner issued a Statement of Reasons at the time of these votes

explaining their rationale for voting against reason to believe with respect to the alleged violations

relating to Bush’s announcement of candidacy and acceptance of undisclosed excessive

contributions prior to candidacy. Of the four Commissioners voting in 2018 only Commissioner

Weintraub remains serving on the Commission.

89. Thereafter, in three votes on April 9, April 23, and May 7, 2019, respectively, the

Commission voted on whether to close the file and dismiss plaintiffs’ complaints. Each of these

votes failed to garner the required four votes for agency action and the matter remained open. See

Certification, MURs 6915 & 6927 (Apr. 9, 2019), https://www.fec.gov/files/legal/murs/6927/

6927_20.pdf; Amended Certification, MURs 6915 & 6927 (dated May 8, 2019), https://www.fec.

gov/files/legal/murs/6927/6927_17.pdf; Certification, MURs 6915 & 6927 (May 7, 2019), https://

www.fec.gov/files/legal/murs/6927/6927_18.pdf.

90. On May 23, 2019, the Commission failed by a vote of 0-2 to dismiss this case on

the ground of prosecutorial discretion. Certification, MURs 6915 & 6927 (dated May 24, 2019),

https://www.fec.gov/files/legal/murs/6927/6927_19.pdf.

91. Thereafter, the Commission voted on at least two additional occasions on whether

to close the file, dismiss the matter pursuant to an exercise of prosecutorial discretion, and/or

authorize defense of plaintiffs’ failure-to-act lawsuit which had been filed in March 2020. All of

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Case 1:22-cv-03319-CRC Document 1 Filed 10/28/22 Page 25 of 30 

these votes failed to gain a majority. See Certification, MURs 6915 & 6927 (June 23, 2020; dated

Aug. 14, 2020), https://www.fec.gov/files/legal/murs/6927/6927_21.pdf (voting 2-2 to close the

file and authorize defense of suit, and 0-2 to dismiss under Heckler v. Chaney); Certification,

MURs 6915 & 6927 (Jan. 11, 2022; dated Jan. 13, 2022), https://www.fec.gov/files/legal/murs/

6927/6927_22.pdf (failing by a vote of 3-3 to close the file and dismiss the matter).

92. On August 29, 2022, the Commission finally voted 4-1 to close the case file and

thereby dismiss plaintiffs’ complaint. See Notification to Democracy 21 and Campaign Legal

Center, MUR 6927 (Sept. 1, 2022), https://www.fec.gov/files/legal/murs/6927/6927_23.pdf. This

constituted, for the first time, final agency action on plaintiffs’ administrative complaints.6

Commissioners’ Statements of Reasons

93. The release of the MUR file in August 2022 also revealed that no Commissioners

provided a contemporaneous statement of reasons explaining their decisions for or against a

reason-to-believe finding in the votes that had occurred in 2018.

94. After the release of the MUR file, Commissioner Weintraub issued a Statement of

Reasons, dated September 30, 2022, noting that she was the only Commissioner still serving on

the FEC that was present at the time of the 2018 reason-to-believe votes. Weintraub Stmt. 1. She

discussed the nature of the gridlock on the Commission at the time, explaining that her “colleagues

were willing to acknowledge that Bush and his campaign filed a late statement of candidacy, and

possibly received excessive in-kind contributions in the form of subsidized travel expenses, [but]

6 No certification for the August 29, 2022 vote is posted in the public file for MUR 6927 available

on the FEC’s website. See https://www.fec.gov/data/legal/matter-under-review/6927/. However,

the file for MUR 6915, which the FEC consolidated with plaintiffs’ complaint, contains a

certification for both matters dated August 29. See Certification, MURs 6915 & 6927 (Aug. 29,

2022), https://www.fec.gov/files/legal/murs/6915/6915_41.pdf.

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Case 1:22-cv-03319-CRC Document 1 Filed 10/28/22 Page 26 of 30 

they would not lift a finger to investigate the question that really mattered here—whether candidate

Bush established, financed, maintained, or controlled the Right to Rise USA super PAC.” Id.

