_______________________________________________ 

_______________________________________________ 

_______________________________________________ 

_______________________________________________ 

_______________________________________________ 

USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 1 of 34 

ORAL ARGUMENT NOT YET SCHEDULED 

No. 22-5336 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

CAMPAIGN LEGAL CENTER AND 

CATHERINE HINCKLEY KELLY, 

Plaintiff-Appellees, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellant, 

HILLARY FOR AMERICA AND 

CORRECT THE RECORD, 

Intervenor-Defendant Appellees. 

On Appeal from the United States District Court 

for the District of Columbia 

REPLY BRIEF FOR 

THE FEDERAL ELECTION COMMISSION 

Lisa J. Stevenson Greg J. Mueller 

Acting General Counsel Attorney 

lstevenson@fec.gov gmueller@fec.gov 

Kevin Deeley Federal Election Commission 

 Associate General Counsel 1050 First Street NE 

kdeeley@fec.gov Washington, DC 20463 

(202) 694-1650 

July 14, 2023 
USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 2 of 34 

APPELLANT FEDERAL ELECTION COMMISSION’S 

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

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

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

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

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

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

amicus curiae in the district court. 

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

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

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

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

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

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

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

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

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

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

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

right to file a lawsuit against Correct the Record and Hillary for America 
USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 3 of 34 

pursuant to 52 U.S.C. § 30109(a)(8)(C) to remedy the alleged campaign finance 

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

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

cases at this time. 
 

USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 4 of 34 

TABLE OF CONTENTS 

Page(s) 

SUMMARY OF ARGUMENT........................................................................1 

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

I. COMPLAINANTS HAVE FAILED TO ESTABLISH 

STANDING FOR RELIEF REGARDING VIOLATIONS 

OF THE LIMITS IN FECA....................................................................3 

II. THE DISMISSAL OF MUR 7146 WAS NOT CONTRARY 

TO LAW.................................................................................................8 

A. The Controlling Group’s Application of the Internet 

Exemption Satisfies Deferential Review .....................................8 

B. Insufficient Evidence Regarding Other Expenses .....................14 

III. THIS APPEAL HAS NOT BEEN FORFEITED AND 

PRESENTS A LIVE CONTROVERSY ..............................................16 

A. The Issues Here Have Been Raised and Litigated 

Below..........................................................................................16 

B. Even if the Issues Had Not Been Pressed and 

Passed on Below, Exceptional Circumstances 

Permit Consideration of Them Here ..........................................18 

C. This Case Presents a Live Controversy and is 

Not Moot ....................................................................................20 

CONCLUSION...............................................................................................24 
USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 5 of 34 

TABLE OF AUTHORITIES 

Page(s) 

Allen v. Wright, 468 U.S. 737 (1984) .............................................................. 4 

Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) ....................... 7 

Blackmon-Malloy v. U.S. Capitol Police Bd., 

575 F.3d 699 (D.C. Cir. 2009) .................................................................... 18 

Campaign Legal Center, v. FEC, 

31 F.4th 781 (D.C. Cir. 2022) ....................................................................... 3 

Citizens for Resp. & Ethics in Wash. v. Am. Action Network, 

410 F. Supp. 3d 1, 20 (D.D.C. 2019) .......................................................... 12 

Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997) ................................. 7 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) ............................... 22 

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) .................................... 6 

Davis v. FEC, 554 U.S. 724 (2008) ................................................................. 4 

Democratic Cong. Campaign Comm. v. FEC, 

831 F.2d 1131 (D.C. Cir. 1987) .................................................................. 22 

District of Columbia v. Air Florida, Inc., 

750 F.2d 1077 (D.C. Cir. 1984) ............................................................ 16, 17 

Erie Boulevard Hydropower, LP v. FERC, 

878 F.3d 258 (D.C. Cir. 2017) .................................................................... 10 

Ethyl Corp. v. EPA, 306 F.3d 1144 (D.C. Cir. 2002) ...................................... 5 

FEC v. Akins v. FEC, 524 U.S. 11 (1988) ....................................................... 3 

