IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

CITIZENS FOR RESPONSIBILITY )

AND ETHICS IN WASHINGTON, et al., )

) Civil Action No. 19-2753

Plaintiffs, )

)

v. )

)

FEDERAL ELECTION COMMISSION )

)

Defendant. )

)

PLAINTIFFS’ MOTION FOR DEFAULT JUDGMENT AGAINST 

DEFENDANT FEDERAL ELECTION COMMISSION

Plaintiffs Citizens for Responsibility and Ethics in Washington (“CREW”) and Noah 

Bookbinder, pursuant to Rule 55(b) of the Federal Rules of Civil Procedure, respectfully move 

for the entry of default judgment against defendant Federal Election Commission (“FEC” or 

“Commission”). Plaintiffs brought this action against the FEC for failure to act on a pending 

administrative complaint that alleges violations of the Federal Election Campaign Act (“FECA”). 

The FEC failed to appear, answer, plead, or otherwise defend this action as required by the 

Federal Rules of Civil Procedure, and the Clerk of the Court entered a default against the FEC on

February 3, 2020. Doc. 7. As required by Rule 55(d) of the Federal Rules of Civil Procedure, 

Plaintiffs put forth this submission containing evidence sufficient to establish that the FEC has 

failed to act, which is contrary to law, and establishes their right to relief against the FEC. 

Accordingly, Plaintiffs request that the Court enter judgment against the FEC and in favor of 

Plaintiffs declaring that the FEC’s failure to act is contrary to law in violation of 52 U.S.C. 

§ 30109(a)(8)(C) and direct the Commission to conform with such declaration within 30 days.

Plaintiffs further request that the Court assess $400 in court costs, pursuant to 28 U.S.C. § 1920. 

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In support of this motion, Plaintiffs submit the attached Declaration of Attorney Laura 

C. Beckerman (Beckerman Decl.) and Exhibits 1-10. 

I. Statement of Facts

Plaintiffs’ Administrative Complaints 

1. On June 29, 2018, Plaintiffs filed an administrative complaint with the FEC against

SEALs for Truth, Nicholas Britt, individually and in his capacity as Treasurer for SEALs

for Truth, American Policy Coalition, Inc., LG PAC, Richard Monsees, individually and

in his capacity as Treasurer for LG PAC, Freedom Frontier, and Unknown Respondents

(collectively “Respondents”), which is attached as Exhibit 1.

1

2. The complaint and amended complaints detail a plan, unearthed by the Missouri House of

Representatives Special Investigative Committee on Oversight (“Oversight Committee”)

during an investigation of scandals related to Eric Greitens, former governor of Missouri

who was running for governor at the time, to use FEC-registered political committees to

conceal donor identities. Through campaign documents and the sworn testimony of a

former campaign consultant, the Oversight Committee discovered that the Greitens

campaign and its supporters devised a scheme to conceal donors by allowing donors who

did not want their identities to be disclosed, as is required by campaign finance law, to

donate to outside groups that would then funnel the money to the Greitens campaign or

spend funds in support of the campaign. See Doc. 1, Complaint at ¶¶ 23-43.

1 Plaintiffs amended their administrative complaint on August 8, 2018 and again on November 

20, 2018. Both amended complaints were filed to include new facts that had come to light since 

the filing of the previous complaint. The amended complaints are attached as Exhibits 2 and 3, 

respectively.

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3. Specifically, Plaintiffs alleged that the Greitens campaign engaged in a scheme to conceal 

the identities of donors to the campaign by routing more than $6 million in donations 

through two nonprofits, American Policy Coalition and Freedom Frontier, to two federal 

super PACs, SEALs for Truth and LG PAC. SEALs for Truth then directly contributed 

$1.975 million to the Greitens Campaign, while LG PAC spent more than $4.3 million on 

advertisements and other media supporting Mr. Greitens and attacking is opponents. 

Plaintiffs alleged that all of these groups were closely connected to the Greitens 

campaign and to each other and shared consultants and officers. The effect of this conduit 

contribution scheme was to illegally conceal the identity of significant Greitens campaign 

donors from the public. See Exhibit 1, ¶ 2.

4. Plaintiffs’ administrative complaint and amended complaints described the Greitens 

campaign scheme in great detail and with reference to supporting documentation. See 

Doc. 1, at ¶ 44; Exhibits 1-3. 

