IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CAMPAIGN LEGAL CENTER and 

DEMOCRACY 21,

Plaintiffs,

Case No. 1:20-cv-00730

v.

Hon. Christopher R. Cooper

FEDERAL ELECTION COMMISSION,

Defendant,

RIGHT TO RISE SUPER PAC, INC.,

Intervenor-Defendant.

PLAINTIFFS’ RESPONSE IN OPPOSITION TO 

INTERVENOR-DEFENDANT’S MOTION TO DISMISS

Tara Malloy (DC Bar No. 988280)

tmalloy@campaignlegalcenter.org

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

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TABLE OF CONTENTS

Page

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

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

SUMMARY OF ARGUMENT.....................................................................................................2

BACKGROUND ............................................................................................................................5

I. Statutory and Regulatory Background..................................................................................5

A. Federal candidates are required to report “contributions” and “expenditures” both 

during candidacy and in any “testing the waters” phase preceding candidacy....................5

B. FECA’s “soft money” prohibitions prevent circumvention of the contribution limits 

and its comprehensive disclosure regime for candidate committees...................................7

C. The statutory framework for FEC administrative complaints ...........................................10

II. Factual Background...............................................................................................................10

A. Plaintiffs’ Administrative Complaints...............................................................................10

B. Procedural Background......................................................................................................13

LEGAL STANDARD ..................................................................................................................14

ARGUMENT................................................................................................................................15

I. Plaintiffs Have Established Article III Standing Based on Informational Injury...........14

A. Plaintiffs have been deprived of information that FECA requires to be disclosed............15

1. Plaintiffs do not know the extent of the Bush campaign’s spending during his 

undeclared but de facto candidacy...............................................................................16

2. Plaintiffs do not know the magnitude of Right to Rise’s in-kind contributions to 

the Bush campaign arising from Bush’s extensive involvement in Right to Rise’s 

operations.....................................................................................................................21

3. Plaintiffs are not seeking a mere “legal determination.” .............................................24

B. Plaintiffs’ Inability to Access FECA Disclosure Information Directly and Concretely 

Injures Their Interests........................................................................................................26

II. The Commission’s Complete Failure to Act Inflicts Discrete Injuries Uniquely 

Redressed Through FECA’s Cause of Action for Unlawful Delay ...................................29

A. Congress created a right to FEC action on administrative complaints by authorizing a 

judicial remedy for unlawful FEC delay............................................................................30

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B. The FEC’s complete failure to act on plaintiffs’ administrative complaints deprives 

plaintiffs of information that they have a legal right to receive and impedes their 

advancement of their missions ..........................................................................................33

C. Congress empowered complainants to challenge unlawful FEC delay to vindicate 

informational rights and procedural safeguards essential to FECA’s core purposes ........36

III.FEC Inaction Has Caused Organizational Injury by Depriving Plaintiffs of Key 

Information They Need to Effectuate their Missions .........................................................39

IV.Plaintiffs’ Injuries Are Fairly Traceable to the FEC’s Failure to Act on their 

Complaints and Likely to Be Redressed by a Favorable Court Decision.........................43

CONCLUSION ............................................................................................................................44

CERTIFICATE OF SERVICE ..................................................................................................45

Case 1:20-cv-00730-CRC Document 13 Filed 07/09/20 Page 3 of 53
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TABLE OF AUTHORITIES

Page

Cases:

Abigail All. for Better Access to Developmental Drugs v. Eschenbach, 469 F.3d 129 

(D.C. Cir. 2006) .................................................................................................................42, 43

Action Alliance of Senior Citizens of Greater Philadelphia v. Heckler, 789 F.2d 931 

(D.C. Cir. 1986) .......................................................................................................................42

Akins v. FEC, 101 F.3d 731, 736 (D.C. Cir. 1996) (en banc) .......................................................30

Am. Anti-Vivisection Soc’y v. USDA, 946 F.3d 615 (D.C. Cir. 2020)...........................................36

Ashcroft v. Iqbal, 556 U.S. 662 (2009)....................................................................................14, 18

Buckley v. Valeo, 424 U.S. 1 (1976)................................................................................................8

CLC v. FEC, 245 F. Supp. 3d 119 (D.D.C. 2017).........................................................................28

CLC v. FEC, No. 18-cv-0053-TSC, 2020 WL 2735590 (D.D.C. May 26, 2020).........................32

CLC v. FEC, 952 F.3d 352 (D.C. Cir. 2020) (“CLC I”)......................................................2, 27, 28

CLC v. FEC, No. 19-cv-02336-JEB, 2020 WL 2996592 (D.D.C. June 4, 2020) (“CLC 

II”).................................................................................................................................... passim

Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997) .............................................15, 15, 24, 32

CREW v. Am. Action Network, 410 F. Supp. 3d 1 (D.D.C. 2019) (“AAN”)............................27, 33

CREW v. FEC, 799 F. Supp. 2d 78 (D.D.C. 2011) (“CREW 2011”).............................................25

Doe 1 v. FEC, 920 F.3d 866 (D.C. Cir. 2019).........................................................................35, 38

Dem. Cong. Campaign Comm. v. FEC, 831 F.2d 1131 (D.C. Cir. 1987) .....................................32

Envtl. Def. Fund v. EPA, 922 F.3d 446 (D.C. Cir. 2019) ....................................................2, 15, 27

Families for Freedom v. Napolitano, 628 F. Supp. 2d 535 (S.D.N.Y. 2009)................................31

FEC v. Akins, 524 U.S. 11 (1998)......................................................................................15, 27, 30

FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431 (2001)......................................22

FEC v. Nat’l Repub. Sen. Comm., 877 F. Supp. 15 (D.D.C. 1995)...............................................33

Friends of Animals v. Jewell, 824 F.3d 1033 (D.C. Cir. 2016) ...............................................14, 28

Hancock v. Urban Outfitters, Inc., 830 F.3d 511 (D.C. Cir. 2016).........................................14, 18

Jeffries v. Volume Servs. Am., Inc., 928 F.3d 1059 (D.C. Cir. 2019)............................................33

Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249 (D.C. Cir. 2005).......................................14

Judicial Watch, Inc. v. FEC, 293 F. Supp. 2d 41 (D.D.C. 2003) ..................................................32

Kean for Cong. Comm. v. FEC, 398 F. Supp. 2d 26 (D.D.C. 2005) .............................................28

Kokesh v. SEC, 137 S. Ct. 1635 (2017) .........................................................................................33

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..............................................................30, 31

Case 1:20-cv-00730-CRC Document 13 Filed 07/09/20 Page 4 of 53
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People for the Ethical Treatment of Animals v. USDA, 797 F.3d 1087 (D.C. Cir. 

2015) (“PETA”) .................................................................................................4, 30, 41, 42, 43

Riordan v. SEC, 627 F.3d 1230 (D.C. Cir. 2010)..........................................................................33

Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) .......................................................................29, 33

Stewart v. Nat’l Educ. Ass’n, 471 F.3d 169 (D.C. Cir. 2006)..........................................................2

Stockman v. FEC, 138 F.3d 144 (5th Cir. 1998)............................................................................37

Strubel v. Comenity Bank, 842 F.3d 181 (2d Cir. 2016)................................................................33

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc) .................................................7

Vroom v. FEC, 951 F. Supp. 2d 175 (D.D.C. 2013)......................................................................26

Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001)........................................................16, 23, 25

Statutes:

5 U.S.C. § 552(a)(2)...................................................................................................................4, 37

5 U.S.C. § 552(a)(2)(A)...........................................................................................................30, 35

52 U.S.C. § 30101(2).................................................................................................................5, 18

52 U.S.C. § 30101(8)(A)..................................................................................................................5

52 U.S.C. § 30101(9)(A)..................................................................................................................5

52 U.S.C. § 30102(e)(1)...............................................................................................................5, 6

52 U.S.C. § 30103............................................................................................................................6

52 U.S.C. § 30103(a) .......................................................................................................................5

52 U.S.C. § 30104....................................................................................................................5, 6, 8

52 U.S.C. § 30104(b)(2) ..................................................................................................................3

52 U.S.C. § 30104(b)(2)(D).......................................................................................................9, 21

52 U.S.C. § 30104(b)(2)(H)(i).......................................................................................................21

52 U.S.C. § 30104(b)(3)(B).............................................................................................................9

52 U.S.C. § 30104(b)(4)(H)(i).........................................................................................................9

52 U.S.C. § 30104(b)(5)(A).............................................................................................................9

52 U.S.C. § 30104(b)(6)(B)(i) .........................................................................................................9

52 U.S.C. § 30106(c) .....................................................................................................................10

52 U.S.C. § 30107(a)(9).................................................................................................................37

52 U.S.C. § 30109(a)(1)...................................................................................................................9

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

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

52 U.S.C. § 30109(a)(4)(A)...........................................................................................................10

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52 U.S.C. § 30109(a)(4)(B)(ii) ................................................................................4, 30, 32, 34, 37

52 U.S.C. § 30109(a)(6)(A)...........................................................................................................10

52 U.S.C. § 30109(a)(8)...........................................................................................................30, 34

52 U.S.C. § 30109(a)(8)(A).......................................................................................1, 4, 10, 29, 31

52 U.S.C. § 30109(a)(8)(B) .............................................................................................................6

52 U.S.C. § 30109(a)(8)(C) .....................................................................................................31, 43

52 U.S.C. § 30109(a)(12)...............................................................................................................33

52 U.S.C. § 30109(a)(12)(A).........................................................................................................34

52 U.S.C. § 30116(a)(1)(C) .............................................................................................................7

52 U.S.C. § 30116(a)(1)(A).............................................................................................................8

52 U.S.C. § 30116(a)(7)(B) .............................................................................................................3

52 U.S.C. § 30116(a)(7)(B)(i)....................................................................................................8, 22

52 U.S.C. § 30118(a) .......................................................................................................................7

52 U.S.C. § 30125(e)(l)................................................................................................1, 3, 7, 21, 41

52 U.S.C. § 30145..........................................................................................................................33

Regulations and Rulemaking Documents:

11 C.F.R. § 100.131...................................................................................................................6, 18

11 C.F.R. § 101.3...........................................................................................................6, 17, 19, 41

11 C.F.R. § 100.3(a).........................................................................................................................5

11 C.F.R. § 100.5(e)(6)..................................................................................................................22

11 C.F.R. § 100.52(d)(1)..................................................................................................................8

11 C.F.R. § 100.72...........................................................................................................................5

11 C.F.R. § 100.72(a)...........................................................................................................6, 19, 22

11 C.F.R. § 100.72(b) ................................................................................................................6, 18

11 C.F.R. § 104.13.......................................................................................................................3, 8

11 C.F.R. § 104.13(a).....................................................................................................................21

11 C.F.R. § 104.13(a)(2)..................................................................................................................9

11 C.F.R. § 109.20(b) ......................................................................................................................9

11 C.F.R. § 109.21(b) ......................................................................................................................9

11 C.F.R. § 110.2(l) .............................................................................................................6, 18, 22

11 C.F.R. § 110.2(l)(1) ..................................................................................................................18

11 C.F.R. § 111.20(a).....................................................................................................4, 10, 30, 32

11 C.F.R. § 111.21.........................................................................................................................34

Case 1:20-cv-00730-CRC Document 13 Filed 07/09/20 Page 6 of 53
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11 C.F.R. § 9034.10...................................................................................................................6, 22

Other Materials:

125 Cong. Rec. S19099 (daily ed. Dec. 18, 1979) (statement of Sen. Pell)............................38, 39

Contribution limits for 2015-2016, FEC (Feb. 3, 2015), 

https://www.fec.gov/updates/contribution-limits-for-2015-2016/.............................................7

Disclosure of Certain Documents in Enforcement and Other Matters, 81 Fed. Reg. 