FEC v. Nat’l Repub. Senatorial Comm., 

966 F.2d 1471 (D.C. Cir. 1992) .................................................................. 22 

ii 
USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 6 of 34 

Hollingsworth v. Perry, 570 U.S. 693 (2013) .................................................. 7 

Johnson v. Riley, 106 F.2d 249 (D.C. Cir. 1947)........................................... 17 

Kisor v. Wilkie, 139 S. Ct. 2400 (2019) ......................................................... 11 

Lewis v. Casey, 518 U.S. 343 (1996) ............................................................... 6 

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

Automobile Ins. Co., 463 U.S. 29 (1983) ..................................................... 11 

Nat’l Envtl. Dev. Ass’n Clear Air Project v. EPA, 

752 F.3d 999 (D.C. Cir. 2014) .................................................................... 10 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) .............................................. 8 

Resource Defense Council v. Costle, 

561 F.2d 904 (D.C. Cir. 1977) .................................................................... 18 

Shatsky v. Palestine Liberation Organization, 

955 F.3d 1016 (D.C. Cir. 2020) .................................................................. 17 

Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004) ......................................... 11 

Sierra Club v. U.S. Dep’t of Agric., 

716 F.3d 653 (D.C. Cir. 2013) .................................................................... 21 

TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) ..................................... 4 

United States v. Williams, 504 U.S. 36 (1992) .............................................. 18 

Waterkeeper v. EPA, 853 F.3d 527 (D.C. Cir. 2017) .................................. 4, 5 

WildEarth Guardians v. Jewell, 738 F.3d 298 (D.C. Cir. 2013) ..................... 6 

Statutes and Regulations 

52 U.S.C. § 30101(22) ................................................................................. 8, 9 

52 U.S.C. 30106(b)(1)...................................................................................... 9 

iii 
USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 7 of 34 

52 U.S.C. § 30107(a)(8) ................................................................................... 9 

52 U.S.C. § 30107(e) ..................................................................................... 23 

52 U.S.C. § 30109(4)(A)(i) ............................................................................ 22 

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

11 C.F.R. § 100.26 ........................................................................................... 9 

iv 
 

 

USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 8 of 34 

GLOSSARY 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

J.A. Joint Appendix 

v 
USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 9 of 34 

SUMMARY OF ARGUMENT 

The Federal Election Commission’s opening brief (“Br.”) explained why the 

district court’s decision should be reversed and remanded. This Court lacks 

jurisdiction over the portion of this case that presents challenges to violations of 

the contribution limits and source restrictions in the Federal Election Campaign 

Act (“FECA”). Complainant Campaign Legal Center and Catherine Hinckley 

Kelly (“Complainants”), in their Response Brief (“Resp. Br.”) claim that the 

informational injury found in this Court’s earlier decision creates standing to 

pursue not only alleged disclosure violations but also other alleged FECA 

violations that do not remedy informational injuries. To the contrary, there is 

ample authority that an informational injury sufficient to establish standing for a 

disclosure violation does not automatically establish standing for other alleged 

violations, such as of the contribution limits or source restrictions in FECA. 

The opening brief shows that the district court incorrectly determined that 

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

to the controlling commissioners’ reasoned consideration of this matter. 

Complainants’ response focuses in large part on defending the viability of the 

parallel case they have filed as a private right of action, but that case was promptly 

and properly stayed before the district court and proceedings in that case await 

guidance from this Court. Complainants also contend that the controlling 
USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 10 of 34 

statement was insufficiently rooted in a statutory analysis, but the regulation at 

issue was an explicit construction of the FECA terms “public communication” and 

“general public political advertising.” Complainants make no response to this 

point from the opening brief; indeed they do not discuss or cite those provisions of 

FECA anywhere in their argument. They further take issue with the applicable 

Commission regulation and argue instead for their preferred alternative 

construction of other terms from FECA and their preferred evaluation of the facts 

that were before the agency, but the controlling group’s analysis was rooted in 

statutory language and readily satisfies deferential review. (JA 267-84.) 