5. On July 6, 2018, the FEC acknowledged receipt of Plaintiffs’ administrative complaint 

and assigned the matter MUR No. 7422. See Exhibit 4. 

6. Besides acknowledging receipt of the administrative complaints, CREW has received no 

further communication from the FEC regarding MUR No. 7422. Beckerman Affidavit at 

¶ 10.

7. Plaintiffs awaited a determination of their administrative complaint, to no avail, for over 

14 months before filing the above-captioned suit on September 16, 2019. Doc. 1. 

8. In this suit, Plaintiffs seek declaratory relief that the FEC’s failure to act on Plaintiffs’

administrative complaint (MUR No. 7422) is contrary to law; Plaintiffs further seek 

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injunctive relief that the FEC be ordered to act on the administrative complaint within 30 

days, pursuant to 52 U.S.C. § 30109(a)(8)(C). Doc. 1.

FEC’s Inaction, Gridlock, and Loss of a Quorum

9. To date, the FEC has not taken any public action with respect to MUR No. 7422. See 

FEC, Enforcement Query System, available at https://eqs.fec.gov/eqs/searcheqs (search 

for “MUR 7422” yields the response “No Matches Found”).2

10. On September 1, 2019, the FEC lost a quorum of four commissioners following the 

resignation of Commissioner Matthew Petersen. Exhibit 5, Press Release, FEC remains 

open for business despite lack of quorum, Sept. 11, 2019; see Exhibit 6, FEC,

Commission Directive No. 10, Rules of Procedure of the Federal Election Commission 

Pursuant to 2 U.S.C. 437c(e) (June 8, 1978), Am. Dec. 20, 2007.

11. The loss of a quorum deprived the FEC of the ability to “launch any new investigations, 

issue any advisory opinions, promulgate any rules, or render any decisions on pending 

enforcement actions.” See Exhibit 7, Ellen L. Weintraub, The State of the Federal 

Election Commission (Nov. 1, 2019).

12. Even prior to the loss of a quorum, however, commissioners sufficient to prevent a 

majority vote (“controlling commissioners”) at the FEC failed to take meaningful steps to 

review and investigate the complaints submitted to it. Rather, “the Commission 

frequently closed matters without so much as making a phone call to investigate potential 

wrongdoing.” Exhibit 8, Ellen L. Weintraub, The State of the Federal Election Comm’n: 

2019 End of Year Report, at 2 (Dec. 20, 2019). 

 2 The Query system contains “completed enforcement cases and their public documents.” FEC, 

Enforcement Query System, available at https://eqs.fec.gov/eqs/searcheqs

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13. With regard to enforcement matters, many “languished for months or years at the request 

of [Commissioner Weintraub’s] Republican colleagues, causing some to near the end of 

their statutory limitations, only for these Commissioners to then decline to investigate at 

all,” and this included “some of the most alarming allegations of campaign-finance 

violations [the FEC] considered in 2019.” Exhibit 8 at 2.

14. Unfortunately, this pattern of deadlock and inaction at the FEC is nothing new. In 2017, 

then-Commissioner Ann M. Ravel issued a report establishing, based on ten years of 

analysis, that the FEC “is not performing the job that Congress intended, and violators of 

the law are given a free pass.” Exhibit 9, Office of Comm’r Ann M. Ravel, Dysfunction 

and Deadlock: The Enforcement Crisis at the Federal Election Comm’n Reveals the 

Unlikelihood of Draining the Swamp (Feb. 2017).

15. This report detailed a concerning pattern of delay and inaction regarding enforcement 

matters:

a. In enforcement matters, the number of deadlocked substantive votes had 

increased more than ten-fold from just 2.9% of substantive votes in enforcement 

cases closed in 2006 to over 37% in enforcement matters closed in 2016. Exhibit 

9 at 1.

b. From 2006 to 2016, the FEC dramatically reduced the fines levied in enforcement 

matters from more than $5.5 million in 2006 to less than $600,000 in 2016. 

Exhibit 9 at 2.

c. Also during this time period, the controlling bloc of commissioners “unilaterally 

imposed higher requirements to find [reason to believe that a violation may have 

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occurred].” The effect of this change is to “stymie[] the Commission’s ability to 

even open an investigation and uphold the law in major cases.” Exhibit 9 at 7. 

