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USCA Case #22-5140 Document #1972536 Filed: 11/07/2022 Page 1 of 32 

Nos. 22-5140, 22-5167

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

CAMPAIGN LEGAL CENTER,

Plaintiff-Appellee,

v.

FEDERAL ELECTION COMMISSION

Defendant-Appellee,

HERITAGE ACTION FOR AMERICA,

Movant-Appellant.

On Appeal from the United States District Court

For the District of Columbia (Kelly, J.)

BRIEF OF THE INSTITUTE FOR FREE SPEECH AMICUS

CURIAE IN SUPPORT OF THE MOVANT-APPELLANT

David A. Warrington (Bar No. 63621)

Dhillon Law Group, Inc.

2121 Eisenhower Avenue, Suite 402

Alexandria, VA 22314

dwarrington@dhillonlaw.com

(703) 574-1206

Counsel for amicus curiae Institute for Free Speech
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

USCA Case #22-5140 Document #1972536 Filed: 11/07/2022 Page 2 of 32 

TABLE OF CONTENTS

STATEMENT OF INTEREST..................................................................1

INTRODUCTION AND SUMMARY OF ARGUMENT ...........................2

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

I. The Structure and Purpose of the FEC .........................................3

A. The FEC Regulates in an “Area of the Most Fundamental First

Amendment Activities” ......................................................................3

B. The FEC Enforcement Process ...................................................6

C. Citizen Suits Under the Act........................................................9

II. Three-Three Votes at the FEC are a Feature, Not a Bug...........10

A. Three-Three Votes are a Decision, Not a Toss Up....................13

B. The Commission’s Practice of Voting to “Close the File” is Extra

Statutory...........................................................................................16

C. Transforming the Vote to “Close the File” from a Ministerial

Vote to a Substantive One ...............................................................17

III. The Scheme to Hide Commission Actions from the Court is

Inequitable and Prejudicial to Heritage Action for America..............21

CONCLUSION ........................................................................................23

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USCA Case #22-5140 Document #1972536 Filed: 11/07/2022 Page 3 of 32 

TABLE OF AUTHORITIES

Cases

American Fed’n of Labor and Congress of Indus. Org. v. Fed. Election

Comm'n,

333 F.3d 168 (D.C. Cir. 2003) ...............................................................4

Buckley v. Valeo,

424 U.S. 1 (1976)...................................................................................6

Citizens for Responsibility & Ethics in Wash. v. Fed. Election Comm’n,

923 F.3d 1141 (D.C. Cir. 2019) ...........................................................13

Citizens for Responsibility & Ethics v. Fed. Election Comm’n,

993 F.3d 880 (D.C. Cir. 2021) .............................................................14

Citizens United v. Fed. Election Comm’n,

558 U.S. 310 (2010)...........................................................................5, 6

Democratic Cong. Campaign Comm. v. Fed. Election Comm’n,

831 F.2d 1131 (D.C. Cir. 1987) .............................................................8

Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc.,

365 U.S. 127 (1961)...............................................................................5

Eu v. San Francisco Cty. Democratic Cent. Comm.,

489 U.S. 214 (1989)...............................................................................6

Fed. Election Comm’n v. Machinists Non-Partisan Political League, 655

F.2d 380, 387 (D.C.Cir.1981) .................................................................4

Fed. Election Comm’n v. Nat’l Republican Senatorial Comm.,

966 F.2d 1471 (D.C. Cir. 1992) .............................................................8

Fed. Election Comm’n. v. Wis. Right to Life, Inc.,

551 U.S. 449 (2007).........................................................................5, 13

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First Nat’l Bank of Boston v. Bellotti,

435 U.S. 765 (1978)...............................................................................5

In re Sealed Case,

223 F.3d 775 (D.C. Cir. 2000).............................................................14

Mills v. Alabama,

384 U.S. 214 (1966)...............................................................................5

Monitor Patriot Co. v. Roy,

401 U.S. 265 (1971)...............................................................................6

Statutes

26 U.S.C. § 501(c)(3) (2019).......................................................................1

5 U.S.C. § 706(1) (1966)...........................................................................21

52 U.S.C. § (9)(A)(i) (2014) ........................................................................6

52 U.S.C. § 30101(8)(A)(i) (2014) ..............................................................6

52 U.S.C. § 30106(a)(1) (1997) ..................................................................4

52 U.S.C. § 30106(b)(1) (1997) ..................................................................4

52 U.S.C. § 30106(c) (1997).......................................................................4

52 U.S.C. § 30107(a)(9) (1986) ..................................................................4

52 U.S.C. § 30107(e) (1986).......................................................................4

52 U.S.C. § 30109(a)(1) (2018) ..................................................................7

52 U.S.C. § 30109(a)(2) (2018) ..............................................................7, 8

52 U.S.C. § 30109(a)(8)(A) (2018) .............................................................9

52 U.S.C. § 30109(a)(8)(C) (2018) .............................................................9

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USCA Case #22-5140 Document #1972536 Filed: 11/07/2022 Page 5 of 32 