50702 (Aug. 2, 2016).................................................................................................................4

FEC Advisory Op. 1985-40 ...........................................................................................................19

FEC Advisory Op. 2010-11 .............................................................................................................7

FEC Advisory Op. 2015-09 ...........................................................................................................18

FEC Guidebook for Complainants and Respondents on the FEC Enforcement 

Process, https://transition.fec.gov/em/respondent_guide.pdf..................................................35

FEC, Matthew Petersen to depart Federal Election Commission (Aug. 26, 2019), 

https://www.fec.gov/updates/matthew-petersen-depart-federal-election-comm

ission ........................................................................................................................................14

Instructions for FEC Form 3P and Related Schedules, FEC, https://www.fec.gov/

resources/cms-content/documents/fecfrm3pi.pdf ...............................................................9, 17

Jeb 2016, Inc., 2015 July Quarterly Report, FEC Form 3P (filed July 15, 2015; amended 

Jan. 31, 2016), https://docquery.fec.gov/pdf/580/201601319005221580/20160131900

5221580.pdf .......................................................................................................................17, 24

Jeb 2016, Inc., Disbursements for “ttw” or “testing the waters,” 2015-16, FEC, https://

www.fec.gov/data/disbursements/?data_type=processed&committee_id=C00579458

&two_year_transaction_period=2016&disbursement_description=testing+the+waters

&disbursement_description=ttw..............................................................................................20

Leadership PACs, 68 Fed. Reg. 67013, 67017 (Dec. 1, 2003)......................................................22

MUR 6928 (Rick Santorum), https://www.fec.gov/data/legal/matter-under-review/6928 ...........26

Payments Received for Testing the Waters Activities, 50 Fed. Reg. 9992 (Mar. 13, 1985)...........5

Public Financing of Presidential Candidates and Nominating Conventions, 68 Fed. 

Reg. 47386 (Aug. 8, 2003).........................................................................................................6

Rebecca R. Ruiz, After Functioning for 28 Days, U.S. Election Regulator Will Be 

Powerless Again, N.Y. Times (June 26, 2020), https://www.nytimes.com/2020/06/26/

us/federal-election-commission.html ......................................................................................14

RTR, Disbursements, Jan. 1 – May 31, 2015, FEC, https://www.fec.gov/data/

disbursements/?data_type=processed&committee_id=C00571372&two_year_

transaction_period=2016&min_date=01%2F01%2F2015&max_date=05%2F31%

2F2015 .....................................................................................................................................20

RTR, Independent Expenditures, Jan. 1, 2015 – Feb. 28, 2016, FEC, https://www.fec.

Case 1:20-cv-00730-CRC Document 13 Filed 07/09/20 Page 7 of 53
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gov/data/independent-expenditures/?data_type=processed&committee_id=C0057

1372&is_notice=false&most_recent=true&min_date=01%2F01%2F2015&max_

date=02%2F28%2F2016 .........................................................................................................13

RTR, Receipts, Jan. 1 – Feb. 28, 2015, FEC, https://www.fec.gov/data/receipts/?data_

type=processed&committee_id=C00571372&two_year_transaction_period=

2016&min_date=01%2F01%2F2015&max_date=02%2F28%2F2015 ..................................19

RTR, Receipts, Jan. 1 – June 14, 2015, FEC, https://www.fec.gov/data/receipts/

?data_type=processed&committee_id=C00571372&two_year_transaction_

period=2016&min_date=01%2F01%2F2015&max_date=06%2F14%2F2015......................13

TABLE OF ABBREVIATIONS

CLC Campaign Legal Center

CTR Correct the Record

FEC Federal Election Commission

FECA Federal Election Campaign Act

MUR Matter Under Review

OGC Office of General Counsel (FEC)

RTR Right to Rise Super PAC, Inc.

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SUMMARY OF ARGUMENT

From at least January 2015 to the close of former Florida Governor John Ellis “Jeb” Bush’s 

presidential run, Bush and his allies ran a massive operation to outsource much of his nascent 

campaign to an “independent” political committee they created, Right to Rise Super PAC, Inc. 

(“RTR”), on the theory that this super PAC was not bound by the strict contribution limits and

source restrictions that would otherwise apply to Bush’s campaign under the Federal Election 

Campaign Act (“FECA”). RTR would ultimately report making over $86 million in expenditures 

to advocate Bush’s nomination in the 2015-16 Republican presidential primary.

In an attempt to counter this unprecedented scheme to circumvent federal law, plaintiffs 

Campaign Legal Center (“CLC”) and Democracy 21 filed two administrative complaints with the 

Federal Election Commission (“FEC”) in 2015. The March 31, 2015 complaint alleged that Bush 

was illegally engaging in campaign activity without registering as a candidate or reporting this 

activity as FECA requires, and was using money raised outside the federal contribution restrictions 

(“soft money”) to do so. Compl. Ex. B, Mar. Admin. Compl. (Dkt. No. 1-2). The May 27, 2015 

complaint made related allegations that Bush and his agents had “established,” “financed,” 

“maintained,” and “controlled” RTR Super PAC, 52 U.S.C. § 30125(e)(l), which “act[ed] on his 

behalf” by raising and spending millions of dollars of soft money, both before and after the official

commencement of his candidacy, to promote his presidential campaign. Compl. Ex. A, May 

Admin. Compl. (Dkt. No. 1-1). Bush would not formally announce until June 15, 2015.

Now, more than five years later, the FEC still has not resolved the administrative 

complaints. In fact, it is unclear if the Commission has taken any action on the complaints at all. 

This goes far beyond agency delay; it is a stunning abdication by the FEC of its statutory 

responsibility to resolve administrative complaints as required by 52 U.S.C. § 30109(a)(8)(A). 

Case 1:20-cv-00730-CRC Document 13 Filed 07/09/20 Page 9 of 53
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And its inertia continues: although the Commission regained its quorum before the deadline to 

respond to this lawsuit, the FEC has not appeared to defend its inaction. 

Instead, one of the administrative respondents, RTR, has intervened and now moves to 

dismiss the complaint on the ground that plaintiffs lack Article III standing—based almost solely 

on plaintiffs’ supposed failure to state a cognizable informational injury. See Int.-Def. Mot. to 

Dismiss (Dkt. No. 11) (“Int. Br.”) at 8-15.

This singular focus is surprising given that one of the central allegations in the 

administrative complaints is a straightforward reporting violation concerning Bush’s failure to 

properly disclose his campaign activities prior to the formal commencement of his candidacy. See

Compl. ¶ 10; Dkt. 1-2 ¶¶ 34-36, 49. Indeed, RTR all but concedes the potential informational 

injury that arises from these allegations. It cannot, and does not, dispute that the “statute (on the 

claimants’ reading),” CLC v. FEC, 952 F.3d 352, 356 (D.C. Cir. 2020) (“CLC I”) (quoting Envtl. 

Def. Fund v. EPA, 922 F.3d 446, 452 (D.C. Cir. 2019)), requires comprehensive reporting from 

candidates both during their candidacies and with respect to any pre-candidacy “testing the waters” 

activity. Instead, it argues that plaintiffs’ “alleged informational deprivation is contingent on a

legal determination by the Commission that Governor Bush was a candidate under FECA.” Int.

Br. at 3. Plaintiffs do not disagree. But this just underscores that their informational injury exists 

and can be redressed here. Plaintiffs contend that Bush was a candidate earlier than he claimed, 

and on a Rule 12(b)(1) motion to dismiss, factual disputes are resolved in plaintiffs’ favor. Stewart 

v. Nat’l Educ. Ass’n, 471 F.3d 169, 173 (D.C. Cir. 2006).

Plaintiffs also suffer informational injury because the FEC has failed to investigate the 

nature of the relationship between RTR and the Bush campaign, and this relationship determines 

whether and to what extent the super PAC has subsidized the Bush campaign through coordinated 

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expenditures and other in-kind contributions. Compl. ¶ 9. Given the evidence that Bush and his 

agents “established,” “financed,” “maintained,” and “controlled” RTR, there is strong reason to 

believe this type of in-kind support occurred, but neither RTR nor the Bush campaign reported any 

such in-kind contributions. Although Bush and his agents were prohibited by Section 30125(e)(l)

from either establishing or operating a soft-money group like RTR in the first place, they 

nevertheless did both. Accordingly, plaintiffs are entitled to all reportable information that arose 

from this scheme. There is no dispute that FECA requires itemized reporting of in-kind 

contributions, including coordinated expenditures, on the part of both the political committee 

making them and the campaign benefiting from them. See 52 U.S.C. §§ 30104(b)(2), 

30116(a)(7)(B); 11 C.F.R. § 104.13.

Rather than disputing that this activity is indeed subject to FECA’s disclosure 

requirements, however, intervenor argues that plaintiffs can find all of this information in the 

committee reports that RTR filed with the FEC in the 2015-16 election cycle. That claim is wrong: 

existing reports do not enable plaintiffs to even retroactively deduce the scale and scope of RTR’s 

possible in-kind support for the Bush campaign. The fact that RTR may have disclosed all of its 

disbursements in committee reports covering this pre-candidacy period does not mean that 

plaintiffs know which of RTR’s disbursements, in whole or part, qualify as in-kind contributions 

to the Bush campaign. As this court recently found, administrative complainants—and the 

public—are entitled to meaningful, itemized accounts of in-kind contributions from a purportedly 

independent political committee to a presidential candidate. CLC v. FEC, No. 19-cv-02336-JEB, 

2020 WL 2996592, at *5-*7 (D.D.C. June 4, 2020) (“CLC II”).

Plaintiffs also have standing to sue because, as complainants under FECA, they have a 

right to have the FEC “act on [their] complaint during the 120-day period beginning on the date 

Case 1:20-cv-00730-CRC Document 13 Filed 07/09/20 Page 11 of 53
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the complaint is filed,” 52 U.S.C. § 30109(a)(8)(A), and have suffered a concrete injury to their 

programmatic activities as a result of the FECA’s failure to do so. 

RTR ignores this second basis for plaintiffs’ standing. But this injury is distinct from the 

informational injury CLC and Democracy 21 have suffered due to respondents’ failure to provide 

all FECA-required reporting; there is an independent informational deprivation arising from 

agency inaction itself because the Commission’s failure to resolve an administrative complaint 

means no information about the proceedings can be made publicly available, including any legal 

conclusions, factual findings, or vote records. See id. § 30109(a)(4)(B)(ii); 11 C.F.R. § 111.20(a); 

Disclosure of Certain Documents in Enforcement and Other Matters, 81 Fed. Reg. 50702 (Aug. 2, 

2016); see also 5 U.S.C. § 552(a)(2), (a)(5). Plaintiffs’ public education, legislative policy, and 

regulatory reform programs depend on this information, so the FEC’s failure to act perceptibly 

impairs their ability to effectuate their organizational missions.

Lastly, CLC and Democracy 21 have organizational standing because the FEC’s “action 

or omission to act ‘injured the [plaintiffs’] interests,’” and plaintiffs “‘used [their] resources to 

counteract that harm.’” People for the Ethical Treatment of Animals v. USDA, 797 F.3d 1087, 1094 

(D.C. Cir. 2015) (“PETA”) (citation omitted). Complete and accurate FECA disclosure from 

candidates and timely FEC action on administrative complaints are both essential to the success of 

programmatic activities advancing plaintiffs’ missions. FEC inaction here has forced plaintiffs to 

divert resources from other planned organizational needs to research, fill in the gaps in the

disclosure reports filed by the Bush campaign and RTR, and explain to reporters and partner 

organizations how they might attempt to find information not properly reported.

Plaintiffs thus assert three valid bases for their Article III standing in this case, and 

intervenor’s motion to dismiss should be denied.

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BACKGROUND

I. Statutory and Regulatory Background

A. Federal candidates are required to report “contributions” and “expenditures” both 

during candidacy and in any “testing the waters” phase preceding candidacy. 

“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). See 

also 52 U.S.C. § 30101(8)(A) (defining “contribution”), (9)(A) (defining “expenditure”).

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

designate in writing 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(a). The 

candidate’s authorized committee must then file regular, comprehensive reports disclosing all 

receipts and disbursements, id. § 30104, including receipt of in-kind contributions.

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 campaign for 

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

Received for Testing the Waters Activities, 50 Fed. Reg. 9992, 9993 (Mar. 13, 1985) (emphasis 

added). The testing-the-waters regulations thus 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.

Importantly, such individuals must keep records of their testing-the-waters activities, and 

if they subsequently become candidates, they are required to report all funds received or payments 

Case 1:20-cv-00730-CRC Document 13 Filed 07/09/20 Page 13 of 53
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made while testing the waters as “contributions or expenditures under the Act,” id. § 101.3, in “the 

first report filed by the principal campaign committee . . . regardless of the date the funds were 

received” or “the payments were made,” id. §§ 100.72(a), 100.131(a).