95. She further explained that no other Commissioner present for these votes had issued

a statement explaining their votes:

Nothing precluded the Republican commissioners who voted not to pursue the RTR USA

super PAC [soft money] violations from writing a statement and leaving it with the files of

this matter before they quit the Commission. They simply did not do so. My current

Republican colleagues never voted on the merits of this matter and have pointedly

disclaimed any opinion on the merits of this matter. The Commission’s dismissal of the

$100+ million allegation in this matter is thus utterly unexplained, and under D.C. Circuit

precedent, literally no one has any authority to explain it.

Weintraub Stmt. 4.

96. She concluded by faulting the Commission for its failure to act on “an alleged ninefigure violation of a core provision of the Act with nary a word of explanation,” Weintraub Stmt.

4, opining: “If that’s not arbitrary and capricious, I don’t know what is.” Id.

97. Current Commission Chair Allen Dickerson and Commissioners Sean J. Cooksey

and James E. “Trey” Trainor, III, issued a Statement on May 13, 2022, before their August vote to

close the file in this case. Statement of Reasons of Chairman Allen Dickerson and Comm’rs Sean

J. Cooksey and James E. “Trey” Trainor, III (“Dickerson, Cooksey & Trainor Stmt.”), MURs 6915

& 6927 (May 13, 2022), https://www.fec.gov/files/legal/murs/6927/6927_26.pdf. These

Commissioners stated that they were not on the Commission at the time of what they described as

the operative substantive votes—the December 2018 reason-to-believe votes—and could not

attempt to explain their predecessors’ reasoning for those votes. Instead, they opined that they had

“never been presented with an opportunity to vote on the substance of these Matters, and [they]

take no position on the merits of the decisions reached by our predecessors in declining to find

reason to believe by the four affirmative votes that the Act requires.” Id. at 5.

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Case 1:22-cv-03319-CRC Document 1 Filed 10/28/22 Page 27 of 30 

98. These Commissioners acknowledged that if the 2018 reason-to-believe votes had

in fact formally “concluded” the matter, “the complainant should then have been notified that the

Commission had declined to proceed with enforcement, [and] statements of reasons released by

our predecessors explaining their votes.” Dickerson, Cooksey, and Trainor Stmt. 2 (emphasis

added). They further noted that had the FEC duly followed its lawful processes, the complainants

would have been able to determine “whether or not to challenge the Commission’s dismissal as

‘contrary to law’” and the “reviewing court would have, after considering the statements of reasons

issued by the ‘controlling commissioners’ . . . made a determination on the merits as to whether

our predecessors acted with ‘reason or caprice.’” Id. at 2.

99. They followed by candidly admitting: “That is not what happened.” Id.

100. Commissioners Dickerson, Cooksey, and Trainor then outlined the multiple failed

Commission votes to resolve plaintiffs’ complaints, but concluded that “[e]ven if we disagreed

with the Commission’s 2018 decision, that vote was taken, and the Commission has declined to

enforce.” Id. at 5. Because these three Commissioners erroneously believed that the matter was

“concluded” in December 2018 upon the reason-to-believe vote of their predecessors and the

Commission now “lack[ed] jurisdiction to do otherwise given the elapsed statute of limitations,”

they “voted to close the file.” Id.

101. Commissioners Dickerson, Cooksey, and Trainor did not invoke prosecutorial

discretion in discussing their dismissal of this matter, and indeed, they erroneously concluded that

the Commission lacked jurisdiction to proceed.

102. The Commissioners’ cursory suggestion that the statute of limitations at 28 U.S.C.

§ 2462 deprived them of jurisdiction to pursue further enforcement action is contrary to relevant

FEC and judicial authority, including precedents of this Court, holding that section 2462 does not

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Case 1:22-cv-03319-CRC Document 1 Filed 10/28/22 Page 28 of 30 

preclude declaratory or injunctive relief. FEC v. Nat’l Republican Senatorial Comm., 877 F. Supp.

15, 20-21 (D.D.C. 1995); FEC v. Christian Coalition, 965 F. Supp. 66, 71-72 (D.D.C. 1997). Thus,

even if their invocation of the statute of limitations were relevant to the Commission’s decisive

votes “on the substance of these matters,” Dickerson, Cooksey & Trainor Stmt. 5—which they

concede were their predecessors’ reason-to-believe votes—their statute of limitations argument is

also “incorrect” as a matter of law. Weintraub Stmt. 6; see also id. (“The Commission has

considerable equitable remedies available to it that are not subject to 28 U.S.C. § 2462.”).