52 U.S.C. §§ 30109(a)(3)-(6) (2018) ...........................................................9

Other Authorities

Adav Noti, Erin Chlopak, Catherine Hinkley Kelley, Kevin P. Hancock,

and Saurav Ghosh, Why the FEC is Ineffective, Campaign Legal

Center (Aug. 8, 2022)...........................................................................12

Bradley A. Smith, Feckless: A Critique of Critiques of the Federal

Election Commission, 27 Geo. Mason L. Rev. 503, 512-13 (2020) 10, 14

Dysfunction and Deadlock: The Enforcement Crisis at the Federal

Election Commission Reveals the Unlikelihood of Draining the

Swamp, Office of Commissioner Ann M. Ravel, Federal Election

Commission (Feb. 2017).......................................................................12

FEC Commissioner Sean J. Cooksey, Mem. re: Motion to Amend

Directive 68 to Include Additional Information in Quarterly Status

Reports to Commission, June 3, 2021 (last visited July 28, 2021)

(“Cooksey Mem.”).................................................................................18

FEC Directive 10: Rules of Procedure of the Federal Election

Commission Pursuant to 2 U.S.C. 437c(e) (Dec. 20, 2007).................16

FEC Vice Chair Allen Dickerson, FEC open meeting, April 22, 2021,

agenda item 2, Draft Statement of Policy Regarding Closing the File

at the Initial Stage in the Enforcement Process, audio file at 42:25 –

43:00 (last visited July 28, 2021)...................................................17, 19

FED. ELECTION COMM’N, LEGISLATIVE HISTORY OF THE FEDERAL ELECITON

CAMPAIGN ACT AMENDMENTS OF 1976 (1977).......................................11

Fed. Election Comm’n, Public Records and the Freedom of Information

Act, 45 Fed. Reg. 31291 (May 13, 1980) ..............................................16

Leadership and Structure, Federal Election Commission (accessed Nov.

3, 2022).................................................................................................10

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USCA Case #22-5140 Document #1972536 Filed: 11/07/2022 Page 6 of 32 

MUR 7516 (Heritage Action for America), Certification (Apr. 6, 2021) 21

Shane Goldmacher, Democrats’ Improbable New F.E.C. Strategy: More

Deadlock than Ever, The New York Times (June 8, 2021).................18

Statement of Allen J. Dickerson and Commissioners Sean J. Cooksey

and James E. “Trey” Trainor, III Regarding Concluded Enforcement

Matters (May 13, 2022)........................................................................17

Statement of Commissioner Ellen L. Weintraub On the Voting Decisions

of FEC Commissioners (Oct. 4, 2022)..................................................17

Statement of Policy Regarding Commission Action in Matters at the

Initial Stage in the Enforcement Process, 72 Fed. Reg. 12,545, 12,546

(Mar. 16, 2007).....................................................................................15

Regulations

11 C.F.R. § 111.10 (2014) ........................................................................11

11 C.F.R. § 111.10(a) (2014)....................................................................11

11 C.F.R. § 111.20 (2014) ........................................................................20

11 C.F.R. § 111.3(a) (2014)........................................................................9

11 C.F.R. § 111.4 (2018) ............................................................................9

11 C.F.R. § 111.6(a) (2014)........................................................................9

11 C.F.R. § 111.7(a) (2014)......................................................................10

11 C.F.R. § 111.9 (2014) ..........................................................................11

11 C.F.R. § 111.9(a) (2014)......................................................................19

11 C.F.R. § 111.9(b) (2014)......................................................................20

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11 C.F.R. § 5.4(a) (2016)..........................................................................22

11 C.F.R. § 5.4(a)(4) (2016)......................................................................26

Constitutional Provisions

U.S. Const., amend. 1................................................................................4

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USCA Case #22-5140 Document #1972536 Filed: 11/07/2022 Page 8 of 32 

STATEMENT OF INTEREST1

The Institute for Free Speech is a nonpartisan, nonprofit §

501(c)(3) organization that promotes and protects the First Amendment

political rights of speech, press, assembly, and petition. It was founded

by the Honorable Bradley A. Smith, who served as a Commissioner on

the Federal Election Commission from 2000-2005, including serving as

Vice Chairman of the Commission in 2003 and Chairman in 2004. In

addition to scholarly and educational work, the Institute is actively

involved in targeted litigation against unconstitutional laws at both the

state and federal levels. The Institute represents individuals and civil

society organizations in litigation securing their First Amendment

liberties. A core aspect of the Institute’s mission is to ensure that the

Federal Election Commission (“FEC,” the “Commission,” or the

“Agency”) lawfully enforces federal campaign finance laws.