16. At this time, the FEC remains in default with respect to this lawsuit and has not appeared, 

answer, or otherwise defended the action. See Docket activity.

17. Plaintiffs have incurred $400 in court costs, as defined under 28 U.S.C. § 1920, in 

seeking this default judgment. See Ex. 10, Docket Activity as of March 6, 2020 (Doc. 1 

shows receipt number for filing fee paid).

II. Argument

A. Default Judgment

Rule 55(b) of the Federal Rules of Civil Procedure permits default judgment to be entered 

if the party against whom judgment is sought has failed to plead or otherwise defend in the 

action. While the law generally favors decisions on the merits, when unresponsive parties 

threaten to halt the progress of litigation, judgment by default is available to protect the 

responsive party “lest he be faced with interminable delay and continued uncertainty as to his 

rights.” Gilmore v. Palestinian Interim Self-Gov’t Authority, 843 F.3d 958, 965 (D.C. Cir. 2016) 

(citing H. F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 691 (D.C. 

Cir. 1970) (per curiam)).

Where the party in default is the United States, default judgment may be entered “only if 

the claimant establishes a claim or right to relief by evidence that satisfies the court.” Fed. R. 

Civ. P. 55(d). This rule, however, “’does not relieve the government from the duty to defend 

cases or obey the court’s orders. Indeed this privilege against default judgment . . . heightens the 

government’s duty to defend cases . . . .” Payne v. Barnhart, 725 F. Supp. 2d 113, 119 (D.D.C. 

2010) (quoting Alameda v. Sec’y of Health, Ed. And Welfare, 622 F.2d 1044, 1048 (1st Cir. 

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1980)). Nor is this evidentiary burden an especially high one. After entry of default against the 

government, “the quantum and quality of evidence that might satisfy a court can be less than that 

normally required.” Alameda, 622 F.2d at 1048 (discussing Rule 55(e), which is now Rule 

55(d)).

B. FEC’s Failure to Act Is Contrary To Law

Under the FECA, this Court may “declare that the . . . [FEC’s] failure to act is contrary to 

law, and may direct the Commission to conform with such declaration within 30 days . . . .” 52 

U.S.C. § 30109(a)(8)(C). When the issue before a court is “failure to act,” “[c]ourts must 

determine whether the Commission has acted ‘expeditiously.’” Common Cause v. FEC, 489 F. 

Supp. 738, 744 (D.D.C. 1980). This analysis involves examination of “[1] the credibility of the 

allegation, [2] the nature of the threat posed, [3] the resources available to the agency and the 

information available to it, [4] as well as the novelty of the issues involved.” Common Cause, 

489 F. Supp. at 744. Courts also consider the factors outlined in Telecommunications Research 

& Action Center v. FCC, 750 F. 2d 70, 80 (D.C. Cir. 1984) (“TRAC”), which include the [1] 

“rule of reason” regarding the time elapsed as informed by the [2] statutory timetable, [3] the 

reasonableness of delay given the stakes, [4] the effect expedition would have on agency 

priorities, and [6] the interests prejudiced by delay. 750 F.2d at 80. While the TRAC Court stated 

that it “need not find” agency impropriety, should impropriety exist, that would constitute a 

factor in favor of finding that the delay was contrary to law. Id.

Although the Commission’s decision whether to investigate “is entitled to considerable 

deference, the failure to act in making such a determination is not.” DSCC v. FEC, No. CIV. A. 

95-0349, 1996 WL 34301203, at *4 (D.D.C. Apr. 17, 1996). Here, an application of either the 

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Common Cause factors or the TRAC factors demonstrates that the FEC has failed to act 

expeditiously, rendering its failure contrary to law.

1. Plaintiffs’ Administrative Complaints State Credible, Well-Supported 

Allegations.

First, Plaintiffs’ administrative complaint and amended complaint state credible and 

amply supported allegations. See Common Cause, 489 F. Supp. at 744 (factor 1). In Citizens for 

Percy ’84 v. FEC, No. 84-cv-2653, 1984 WL 6601, at *4 (D.D.C. Nov. 19, 1984), the court 

found the allegations credible where the plaintiff waited to file the complaint until after it had 

“amassed a considerable amount of evidence” and the complaint contained documentation of the 

amounts spent and the purposes of the spending. Id. Given this, the Percy Court found that the 

“evidence provided by the plaintiffs in the complaint was more than sufficient to guide the 

FEC’s investigations as well as underscore the credibility of the allegations.” Id. 