Any payments by federal political committees for testing-the-waters activities benefiting 

eventual presidential candidates constitute in-kind “contributions” from the political committee to 

the candidate. Id. §§ 110.2(l), 9034.10; see also Public Financing of Presidential Candidates and 

Nominating Conventions, 68 Fed. Reg. 47386, 47387, 47407 (Aug. 8, 2003) (rulemaking 

addresses “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 in the 

campaign committee’s first disclosure report. See 11 C.F.R. § 101.3.

Also key is that this limited “testing the waters” exception is “not applicable to individuals 

who have decided to become candidates,” nor “for activities relevant to conducting a campaign.”

Id. § 100.72(b). “Examples of activities that indicate that an individual has decided to become a 

candidate include, but are not limited to” activities in which “[t]he 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” and 

“[t]he individual makes or authorizes written or oral statements that refer to him or her as a 

candidate for a particular office.” Id. (emphases added). 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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B. FECA’s “soft money” prohibitions prevent circumvention of the contribution limits 

and its comprehensive disclosure regime for candidate committees. 

In the 2015-16 election cycle, FECA limited the size of a contribution that a presidential 

candidate can accept from an individual donor to $2,700, 52 U.S.C § 30116(a)(l), and prohibited

candidates from accepting any contributions from corporations or labor unions, id. § 30118(a). See 

also Contribution limits for 2015-2016, FEC (Feb. 3, 2015), https://www.fec.gov/updates/contrib

ution-limits-for-2015-2016.

A “super PAC” is a political committee that may raise contributions outside the limits and 

source restrictions that otherwise apply to committees, id. § 30116(a)(1)(C), provided they make 

only independent expenditures and do not contribute to, or coordinate their spending with,

candidates. Super PACs came into existence following SpeechNow.org v. FEC, 599 F.3d 686, 689 

(D.C. Cir. 2010) (en banc), which held that contributions to “independent expenditure-only” 

committees could not constitutionally be limited because such committees posed no significant 

threat of corruption. See FEC Advisory Op. 2010-11. 

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

of a single candidate, 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. But FECA contains provisions to prevent such circumvention. One such 

provision is the “soft money” prohibition in Section 30125(e)(l), which provides:

A candidate, individual holding Federal office, agent of a candidate or an 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, including funds for any Federal election activity, 

unless the funds are subject to the limitations, prohibitions, and reporting 

requirements of this Act . . . .

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

By prohibiting a federal candidate from establishing or operating “soft money” entities like 

super PACs, Section 30125(e)(l) prevents candidates’ use of such vehicles to circumvent the 

contribution limits, or to evade FECA’s disclosure requirements applicable to their campaigns by 

“outsourcing” their operations to such PACs. Because a super PAC “established, financed, 

maintained or controlled” by a candidate would be likely, at least in part, to be coordinating 

operations with the candidate, Section 30125(e)(1) also works as a prophylactic measure to prevent 

the coordinated expenditures and other in-kind contributions that might otherwise result. 

FECA provides that a person’s payment for any goods or services for a candidate campaign 

is an in-kind contribution subject to FECA contribution restrictions and reporting requirements. 

See 52 U.S.C. § 30116(a)(7)(B)(i); 11 C.F.R. §§ 100.52(d)(1), 104.13. In particular, in-kind 

contributions include “the payment . . . of compensation for the personal services of another person 

which are rendered to a political committee without charge for any purpose.” 52 U.S.C. 

§ 30101(8)(A)(ii). Thus, if a PAC pays for services rendered to a candidate’s campaign, whether 

during candidacy or in any pre-candidacy testing-the-waters phase, those payments constitute inkind contributions subject to FECA’s contribution limits, source restrictions, and disclosure 

requirements. Id. §§ 30104, 30116(a)(1)(A), (a)(7)(B)(i); 11 C.F.R. §§ 100.52(d)(1), 104.13.

Furthermore, 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.

§ 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 v. Valeo, 424 U.S. 1, 46-47 (1976).

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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 10-11, https://www.fec.gov/resources/cms-content/documents/fecfrm3pi.pdf (updated 

May 2016). In addition, because in-kind contributions received by a campaign are also deemed 

“expenditures” of that campaign, the report must disclose an in-kind contribution not only as a 

contribution received, but also as an expenditure made by the campaign. 11 C.F.R. 

§§ 104.13(a)(2), 109.20(b), 109.21(b).

Likewise, for each reporting period and for the entire election cycle, a non-candidate 

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)(4)(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, its date, amount, and purpose, and 

the recipient’s name and address. Id. § 30104(b)(5)(A).

C. The statutory framework for FEC administrative complaints.

Any person may file a complaint with the FEC alleging a violation of FECA. 52 U.S.C. 

§ 30109(a)(1). After reviewing the complaint and the recommendations of its Office of General 

Counsel (“OGC”), the Commission votes on whether there is sufficient “reason to believe” the Act 

was violated to justify an investigation. Id. § 30109(a)(2). After any investigation, if the 

Commission finds probable cause to believe a FECA violation occurred, id. § 30109(a)(3), it seeks 

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a conciliation agreement with the respondent, which may include civil penalties. Id. 

§ 30109(a)(4)(A), (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. 52 U.S.C. § 30106(c). 

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

proceed, the Commission will dismiss the complaint. Once the matter is closed, the FEC must 

place materials from the MUR file on the public record. Id. § 30109 (a)(4)(B)(ii); see also 11 

C.F.R. § 111.20(a); 81 Fed. Reg. 50702. “Any party aggrieved” by the Commission’s dismissal of 

a complaint filed by such party or by “a failure of the Commission to act on such complaint during 

the 120-day period beginning on the date the complaint is filed” may seek review in this Court to 

determine whether the failure to act is “contrary to law.” 52 U.S.C. § 30109(a)(8)(A), (a)(8)(C). 

II. Factual Background

A. Plaintiffs’ Administrative Complaints

CLC and Democracy 21 filed two FEC complaints against RTR and Bush on March 31

and May 27, 2015, which collectively alleged that Bush, largely due to his direct and indirect role 

in establishing and operating RTR, had failed to comply with applicable FECA contribution 

restrictions and disclosure requirements, both before Bush formally announced his candidacy on 

June 15, 2015 and for the duration of his official campaign. Compl. ¶¶ 4-5.

Plaintiffs’ March 2015 complaint detailed the activities in which Bush, his agents, and the 

super PAC were reportedly engaged prior to June 15, and alleged that this provided reason to 

believe Bush had been first “testing the waters” and then engaging in an active campaign before 

he formally announced his candidacy on that date. See Dkt. 1-2.

As early as December 16, 2014, Bush publicly announced that he had “decided to actively 

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explore the possibility of running for President of the United States.” Dkt. 1-2 ¶ 4 (quoting Bush). 

Shortly thereafter, on January 6, 2015, Bush and his associates formed two PACs: the super PAC 

and a leadership PAC, also named Right to Rise, id. ¶ 5, which also supported Bush before and 

after he declared candidacy but could not, in contrast to the super PAC, raise contributions in 

unlimited amounts. 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. ¶¶ 7-8.

In the early months of 2015, Bush engaged in a quantum of fundraising that demonstrated 

that he had moved beyond pre-candidacy or even testing the waters, and was operating as an active 

candidate. For example, news reports and Bush’s own Twitter account documented that Bush 

engaged in extensive fundraising across the country for the super PAC in February and March of 

2015. Dkt. 1-2 ¶¶ 10-11. Bush, who was “aggressively recruiting donors” for the super PAC, Dkt. 

1-1 ¶ 23, made fundraising stops that included $100,000-per-ticket fundraisers for the super PAC 

in New York City in February and in Bel Air on March 31. Id. ¶ 23; Dkt. 1-2 ¶¶ 11, 13. During 

this period, Bush’s mother and other members of his family were also fundraising for the super 

PAC. Dkt. 1-2 ¶ 9; Dkt. 1-1 ¶ 26.

Meanwhile, also in February and March 2015, Bush was engaged in a number of activities 

that were indistinguishable from those of a candidate: 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. Dkt. 1-2 ¶¶ 12, 17-19.

Case 1:20-cv-00730-CRC Document 13 Filed 07/09/20 Page 19 of 53
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On May 27, 2015, plaintiffs filed a second administrative complaint with the FEC, 

supplementing the March complaint with further evidence that Bush had indeed become a federal 

candidate as defined by FECA, and alleging that as a candidate, Bush had violated 52 U.S.C. 

§ 30125(e) because he had “directly or indirectly established, financed, maintained or controlled” 

RTR Super PAC, and the super PAC was soliciting, receiving, directing, or spending contributions 

that did not comply with federal contribution limits and source prohibitions. Dkt. 1-1 ¶¶ 37-44.

The May complaint noted that Bush’s aggressive “pre-candidacy” fundraising had 

continued through April and May of 2015. Id. ¶¶ 20-22. So successful was the fundraising, in fact, 

that after having “initially imposed a $1 million cap on donations to the super PAC” in order “to 

avoid the public perception that he’d been indebted to a few extremely wealthy benefactors,” Bush 

lifted that cap in early May 2015, and was “rushing to fill the Right to Rise bank account” and 

attempting to “accelerate the cash flow.” Id. ¶ 25. As further evidence of Bush’s de facto 

candidacy, a video released on May 13, 2015 showed Bush acknowledging that he was running 

for president, but then “tr[ying] to take it back.” Id. ¶ 4.

Plaintiffs also detailed the active role that Bush and his associates played in creating RTR 

and directing its design, staffing, and operations. As early as February and March of 2015, Bush 

and his aides were choosing close Bush associates to be senior staff for the super PAC, Dkt. 1-1 

¶¶ 12-15. By April and May 2015, Bush and his aides were reportedly shaping strategy for the 

super PAC and considering how to operate the PAC most effectively alongside the Bush campaign. 

Id. ¶¶ 16-19. For example, in a “concept[] in development for months,” Bush was planning to 

“delegat[e] many of the nuts-and-bolts tasks of seeking the White House” to the super PAC and 

intended to have the super PAC perform “many of the duties typically conducted by a campaign.” 

Id. ¶ 17. Another news report similarly described “a division of labor” that “had been established” 

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between the super PAC and the eventual Bush campaign. Id. ¶ 18. 

B. Procedural Background

The FEC acknowledged receipt of each administrative complaint by letter, informing 

plaintiffs that both submissions would be designated Matter Under Review (“MUR”) 6927. 

Compl. ¶ 33. To date, plaintiffs have received no further communications from the FEC about the 

status of either administrative complaint. Nor has the FEC publicly released any documents 

associated with this proceeding.

On June 15, 2015—nineteen days after plaintiffs filed their second complaint—Bush filed 

a statement of candidacy with the FEC and designated Jeb 2016, Inc. as his principal campaign 

committee (“Jeb 2016”). Ex. C (Jeb Bush Statement of Candidacy and Jeb 2016, Inc. Statement of 

Organization). Bush and his associates had raised approximately $90 million for RTR by that date.1

RTR reported making its first independent expenditure supporting Bush on June 26, 2015.

2 From 

that date through February 2016, RTR reported to the FEC a total of $86.8 million in expenditures 

supporting Bush or attacking his opponents in the Republican presidential primary, and $118 

million in disbursements. Ex. D (RTR Financial Summary). Plaintiffs commenced this lawsuit on 

March 13, 2020, but to date, the FEC has not appeared to defend its inaction.

RTR complains that the Commission has been without a four-member quorum for some 

period of time during this lawsuit, Int. Br. at 6, and thus lacked the four votes necessary for most 

significant Commission action. But the Commission did not lose its quorum until August 31, 2019, 

1 RTR, Receipts, Jan. 1 – June 14, 2015, FEC, https://www.fec.gov/data/receipts/?data_type=

processed&committee_id=C00571372&two_year_transaction_period=2016&min_date=01%2

F01%2F2015&max_date=06%2F14%2F2015 (last visited July 7, 2020).