While claiming that the FEC’s delayed appearance in this case resulted in 

the forfeiture of its arguments, Complainants generically point to prohibitions on 

addressing issues for the first time on appeal and argue this case is moot, but 

Complainants fail to confront the critical fact that the non-jurisdictional issues 

raised here were pressed and decided by the district court based on a complete 

administrative record. This Court, therefore, can properly review the issues that 

were raised or pressed below, and this Court’s decision can be implemented in 

what remains a live controversy with significant potential impacts on the 

Commission’s enforcement authority. 

2 
 

USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 11 of 34 

ARGUMENT 

I. COMPLAINANTS HAVE FAILED TO ESTABLISH STANDING 

FOR RELIEF REGARDING VIOLATIONS OF THE LIMITS IN 

FECA 

In its opening brief (Br. 16-26), the FEC showed that Complainants lack 

standing for alleged violations of the contribution limits and source restrictions in 

the FECA, on which they sought redress in the administrative complaint at issue in 

the underlying matter. (J.A. 149-61.) While this Court found standing for the 

Complainants to seek review of alleged violations of disclosure provisions, that 

decision did not sweep so broadly as to encompass other non-disclosure violations 

they also alleged. See Campaign Legal Ctr. (“CLC”) v. FEC, 31 F.4th 781, 783 

(D.C. Cir. 2022) (finding an informational injury from a denial of access to 

information that is required to be publicly disclosed). Complainants suggest that 

the Commission is asking this Court to “reconsider” its earlier decision. (Resp. Br. 

34-35.) That is not the case. The FEC is seeking to have the earlier decision 

implemented on its own terms. That decision for purposes of standing “established 

that, because of this dismissal, they lack access to FECA-required information” 

and if their “challenge succeeds, they will likely gain access to that information, 

which will no doubt ‘help them . . . evaluate candidates for public office.’” CLC, 

31 F.4th at 793 (quoting FEC v. Akins v. FEC, 524 U.S. 11, 21 (1988)). In doing 

3 
USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 12 of 34 

so, Complainants established standing for disclosure violations, not other 

violations they attempt to sweep within the Court’s earlier holding. 

Here, the Commission relied on well-established authority for the 

proposition that Complainants need to establish standing for each claim they seek 

to press and each form of relief sought. (Br. 18 (citing Davis v. FEC, 554 U.S. 

724, 734 (2008); Allen v. Wright, 468 U.S. 737, 752 (1984); TransUnion LLC v. 

Ramirez, 141 S. Ct. 2190, 2207–08 (2021).) These cases show that standing is not 

dispensed in gross, and the Complainants here must show standing for each alleged 

violation on which they seek review. Complainants do not even attempt to make 

this showing and fail to show standing for each claim in their administrative 

complaint. (Resp. Br. 35-36.) Instead, Complainants argue that their case in this 

Court, pursuant to 52 U.S.C. § 30109(a)(8)(C), cannot be viewed as separate 

claims or parsed because alleged violations involved overlapping conduct. (Id.) 

But there is not standing for all administrative claims just because of factual 

overlap or because a plaintiff is able to draft a complaint so broadly that it 

intersperses an alleged informational injury with other alleged non-informational 

violations. The authorities Complainants cite (Resp. Br. 35-36) provide strong 

support for the Commission’s position. In Waterkeeper Alliance v. EPA, the Court 

found that for it to proceed, the plaintiff needed to establish informational injuries 

for each of the two statutes under which it brought its claims. 853 F.3d 527, 534 

4 
USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 13 of 34 

(D.C. Cir. 2017). The court found “by cutting back on CERCLA reporting 

requirements, [the rules] had the automatic effect of cutting back on EPCRA 

reporting and disclosure requirements” so that there was an informational injury 

rooted in both statutes. Id. Only after it found standing under both provisions was 

the court able to move on to the merits. Id. 

The court in Waterkeeper expressly rejected an argument that is similar to 

what Complainants advance here. (Resp. Br. 35-38.) In evaluating “a single 

agency action rel[ying] on multiple statutory bases,” the Waterkeeper Alliance 

argued it would be inefficient to hear “piecemeal challenges in various courts.” 

Waterkeeper, 853 F.3d at 533. While the court accepted the point that it could hear 

consolidated cases involving two different statutes, it expressly concluded it 

needed — and later found — an informational injury for each provision it 

reviewed. Id. at 537. Complainants here have not similarly shown informational 

injury for each violation on which they seek review. 