Likewise, here, CREW’s complaint provides extensive, reliable evidence to guide the 

FEC’s investigation and establish the credibility of the allegations. CREW’s administrative

complaint and amended administrative complaints cite extensively from the sworn testimony of 

Missouri political consultant and former-Greitens campaign aide, Michael Hafner, regarding the 

scheme to use nonprofits and super PACs to hide the identity of donors to Greitens’ campaign. 

Exhibit 1, ¶¶ 19-28; Exhibit 2, ¶¶ 18-32; Exhibit 3, ¶¶ 18-32. To trace the flow of funds, the 

complaints further cite to the FEC’s own records of the specific amounts of contributions and 

expenditures made by the super PACs, Missouri Ethics Commission contribution reports, and 

contemporaneous news accounts describing the political contributions. Exhibit 1, ¶¶ 30-45; 

Exhibit 2, ¶¶ 33-48; Exhibit 3, ¶¶ 33-49. To establish the political advertising expenditures, the 

complaint details evidence from Missouri Ethics Commission reports, contemporaneous news 

accounts, and the information the super PACs reported to the FEC. Id. By submitting a detailed 

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and specific compilation of relevant evidence in its administrative complaint, CREW both 

provided the FEC with guidance to conduct its investigation and left no doubt that its claims 

deserve to be regarded as credible. Nor has the FEC appeared in this action to dispute the 

credibility of CREW’s claims.

The assertions made in Plaintiffs’ administrative complaints have recently been further 

corroborated by the Missouri Ethics Commission. Following receipt of a complaint, the Missouri 

Ethics Commission investigated numerous allegations against the Greitens campaign for the 

Missouri governorship (“Greitens Campaign”) relating to failure to report contributions from a 

super PAC and a non-profit organization. Joint Stipulation of Facts, Waiver of Hearing Before 

the Missouri Ethics Commission, and Consent Order with Joint Proposed Findings of Fact and 

Conclusions of Law, at 2, ¶¶ 67, 72, Missouri Ethics Commission v. Greitens for Missouri, No. 

18-0064 & 18-0065 (Mo. Ethics Comm’n Feb. 13, 2020), available at https://bit.ly/2IQ71jR. At 

the conclusion of its investigation, the Missouri Ethics Commission and Greitens for Missouri 

stipulated, inter alia, that contributions from Freedom Frontier to LG PAC “appear to correlate 

to LG PAC’s media buys” and that LG PAC’s media buys constituted an in-kind contribution to 

Greitens for Missouri, which the campaign failed to report. Id. ¶¶ 21, 41-43. The Missouri Ethics 

Commission further found probable cause to believe that the Greitens campaign violated 

Missouri law by accepting in-kind contributions from another non-profit corporation, A New 

Missouri, as well as a polling data organization. Id. ¶ 72. The Greitens Campaign agreed to pay 

fines totaling over $178,000 as part of the consent order resolving the allegations, though the 

order stipulates that upon timely payment of $38,000, the rest will be stayed. Id. at 16, III.c.-d.

While the results of the state investigation were not available to the FEC during the time when it 

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failed to act, they serve to corroborate and bolster the credibility of Plaintiffs’ allegations that 

were before the FEC. 

2. The Threat to the Electoral System Posed by the FEC’s Delay in 

Investigating the Scheme is Significant and Ongoing.

Second, the nature of the threat posed by the FEC’s failure to act on CREW’s claims is 

significant. Common Cause, 489 F. Supp. at 744 (factor 2); TRAC, 750 F.2d at 80 (factor 3). In 

analyzing this factor, courts look at both the significance of the threat and the likelihood that 

illegal activity will continue. See Percy, 1984 WL 6601, at *3; DSCC, 1996 WL 34301203, at *5

(“The threat to the electoral system is highlighted not only by the amounts of money involved 

and the impact upon close elections, but by the serious threat of recurrence.”).