2 RTR, Independent Expenditures, Jan. 1, 2015 – Feb. 28, 2016, FEC, https://www.fec.gov/

data/independent-expenditures/?data_type=processed&committee_id=C00571372&is_notice=

false&most_recent=true&min_date=01%2F01%2F2015&max_date=02%2F28%2F2016 (last 

visited July 7, 2020).

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see FEC, Matthew Petersen to depart Federal Election Commission (Aug. 26, 2019), https://www.

fec.gov/updates/matthew-petersen-depart-federal-election-commission—more than four years 

after plaintiffs filed their second administrative complaint and started the statutory 120-day clock. 

The Commission regained its quorum on June 5, 2020, only to lose it again on July 3, 2020. 

Rebecca R. Ruiz, After Functioning for 28 Days, U.S. Election Regulator Will Be Powerless Again, 

N.Y. Times (June 26, 2020), https://www.nytimes.com/2020/06/26/us/federal-electioncommission.html.

LEGAL STANDARD

To demonstrate Article III standing, plaintiffs must establish three elements: (1) “injury in 

fact”; (2) causation; and (3) redressability. Friends of Animals v. Jewell, 824 F.3d 1033, 1040-41 

(D.C. Cir. 2016). While plaintiffs bear the burden of proving that the Court has subject matter 

jurisdiction to hear their claims, on a motion to dismiss, plaintiffs “need only ‘state[] a plausible

claim’ that each element of standing is satisfied.” Hancock v. Urban Outfitters, Inc., 830 F.3d 511, 

513 (D.C. Cir. 2016) (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678-79 

(2009)). For purposes of the Rule 12(b)(1) motion, the Court “may consider materials outside the 

pleadings.” Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).

ARGUMENT

I. Plaintiffs Have Established Article III Standing Based on Informational Injury.

Plaintiffs satisfy all three elements of Article III standing. Intervenor’s motion focuses

almost exclusively on plaintiffs’ claimed injury, and specifically, their informational injury, Int.

Br. at 8-15, so plaintiffs will likewise focus on this prong of the standing test.

“The law is settled that ‘a denial of access to information’ qualifies as an injury in fact 

‘where a statute (on the claimants’ reading) requires that the information be publicly disclosed and 

Case 1:20-cv-00730-CRC Document 13 Filed 07/09/20 Page 22 of 53
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there is no reason to doubt their claim that the information would help them.’” Envtl. Def. Fund, 

922 F.3d at 452 (cleaned up). Plaintiffs CLC and Democracy 21 have been denied information that 

is required to be disclosed by FECA regarding (1) Bush’s “testing the waters” and campaign 

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

value of in-kind contributions from RTR to his campaign arising from Bush’s extensive 

involvement in RTR’s formation and operations. The deprivation of this information is traceable 

to the FEC’s inaction on plaintiffs’ administrative complaints, and directly and concretely injures 

plaintiffs’ interests in disseminating this information to voters and using it to support their other 

programmatic activities.

A. Plaintiffs Have Been Deprived of Information that FECA Requires to Be Disclosed.

“[A] plaintiff suffers an ‘injury in fact’ when the plaintiff fails to obtain information which 

must be publicly disclosed pursuant to a statute.” FEC v. Akins, 524 U.S. 11, 21 (1998). In Akins, 

the Supreme Court held that the plaintiffs had suffered an injury in fact because they had been 

unable “to obtain information—lists of AIPAC donors . . . and campaign-related contributions and 

expenditures—that, on [the plaintiffs’] view of the law, the statute requires that AIPAC make 

public.” Id. Because the plaintiffs had been deprived of that information and there was “no reason 

to doubt” that the concealed information would be helpful for evaluating candidates and their 

relationships with AIPAC, the plaintiffs’ injury was sufficient to give them standing. Id. 

Consistent with Akins, the D.C. Circuit and this Court have recognized that plaintiffs are 

injured in fact when an alleged FECA violation causes the concealment of information that the Act 

requires disclosed, including, for example: “how much money a candidate spent in an election,” 

Common Cause v. FEC, 108 F.3d 413, 417 (D.C. Cir. 1997), the true sources of political 

contributions funneled through corporate straw donors, CLC I, 925 F.3d at 354, and itemized 

Case 1:20-cv-00730-CRC Document 13 Filed 07/09/20 Page 23 of 53
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accounting of in-kind contributions from a purportedly independent political committee to a 

presidential candidate, CLC II, 2020 WL 2996592, at *6.

In this Circuit, “the nature of the information allegedly withheld is critical to the standing 

analysis.” Common Cause, 108 F.3d at 417. To be sure, Akins standing is not available when the 

information plaintiffs seek is already available to them or is simply a legal determination about 

what FECA prohibits. See id at 418; Wertheimer v. FEC, 268 F.3d 1070, 1074 (D.C. Cir. 2001).

But injury-in-fact is established so long as plaintiffs “show that, if they prevail, some information 

helpful to them would be newly disclosed.” CLC II, 2020 WL 2996592, at *5. 

Here, if plaintiffs prevail, they would gain new factual information that is helpful and 

required to be disclosed under FECA, including information related to Bush’s undisclosed 

campaign activities prior to announcing his candidacy on June 15, 2015 and the true value of 

RTR’s in-kind contributions to the Bush campaign. Compl. ¶¶ 9-10. Intervenor argues that 

plaintiffs have not pleaded an informational injury because RTR and the Bush campaign “filed 

public reports and disclosed all information FECA requires.” Int. Br. at 9. This is false and 

misunderstands the inquiry. The relevant question is not whether respondents filed any disclosure 

reports or disclosed some campaign finance information, but rather: “Would these disclosures look 

different if [plaintiffs were] successful in [their] suit?” CLC II, 2020 WL 2996592, at *6. The 

Court must evaluate, in other words, whether plaintiffs gain new disclosure information assuming 

their allegations are true. See id.

1. Plaintiffs do not know the extent of the Bush campaign’s spending during his 

undeclared but de facto candidacy.

Bush signed his statement of candidacy on June 5, 2015 and formally declared his 

candidacy on June 15. See Ex. C. But reports and public statements suggest that he was a candidate 

“at least since January 2015.” Dkt. 1-1 ¶ 5. Through much of the pre-June 15 period, therefore, 

Case 1:20-cv-00730-CRC Document 13 Filed 07/09/20 Page 24 of 53
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Bush was either a de facto candidate or was engaged in testing-the-waters activities; consequently,

much of his and RTR’s activity was subject to FECA’s comprehensive disclosure requirements. 

Federal law requires the reporting of all “contributions” and “expenditures” connected to any 

testing-the-waters activity, and upon commencement of a candidacy, regular reporting of all 

campaign receipts and disbursements, including in-kind contributions from individuals or other 

committees. See 52 U.S.C. § 30104; 11 C.F.R. § 101.3; see also Instructions for FEC Form 3P 

and Related Schedules 5, FEC, https://www.fec.gov/resources/cms-content/documents/fecfrm3pi.

pdf. The Bush campaign’s first FEC report, however, filed July 15, 2015, includes receipts and 

disbursements going back only to June 4, 2015.3 At issue, then, are nearly six months of entirely 

unaccounted-for activities, including in-kind contributions from RTR, that plaintiffs contend were 

conducted either while Bush was testing the waters or had effectively commenced his candidacy.

Exactly when Bush commenced his active candidacy, as intervenor effectively concedes, 

determines what Bush’s reporting obligations were and the extent of the information unlawfully 

withheld from plaintiffs and the general public. Indeed, RTR admits that plaintiffs’ “alleged 

informational deprivation is contingent on a legal determination by the Commission that Governor 

Bush was a candidate under FECA.” Int. Br. at 3. RTR thus implicitly agrees that if Bush had, in 

fact, become a candidate earlier than he claimed—as plaintiffs alleged in their administrative 

complaints, see Dkt. 1-1 ¶¶ 3-10—FECA’s disclosure requirements would have applied earlier 

and respondents would have failed to meet them. 

RTR has no real dispute with plaintiffs’ theory of informational deprivation here—it only 

disputes certain facts alleged by plaintiffs in their complaints. See Int. Br. at 3 (“Bush was not a 

3

Jeb 2016, Inc., 2015 July Quarterly Report, FEC Form 3P (filed July 15, 2015; amended Jan. 

31, 2016), https://docquery.fec.gov/pdf/580/201601319005221580/201601319005221580.pdf.

Case 1:20-cv-00730-CRC Document 13 Filed 07/09/20 Page 25 of 53
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candidate for federal office at that time under FECA or corresponding regulations, so FECA’s 

registration and reporting requirements had not yet been triggered.”). But this kind of challenge to 

standing fails at the motion to dismiss stage because the Court “must take all of the factual 

allegations in the complaint as true,” Iqbal, 556 U.S. at 678, and “draw all reasonable 

inferences . . . in the plaintiffs’ favor.” Hancock, 830 F.3d at 513-14.

The test to determine whether someone has transitioned from testing the waters into 

candidacy is a fact-intensive inquiry that hinges on the individual’s subjective intentions after 

crossing the $5,000 threshold for “contributions” or “expenditures,” 52 U.S.C. § 30101(2), as 

reflected in the would-be candidate’s public statements, election activities, fundraising, and other 

indicia of intent. See FEC Advisory Op. 2015-09 at 5 (“[I]f an individual has raised or spent more 

than $5,000 on ‘testing-the-waters’ activities, the individual becomes a candidate when he or she 

decides to run for federal office.”); 11 C.F.R. § 100.72(b) (non-exhaustive list of activities that 

may objectively indicate when a candidacy has commenced, such as fundraising in excess of what 

could be reasonably expected for exploratory activity and election activities over a protracted 

period of time). Accordingly, while there is ample “reason to believe” Bush became a candidate 

prior to June 2015, an investigation remains necessary to pinpoint when precisely Bush became a 

candidate and, consequently, when his FECA reporting obligations commenced. 

Similarly, determining when a person has begun testing the waters prior to candidacy is a 

fact-intensive inquiry that merits an agency investigation. Dkt. 1-2 ¶ 42; see also 11 C.F.R.

§§ 100.131, 110.2(l)(1) (listing de facto testing-the-waters activities including polling costs, travel, 

and administrative and staffing expenses for offices in presidential primary states). Even if the 

FEC found no “reason to believe” that Bush commenced a de facto campaign before June 2015, 

available facts show that Bush was at least testing the waters in this period, given that by March 

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he had already raised over $45 million dollars and reportedly made numerous trips to battleground 

states to meet with party leaders and conservative donors.4See supra at 11. Indeed, FEC advisory 

opinions have made clear that travel and other expenses related to a prospective candidate’s trips 

to early primary election states to confer with party leaders and appear at state and regional party 

meetings constitute testing-the-waters activities. FEC Advisory Op. 1985-40 at 6-7. Under FECA, 

Bush was required to report all funds received or payments made in connection with such testingthe-waters activity as “contributions or expenditures under the Act” in “the first report filed by

[his] principal campaign committee.” 11 C.F.R. § 101.3; see also id. § 100.72(a). But because 

Bush has maintained that he did not commence even testing-the-waters activities in the months 

prior to June 2015, this would mean that the apparently extensive campaign-related activity he 

conducted in that period has not been reported in any form.

Regardless of the exact date Bush became a candidate, there is also reason to believe that 

he benefited from—and failed to report—in-kind contributions from RTR in the pre-June 2015 

period when his candidacy is in dispute. Plaintiffs have alleged that Bush established, financed, 

maintained, or controlled RTR as a shadow campaign vehicle to raise funds, install campaign staff, 

and develop a campaign strategy. See Compl. ¶¶ 25-29; Dkt. 1-1 ¶¶ 12-17. In this period, RTR 

reported expenditures on, among other things, finance consulting, political strategy consulting, 

communications consulting, digital consulting, travel, survey research, and event expenses.5 An 

FEC investigation is needed to determine the extent to which these and other expenditures 

4 RTR, Receipts (Jan. 1, 2015 – Feb. 28, 2015), FEC, https://www.fec.gov/data/receipts/?data_

type=processed&committee_id=C00571372&two_year_transaction_period=2016&min_date=

01%2F01%2F2015&max_date=02%2F28%2F2015 (last visited July 8, 2020). 