1 Amicus files this brief pursuant to the Court’s order granting its

motion for leave to file an amicus curiae brief. No counsel for a party

authored this brief in whole or part, nor did any person or entity, other

than amicus or its counsel, financially contribute to preparing or

submitting this brief.

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USCA Case #22-5140 Document #1972536 Filed: 11/07/2022 Page 9 of 32 

INTRODUCTION AND SUMMARY OF ARGUMENT2

This case is about what happens when a federal agency goes rogue

and decides it no longer must follow its own organizing statute or

respond to the authority of the federal courts.

The Federal Election Commission is an independent regulatory

agency led by six Commissioners. By law, no more than three

Commissioners can be from any one political party. Moreover, by law,

the Commission cannot investigate or sanction political actors without

the approval of four or more Commissioners. The benefit of this

structure is obvious: requiring four votes on a Commission divided

three-three between Republicans and Democrats guarantees that there

is some minimal level of bipartisan or nonpartisan support before

embarking on enforcement proceedings against political speakers.

This structure can and does make it more difficult for the Federal

Election Commission to pursue enforcement actions. This is a feature,

not a bug, of the system. Unfortunately, not everyone sees it that way.

Some, including some Commissioners at the Federal Election

2 Movant-Appellant consents and Plaintiff-Appellee does not oppose the

filing of this brief. Defendant-Appellant has made no appearance in the

case.

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USCA Case #22-5140 Document #1972536 Filed: 11/07/2022 Page 10 of 32 

Commission, would prefer a more partisan agency. These activist

Commissioners have resorted to unprecedented procedural shenanigans

to try to get their way. That is not the agency that Congress created.

Specifically, they refused to allow the agency’s Office of the

General Counsel to inform speakers or the public that complaints had

been resolved. When challenged in court regarding their apparent

inaction in these cases, these same Commissioners flouted the authority

of the court, refused to allow the agency to appear, and hid from the

court the fact that these matters had not only been acted upon but

resolved. One of these matters involved Heritage Action for America

and is before this Court.

This Court should not reward the unprecedented and unlawful

behavior of a minority of FEC Commissioners and should instead vacate

the March 25 and May 3 Orders of the district court.

ARGUMENT

I. The Structure and Purpose of the FEC

A. The FEC Regulates in an “Area of the Most Fundamental

First Amendment Activities”

The Federal Election Commission is a six-member body that is

vested with “exclusive jurisdiction with respect to the civil enforcement”

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USCA Case #22-5140 Document #1972536 Filed: 11/07/2022 Page 11 of 32 

of the Federal Election Campaign Act of 1971, as amended (“FECA” or

the “Act”). 52 U.S.C. §§ 30106(b)(1) (1997), 30107(e) (1986). By law,

“[n]o more than 3 members of the Commission . . . may be affiliated

with the same political party.” 52 U.S.C. § 30106(a)(1) (1997). In

addition, “the affirmative vote of 4 members of the Commission shall be

required” before the Commission can conduct any investigation. 52

U.S.C. §§ 30106(c) (1997); 30107(a)(9) (1986).

The reasons for this structure are obvious, but worth emphasizing.

“Unique among federal administrative agencies, the Federal Election

Commission has as its sole purpose the regulation of core

constitutionally protected activity—'the behavior of individuals and

groups only insofar as they act, speak and associate for political

purposes.’” American Fed’n of Labor and Congress of Indus. Org. v. Fed.

Election Comm'n, 333 F.3d 168, 170 (D.C. Cir. 2003) (quoting Fed.

Election Comm’n v. Machinists Non-Partisan Political League, 655 F.2d

380, 387 (D.C.Cir.1981)). The First Amendment provides “Congress

shall make no law . . . abridging the freedom of speech . . . or the right of

the people peaceably . . . to petition the Government for a redress of

grievances.” U.S. Const., amend. 1. “Whatever differences may exist

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USCA Case #22-5140 Document #1972536 Filed: 11/07/2022 Page 12 of 32 

about interpretations of the First Amendment, there is practically

universal agreement that a major purpose of that Amendment was to

protect the free discussion of governmental affairs.” Mills v. Alabama,

384 U.S. 214, 218 (1966). This is because “[i]n a representative

democracy such as this, these branches of government act on behalf of

the people and, to a very large extent, the whole concept of

representation depends upon the ability of the people to make their

wishes known to their representatives,” Eastern R.R. Presidents

Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 137 (1961).