3

CREW’s allegations that the Greitens Campaign engaged in a deliberate scheme to hide 

the true source of over $6 million in campaign spending presents an ongoing threat to the 

integrity of the electoral process. Deliberately hiding the true source of campaign funds is 

conduct contrary “to the principal purpose of FECA,” DSCC, 1996 WL 34301203, at *5, to 

ensure voters know “who is speaking about a candidate . . . before an election,” Citizens United

v. FEC, 558 U.S. 310, 369 (2010). Disclosure is crucial to allow “citizens [to] see whether 

elected official are ‘in the pocket’ of so-called moneyed interests,” id. at 370, and to prevent 

“corruption and avoid the appearance of corruption,” Buckley v. Valeo, 424 U.S. 1, 66-67 (1976). 

The purpose of the FEC disclosure regime is not simply to punish the bad actors, such as 

the Greitens campaign and the nonprofits and super PACs involved in the scheme, but also to 

 3 In TRAC, the court noted that “delays that might be reasonable in the sphere of economic 

regulation are less tolerable when human health and welfare are at stake.” 750 F.2d at 80 

(citations omitted). Here, the injury is to the wellbeing of the body politic, to the integrity of the 

electoral process, and, ultimately, to the functioning of our democracy, which is certainly more 

imminent and less tolerable of delay than garden-variety economic threats. DSSC, 1996 WL 

34301203, at *8 (“threats to the health of our electoral processes also require timely action”).

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serve the interests of the voters through ensuring disclosure. Here, the FEC’s failure to take 

timely action in this case emboldens the donors who are the true source of the $6 million in 

political funding to continue harming the interests of voters. Absent FEC action, there is no 

reason to believe that they will be deterred from continuing to violate the FECA by spending in 

future elections in the name of another and without disclosing their identities. 

3. The FEC’s Failure to Act Cannot Be Excused by Lack of Information, 

Resource Constraints, or Competing Priorities.

There is no evidence to suggest that the FEC lacks the resources or information to 

complete its investigation of Respondents in a timely manner or has competing priorities that 

would be harmed by moving forward with this matter. See Common Cause, 489 F. Supp. at 744

(factor 3); TRAC, 750 F.2d at 80 (factor 4). As an initial matter, the FEC has not appeared in this 

case, so it has not pointed to resource constraints or competing priorities as a potential excuse for 

its ongoing failure. The FEC has thus failed in its burden to justify delay based on lack of 

resources, which lies on the agency because “[k]nowledge as to the limits of [agency] resources 

is exclusively within the control of the Commission.” Citizens for Percy ’84, 1984 WL 6601, at 

*4. But, even if the FEC pled poverty, “whatever deference an agency is due in resource 

allocation decisions, it is entitled to substantially less deference when it fails to take any 

meaningful action within a reasonable time period.” DSCC, 1996 WL 34301203, at *5-*6.4

Further, the FEC has more than enough information available to move forward 

expeditiously on Plaintiffs’ administrative complaint. Plaintiffs’ administrative complaint and 

 4 Furthermore, there is reason for the Court to place little emphasis on this factor, 

notwithstanding its mention in Common Cause, 489 F. Supp. at 744. If the FEC lacks the 

resources to act, it may choose not to conform to the Court’s judgment within thirty days. Failure 

to conform would simply open the door for a citizens’ suit brought by Plaintiffs. See 52 U.S.C. 

§ 30109(a)(8)(C). That citizens suit would have no impact on the FEC’s resources and would not 

impact the agency’s competing priorities. Indeed, such citizen suits exist to “enforce compliance 

without federal expense.” Sierra Club v. Whitman, 268 F.3d 898, 905 (9th Cir. 2001).

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amended complaints set forth the allegations in exhaustive detail and provide extensive citation 

to evidence in support of the factual allegations. See Exhibit 1, ¶¶ 30-45; Exhibit 2, ¶¶ 33-48; 

Exhibit 3, ¶¶ 33-49 (citing FEC forms, newspaper reports, and Missouri Ethics Commission 

contribution data). Further, much of the evidence comes from the FEC’s own records, rendering 

any claim of lack of access to information unreasonable. See Citizens for Percy ’84, 1984 WL 

6601, at *4 (finding delay unreasonable where “[m]uch of the information in the complaint could 

be verified from the FEC’s own records”). Even if the FEC required additional information, it 

has now had over 20 months to investigate.5 Given that the FECA contemplates that “some cases 

can be dealt with in the 120 day period,” a delay of 20 months to gather information is not likely 

to be reasonable. See Citizens for Percy ’84, 1984 WL 6601, at *4 (“If not, we fail to understand 

why Congress created jurisdiction in this court upon the passage of 120 days from filing of the 

administrative complaint.”).