5 RTR, Disbursements, Jan. 1 – May 31, 2015, FEC, https://www.fec.gov/data/disbursements/

?data_type=processed&committee_id=C00571372&two_year_transaction_period=2016&min_

date=01%2F01%2F2015&max_date=05%2F31%2F2015 (last visited July 8, 2020).

Case 1:20-cv-00730-CRC Document 13 Filed 07/09/20 Page 27 of 53
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constituted unreported in-kind contributions to the Bush campaign. 

Intervenor contends that plaintiffs do not actually lack any of this information because

“[RTR] and the other respondents filed public reports and disclosed all information FECA 

requires.” Int. Br. at 9. If RTR means to suggest that all of the FECA-required information outlined 

above can be found in its own FEC disclosure reports, this is false. 

First, it is clear that RTR did not finance all of Bush’s pre-candidacy campaign-related 

activities, and thus its reports could not cover all of the information the Bush campaign was 

required to disclose. For example, his campaign reported some in-kind contributions from Bush 

himself for purported testing-the-waters activities, but they do not appear to cover the full scope 

of Bush’s campaign spending during the months preceding his official campaign announcement. 

The campaign reported only $1,089 for “in-kind (ttw): travel/airfare/lodging,”6but this amount 

cannot possibly account for Bush’s reported zigzags around the country to meet with high-profile 

individuals and to attend countless fundraising events to solicit many hundreds of thousands of 

dollars to be spent in support of his campaign by RTR. See Dkt. 1-1 ¶¶ 20-23; Dkt. 1-2 ¶¶ 10-11. 

Moreover, even with respect to Bush pre-candidacy activities connected to RTR, the super 

PAC’s reports are not itemized in such a way as to disclose which of its disbursements directly 

subsidized Bush’s activities, as is further described below. See infra Part I.A.2. Otherwise put, 

while RTR may have disclosed all of its disbursements in committee reports covering this precandidacy period, plaintiffs still do not know which of RTR’s disbursements, in whole or part, 

6

Jeb 2016 Inc., 2015 July Quarterly Report (amended), supra note 3, at 1,688; see also Jeb 

2016, Inc., Disbursements for “ttw” or “testing the waters,” 2015-16, FEC, https://www.fec.gov/

data/disbursements/?data_type=processed&committee_id=C00579458&two_year_transaction_

period=2016&disbursement_description=testing+the+waters&disbursement_description=ttw

(last visited July 8, 2020) (showing 50 total disbursement entries described as “ttw” or “testing the 

waters,” and only one such disbursement specified as travel-related). 

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21

qualify as in-kind contributions to the Bush campaign. Its reports simply do not answer the 

question that plaintiffs are asking. CLC II, 2020 WL 2996592, at *6.

2. Plaintiffs do not know the magnitude of Right to Rise’s in-kind contributions to 

the Bush campaign arising from Bush’s extensive involvement in Right to Rise’s 

operations. 

Plaintiffs have also been deprived of full disclosure of RTR’s relationship with the Bush 

campaign, which in turn determines how much of RTR’s supposedly independent spending in fact 

constituted in-kind contributions to the Bush campaign. Compl. ¶ 9. To be sure, Bush and his 

agents were prohibited by 52 U.S.C. § 30125(e)(l) from establishing or financing RTR in the first 

place, but since, as plaintiffs contend, they did take these actions, plaintiffs are entitled to all 

reportable information that arises from this illegal undertaking.

Under FECA, when a political committee like RTR makes a contribution, including any 

in-kind contribution, to a candidate committee, both the political committee and the candidate 

committee must disclose the contribution. See 52 U.S.C. § 30104(b)(2)(D), (b)(6)(B)(i). And 

because an in-kind contribution is also deemed an “expenditure,” both committees must disclose 

it as such, along with the person to whom the expenditure was made and its date, amount, and 

purpose. See id. § 30104(b)(2)(H)(i), (b)(5)(A), (b)(6)(B)(i); 11 C.F.R. § 104.13(a). In other words, 

FECA requires complete, itemized disclosure of a political committee’s in-kind contributions to a 

presidential candidate by both the committee and the candidate.

Expenditures that must be reported as in-kind contributions can arise from various 

circumstances. For instance, payments by a political committee for testing-the-waters activities 

benefiting a presidential candidate before an official announcement of candidacy are in-kind 

contributions, which must be disclosed in the candidate’s authorized committee’s first disclosure 

report. 11 C.F.R. §§ 100.72(a), 110.2(l), 9034.10. When a committee that is not deemed affiliated 

with an candidate committee but is “established, financed, maintained, or controlled by, or acting 

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on behalf of” a federal candidate pays “for costs that could and should otherwise be paid for by a 

candidate’s authorized committee,” those payments are also in-kind contributions. Leadership 

PACs, 68 Fed. Reg. 67013, 67017 (Dec. 1, 2003); see also 11 C.F.R. § 100.5(e)(6). And when a 

political committee makes a coordinated expenditure with a candidate, the candidate’s campaign 

must report it as an in-kind contribution. 52 U.S.C. § 30116(a)(7)(B)(i); FEC v. Colo. Republican 

Fed. Campaign Comm., 533 U.S. 431, 438 (2001) (“Expenditures coordinated with a candidate . . . 

are contributions under the Act.”).7

In CLC II, the Court held that plaintiffs suffer informational injury when they lack 

knowledge about which disbursements, in whole or part, by a super PAC are actually in-kind 

contributions to a presidential campaign. 2020 WL 2996592, at *6. Plaintiffs in CLC II sued the 

FEC to challenge its dismissal of an administrative complaint alleging that Hillary Clinton’s 2016 

presidential campaign and a super PAC, Correct the Record (“CTR”), violated FECA by failing to 

report upwards of $6 million in coordinated expenditures. Id. at *1. The Clinton campaign and 

CTR intervened, arguing that any of CTR’s expenditures that could be deemed coordinated (and 

therefore in-kind contributions) were already available to plaintiffs in existing disclosure reports. 

Id. at *5. The Court rejected this argument, accepting plaintiffs’ allegations that the committees 

had coordinated on at least some expenditures, and finding that CTR’s existing reports and its 

practice of reporting expenditures in lump sums made it impossible to know which of its 

disbursements and how much of its specific disbursements were “actually made in coordination 

with [the Clinton campaign].” Id. at *6. The Court also rejected any notion that the missing 

7

Intervenor’s argument that “FECA does not require the disclosure of the relationship between 

RTR and the Bush campaign, with the exception of expenditures to common vendors,” Int. Br. at 

10, is clearly wrong. FECA requires all political committees to report contributions to federal 

candidates, including coordinated expenditures and other forms of in-kind contributions.

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information was simply a legal conclusion or duplicative of information already disclosed. Id. at 

*5-6 (distinguishing Wertheimer, 268 F.3d at 1075).

Here, as in CLC II, plaintiffs are deprived of information as to which of a super PAC’s 

disbursements are actually in-kind contributions to a 2016 presidential campaign. By virtue of 

Bush’s reported involvement in RTR’s operations, it is likely that some, or even most, of RTR’s 

spending financed Bush’s purported testing-the-waters activities or paid for goods and services 

rendered to the Bush campaign—and any such spending had to be reported as in-kind contributions 

in itemized form as FECA requires. But neither RTR nor the Bush campaign disclosed any in-kind 

contributions between them, making it impossible to know the full scope of RTR’s financial 

relationship with the Bush campaign. See Compl. ¶ 9.

One example is the hundreds of thousands of dollars RTR spent on travel in the period 

before Bush officially declared his candidacy. RTR reported, for example, $3,107 in a transaction 

dated April 13, 2015 to Delta Airlines for “travel.” Ex. E (RTR Travel Payment). Plaintiffs’ 

administrative complaints details Bush’s extensive travel to attend lavish RTR fundraisers all over 

the country. If some proportion of that air travel “could and should otherwise have been paid for 

by” Bush, 68 Fed. Reg. at 67017, then that portion should have been reported by both RTR and 

the Bush campaign as an in-kind contribution to the candidate.

There is also reason to believe that RTR made “payment[s] . . . of compensation for the 

personal services of another person” rendered to the Bush campaign, 52 U.S.C. § 30101(8)(A)—

which would also constitute an in-kind contribution under FECA. Plaintiffs’ administrative 

complaints allege that in April and May of 2015, Bush and his agents planned to delegate certain 

“nuts and bolts” communications to RTR, such as “individualized online advertising and running 

phone banks,” to parrot messaging developed by the campaigns authorized committee. Dkt. 1-1 

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¶ 17. As in CLC II, an FEC investigation of Bush’s involvement in RTR operations during this 

time would shed light on whether some unknown part of the $1,232,500 spent on “digital media 

placement” and the nearly $130,000 spent on “phone calls” should have been reported as in-kind 

contributions to the Bush campaign.8

In short, plaintiffs have reason to believe that much of RTR’s $118 million in total 

disbursements should have been reported as in-kind contributions to the Bush campaign. See Ex. 

D (RTR Financial Summary). But plaintiffs are left in the dark as to which of RTR’s disbursements 

and how much of specific disbursements should have been reported as in-kind contributions.

3. Plaintiffs are not seeking a mere “legal determination.”

Intervenor does not even attempt to claim that RTR or the Bush campaign reported any inkind contributions, and instead maintains that plaintiffs merely seek a “legal determination” that 

respondents violated FECA. Int. Br. at 11-12. But none of the cases intervenor cites suggest that 

the information plaintiffs seek in this case—months of unreported expenditures by a presidential 

candidate and the precise amounts and purposes of in-kind contributions from a super PAC 

controlled by that candidate to his own campaign—amounts to a mere legal conclusion. Indeed, in 

Common Cause, the D.C. Circuit recognized that knowing “how much money a candidate spent 

in an election” is precisely the informational interest FECA is designed to protect. 108 F.3d at 418. 

Intervenor’s reliance on Wertheimer is similarly misplaced. The “impetus” for that lawsuit 

was plaintiffs’ dissatisfaction with the FEC’s failure to find that the DNC’s spending on certain 

advertisements in connection to President Clinton’s 1996 campaign constituted illegal coordinated 

expenditures under the Presidential Election Campaign Fund Act. 268 F.3d at 1072. But those

plaintiffs already knew exactly what part of the DNC’s spending was coordinated with President 

8

See RTR Independent Expenditures, supra note 2. 

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Clinton because, as no one disputed, FECA already required party committees to report their 

coordinated expenditures with presidential candidates. Id. at 1073; see also id. at 1075 (Garland, 

J., concurring) (“[A]ppellants do not dispute[] that political party committees are already required 

to report and to identify such coordinated expenditures as § [30116(d)] expenditures in their FECA 

filings.”). If plaintiffs had prevailed, the result would have been to force the candidate to “disclose” 

the same coordinated expenditures already disclosed as such by the DNC. Here, neither RTR nor 

the Bush campaign has disclosed any in-kind contributions to each other. 

Nor does CREW v. FEC, 799 F. Supp. 2d 78 (D.D.C. 2011) support intervenor’s view that 

knowledge of in-kind contributions is a mere legal determination. That decision found that the 

plaintiffs lacked informational standing to challenge the FEC’s failure to take enforcement action 

regarding an excessive in-kind contribution that a congressmember’s PAC made to his presidential 

campaign in the form of $10,243 in travel expenses. Id. at 88. The plaintiffs already had all of the 

information they claimed to seek, because the FEC had conducted an investigation and published 

a report clarifying precisely how much the PAC spent on travel expenses, and under what factual 

circumstances. Id. The only remaining question was a legal dispute about how much of the $10,243 

expenditure should be considered a contribution to the presidential campaign versus a noncontribution expenditure in furtherance of the PAC’s own mission. Id. The court viewed the 

plaintiffs’ desire as one simply to “reclassify disbursements of which they are already aware, and 

which are already part of the public record.” Id. at 89. This case is different. Here, no FEC 

investigation appears to have occurred9and plaintiffs are unable to determine even which 

9 Based on intervenor’s representations about the administrative proceedings, to the extent they 

can be credited as accurate or complete, the FEC has not undertaken any investigation or voted to 

proceed beyond the reason-to-believe stage. RTR Mot. to Intervene at 6. But RTR cannot speak 

for other key respondents: the Bush campaign and Bush himself. See MUR 6928 (Rick Santorum), 

https://www.fec.gov/data/legal/matter-under-review/6928 (designating candidate as “primary 

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disbursements of many millions of dollars in “independent” spending could constitute in-kind 

contributions. And as CLC II recently held, this is factual information indicating informational 

injury, not a mere legal determination. 2020 WL 2996592, at *6.