“Speech is an essential mechanism of democracy, for it is the means to

hold officials accountable to the people.” Citizens United v. Fed. Election

Comm’n, 558 U.S. 310, 339 (2010). Accordingly, “[t]he freedom of

speech . . . guaranteed by the Constitution embraces at the least the

liberty to discuss publicly and truthfully all matters of public concern

without previous restraint or fear of subsequent punishment.” Fed.

Election Comm’n. v. Wis. Right to Life, Inc., 551 U.S. 449, 469

(2007)(quoting First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 776

(1978)).

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This is particularly true with respect to speech related to

elections. “In a republic where the people are sovereign, the ability of

the citizenry to make informed choices among candidates for office is

essential” and “[d]iscussion of public issues and debate on the

qualifications of candidates are integral to the operation of the system

of government established by our Constitution.” Buckley v. Valeo, 424

U.S. 1, 14-15 (1976). Accordingly, “[t]he First Amendment ‘has its

fullest and most urgent application’ to speech uttered during a

campaign for political office.’” Citizens United, 558 U.S. at 339 (quoting

Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 223

(1989)); see also Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971).

Thus, the FEC regulates “in an area of the most fundamental First

Amendment activities.” Buckley, 424 U.S. at 14; see also 52 U.S.C. §§

30101(8)(A)(i); (9)(A)(i) (2014) (defining contributions and expenditures,

respectively, as spending “for the purpose of influencing any election for

Federal office.”).

B. The FEC Enforcement Process

Enforcement actions at the FEC begin one of two ways: either

someone files a complaint, or the agency obtains information “in the

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USCA Case #22-5140 Document #1972536 Filed: 11/07/2022 Page 14 of 32 

normal course of carrying out its supervisory responsibilities” that “a

person has committed, or is about to commit, a violation of [the] Act.”

52 U.S.C. § 30109(a)(2) (2018); see also 11 C.F.R. § 111.3(a) (2014).

“Any person who believes a violation” of the Act has occurred or is

about to occur may file a complaint, provided that it is “notarized” and

“made under penalty of perjury.” 52 U.S.C. § 30109(a)(1) (2018); see

also 11 C.F.R. § 111.4 (2018). No first-hand knowledge is required.

Once a complaint is received, the Commission has an obligation to

notify the respondent of the allegations against them and provide an

opportunity to respond. 52 U.S.C. § 30109(a)(1) (2018); see also 11

C.F.R. § 111.6(a) (2014).

By regulation, after either the expiration of the response period or

after the receipt of a response, the FEC’s General Counsel “may

recommend to the Commission whether or not it should find reason to

believe that a respondent has committed or is about to commit a

violation of statutes or regulations over which the Commission has

jurisdiction.” 11 C.F.R. § 111.7(a) (2014). While this regulation is

couched in permissive language, in practice the Office of the General

Counsel almost always develops a recommendation. This

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USCA Case #22-5140 Document #1972536 Filed: 11/07/2022 Page 15 of 32 

recommendation is nothing more than a staff memo to the Commission;

it has no more binding effect than a memorandum from a law clerk to a

judge. It does not (and cannot) set agency policy or agency

interpretations of the law until and unless approved by the Commission

or adopted as a statement of reasons by a controlling bloc of

Commissioners. See, e.g., Democratic Cong. Campaign Comm. v. Fed.

Election Comm’n, 831 F.2d 1131 (D.C. Cir. 1987) (identifying a

controlling group of Commissioners); Fed. Election Comm’n v. Nat’l

Republican Senatorial Comm., 966 F.2d 1471 (D.C. Cir. 1992) (same).

After receiving the General Counsel’s recommendation, the FEC

considers whether there is “reason to believe” a violation has or is about

to occur. See 52 U.S.C. § 30109(a)(2) (2018); 11 C.F.R. § 111.9 (2014). A

“reason to believe” finding requires “an affirmative vote of 4 of [the

FEC’s] members” and is a predicate for an investigation. Id.; see also 11

C.F.R. § 111.10 (2014) (concerning investigations).

Under Commission regulations, “[a]n investigation shall be

conducted” after a finding of reason to believe. 11 C.F.R. § 111.10(a)

(2014). In practice, many respondents decide that it is not worth going

through a full federal investigation and engage in a process known as

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“pre-probable cause conciliation,” by which they enter an agreement

with the FEC to resolve the accusations against them.

For those that do not, the FEC has the option to proceed to a

formal probable cause determination, efforts at post-probable cause

conciliation, and, if approved by the Commission, civil litigation

initiated by the agency. See 52 U.S.C. §§ 30109(a)(3)-(6) (2018). At

each stage, moving to the next stage requires the affirmative vote of

four or more Commissioners.

C. Citizen Suits Under the Act

As noted above, the FEC has “exclusive jurisdiction with respect

to the civil enforcement” of the Act. However, “[a]ny party aggrieved,”

by either an order of the Commission dismissing a complaint or the

failure of the Commission to act on a complaint within 120 days, may

file suit against the Commission. 52 U.S.C. § 30109(a)(8)(A) (2018).