4. The Issues Raised Are Far From Novel.

The FEC has recently investigated the very same types of violations that the Plaintiffs 

raise here, rendering the issues far from novel. See Common Cause, 489 F. Supp. at 744 (factor 

4). Plaintiffs’ administrative complaints raise credible allegations of violations of the statute and 

regulations against knowingly accepting a contribution made by one person in the name of 

another, 52 U.S.C. § 30122; 11 C.F.R. § 110.4(b), requiring political committees to report the 

identity of those who make contributions and anyone who acted as a conduit for the 

contributions, 52 U.S.C. § 30104(b)(2); 11 C.F.R. § 104.3(a), (j), knowingly permitting one’s 

 5 It is of note that the Missouri Ethics Commission’s investigation commenced with a complaint 

filed on July 10, 2018 and concluded with a Consent Order dated February 13, 2020. 

Accordingly, the state investigation regarding substantially similar allegations proceeded from 

complaint to consent order in less time than the FEC has been inactive with regard to Plaintiffs’ 

administrative complaints. See Joint Stipulation, Missouri Ethics Commission v. Greitens for 

Missouri.

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name to be used to affect a contribution in the name of another or knowingly helping or assisting 

any person in doing so, 52 U.S.C. § 30122; 11 C.F.R. § 110.4(b), and making a contribution in 

the name of another person, 52 U.S.C. § 30122; 11 C.F.R. § 110.4(b). None of these are novel 

provisions and each have been the subject of recent FEC action. 

In In the Matter of American Conservative Union, et. al (“ACU”), the FEC investigated a 

conduit contribution scheme, as detailed in an administrative complaint filed by CREW. 

Complaint, In re American Conservative Union, et al., MUR No. 6920 (Feb. 27, 2015), available 

at https://bit.ly/2wwaX6y. This scheme was similar to the present case in that it likewise 

involved funneling money from donors who wished to remain hidden, through a 501(c)(4) social 

welfare organization to a super PAC. Id. ¶¶ 13-20. CREW’s administrative complaint in ACU

alleged violations of the same statutes and regulations at issue in the above-captioned suit. The 

FEC’s Office of General Counsel analyzed these provisions at length in the course of three 

Office of General Counsel reports. Id., First General Counsel’s Report (Jan. 20, 2016), available 

at https://bit.ly/2W1N6GD; Second General Counsel’s Report (July 5, 2017), available at 

https://bit.ly/2VP7H0t; Third General Counsel’s Report (Sept. 15, 2017), available at 

https://bit.ly/2TrWJfW. Following three detailed Office of General Counsel reports, the FEC 

ultimately found probable cause to believe that ACU violated 52 U.S.C. § 30122 and that other 

respondents violated 52 U.S.C. §§ 30122 and 30104(b)(3)(A) and authorized a conciliation 

agreement that resulted in the payment of a $350,000 fine. Id., Conciliation Agreement (Nov. 3, 

2017), available at https://bit.ly/2PSntE8. See also First General Counsel’s Report, In re 

Prakazrel “Pras” Michel, et al., MUR No. 6930 (Nov. 19, 2015), available at 

https://bit.ly/33ihAph (analyzing complaint regarding alleged conduit contribution scheme and 

recommending, based on facts, no finding of reason to believe a violation had occurred).

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Given the similarities of the accusations and the extensive work that the FEC has already 

done to research and familiarize itself with the relevant law and regulations, along with the fact 

that the regulations at issue date back to the 1980s, it cannot be said that the current case is so 

novel as to justify the ongoing delay.

5. Continued, Unexplained Delay Violates the “Rules of Reason” and Is Out-ofSync with the FECA’s Statutory Timetable.

Continued delay runs contrary to the “rule of reason” and Congress’s intent as evidenced 

through the statutory timetable. TRAC, 750 F.2d at 80 (factors 1, 2). The “rule of reason . . . 

assumes that an agency matter “will be finally decided within a reasonable time encompassing 

months, occasionally a year or two, but not several years or a decade.” Rose v. Federal Election 

Comm’n, 608 F. Supp. 1, 10 (D.D.C. 1984), on remand from In re Nat’l Congressional Club, 

Nos. 84-5701, 84-5719, 1984 WL 148396 (D.C. Cir. Oct. 24, 1984). Here, we are fastapproaching the two-year mark with no evidence from the FEC that it has taken any substantive 

action to advance the investigation called for by Plaintiffs’ administrative complaint.