The court in Ethyl Corp. v. EPA, 306 F.3d 1144, 1148 (D.C. Cir. 2002), 

relied on by the Complainants (Resp Br. 35-36), also considered informational 

injury and found the “detailed description of how the information” would be useful 

was sufficient to establish informational injury regarding a closed rulemaking 

process. Id. at 1147-48. The court found an informational injury caused by the 

challenged regulation. Id. at 1150. There has been no comparable showing here 

5 
USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 14 of 34 

for Complainants’ counts alleging violations of FECA’s source and amount 

restrictions. 

Complainants further rely on WildEarth Guardians v. Jewell, 738 F.3d 298, 

307 (D.C. Cir. 2013), but that case was rooted in a procedural injury, not an 

informational injury. And the court in that case expressly noted it was not 

applying the long rejected commutative theory of standing “whereby standing as to 

one claim would suffice for all claims arising from same nucleus of operative 

fact.” Id. (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 335 (2006)). That 

court explained “[i]f the right to complain of one administrative deficiency 

automatically conferred the right to complain of all administrative deficiencies, 

any citizen aggrieved in one respect could bring the whole structure of state 

administration before the courts for review.” WildEarth Guardians, 738 F.3d at 

308 (quoting Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996)).

 On remand from this Court, the district court in this case should have taken 

up only the violations for which the Complainants had shown the informational 

injury this Court found sufficient to establish standing. 

Complainants’ argument that they need not tailor their complaint to claims 

about informational injury to establish standing proves far too much. Mere factual 

overlap is insufficient to establish the requirements for disparate claims. 

Proponents of state ballot initiatives, for example, have a special role “when it 

6 
USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 15 of 34 

comes to the process of enacting the law” but do not have a “‘direct stake in the 

outcome’” of an appeal of a ruling declaring the initiative unconstitutional. 

Hollingsworth v. Perry, 570 U.S. 693, 705-07 (2013) (quoting Arizonans for 

Official English v. Arizona, 520 U.S. 43, 64 (1997)). Complainants don’t just seek 

to make different “arguments” at the agency level (Resp. Br. at 37), they seek to 

have the Commission enforce six distinct counts alleging FECA violations, only 

two of which are for reporting violations presenting a potential for informational 

injury. (Br. at 23.) Complainants resist the contention that an administrative 

complainant could evade the standing rule for some allegations through artful 

pleading of disparate violations but fail to provide support for their “same facts” 

theory. (Resp. Br. 37-39.) That theory is in direct conflict with the Supreme 

Court’s clear requirement of standing for each claim and each form of relief. 

Complainants’ court and administrative complaints include claims and seek relief 

for violations of the contribution limits and source restrictions. The generalized 

“interest in enforcement of the law” that Complainants present for those claims is 

not the sort of injury that provides standing. Common Cause v. FEC 108 F.3d 413, 

418 (D.C. Cir. 1997) (per curiam). 

7 
USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 16 of 34 

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

A. The Controlling Group’s Application of the Internet Exemption 

Satisfies Deferential Review 

The analysis urged by the Response Brief fails to defer to the controlling 

commissioners’ reasoned application of the internet regulation and would replicate 

errors in how the matter proceeded in the court below. (Resp. Br. 26-43; JA 267-

83.) While the parties appear to agree that review here should be highly deferential 

and the controlling group’s decision cannot be disturbed unless it was based on an 

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

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

Complainants and the district court fail to defer to the statement’s interpretation 

and application here. 

Complainants mischaracterize the controlling group’s statement suggesting 

that it exclusively relies on the regulation and “flouts the unambiguous language of 

its governing statute” (Resp. Br. 41), but that is not a fair description of the 

statement. Under FECA, “public communications” are limited in relevant part to 

“general public political advertising,” 52 U.S.C. § 30101(22), as defined by statute. 