Intervenor also suggests that the information plaintiffs seek is already available to them in 

Jeb 2016’s and RTR’s existing “public reports.” Int. Br. at 9. The foregoing discussion explains 

why RTR’s and Bush’s FEC filings leave huge informational gaps in the record. In any event, 

intervenor’s authority for this argument is unavailing. In Vroom v. FEC, 951 F. Supp. 2d 175 

(D.D.C. 2013), plaintiffs complained that the FEC had wrongly approved the disaffiliation of two 

corporate PACs, and as a result, the PACs’ combined contributions exceeded FECA’s contribution 

limit. Id. at 176. But the Court found that the plaintiffs sought information already reported in each 

PAC’s respective filings, so did not “suffer[] a justiciable injury from having to review multiple 

filings . . . to ascertain contributions instead of . . . a single filing.” Id. at 178-79. Here, there is no

single filing or combination of filings by Bush and RTR that can account for the possibly millions

of dollars in unreported spending and in-kind contributions arising from their activities.

B. Plaintiffs’ Inability to Access FECA Disclosure Information Directly and Concretely 

Injures Their Interests.

A plaintiff suffers an injury in fact when it shows that it has been deprived of information 

that must be publicly disclosed pursuant to a statute and “there is no reason to doubt [the plaintiff’s] 

claim that the information would help them.” CLC I, 952 F.3d at 356 (quoting Envtl. Def. Fund, 

922 F.3d at 452). “The helpfulness of the information does not depend on the plaintiff’s status as 

a voter,” CREW v. Am. Action Network, 410 F. Supp. 3d 1, 13 (D.D.C. 2019) (“AAN”), but on 

whether the information sought would be “useful” to plaintiffs and “to others to whom they would 

respondent” in 2015-16 testing-the-waters case). The RTR leadership PAC also participated as a 

respondent before the FEC, but only the super PAC has intervened here. Int. Br. at 2.

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communicate it.” Id. The informational interests advanced by FECA apply in full to organizational 

plaintiffs like CLC and Democracy 21 who “communicate” such information to voters to facilitate 

informed participation in the political process. Akins, 524 U.S. at 21. 

CLC’s and Democracy 21’s injuries in this case are concrete and directly impact their 

organizational missions to “advance[] democracy” and “mak[e] democracy work for all citizens.”

Compl. ¶¶ 14, 20; see Fischer Decl. ¶¶ 5, 10-11 (attached hereto as Ex. A); Wertheimer Decl. ¶¶ 2, 

10 (attached hereto as Ex. B). In pursuing their missions, CLC and Democracy 21 are uniquely 

positioned among nonprofit organizations in their focus on issues of campaign finance and political 

disclosure and their concentration on legal work and public education in these areas.

CLC was founded in 2002 by Trevor Potter, a former FEC chairman and commissioner,

initially for the purpose of defending the Bipartisan Campaign Reform Act of 2002 against 

constitutional challenge. Fischer Decl. ¶ 4. Today, CLC’s mission includes advancing democracy 

by defending campaign finance reforms, ensuring their proper implementation and enforcement, 

providing advice and assistance in the drafting and implementation of new laws, and serving as a 

legal and policy resource for the public and other organizations. Id. ¶¶ 5-6. Multiple courts of this 

Circuit have recognized that “full and accurate campaign-finance reporting is crucial to CLC’s 

mission of ‘improving democracy and promoting representative, responsive, and accountable 

government for all citizens,’ in service of which it ‘engages in litigation, regulatory practice, 

legislative policy, and public education.’” CLC II, 2020 WL 2996592, at *6. See also CLC I, 952 

F.3d at 355-56; CLC v. FEC, 245 F. Supp. 3d 119, 128 (D.D.C. 2017).

Democracy 21 was founded in 1997 by Fred Wertheimer, who previously served from 

1981 to 1995 as President of Common Cause, a nonpartisan advocacy group focusing on campaign 

finance and other good government reforms, and who has worked for over four decades on issues 

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related to money in politics. Wertheimer Decl. ¶¶ 1-2. Democracy 21 also frequently participates 

in campaign finance litigation and has been active in filing comments and other submissions in 

proceedings before the FEC. Id. ¶¶ 6-8.

Plaintiffs have an injury in fact because “[t]here is ‘no reason to doubt’ that the disclosures 

they seek would further their efforts to defend and implement campaign finance reform.” CLC I, 

952 F.3d at 356 (quoting Friends of Animals, 824 F.3d at 1041). Indeed, the incredible scale of the 

potential violations in this case makes it evident that knowing such information is critical not only 

“to defend and implement campaign finance reform” but also to realize FECA’s purpose of 

providing “transparency . . . of who is giving and who is spending money.” Kean for Cong. Comm. 

v. FEC, 398 F. Supp. 2d 26, 38 (D.D.C. 2005). In the 2016 cycle, the Bush campaign reported $35 

million in disbursements. Ex. F (Jeb 2016 Financial Summary). RTR reported $118 million in 

disbursements, including $87 million in independent expenditures. See Ex. D (RTR Financial 

Summary). Depending on the extent to which those disbursements should have been reported as 

spending by the Bush campaign, Bush’s true 2016 cycle spending could be anywhere between $35 

million and $153 million. 

Plaintiffs use information from FEC disclosure reports to prepare complaints submitted to 

the FEC and to engage in rule-makings as part of its regulatory practice, Fischer Decl. ¶¶ 31-33; 

Wertheimer Decl. ¶ 8; to draft briefs and other materials submitted to state and federal courts in 

campaign finance litigation, Fischer Decl. ¶ 38; Wertheimer Decl. ¶¶ 6-7; and to prepare testimony 

submitted to legislators, craft legislation, and lobby for its enactment, Fischer Decl. ¶¶ 27, 29; 

Wertheimer Decl. ¶ 9. 

Another key way that plaintiffs work to advance their missions involves researching the 

money used to influence elections—including, critically, analysis of FEC disclosure reports—and 

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communicating their research to voters. Fischer Decl. ¶¶ 12-19; Wertheimer Decl. ¶¶ 3-5. 

Plaintiffs rely on FECA disclosure information to develop a wide variety of public education 

materials, including fact sheets, reports, and op-eds, to inform voters about the sources and extent 

of candidates’ financial support and the role of outside groups in elections. Id. These activities are 

harmed when candidates and committees fail to file accurate disclosure reports. Fischer Decl.

¶¶ 17, 20-21; Wertheimer Decl. ¶ 10. 

II. The Commission’s Complete Failure to Act Inflicts Discrete Injuries Uniquely Redressed 

Through FECA’s Cause of Action for Unlawful Delay. 

As the administrative complainants, CLC and Democracy 21 are the only persons legally 

entitled to seek judicial review of the FEC’s failure to “act on [their] complaint[s] during the 120-

day period beginning on the date the complaint is filed,” by “fil[ing] a petition with” this Court. 

52 U.S.C. § 30109(a)(8)(A). Congress therefore granted administrative complainants a right to 

FEC action on their duly filed complaints by conferring upon them a cause of action to enforce 

that right. The FEC’s 1,870-day—and continuing—failure to act on plaintiffs’ administrative 

complaints violates that right, and inflicts concrete injuries on plaintiffs in the process. Intervenor 

ignores this basis for plaintiffs’ standing and ignores the unique informational consequences of the 

FEC’s failure to act.

To be sure, “a bare procedural violation, divorced from any concrete harm, [does not] 

satisfy the injury-in-fact requirement of Article III,” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549

(2016). However, “the violation of a procedural right granted by statute can be sufficient in some 

circumstances to constitute injury in fact.” Id. (emphasis added). One of those “circumstances,” 

the Supreme Court recognized, is the “‘inability’ to obtain information that Congress ha[s] decided 

to make public” under statutes like FECA and FOIA. Id. (citing Akins, 524 U.S. at 20-25). 

Here, there is a significant and independent informational injury—and one not present in a 

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suit under section 30109(a)(8) challenging the FEC’s dismissal of an administrative complaint—

arising from the fact of agency inaction itself, because the Commission’s failure to resolve 

plaintiffs’ administrative complaints means no information about its disposition of the complaints

can be provided to the plaintiffs or made publicly available, as FECA, FOIA, and FEC regulations 

all require. See 52 U.S.C. § 30109(a)(4)(B)(ii) (requiring that the Commission “shall make public” 

any final conciliation agreement or “determination that a person has not violated” FECA); 5 U.S.C. 

§ 552(a)(2)(A), (a)(5) (requiring publication of all final orders and opinions in agency 

adjudications and records of final votes of each member in “every agency proceeding” by multimember agencies); 11 C.F.R. § 111.20(a) (providing that when the Commission finds “no reason 

to believe or no probable cause to believe or otherwise terminates its proceedings” in 

administrative enforcement matters, it “shall make public such action and the basis therefor”).

A. Congress created a right to FEC action on administrative complaints by authorizing 

a judicial remedy for unlawful FEC delay. 

When Congress enacts a statute entitling a person to request agency action and creates a 

cause of action to challenge the agency’s failure to act upon that request, it exercises its authority 

to “define injuries and articulate chains of causation.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 580 

(1992) (Kennedy, J., concurring in part and concurring in the judgment). Indeed, the Supreme 

Court and this Circuit have recognized that FECA is the type of statute that creates a legal right to 

certain action, similar to FOIA. Akins v. FEC, 101 F.3d 731, 736 (D.C. Cir. 1996) (en banc) (noting 

that “[a]lthough Congress may not ‘create’ an Article III injury that the federal judiciary would 

not recognize, any more than Congress could amend the Constitution . . . Congress can create a 

legal right (and, typically, a cause of action to protect that right) the interference with which will 

create an Article III injury”), vacated on other grounds, 118 S. Ct. 1777 (1998).

Congress provided that “[a]ny person who believes a violation of [FECA] has occurred[] 

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may file a complaint with the [FEC],” and that “[a]ny party aggrieved by an order of the [FEC] 

dismissing a complaint filed by such party . . . or by a failure of the [FEC] to act on such complaint 

during the 120-day period beginning on the date the complaint is filed, may file a petition with”

this Court. 52 U.S.C. § 30109(a)(8)(A). In providing for judicial review of agency delay, Congress 

exercised its power to “define injuries and articulate chains of causation that will give rise to a case 

or controversy” under Article III, Lujan, 504 U.S. at 580 (Kennedy, J., concurring), and plaintiffs

have identified concrete informational and organizational harms that flow from the FEC’s 

violation of this congressionally conferred right. 

As the facts of this case make clear, if plaintiffs’ right to FEC action under section 

30109(a)(8)(C) cannot be vindicated, the harm to plaintiffs is not simply the agency’s failure to 

resolve their administrative complaints expeditiously, but rather its failure to resolve the

complaints at all or provide any explanation for that failure. The injury here is thus analogous to 

that of a petitioner who fails to obtain an agency response to a petition for rulemaking. See, e.g., 

Families for Freedom v. Napolitano, 628 F. Supp. 2d 535, 538 (S.D.N.Y. 2009) (agreeing that “an 

agency presented with a petition for rulemaking must, at a minimum, respond to that petition, and 

that the petitioning party has standing to compel a response unreasonably withheld”). Like a 

petitioner who has standing to sue for inaction, CLC and Democracy 21 seek to compel a response 

from the FEC on their administrative complaints. As in the context of a petition for rulemaking

that languishes unanswered, FECA’s statutory cause of action for delay is necessary to ensure 

complainants’ right to agency action as well as to an explanation for the agency’s failure to act.

See 52 U.S.C. § 30109(a)(4)(B)(ii); 11 C.F.R. § 111.20(a). See also Dem. Cong. Campaign Comm.

v. FEC, 831 F.2d 1131, 1133 (D.C. Cir. 1987) (holding the FEC must “explain coherently the path 

[it is] taking” when it resolves an enforcement matter).