Furthermore, the current lack of a quorum at the FEC guarantees that it is unable to take any 

meaningful action to advance an investigation into Plaintiffs’ complaint, and its history of 

deadlocking on substantial votes indicates that it might not take action in a reasonable time even 

if it had a quorum.

While Congress “did not impose specific constraints upon the Commission to complete 

final action, . . . it did expect that the Commission would fulfill its statutory obligations so that 

[FECA] would not become a dead letter.” DSCC, 1996 WL 34301203, at *7. To this end, the 

language of the FECA, which contains many “short deadlines governing the speed with which 

such complaints must be handled,” Rose, 608 F. Supp. at 11 (emphasis in original), evidences an 

expectation of movement within a reasonable time. In fact, “some cases can be dealt with in the 

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120 day period” proscribed by the FECA, Citizens for Percy ’84, 1984 WL 6601, at *4, and there 

is no reason to believe that this should not have been one such case. 

Here, Plaintiffs filed their administrative complaint over 20 months ago and have 

received no communication from the FEC since it acknowledged receipt of that complaint on 

July 6, 2018. (Facts ¶¶ 1, 5, 6). The FEC’s failure to appear in this case deprives this Court and 

the Plaintiffs of any further insight into the FEC’s process. Given this, there is no evidence to 

suggest that the FEC has taken meaningful action on the administrative complaint. 

Furthermore, the FEC’s current lack of a quorum precludes them from taking actions 

crucial to authorizing and advancing any investigation regarding the allegations in the 

administrative complaint.

6 Thus, even absent any information from the FEC, it is evident that, 

unless or until further commissioners are confirmed by the Senate, no meaningful action can take 

place. See Facts ¶ 10 (lack of a quorum).

7 Accordingly, this factor mediates in favor of a finding 

that the FEC’s delay is unreasonable and confirms that the delay is likely to continue.

 6 For example, when the FEC receives a complaint, it must first consider whether it has “reason 

to believe” that a person has violated or is about to violate the FECA, and an investigation may 

proceed only if at least four commissioners find reason to believe. 52 U.S.C. § 30109(a)(2); 

Directive 10 (enumerating actions FEC may take absent a quorum). Following a “reason to 

believe” vote, the FEC’s Office of General Counsel prepares a report in preparation for a vote on 

whether probable cause exists to believe a violation has occurred. The “probable cause” vote also 

cannot take place absent a quorum. 52 U.S.C. § 30109(a)(4)(A)(i); Directive 10. If the FEC votes 

to find that probable cause exists, then the Commission must attempt to resolve the violation by 

informal methods and enter into a conciliation agreement with the offending party. The FEC 

needs a vote of four members, constituting a quorum, to enter into a conciliation agreement. 52 

U.S.C. § 30109(a)(4)(A)(i); Directive 10. If a conciliation agreement is insufficient to “correct or 

prevent violation” of the FECA, then the FEC may institute a civil action. Again, however, a 

vote of four members is required to take this step. 52 U.S.C. § 30109(a)(6)(A); Directive 10. In 

fact, the only meaningful action that can take place on a complaint absent a quorum is for the 

complainant to file suit in federal court to challenge the FEC’s failure to act on the complaint. 52 

U.S.C. § 30109(a)(8).

7 James E. Trainor III has been nominated to the Commission but has not been confirmed. See

166 Cong. Rec. S1236 (daily ed. Feb. 27, 2020) (executive nominations receive by the Senate). 

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6. The FEC’s Delay Prejudices Plaintiff and Gives Rise to the Appearance of 

Impropriety.

Plaintiffs and voters will be and have been severely prejudiced by the FEC’s inability to 

proceed with its investigation of the Respondents, and this delay, much of which occurred before 

the FEC lost a quorum, gives rise to the appearance of agency impropriety. See TRAC, 750 F.2d 

at 80 (factors 5 and 6). The fact that the elections in which the Respondents illegally funneled 

money through nonprofits to benefit the Greitens campaign and hide the entity of donors have 

passed “does not make the ‘nature’ or ‘extent’ of the threat any less significant.” Rose, 608 F. 