And the statutory definition includes “a communication by means of any 

broadcast, cable, or satellite communication, newspaper, magazine, outdoor 

advertising facility, mass mailing, or telephone bank to the general public, or any 

other form of general public political advertising.” Id. The Commission’s 

8 
USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 17 of 34 

regulatory construction of that statutory definition concluded that unpaid internet 

communications did not constitute a form of “general public political advertising.” 

Id. That is not a failure to consider the governing statute, as Complainants 

contend, it is a direct exercise of the agency’s authority to “make, amend, and 

repeal such rules . . . as are necessary to carry out the provisions of th[e] Act.” 

52 U.S.C. § 30107(a)(8) (emphasis added). This was all explained in the opening 

brief (Br. 7, 31-34) and Complainants make no response to it. Indeed, they do not 

discuss or cite the applicable definition of “public communication” of FECA and 

its inclusion of the term “general public political advertising,” 52 U.S.C. § 

30101(22), anywhere in the argument section of the Response Brief. 

The controlling statement applied the statutory definition and implementing 

regulations, which is consistent with the agency’s authorities that Congress again 

specified, including to “administer, seek to obtain compliance with, and formulate 

policy with respect to” FECA. 52 U.S.C. 30106(b)(1). Commission regulations 

exclude unpaid internet communications from that definition of “public 

communication” because information that is uploaded to the internet without 

charge or placed on a person’s own site is not “advertising.” 11 C.F.R. § 100.26 

(excluding “communications over the Internet, except for communications placed 

for a fee on another person’s Web site” from the definition of “public 

communication”). The “public communication” definition is incorporated into the 

9 
 

USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 18 of 34 

coordination regulation, which the Commission reasonably concluded was 

necessary to avoid chilling electoral discourse on a range of developing online 

media, ultimately including not only blogs but later developed social media. As a 

result, to be coordinated and deemed to be an in-kind contribution, an unpaid 

internet communication must be both a “public communication” and fall within the 

definition of coordination. (Br. 7, 31-34.) Neither the Complainants nor the 

district court establish that the controlling group’s application of the statute was 

unreasonable and should not withstand deferential review. 

Setting aside the misconception that the controlling statement took the view 

that the regulation conflicts with statutory language (Resp. Br. 40-41 (citing 

cases)), Complainants’ position essentially amounts to a contention that the agency 

should disregard governing regulations in the situation presented. However, it is 

“axiomatic . . . that an agency is bound by its own regulations.” Erie Boulevard 

Hydropower, LP v. FERC, 878 F.3d 258, 269 (D.C. Cir. 2017) (citing Nat’l Env’tl. 

Dev. Ass’n’s Clear Air Project v. EPA, 752 F.3d 999, 1009 (D.C. Cir. 2014)). “[I]f 

an agency action fails to comply with its regulations, that action may be set aside 

as arbitrary and capricious.” Erie Boulevard Hydropower, LP, 878 F.3d at 269. 

Within that framework, when the controlling group reconciles the statute and 

regulatory definitions in its analysis, it is an example of a reasoned decisionmaking process. And this Court must give “‘controlling weight’” to the 

10 
USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 19 of 34 

interpretation in the statement of reasons “‘unless it is plainly erroneous or 

inconsistent with the regulation.’” (Br. 27 (quoting Kisor v. Wilkie, 139 S. Ct. 

2400, 2415-16 (2019).) 

The controlling group’s exclusion of the input costs was part of a reasoned 

decision-making process. (Br. 33-41; see also Brief Amicus Curiae Lee E. 

Goodman, Former FEC Chair and Commissioner, in Support of Appellant 

(“Amicus Brief”) at 13-16 (June 2, 2023) (Doc. No. 2001980).) The conclusion is 

consistent with the purposes that were part of the rulemaking principally 

implicated here. (Br. 35-37.) The conclusion to exclude the input costs was also 

consistent with prior matters. (Br. 37-39.) Indeed, an agency decision that departs 

from agency precedent can be deemed to be arbitrary and capricious. See Motor 

Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 

29, 41 (1983). Adherence to prior precedent, on the other hand, is a hallmark of 

reasoned decision making. 