Once a suit is initiated, “the court may declare that the dismissal of the

complaint or the failure to act is contrary to law, and may direct the

Commission to conform with such declaration within 30 days.” Id. at

(C). Only if the Commission fails to do so may an aggrieved party bring

a civil action against the alleged respondent. Id.

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II.Three-Three Votes at the FEC are a Feature, Not a Bug

Given the Constitutionally sensitive nature of the activity the

Commission regulates, it is imperative that the Commission proceed

cautiously and not function as (or be perceived as functioning as) an

adjunct of one political party or another. The FEC’s structure – the

statutory requirement that no more than half of the Commission be

affiliated with one political party and that significant decisions, such as

investigating political actors, requires the affirmative vote of at least

four Commissioners – furthers these imperatives. As the FEC itself

claims, “[t]his structure was created to encourage nonpartisan

decisions.” Leadership and Structure, Federal Election Commission

(accessed Nov. 3, 2022), https://www.fec.gov/about/leadership-andstructure/. No bloc of Commissioners composed solely of Democrats can

initiate investigate Republicans and no bloc of Commissioners composed

solely of Republicans can investigate Democrats. See generally Bradley

A. Smith, Feckless: A Critique of Critiques of the Federal Election

Commission, 27 Geo. Mason L. Rev. 503, 512-13 (2020) (describing the

history of the creation of the FEC and noting “[w]hat is clear is that

both parties feared the possibility of partisanship in enforcement:

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neither was eager to have campaign finance restrictions–even simple

disclosure–that would be enforced by an agency under partisan control

of the other party. Thus the indispensable ingredient in the FEC's

creation was its bipartisan makeup.”); FED. ELECTION COMM’N,

LEGISLATIVE HISTORY OF THE FEDERAL ELECTION CAMPAIGN ACT

AMENDMENTS OF 1976, 89 (1977),

https://transition.fec.gov/pdf/legislative_hist/legislative_history_1976.pd

f (last visited Aug. 12, 2021) (bipartisan membership prevents the FEC

from “becom[ing] a tool for harassment by future imperial Presidents

who may seek to repeat the abuses of Watergate.” (Statement of Sen.

Alan Cranston)). There must be at least a minimal level of

bipartisanship before involving the government in political speech. If

there is not, the default is no enforcement action.

This has not stopped some, specifically those who want a more

activist agency, from complaining. Special interest groups lament that

“[t]o reduce political corruption, we need a stronger FEC to enforce

campaign finance laws and hold political candidates and their donors

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USCA Case #22-5140 Document #1972536 Filed: 11/07/2022 Page 19 of 32 

accountable.”3 Adav Noti, Erin Chlopak, Catherine Hinkley Kelley,

Kevin P. Hancock, and Saurav Ghosh, Why the FEC is Ineffective,

Campaign Legal Center (Aug. 8, 2022),

https://campaignlegal.org/update/why-fec-ineffective.4 Former FEC

Commissioners protest that “[a] bloc of three Commissioners routinely

thwarts, obstructs, and delays action on the very campaign finance laws

its members were appointed to administer.” Dysfunction and Deadlock:

The Enforcement Crisis at the Federal Election Commission Reveals the

Unlikelihood of Draining the Swamp at 1, Office of Commissioner Ann

M. Ravel, Federal Election Commission (Feb. 2017),

https://www.fec.gov/resources/about3 Never mind that “hold[ing] political candidates . . . accountable” is

what elections are for.

4 Tellingly, one of the top recommendations of this report is to “make it

harder to override the general counsel’s recommendation” – which

would decrease accountability to the American people for the agency’s

decisions and give more authority to the unelected and unconfirmed

employees of Office of the General Counsel, where all of the authors of

this report previously worked. See supra at 9 (“[The General Counsel’s

recommendation] has no more binding effect than a memorandum from

a law clerk to a judge. It does not (and cannot) set agency policy or

agency interpretations of the law until and unless approved by the

Commission or adopted as a statement of reasons by a controlling bloc

of Commissioners.”)

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fec/commissioners/ravel/statements/ravelreport_feb2017.pdf (“Ravel

Report”).

What these accounts disregard or gloss over is that the agency is

functioning exactly as it is designed by Congress. They pay lip service

to the idea that “Congress intended the agency to be structured so that

a single political party could not unduly influence the agency or its

enforcement outcomes,” Ravel Report at 6, but caterwaul when they

find themselves on the losing side of this equation. It is supposed to be

hard to launch a federal investigation into the political activities of

Americans. Three-three splits are a feature, not a bug, of the FEC.