Supp. at 12. Rather, absent enforcement, there is no reason to believe that the same donors, 

entities, and treasurers who sought to hide their identities and perpetrate this scheme in this 

instance will not be empowered to do so again, despite the illegality, in future elections. 

Furthermore, the continued and excessive delay in all enforcement gives rise to an appearance of 

agency impropriety.

The FEC lost quorum on September 1, 2019, nearly 14 months after Plaintiffs filed the 

original administrative complaint. Facts ¶¶ 5, 10. Thus, a substantial delay had already occurred 

prior to the loss of a quorum, and that delay gives rise to the appearance of agency impropriety.

See TRAC, 750 F.2d at 80. To be sure, “the court need not find any impropriety lurking behind 

agency lassitude in order to hold that agency action is unreasonably delayed, id. (internal 

quotation marks omitted), so the Court need not reach this factor to find the FEC’s failure to act 

contrary to law, see Rose, 209 F. Supp. at 12 (“[T]he Court need not and does not make such 

findings.”). Here, however, the regular practice of the FEC has become one of inaction and 

enforcement deadlock. Because, as detailed in section II.B.5, above, an affirmative vote of four 

commissioners is required to take actions such as issuing subpoenas or finding “reason to 

believe” that a violation may have occurred, deadlocked votes can and do result in delays at 

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nearly all substantive stages in the FEC enforcement process. As then-FEC Chair Ellen L. 

Weintraub stated in her 2019 End of Year Report, “the Commission frequently closed matters 

without so much as making a phone call to investigate potential wrongdoing.” Facts ¶ 12. With

regard to enforcement matters, many “languished for months or years at the request of [her] 

Republican colleagues, causing some to near the end of their statutory limitations, only for these 

Commissioners to then decline to investigate at all,” including “some of the most alarming 

allegations of campaign-finance violations [the FEC] considered in 2019.” Id.

This pattern of inaction and enforcement deadlock started long before CREW filed the 

complaint at issue in this case. In 2017, then-Commissioner Ann M. Ravel released a report 

entitled: Dysfunction and Deadlock: The Enforcement Crisis at the Federal Election Commission

Reveals the Unlikelihood of Draining the Swamp. Facts ¶ 14. In this extensive report, 

Commissioner Ravel detailed the alarming increase in gridlock and decrease in enforcement at 

the FEC. From 2006 to 2016, the number of deadlocked votes increased more than ten-fold from 

just 2.9% of substantive votes to over 37% of substantive votes in enforcement matters closed in 

2016. Facts ¶ 15.a. at 1. When a vote deadlocks, the result is that enforcement cannot move 

forward. See generally, 52 U.S.C. § 30109. As a result of the dramatic increase in deadlocked 

votes, enforcement has dropped precipitously, as demonstrated by the nearly ten-fold decrease in 

fines levied. In 2006, the FEC levied more than $5.5 million in enforcement fines, while in 2016, 

that had dropped to less than $600,000 in enforcement fines. Facts ¶ 15.a. at 2.

Accordingly, for years prior to the loss of a quorum, enforcement has declined 

significantly due to agency deadlock, resulting in both lack of enforcement and increasing delays 

in enforcement. The persistent deadlock gives rise to the appearance of agency impropriety and 

is now compounded by the loss of a quorum. These factors combine to severely prejudice the 

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ability of Plaintiffs to have their complaint fairly reviewed, investigated, and acted upon by the 

FEC.

III. Conclusion

Accordingly, Plaintiffs respectfully request that the Court enter judgment that the FEC’s 

failure to act is contrary to law and assess $400 in court costs, pursuant to 28 U.S.C. § 1920.

Respectfully submitted,

/s/ Laura C. Beckerman 

Laura C. Beckerman

(D.C. Bar No. 1008120)

Stuart McPhail

(D.C. Bar No. 1032529)

Citizens for Responsibility and Ethics

 in Washington

1101 K Street, N.W., Suite 201

Washington, DC 20005

Phone: (202) 408-5565

Fax: (202) 588-5020

lbeckerman@citizensforethics.org

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Certificate of Service

I certify that on March 16, 2020, I caused service of the Request for Entry of Default and 

attachments to be made on defendant Federal Election Commission by U.S.P.S. First Class Mail 

as follows:

Federal Election Commission

1050 First Street, N.E.

Washington, DC 20463

/s/ Laura C. Beckerman 

Laura C. Beckerman

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