Complainants’ real gripe appears to be with the prior decision, which found 

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

communication” and instructed the FEC to delineate which Internet 

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

(D.D.C. 2004), aff’d, 414 F.3d 76 (D.C. Cir. 2005). Complainants do not make 

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

11 
USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 20 of 34 

2336 (D.D.C. Feb 12, 2021) (ECF No. 53). While the Complainants and the 

district court present an alternative view, it is not more deeply grounded in the 

regulation, history, and prior applications, and is certainly not required within the 

context of the highly deferential review applicable here. (See Amicus Br. at 16-22 

(arguing district court’s reinterpretation of internet exemption is unworkable).) 

The district court also relied on material released by WikiLeaks and 

unreasonably did not defer to the controlling group’s reasoned and considered 

decision regarding that material, a mistake Complainants urge be repeated here 

(Resp. Br. 16, 15; JA 103). As an initial matter, that material was presented in 

other administrative complaints, not the one submitted by Complainants, and they 

have no standing to object to the exclusion of its consideration. See Citizens for 

Resp. & Ethics in Wash. v. FEC, 363 F. Supp. 3d 33, 40 (D.D.C. 2018) (“the 

language of [Section 30109(a)(8)] does not reflect any intent on the part of 

Congress to provide for judicial review of the agency’s exercise of its discretion to 

decline to pursue the facts beyond the four corners of the administrative 

complaint.”); see also Citizens for Resp. & Ethics in Wash. v. Am. Action Network, 

410 F. Supp. 3d 1, 20 (D.D.C. 2019), on reconsideration, No. 18-cv-945 (CRC), 

2022 WL 612655 (D.D.C. Mar. 2, 2022) (allegations in administrative complaint 

defines scope of review). Moreover, even if jurisdiction existed for Complainants 

to object to the exclusion of this material, the controlling group explained its 

12 
USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 21 of 34 

rationale for not relying on “information obtained and distributed as part of a 

hostile foreign intelligence operation.” (JA 274.) Their statement explained that 

as “cyberattacks and disinformation campaigns become more sophisticated, 

material generated by such efforts will require more demanding assessments of 

credibility.” (JA 274 n.36.) While the Commission received advice from the 

General Counsel’s office it was not legally prohibited from using the evidence, 

provided it wasn’t involved in the underlying criminal act, (JA 274), the 

controlling group also took into consideration ethics rules prohibiting the use of the 

hacked material. (JA 274 n.34.) And the decision not to rely on the material was 

shared by a majority of the then-voting Commissioners. (JA 290 (statement of 

Commissioner in favor of moving forward in the underlying matter expressing 

agreement that the Commission should exclude from their deliberations materials 

stolen and disseminated by the Russian government); JA 268 n.4 (noting 

agreement of Commissioner as reflected in 1-3 vote declining to approve the 

Factual and Legal Analysis prepared by the Office of the General Counsel; JA 

265.) The controlling statement explained the view that selectively releasing 

authentic materials could also create false impressions and should be seen as 

unreliable even if the documents purport to be the administrative respondents’ own 

documents. (Id.) Ultimately the controlling group decided that use of the material 

would be incompatible with their responsibilities and did not want to incentivize 

13 
USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 22 of 34 

foreign nationals to interfere in U.S. elections by using the stolen material in the 

political sphere. (JA 274.) The district court failed to defer to this interpretation. 

Complainants, for their part, continue to fail to engage on the reasoning that led to 

this conclusion and urge this Court to repeat the errors below.

 B. Insufficient Evidence Regarding Other Expenses 

The controlling commissioners’ conclusion regarding the insufficiency of 

the evidence is reasonable. (Br. 41-44.) The Commission presented four reasons 

the district court decision regarding spending on non-internet spending should be 

reversed. (Br. 41-44). 

First, as a legal conclusion, the controlling commissioners considered 

evidence of actual coordination, not announced intention, as necessary to show 

spending was an in-kind contribution. (Br. 41.) In response, Complainants do not 

dispute the legal need for actual coordination to effectuate an in-kind contribution, 

but instead assert that the record of intent was sufficient for that showing. (Resp. 