A. Three-Three Votes are a Decision, Not a Toss Up

In a very literal sense, at the FEC “the tie goes to the speaker, not

the censor.” Wisconsin Right to Life, 551 U.S. at 474. Notwithstanding

the rhetoric from some about “deadlock,” a three-three vote in an

enforcement action is a decision.

Under the Act, it takes four votes to pursue an enforcement

action. If there are not four votes to move forward, the action does not

go into a zone of limbo; it fails. It does not matter if it fails six-zero,

five-one, or three-three, the result is the same. See Citizens for

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USCA Case #22-5140 Document #1972536 Filed: 11/07/2022 Page 21 of 32 

Responsibility & Ethics in Wash. v. Fed. Election Comm’n (Comm’n on

Hope), 923 F.3d 1141, 1142 (D.C. Cir. 2019) (Griffith, J., concurring in

denial of rehearing) (noting that the Act does not “differentiate between

a deadlock vote that prompts a dismissal and a vote by four or more

Commissioners to dismiss the action outright.”); see also In re Sealed

Case, 223 F.3d 775, 780 (D.C. Cir. 2000) (noting that a three-three vote

is a “no-action decision . . . made by the Commission itself, not the staff,

and precludes further enforcement.”); Bradley A. Smith, Feckless: A

Critique of Critiques of the Federal Election Commission, 27 Geo.

Mason L. Rev. at 513 (noting “[n]ot only would the Commission have a

bipartisan makeup, but a bipartisan vote would be needed for action.”).

The four-vote requirement is a threshold determination for pursuing

enforcement actions.

The Act has no similar requirement for dismissals. As this Court

has recognized, “[t]he statute specifically enumerates matters for which

the affirmative vote of four members is needed and dismissals are not

on this list, which suggests that they are not included under the

standard construction that expressio unius est exclusio alterius.”

Citizens for Responsibility & Ethics in Wash. v. Fed. Election Comm’n

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USCA Case #22-5140 Document #1972536 Filed: 11/07/2022 Page 22 of 32 

(New Models), 993 F.3d 880, 891 & n.10 (D.C. Cir. 2021); compare 11

C.F.R. § 111.9(a) (2014) (stating that the Commission must make a

reason to believe finding by the affirmative vote of four Commissioners)

with id. at (b) (listing no similar requirement for when “the Commission

finds no reason to believe, or otherwise terminates its proceedings.”).

Instead, Commission regulations draw a distinction between “finding”

reason to believe or no reason to believe and “otherwise terminat[ing].”

See 11 C.F.R. §§ 111.9(b), 111.20 (2014).

This is because the default result is dismissal or, in regulatory

parlance, “otherwise terminat[ing]” the matter. See Statement of Policy

Regarding Commission Action in Matters at the Initial Stage in the

Enforcement Process, 72 Fed. Reg. 12,545, 12,546 (Mar. 16, 2007)

(“[T]he Commission will dismiss a matter . . . when the Commission

lacks majority support for proceeding with a matter for other reasons.”).

If the Commission is unable to find reason to believe by an affirmative

four votes, it has no authority to continue on and must terminate the

matter.

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USCA Case #22-5140 Document #1972536 Filed: 11/07/2022 Page 23 of 32 

B. The Commission’s Practice of Voting to “Close the File” is

Extra Statutory

The phrase “close the file” appears nowhere in the Act or

Commission Rules of Procedure. See FEC Directive 10: Rules of

Procedure of the Federal Election Commission Pursuant to 2 U.S.C.

437c(e) (Dec. 20, 2007), https://www.fec.gov/resources/cmscontent/documents/directive_10.pdf (“Directive 10”). It also is not a

recognized motion under Robert’s Rules of Order, the default rules of

Commission procedure. See Directive 10 at § K (“Any parliamentary

situation or circumstance not addressed in these Rules shall be

governed by Robert’s Rules of Order, Newly Revised or if not covered

therein by a decision of the Chairman.”).

Nevertheless, by practice and tradition the Commission has

adopted its own procedure for marking the end of debate: a vote to

“close the file.” This procedure was first recognized in Commission

regulations in 1980, when it was adopted as part of the Commission’s

efforts to comply with the Freedom of Information Act. See Fed.

Election Comm’n, Public Records and the Freedom of Information Act,

45 Fed. Reg. 31291 (May 13, 1980). As such, it was a way of clearly

demarcating when records documenting final agency actions would be

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USCA Case #22-5140 Document #1972536 Filed: 11/07/2022 Page 24 of 32 

made available to the public. See 11 C.F.R. § 5.4(a) (2016). It was not

intended as a vote on the merits of a matter.