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Other district court decisions have assumed that FEC delay and FEC dismissal are identical 

for Article III purposes, but none have considered the unique consequences of FEC inaction on 

complainants’ interests or involved a delay so severe that it bordered on constructive dismissal.

See CLC v. FEC, No. 18-cv-0053-TSC, 2020 WL 2735590, at *2 (D.D.C. May 26, 2020) (holding 

that “§ 30109(a)(8)(A) does not confer standing to challenge [the] FEC’s failure to take action 

within 120 days” but undertaking no analysis of the informational effects of protracted inaction); 

Judicial Watch, Inc. v. FEC, 293 F. Supp. 2d 41, 48 (D.D.C. 2003) (considering only the possible

injury from “depriv[ation]” of the “benefit of FECA’s timetable for processing complaints”). 

Neither of these decisions involved a scenario in which the FEC completely failed to resolve or 

“otherwise terminate[]” its proceedings on an administrative complaint, 11 C.F.R. § 111.20(a), 

much less considered allegations of concrete informational and organizational harm flowing 

specifically from that failure. Nor did either analyze whether different stages of the administrative 

process could give rise to different Article III injuries. Both simply held that under Common Cause, 

there is no distinction between the two causes of action. See 2020 WL 2735590, at *2. 

But Common Cause was a dismissal case, not a delay case, and stated only that section 

30109(a)(8)(A) does not by itself automatically confer standing under Article III. 108 F.3d at 419. 

The decision had no occasion to address whether FEC inaction is distinct from an unlawful FEC 

dismissal for constitutional standing purposes. Common Cause certainly did not purport to bar 

plaintiffs from demonstrating how “the violation of a procedural right granted by statute” 

“constitute[s] injury in fact” unique to their circumstances and interests. Spokeo, 136 S. Ct. at 

1549; accord Jeffries v. Volume Servs. Am., Inc., 928 F.3d 1059, 1064 (D.C. Cir. 2019) (“‘[A]n 

alleged procedural violation can by itself manifest concrete injury where Congress conferred the 

procedural right to protect a plaintiff’s concrete interests.’”) (quoting Strubel v. Comenity Bank,

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842 F.3d 181, 190 (2d Cir. 2016)). In fact, there is ample reason to treat dismissal and delay actions

under FECA as distinct for Article III purposes, not least because of the unique informational 

deficits arising in a delay suit. Indeed, the delay here—which, as RTR emphasizes, Int. Br. at 5, 

will likely extend beyond the five-year statute of limitations10—threatens to permanently deprive 

plaintiffs of information to which they are entitled under FECA. Plaintiffs thus can and do show 

that the FEC’s extreme paralysis in these matters concretely injures their informational interests 

and directly impairs activities central to their organizational missions. Common Cause cannot be 

read to preclude such a showing.

B. The FEC’s complete failure to act on plaintiffs’ administrative complaints deprives 

plaintiffs of information that they have a legal right to receive and impedes their 

advancement of their missions.

As RTR acknowledges, “[a]dministrative investigations under [section 30109] remain

confidential until the Commission completes its administrative process.” Int. Br. at 5 (citing 52 

U.S.C. § 30109(a)(12)). However, RTR fails to connect this observation to a key consequence of 

the FEC’s failure to act on the complaints here: the FEC has a non-discretionary duty to disclose 

its findings to the complainants and place certain materials in the enforcement file on the public 

record, but only once the administrative process is complete. By withholding final action on the 

complaints, the FEC shirks its statutory and regulatory obligations to reveal its decision-making 

to complainants and the public and deprives plaintiffs of information to which they are entitled. 

10 RTR incorrectly identifies 52 U.S.C. § 30145 as the relevant statute of limitations, but that 

section applies only to criminal FECA violations. As this Court has noted, “FECA itself contains 

no explicit limitations period” applicable to civil enforcement actions, but “courts have applied the 

catch-all five-year limitations period set forth in 28 U.S.C § 2462” to cases brought by the FEC. 

AAN, 410 F. Supp. 3d at 23. It is well settled, however, that FECA’s statute of limitations does not 

apply to actions for declaratory or injunctive relief. FEC v. Nat’l Repub. Sen. Comm., 877 F. Supp. 

15, 20 (D.D.C. 1995); Riordan v. SEC, 627 F.3d 1230, 1234 (D.C. Cir. 2010), abrogated in part 

by Kokesh v. SEC, 137 S. Ct. 1635 (2017).

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The Commission’s complete failure to take action here inflicts a distinct form of 

informational harm on CLC and Democracy 21, even apart from any missing FECA disclosures 

from the administrative respondents: it permanently cuts off plaintiffs’ ability to access portions 

of the enforcement file that FECA and agency regulations require the FEC to make public as soon 

as it resolves or “otherwise terminates” enforcement cases. 11 C.F.R. § 111.20(a). Therefore, 

unlike actions under section 30109(a)(8) challenging the unlawful dismissal of an FEC complaint,

which hinge on the Commission’s substantive justifications for its action as provided in relevant 

decisional documents, “delay” suits challenge the FEC’s complete failure to take action on an 

administrative complaint—meaning there is no substantive explanation available because the case 

files remain confidential. 52 U.S.C. § 30109(a)(12)(A); 11 C.F.R. § 111.21 (confidentiality).

Under FECA, FOIA, and FEC regulations, the FEC is bound to make its enforcement 

dispositions public, whether or not they ultimately reflect a substantive determination of liability. 

First, FECA itself expressly requires the Commission to disclose conciliation agreements, as well 

as any “determination that a person has not violated” the law. 52 U.S.C. § 30109(a)(4)(B)(ii). In 

addition, the Commission has implemented FECA’s statutory publication requirements by 

affirmatively committing to release any “finding of no reason to believe or no probable cause to 

believe” or other “terminat[ion of] proceedings” and “the basis therefor,” 11 C.F.R. § 111.20(a)—

and obviously the Commission is bound to follow its own regulations. Finally, FOIA compels the 

FEC to make public all opinions and orders in adjudications, as well as commissioner voting 

records in all agency proceedings. 5 U.S.C. § 552(a)(2)(A), (a)(5).

The D.C. Circuit recently affirmed that FECA’s goals of “deterring future violations and 

promoting Commission accountability” were sufficient to justify not only the Commission’s 

“long-standing regulation requiring it to make public its action terminating a proceeding and ‘the 

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basis therefor,’” but also its 2016 Disclosure Policy Statement further committing to place 21 

specific categories of enforcement documents on the public record in all closed matters, 

“regardless of the outcome.” Doe 1 v. FEC, 920 F.3d 866, 870-71 (D.C. Cir. 2019) (citing 11 

C.F.R. § 111.20(a); 81 Fed. Reg. at 50703). The court rejected the contention that “FECA’s 

specification of what the Commission is required to disclose deprives the Commission of authority 

to disclose anything else,” id. at 870 (emphasis added), instead noting that the FEC has permissibly 

bound itself to provide additional disclosure through a “properly promulgated, substantive agency 

regulation.” Id.

Intervenor speculates about the possible reasons for the Commission’s inordinate delay in 

this matter, but this hypothesizing only underscores the informational vacuum created by the 

FEC’s failure to resolve plaintiffs’ complaints. See Int. Br. at 5 (suggesting primarily that inaction 

might be the result of “an impasse” among Commissioners). Indeed, while FEC regulations and 

enforcement policies provide administrative respondents with numerous avenues to inquire and 

remain informed about the status of open matters, they afford no such opportunities to 

complainants until the process concludes. See FEC Guidebook for Complainants and Respondents 

on the FEC Enforcement Process 11, https://transition.fec.gov/em/respondent_guide.pdf (noting 

that respondents will receive status reports at regular intervals when the Commission fails to take 

any action within twelve months and “may contact OGC at any time to ask questions they may 

have about a matter, such as the current status of the case”). Complainants such as CLC and 

Democracy 21, meanwhile, are left in the dark until the matter is closed and appropriate 

investigative documents are put on the public file. 

The FEC’s failure to take any action on plaintiffs’ administrative complaints for over four 

and half years harms concrete and particularized interests that FECA aims to protect. By refusing 

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to decide or take dispositive action, the Commission withholds factual information in the MUR 

file and shields its decision-making processes from the public scrutiny that FECA, FOIA, and FEC 

regulations require; as a result, plaintiffs are directly deprived of disclosure regarding the 

disposition of their complaints. See Am. Anti-Vivisection Soc’y v. USDA, 946 F.3d 615, 619 (D.C. 

Cir. 2020) (finding cognizable injury where agency inaction deprived plaintiff of key information 

needed to effectuate mission). This withholding of information also means that complainants have 

no knowledge of any factual record generated by the proceedings or an investigation, nor of the 

Commission’s legal interpretation of the FECA provisions and FEC regulations at issue.

This informational deficit has a concrete impact on plaintiffs’ programmatic activities

detailed in the discussion of plaintiffs’ organizational standing, including their longstanding 

watchdog programs and public education efforts. See infra Part III. Without information about the 

disposition of their FEC complaints or the Commission’s decision-making, plaintiffs are unable to 

perform effectively as regulatory watchdogs, provide informed policy analysis to the public and 

partner organizations, or identify and prioritize necessary reforms to the campaign finance laws. 

All of these programmatic efforts rely on knowing how the FEC is interpreting and applying 

FECA. See infra Part III.

C. Congress empowered complainants to challenge unlawful FEC delay to vindicate 

informational rights and procedural safeguards essential to FECA’s core purposes. 

The existence of a separate cause of action for complainants to challenge unwarranted 

delay is an integral feature of FECA’s carefully balanced enforcement regime, which gives the 

FEC an initial and exclusive gatekeeping role in the civil enforcement process but relies on private 

complainants to perform essential accountability functions when that process breaks down. Indeed, 

the delay suit is the sole mechanism Congress provided to ensure that the FEC processes 

administrative complaints even-handedly and consistent with the law; it is likewise the only way 

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complainants can vindicate concrete informational rights specific to the enforcement process itself.

See, e.g., Stockman v. FEC, 138 F.3d 144, 153 (5th Cir. 1998) (finding that FECA precludes delay 

suits by administrative respondents and noting that “Section [30109(a)(8)] is the only provision of 

the Campaign Act that provides for judicial review at behest of private parties—and although it 

creates a cause of action for unreasonable delay, it does so only in the District of Columbia and 

only for people who have filed an administrative complaint.”).

Congress enacted section 30109(a)(8)(A) to emphasize the importance of a complainant’s 

right to action at the agency level and to make that right judicially enforceable. The 120-day period

prior to judicial review reflects a congressional attempt to give the FEC sufficient time to act while 

also ensuring that complainants faced with FEC inaction could turn to the federal judiciary—not 

to address the merits in the first instance, but to force the FEC to do so. 

Without the ability to compel agency action in court, complainants have no way to uncover 

“the basis” of FEC inaction, see 11 C.F.R. § 111.20(a), although statutory and regulatory 

provisions all anticipate that FEC enforcement proceedings will be handled “expeditiously,” 52 

U.S.C. § 30107(a)(9), and thereafter be made public, id. § 30109(a)(4)(B)(ii). See also 5 U.S.C. 

§ 552(a)(2), (a)(5). Nothing in FECA or the FEC’s longstanding enforcement rules and policies 

permits the Commission to simply hold a matter open in perpetuity and thereby preempt these

disclosure requirements. And indeed, Congress provided complainants the right to sue for delay to 

protect against that very eventuality. Cf. CREW v. FEC, 711 F.3d 180, 186-87 (D.C. Cir. 2013)

(“Although the agency may desire to keep FOIA requests bottled up in limbo for months or years 

on end, the statute simply does not countenance such a system.”).

As the FEC itself recently explained in defense of its enforcement-related disclosure 

practices, FECA and FEC regulations prescribe transparency in connection with closed 

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enforcement matters to foster openness and accountability, and to enable judicial review: 

An important part of FECA’s regime is its detailed statutory framework for 

enforcement—one which permits more disclosure and openness to scrutiny of legal 

determinations when enforcement matters are resolved than for other agencies. 

Congress ensured that the FEC’s constructions of FECA during the enforcement 

process would be open to public and judicial review. . . . FECA’s judicial review 

provision demonstrates that public confidence in the Commission’s performance of 

its enforcement duties in a fair, consistent, and nonpartisan manner is necessary to 

FECA’s goal of preserving public faith in our electoral system.