Br. 52-53; J.A. 102-05.) But it is not contrary to law for the controlling 

commissioners to require actual evidence of coordination rather than accept more 

general public statements as governing all the activities of an organization. The 

Commissioners’ insistence on assessing the record on a transaction-by-transaction 

basis was a reasonable method to evaluate whether coordinated expenditures took 

place. (J.A. 280-82.) 

14 
USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 23 of 34 

Second, the value of the controlling commissioners’ transaction-by 

transaction approach was illustrated by the legal consequence of reimbursements. 

If reimbursements took place, as the respondents before the Commission claimed, 

the spending was not an in-kind contribution. The Complainants claim this 

argument is not in the controlling group’s statement, but it goes to the heart of the 

transaction-by-transaction approach emphasized by the controlling group. (JA 

280-82.) 

Third, the speculative nature of the allegations, which the Complainants 

attempt to downplay as “passing use of the conditional tense” (Resp. Br. 55), 

illustrates why the controlling group reasonably viewed the facts supporting the 

allegations of coordination as equivocal. The series of speculative allegations were 

permissibly weighed in the controlling statement against denials from the 

committees themselves. (J.A. 280-81.) 

Fourth, the controlling group engaged with the broad record and detailed the 

ways in which it did not support a violation. (J.A. 281-82.) The controlling 

statement of reasons showed consideration of press accounts, training, and 

surrogate programs. (Br. at 43-44.) 

15 
USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 24 of 34 

III. THIS APPEAL HAS NOT BEEN FORFEITED AND PRESENTS A 

LIVE CONTROVERSY 

A. The Issues Here Have Been Raised and Litigated Below 

In its opening brief, the FEC showed that it has not forfeited this appeal 

because the issues raised here were pressed and passed upon below based on a 

complete administrative record. (Br. 45-51.) As a general matter, litigants may 

not advance issues that have not been raised by the parties or passed on by the 

District Court, but here the questions appealed all were raised and argued by the 

plaintiffs and the intervenor-defendants that appeared before the district court. 

These are the issues decided by the district court, and there is no bar to appellate 

consideration of these issues or unfair surprise for the plaintiff in having to respond 

to them. Indeed, despite the earlier lack of the required four affirmative votes to 

defend the case, the agency did supply the parties with the administrative record 

and file the certified list of its contents. (JA 6.) In response, the Complainants 

argue that the FEC forfeited its appeal (Resp. 25-29), but to support its position, it 

exclusively relies on authority where the forfeited issues were not actually litigated 

below or where a different record could have been developed below. That is not 

the case here. 

For example, Complainants cite District of Columbia v. Air Florida, Inc., 

750 F.2d 1077, 1084-85 (D.C. Cir. 1984) for the proposition that a party who fails 

to raise a claim forfeits it. But that case addresses forfeiture of “issues and legal 

16 
USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 25 of 34 

theories not asserted at the District Court level” with the result hinging on the fact 

the district court did not have the opportunity to review the issue. Id. (quoting 

Johnson v. Riley 106 F.2d 249-50 (D.C. Cir. 1947).) The rule is rooted in 

providing a party the “opportunity to offer all the evidence they believe relevant to 

the issues” and to prevent parties from being “surprised on appeal by the final 

decision of issues upon which they have had no opportunity to introduce 

evidence.” Id. Here, where there is a closed and complete administrative record 

and the same issues were litigated below, those considerations are not operative. 

Complainants also rely on Shatsky v. Palestine Liberation Organization, 955 F.3d 

1016, 1031 (D.C. Cir. 2020), but, likewise, as that case explained, “[g]iven the 

parties’ full presentation of the issue before the district court . . . this case does not 

implicate concerns about sandbagging,” waiting to spring unventilated issues later 

in a proceeding. The rationales behind the forfeiture rule are not implicated, where 

the legal issue was fully litigated based on a closed and complete record before the 

district court. 