Consistent with this history, for much of the past four decades, it

has been an uncontroversial, ministerial step. See generally FEC Vice

Chair Allen Dickerson, FEC open meeting, April 22, 2021, agenda item

2, Draft Statement of Policy Regarding Closing the File at the Initial

Stage in the Enforcement Process, downloaded and saved audio file at

42:25 – 43:00, https://tinyurl.com/w3cj4t3c (last visited Nov. 4, 2022)

(“FEC Meeting”). Even when Commissioners disagreed with the

substantive results of a vote, they consistently voted to “close the file.”

C. Transforming the Vote to “Close the File” from a

Ministerial Vote to a Substantive One

Unhappy with their inability to convince their fellow

Commissioners to vote their way, several Commissioners developed a

novel scheme to abdicate the agency’s responsibilities to partisan actors

suing in the federal courts: they would simply stop voting to “close the

file” in certain matters. See Statement of Commissioner Ellen L.

Weintraub On the Voting Decisions of FEC Commissioners (Oct. 4,

2022), https://www.fec.gov/resources/cms-content/documents/2022-10-

04-ELW-Statement-on-Voting-Decisions.pdf; Statement of Allen J.

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USCA Case #22-5140 Document #1972536 Filed: 11/07/2022 Page 25 of 32 

Dickerson and Commissioners Sean J. Cooksey and James E. “Trey”

Trainor, III Regarding Concluded Enforcement Matters (May 13, 2022),

https://www.fec.gov/resources/cmscontent/documents/Redacted_Statement_Regarding_Concluded_Matters

_13_May_2022_Redacted.pdf; Shane Goldmacher, Democrats’

Improbable New F.E.C. Strategy: More Deadlock than Ever, The New

York Times (June 8, 2021),

https://www.nytimes.com/2021/06/08/us/politics/fec-democratsrepublicans.html; see also Statement of Vice Chair Ellen L. Weintraub

Regarding CREW v. FEC and American Action Network (April 19,

2018), https://www.fec.gov/resources/cms-content/documents/2018-04-

19-ELW-statement.pdf (claiming “[i]t’s time to break the glass and let

this matter move forward unimpeded by commissioners” who voted

against enforcement proceedings).

The result is that “these cases [become] zombie matters—dead but

unable to be laid to rest. They remain with the [A]gency and on [its]

enforcement docket indefinitely, despite having been adjudicated, with

the vote outcome and [c]ommissioners’ reasoning withheld from the

complainant, the respondent, and the public.” FEC Commissioner Sean

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USCA Case #22-5140 Document #1972536 Filed: 11/07/2022 Page 26 of 32 

J. Cooksey, Mem. re: Motion to Amend Directive 68 to Include

Additional Information in Quarterly Status Reports to Commission,

June 3, 2021, 2, https://tinyurl.com/hwa798e6 (June 10, 2021) (“Cooksey

Mem.”). Because the case is not officially closed, the complainant and

respondent are never informed of the resolution of the matter, see 11

C.F.R. § 5.4(a)(4) (2016), which “hide[s] [the commissioners’]

deliberation and the [case] outcomes from the respondents,” FEC

Commissioner Sean J. Cooksey, FEC Meeting at 24:14 – 24:35,—leaving

them in “limbo,” Trainor Statement, and “effectively left to twist in the

wind,” FEC Vice Chair Allen Dickerson, FEC Meeting at 7:27 – 7:33,

while “keep[ing] federal courts in the dark.” FEC Commissioner Sean J.

Cooksey, FEC Meeting at 24:14 – 24:35.5

5 Under the Act, “any notification . . . made under this section shall not

be made public by the Commission or by any person without the written

consent of the person receiving such notification or the person with

respect to whom such investigation is made.” Moreover, ex parte

communications concerning enforcement matters are generally

prohibited. See 11 C.F.R. § 111.22. Thus, Commissioners seeking to

inform the public that a matter was actually decided and respondents

were in a catch-22 – Commissioners could not tell respondents that the

Commission had actually voted on their matter due to confidentiality

restrictions that were designed to protect respondents from undue

public prejudice. See Statement of Chairman Allen Dickerson and

Commissioners Sean J. Cooksey and James E. “Trey” Trainor, III

Regarding Freedom of Information Act Litigation (June 28, 2022),

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USCA Case #22-5140 Document #1972536 Filed: 11/07/2022 Page 27 of 32 

The explicit goal of this strategy is to push FEC enforcement

actions out of the Commission and into the federal courts. As described

above, if the Commission does not “act” on a matter within 120 days,

aggrieved persons may bring suit in federal court. Since matters are

bottled up inside the agency, there is no public indication that the

Commission has “acted” on the matter. The “aggrieved person” can

then sue in federal court. Worse, the same Commissioners who blocked

the Commission from “closing the file” also blocked the Commission

from appearing in court to explain itself, leaving the court with the

impression that the FEC has failed to act when it has acted, and has no

valid defense when in fact the controlling block of Commissioners has

entered a statement of reasons explaining the decision. It is nothing

less than a fraud on the courts.