103. Chairman Dickerson later separately issued a supplemental statement to highlight

several points of legal disagreement with Commissioner Weintraub. Suppl. Statement of Reasons

of Chairman Allen Dickerson, MURs 6915 & 6927 (Oct. 4, 2022), https://www.fec.gov/files/legal/

murs/6927/6927_28.pdf. But his supplemental statement also stressed again that “the D.C. Circuit

requires a Statement of Reasons for the Commission’s merits determination—that is, its 2018

decision not to find [reason to believe]—rather than a discussion of its decision to close the file. . . .

Meaningful judicial review is necessarily directed toward the Commission’s substantive acts and

the explanations thereof.” Id. (footnote omitted).

CAUSES OF ACTION

Count I: FECA, 52 U.S.C. § 30109(a)(8)(A)

104. Plaintiffs repeat and reallege paragraphs 1-103.

105. Plaintiffs’ administrative complaints in MUR 6927 established reason to believe

that: (1) Jeb Bush failed to timely declare his candidacy and comply with the candidate registration

and reporting requirements, see 52 U.S.C. §§ 30102(e)(1), 30103 and 30104, including failing to

report all of his testing-the-waters and/or campaign spending prior to declaring his candidacy, see

11 C.F.R.§ 101.3; (2) Bush used funds not in compliance with the contribution limits and source

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Case 1:22-cv-03319-CRC Document 1 Filed 10/28/22 Page 29 of 30 

restrictions at 52 U.S.C. §§ 30116(a) and 30118(a), including payments made by Bush, RTR

Leadership PAC, and RTR Super PAC to pay for testing-the-waters and campaign activity prior

to his declaration of candidacy; and (3) Bush violated 52 U.S.C. § 30125(e) by “establish[ing],”

“financ[ing],” “maintain[ing],” and “controll[ing]” RTR Super PAC, both directly and indirectly

through his agents, and RTR Super PAC violated section 30125(e) by raising and spending soft

money on behalf of Bush.

106. The Commission’s failure to issue any statement of reasons explaining the

Commissioners’ votes against finding reason to believe that these violations occurred is per se

arbitrary, capricious, and contrary to law. See 52 U.S.C. § 30109(a)(8)(A); Common Cause, 842

F.2d at 449.

107. Relatedly, the Commission’s refusal to formally vote to find reason to believe and

commence an investigation under 52 U.S.C. § 30109(a)(2)—when there was documented

consensus among all four Commissioners in the relevant period that there was reason to believe at

least two of the alleged violations had occurred—was inherently arbitrary and capricious,

irrational, and contrary to law.

108. In the alternative, although the Statement issued by Commissioners Dickerson,

Cooksey, and Trainor, by its terms, does not purport to provide the controlling rationale for judicial

review, it too relied on impermissible interpretations of the Act and was arbitrary, capricious, and

contrary to law. See 52 U.S.C. § 30109(a)(8)(A); Orloski, 795 F.2d at 161.

REQUESTED RELIEF

WHEREFORE, plaintiffs request that this Court:

(1) Declare that the FEC’s dismissal of plaintiffs’ administrative complaints was

arbitrary, capricious, and contrary to law under 52 U.S.C. § 30109(a)(8)(A);

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Case 1:22-cv-03319-CRC Document 1 Filed 10/28/22 Page 30 of 30 

(2) Order the FEC to conform with this declaration within 30 days pursuant to 52

U.S.C. § 30109(a)(8)(C);

(3) Award plaintiffs their costs and reasonable attorneys’ fees incurred in this action;

and

(4) Grant such other relief the Court may deem just and proper.

Dated: October 28, 2022

Respectfully submitted,

/s/ Tara Malloy

Tara Malloy (DC Bar No. 988280)

Megan P. McAllen (DC Bar No. 1020509)

CAMPAIGN LEGAL CENTER

1101 14TH ST. NW, SUITE 400

WASHINGTON, D.C. 20005

(202) 736-2200

Fred Wertheimer (DC Bar No. 154211)

DEMOCRACY 21

2000 Massachusetts Avenue N.W.

Washington, DC 20036

(202) 355-9600

Donald J. Simon (DC Bar No. 256388)

SONOSKY, CHAMBERS, SACHSE,

ENDRESON & PERRY, LLP

1425 K Street N.W., Suite 600

Washington, DC 20005

(202) 682-0240

Attorneys for Plaintiffs

30