Br. for FEC, Doe 1 v. FEC, 920 F.3d 866 (D.C. Cir. 2019) (No. 18-5099), 2018 WL 3032942, at 

*27, *29 (D.C. Cir. 2018). FECA’s cause of action for delay in unresolved administrative matters 

is thus preservative of the same “disclosure and openness” interests the Act as a whole is designed 

to achieve. Id.

Permitting total inaction by the FEC is clearly contrary to the intent of Congress, which 

provided complainants a discrete means of challenging unwarranted delays to ensure “that the 

Commission does not shirk its responsibility to decide” whether to pursue their administrative 

complaints. 125 Cong. Rec. S19099 (daily ed. Dec. 18, 1979) (statement of Sen. Pell). 

Complainants and the public are entitled to know how the FEC administers the vital transparency 

and anti-corruption laws it is entrusted to enforce. That is why Congress required the Commission

to disclose its dispositions and findings when the enforcement process concludes—and in the event

it “shirks” this obligation to expose its decision-making to public scrutiny by deferring action on 

a complaint indefinitely, Congress “provide[d] that a total failure to address a complaint within 

120 days is a basis for a court action.” Id.

III. FEC Inaction Has Caused Organizational Injury by Depriving Plaintiffs of Key 

Information They Need to Effectuate their Missions.

CLC and Democracy 21 have also suffered organizational injury sufficient to confer 

standing, because the FEC’s failure to act on their complaints has “injured the [plaintiffs’] 

interest,” and they “‘used [their] resources to counteract that harm.’” PETA, 797 F.3d at 1094 

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(citation omitted). Timely FEC action resolving administrative complaints and remedying the 

FECA violations underlying them is essential to the success of programmatic activities advancing 

plaintiffs’ missions, including their public education work to inform voters about campaign 

spending, legislative advocacy to improve campaign finance laws, and watchdog efforts to monitor 

officeholders’ and candidates’ compliance with the law. The Commission’s failure to act on the 

allegations here has forced plaintiffs to divert resources from other planned organizational needs 

to research and fill in the missing disclosure information they seek in the complaints, including for 

the benefit of reporters and partner organizations.

The FEC’s failure to act on plaintiffs’ administrative complaints impairs plaintiffs’ 

activities in two distinct ways. First, the FEC’s failure to resolve plaintiffs’ administrative 

complaints means no information in the MUR file can be provided to plaintiffs or the public, 

depriving CLC and Democracy 21 of any factual or legal analysis generated by the Commission

or its Office of General Counsel in processing the complaints. See supra Part II. Second, the FEC

has failed to require RTR and the Bush campaign to report all FECA-required information about 

their activities, both before and after Bush formally declared his candidacy. See supra Part I.

This informational deprivation has harmed plaintiffs’ public education efforts and strained 

several other key programmatic activities central to their mission. The FEC’s protracted delay 

deprives CLC and Democracy 21 of required FECA disclosure information that both plaintiffs

need to inform the public about candidates’ financial support and relationships with donors.

Fischer Decl. ¶¶ 17-21; Wertheimer Decl. ¶ 10. In addition to their public education efforts 

regarding this specific controversy, both plaintiffs devote significant resources to educating the 

public about the role the FEC plays in interpreting and applying federal campaign finance laws. 

When the Commission allows administrative complaints to languish unresolved across multiple 

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election cycles, plaintiffs are hindered in their ability to identify emerging problems in the FEC’s 

interpretations of the Act or make informed policy recommendations to address such issues before 

they recur. Fischer Decl. ¶¶ 28, 34.

Moreover, the FEC’s inaction has also directly harmed plaintiffs’ watchdog activities by 

depriving plaintiffs of information they need to conduct their regulatory practice before the FEC 

and other agencies. To advance their organizational missions of promoting government 

transparency and accountability, plaintiffs regularly file complaints against individuals or 

organizations that violate federal election law and participate in rulemaking and advisory opinion 

proceedings at the FEC to ensure the proper interpretation and enforcement of those laws. Fischer 

Decl. ¶ 31-33; Wertheimer Decl. ¶ 8. Since their initial administrative complaint in this matter was 

filed in March 2015, for instance, CLC has filed approximately seventy complaints with the FEC. 

Fischer Decl. ¶ 32. And with respect to more than forty of CLC’s pending FEC complaints, the 

Commission has exceeded the statutorily allotted 120-day response window. Id. The continued 

failure to act inhibits plaintiffs’ regulatory practice, hindering efforts to oversee the enforcement 

of federal campaign finance laws and hold the FEC accountable.

Finally, FEC inaction also impedes plaintiffs’ legislative policy efforts. Complete and 

accurate disclosure in FEC reports assists plaintiffs in identifying weaknesses in the law or 

problematic campaign practices that require legislative solutions; plaintiffs then use such 

information to work with lawmakers to craft such legislation or lobby for its enactment. Fischer 

Decl. ¶¶ 27-29; Wertheimer Decl. ¶ 9. The FEC’s failure to resolve plaintiffs’ administrative 

complaints also means there is incomplete public information about how the FEC interprets and 

applies, among other key FECA provisions, the reporting requirements for testing-the-waters 

activity, 11 C.F.R. § 101.3, and the soft money prohibition in 52 U.S.C. § 30125(e)(l). This failure 

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to provide clarity about the Commission’s interpretation of the law impedes a full analysis of the 

efficacy of FECA and hamstrings plaintiffs’ development of policy to improve or extend campaign 

finance and disclosure laws. Fischer Decl. ¶¶ 22-29.

Plaintiffs’ injury here is analogous to, but goes “well beyond,” CLC II, 2020 WL 2996592, 

at *16, the injury suffered by the PETA plaintiffs. In that case, PETA alleged that the USDA’s 

failure to apply the Animal Welfare Act to birds injured its organizational interests by depriving 

PETA of information it needed to conduct public education activities central to its mission of 

preventing animal cruelty and denying it the ability to combat bird abuse through USDA 

enforcement complaints. 797 F.3d at 1094-95. The Court agreed, finding that the USDA’s inaction 

“deprived PETA of key information that it relies on to educate the public” where public education 

efforts were “[o]ne of the ‘primary’ ways in which PETA accomplishe[d] its mission.” Id. at 1094 

(citation omitted). The Court concluded that the agency’s inaction, which resulted in the 

deprivation of “investigatory information,” resulted in an injury sufficiently “concrete and 

specific” to confer organizational standing. Id. at 1095. 

Similarly, persistent agency inaction here prevents plaintiffs from achieving their mission 

of strengthening the U.S. democratic process through public education, legislative advocacy and 

regulatory watchdog efforts. The FEC’s extended inaction hinders these efforts by “depriv[ing]

[plaintiffs] of key information that [they] rel[y] on to educate the public” and to engage in the 

“normal process of submitting [FEC] complaints” and in Commission rulemakings and other

proceedings. See PETA, 797 F.3d at 1094. These injuries are “both concrete and specific to the 

work in which [plaintiffs are] engaged.” Action Alliance of Senior Citizens of Greater Phila. v. 

Heckler, 789 F.2d 931, 938 (D.C. Cir. 1986). 

Intervenor contends that plaintiffs lack organizational standing because the “allegations do 

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not offer any specific information as to how any particular activity was hampered by Right to 

Rise’s alleged inadequate disclosure.” Int. Br. at 17. Not so. Plaintiffs have detailed at length how 

the deprivation of information related to RTR’s and the Bush campaign’s financial activities 

directly harm their specific programmatic efforts in public education, legislative advocacy and 

regulatory watchdogging. Fischer Decl. ¶¶ 17, 20-21, 26-29, 33-34; Wertheimer Decl. ¶¶ 3-5, 9-

10. Regardless, at this stage, “general factual allegations” of injury are sufficient because the court 

assumes that they “embrace those specific facts that are necessary to support the claim.” Abigail 

All. for Better Access to Developmental Drugs v. Eschenbach, 469 F.3d 129, 132 (D.C. Cir. 2006) 

(citation omitted). Plaintiffs’ programmatic activities are concretely and directly impaired, and 

these injuries are more than enough to satisfy the first prong of the organizational standing test. 

See CLC II, 2020 WL 2996592, at *16 (“[T]he injury to CLC’s public-education activities goes 

well beyond those deemed sufficient in American Anti-Vivisection Society and PETA.”).

Plaintiffs have also expended resources to counteract these organizational injuries. See 

PETA, 797 F.3d at 1094. For instance, because of the FEC’s failure to compel required disclosure 

relating to the relationship between RTR and the Bush campaign and any in-kind contributions 

that resulted, CLC has had to divert resources from other planned organizational needs to research 

relevant law and fill in the gaps to the best of their ability, including by explaining to reporters, 

researchers, and partner organizations how they might attempt to find information not properly 

reported. Fischer Decl. ¶¶ 20-21.

RTR claimsthat plaintiffs have failed to “allege that their resources have been diminished,” 

asserting that these “shortcomings are fatal in this context.” Int. Br. at 17. But CLC has shown that 

it has been denied information vital to its programmatic activities and has had to divert resources—

for instance, to explain incomplete disclosure to reporters—from other planned activities to 

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counteract that harm. Fischer Decl. ¶¶ 20-21. As the court in CLC II explained, “[r]esources do 

not grow on trees—when an organization has to ‘divert’ them from an area where it planned to 

spend time and money to one where it did not, that leaves fewer resources for its ‘other 

organizational needs.’” 2020 WL 2996592, at *17.

RTR also asserts that “[p]laintiffs could have pointed [reporters] to the organizations’ FEC 

reports or to any of the many press reports about RTR and Governor Bush that Plaintiffs cited in 

their administrative complaint,” concluding that “[t]here was no injury involving Plaintiffs having 

to provide such information to reporters.” Int. Br. at 16-17. But plaintiffs have already shown that 

existing FEC and press reports are insufficient because they are incomplete. CLC has been forced 

to divert resources in a futile attempt to find the information sought here, reviewing incomplete 

disclosure reports and reallocating staff time to assist reporters and partner organizations. And 

plausible claims of injury based on the diversion of organizational resources clear the Article III 

bar, especially at this stage of the case. See Abigail All., 469 F.3d at 132; PETA, 797 F.3d at 1096.

IV. Plaintiffs’ Injuries Are Fairly Traceable to the FEC’s Failure to Act on their 

Complaints and Likely to Be Redressed by a Favorable Court Decision.

Finally, plaintiffs meet the causation and redressability requirements for Article III 

standing. Plaintiffs’ informational and organizational injuries flow directly from the FEC’s failure 

to act on their administrative complaints, and this Court is empowered under 52 U.SC. 

§ 30109(a)(8)(C) to redress that failure. If the Court agrees that the FEC’s 1,870-day delay was 

contrary to law, then it will remand the case and order the FEC to conform.11

11 RTR argues that judicial review under the APA is available only where the action is not made 

reviewable by another statute, and moves to dismiss Count II. Int. Br. at 22. Although plaintiffs 

maintain that the APA provides an alternative legal basis for challenging the Commission’s 

inaction, they are agnostic as to whether the relief they seek is ultimately provided under FECA or 

the APA. At this point in the proceedings, however, dismissal of the APA claim would be 

premature. CLC II, 2020 WL 2996592, *15. 

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CONCLUSION

For these reasons, intervenor’s motion to dismiss should be denied.

Dated: July 9, 2020 Respectfully submitted,

/s/ Tara Malloy

Tara Malloy (DC Bar No. 988280)

 tmalloy@campaignlegalcenter.org

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

Case 1:20-cv-00730-CRC Document 13 Filed 07/09/20 Page 52 of 53
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CERTIFICATE OF SERVICE

I hereby certify that on July 9, 2020, I caused a true and correct copy of the foregoing 

document to be served upon all counsel of record registered with the Court’s ECF system, by 

electronic service via the Court’s ECF transmission facilities.

Respectfully submitted,

/s/ Tara Malloy

Tara Malloy (DC Bar No. 988280)

tmalloy@campaignlegalcenter.org

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Suite 400

Washington, D.C. 20005

(202) 736-2200

Case 1:20-cv-00730-CRC Document 13 Filed 07/09/20 Page 53 of 53