The consequence is exactly what happened in this case: the FEC

defaults and the complainant brings suit directly against the

respondent, effectively abdicating the FEC’s “exclusive jurisdiction”

over civil enforcement to the federal courts.

https://www.fec.gov/resources/cms-content/documents/Statement-reFOIA-Litigation-6.28.2022-Dickerson-Cooksey-Trainor.pdf.

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USCA Case #22-5140 Document #1972536 Filed: 11/07/2022 Page 28 of 32 

Make no mistake: this strategy flouts the requirement in the

Administrative Procedure Act that federal agencies act without

“unreasonabl[e] delay[].” 5 U.S.C. § 706(1) (1966). It is also flouts the

authority of the federal courts. But, in this case, it has proven effective

– commissioners on the losing end of the Commission votes were able to

hide that the Commission had actually resolved the enforcement action

in favor of Heritage Action for America until after the district court

entered a default judgment.

III. The Scheme to Hide Commission Actions from the Court

is Inequitable and Prejudicial to Heritage Action for

America

But for the deliberately deceptive actions of the non-controlling

group of Commissioners, this case would not be here. On April 6, 2021,

the Commission failed to find reason to believe a violation occurred by a

vote of three-three. See MUR 7516 (Heritage Action for America),

Certification (Apr. 6, 2021). By doing so, the Commission “acted” on

Campaign Legal Center’s complaint. Had these facts been disclosed to

the district court – as they should have – Plaintiff-Appellee’s complaint

would have failed.

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USCA Case #22-5140 Document #1972536 Filed: 11/07/2022 Page 29 of 32 

The only reason these facts were not disclosed is a policy, adopted

by a non-controlling group of Commissioners on the FEC, to deliberately

conceal material facts from the court to further their policy agenda.

The consequences of this decision are deeply inequitable and

prejudicial to the Heritage Action for America. Had these facts been

known, Heritage Action for America would not have needed to seek to

intervene in this case – it would have been resolved based on the

administrative record. At minimum, Heritage Action for America would

have had sufficient information to file a timely motion for intervention

to vindicate its interests before the court authorized a citizen suit

against it.

Instead, Heritage Action for America has incurred significant

expense seeking to vindicate its rights in this litigation and stands to

incur significant additional expenses defending itself against a citizen

suit that would never have been authorized had the true facts been

known – all for exercising its fundamental First Amendment rights.

This is deeply inequitable and prejudicial to Heritage Action for

America and any other similarly situated respondents.

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USCA Case #22-5140 Document #1972536 Filed: 11/07/2022 Page 30 of 32 

It does not have to be this way. This Court should make clear that

this sort of deliberate chicanery is patently unacceptable, grant

Heritage Action for America intervention of right, and set aside the

orders authorizing the citizen suit against Heritage Action for America.

CONCLUSION

For the foregoing reasons, the orders of the district court should

be reversed.

Dated: November 7, 2022 Respectfully submitted,

/s/David A. Warrington

David A. Warrington (Bar No. 63621)

Dhillon Law Group, Inc.

2121 Eisenhower Avenue, Suite 402

Alexandria, VA 22314

dwarrington@dhillonlaw.com

(703) 574-1206

Counsel for Amicus Curiae Institute

for Free Speech

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USCA Case #22-5140 Document #1972536 Filed: 11/07/2022 Page 31 of 32 

CERTIFICATE OF COMPLIANCE

1. This document complies with the word limit of Fed. R. App. P.

32(a)(7) because, excluding the portions of the brief exempted by

Fed. R. App. P. 32(f) and D.C. Cir. R. 32(e)(1), this document

contains 4,247 words.

2. This document complies with the typeface and type-style

requirements of Fed. R. App. P. 32(a)(5) and (a)(6) because this

document has been prepared in a proportionally spaced typeface

using Microsoft Word in 14-point Century Schoolbook typeface.

Dated: November 7, 2022 Respectfully submitted,

/s/David A. Warrington

David A. Warrington (Bar No. 63621)

Dhillon Law Group, Inc.

2121 Eisenhower Avenue, Suite 402

Alexandria, VA 22314

dwarrington@dhillonlaw.com

(703) 574-1206

Counsel for Amicus Curiae Institute

for Free Speech

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USCA Case #22-5140 Document #1972536 Filed: 11/07/2022 Page 32 of 32 

CERTIFICATE OF SERVICE

I hereby certify that on November 7, 2022, I electronically filed

this document using the CM/ECF system, which will send a notification

of such filing (NEF) to counsel of record for all Parties.

/s/David A. Warrington

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