The Complainants claim that the FEC’s arguments have been forfeited, 

because it is not clear that the “FEC and intervenors interests are aligned such that 

there is identity between the parties.” (Resp. Br. 26-27.) The “identity” between 

the parties is not, however, part of the applicable standard. (Br. at 45-47.) The 

“traditional rule” operates “in the disjunctive, permitting review of an issue not 

17 
 

USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 26 of 34 

pressed so long as it has been passed upon” by the lower court; the identity of the 

party making the argument or whether a party made the argument at all is not 

dispositive. United States v. Williams, 504 U.S. 36, 41 (1992); Blackmon-Malloy 

v. U.S. Capitol Police Bd., 575 F.3d 699, 707 (D.C. Cir. 2009) (forfeiture rule 

“does not apply where the district court nevertheless addressed the merits of the 

issue”). In Williams because the court had “decided the substantive issue,” it did 

not matter who, or even if it was raised by the parties below, so long as it was 

passed upon by the court under the disjunctive rule. Id. Thus when Complainants 

cite National Resource Defense Council v. Costle, 561 F.2d 904, 911 (D.C. Cir. 

1977), a case applying the standards determining whether to allow a party to 

intervene as a matter of right in a district court proceeding under Federal Rule 

24(a)(2), that precedent has no application here. The forfeiture rule focuses on the 

result before the district court — what is in the lower court’s decision — while the 

alignment of the parties’ interests for purposes of allowing intervention is an 

analysis of interests that may be “impaired by exclusion” from participating in 

district court proceedings. Id. There is no reason to apply the intervention 

alignment criteria here. 

B. Even if the Issues Had Not Been Pressed and Passed on Below, 

Exceptional Circumstances Permit Consideration of Them Here 

Even if the non-jurisdictional issues had not been preserved below, the FEC 

showed that the atypical circumstances leading to this appeal and the purely legal 

18 
USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 27 of 34 

questions involving the scope of federal campaign finance law are of great 

importance. (Br. 52-54.) Complainants argue this is a routine case, and in any 

event, the legal issues can be litigated in a private citizen suit they have filed on 

these same claims. (Resp. Br. 29-30.) However, that argument is misconceived 

here since the district court has stayed the private-right case and awaits direction 

from this Court. See Memorandum Opinion (“Op.”), CLC v. Correct the Record, 

No. 23-0075, at 8 (Apr. 7, 2023 D.D.C.) (ECF No. 17). That court in the private 

citizen suit has also explicitly rejected “CLC’s perplexing[] argue[ment] that the 

FEC’s appeal is ‘unlikely to otherwise affect the course of these proceedings.’” Id. 

at 8 (citation omitted). As the district court in that matter has explained: 

Beyond the obvious common legal question driving both this 

private action and that appeal, however, it is clear that the D.C. 

Circuit’s decision would necessarily influence this litigation no matter 

how the Circuit decided that question. If, for example, the Circuit 

reverses this Court’s earlier Opinion on either its contrary-to-law or 

arbitrary-and-capricious grounds, then it is substantially likely that 

this Court’s jurisdiction to hear CLC’s citizen suit would be removed. 

See[CLC v. Correct the Record, No. 23-0075, Defs.’ Reply in Supp. 

of It’s Mot. to Stay Proceedings] at 16 (citing Campaign Legal Ctr. v. 

FEC, No. 21-406, 2022 WL 1978727, at *3 (D.D.C. June 6, 2022)) 

(noting that a previous finding “whether the Commission’s [action] 

was contrary to law and whether it conformed with [that] Court’s 

order to act implicate[d] that court’s subject-matter jurisdiction”). 

Memorandum Opinion, CLC v. Correct the Record, No. 23-0075, at 8 (Apr. 7, 

2023 D.D.C.) (ECF No. 17). When Complainants argue that “insofar as any open 

legal questions remain” they can be addressed in the private-right case (Resp. Br. 

19 
 

USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 28 of 34 

at 30), they fail to appreciate the resolution of this appeal has appropriately become 

a predicate to resolution of the private suit. 

C. This Case Presents a Live Controversy and is Not Moot 

There are several potential outcomes from this appeal that would require the 

district court to revisit its earlier decision to remand to the agency. Those include 

the requirement that a more deferential review and a different outcome apply to 

some or all of the alleged activity. Another possibility is direction that a narrower 

remand order should be issued here, excluding the claims and requests for relief for 

which Complainants lack standing. In its opening brief (Br. 14-15, 52-54), the 

Commission showed the district court’s order had continuing legal effect and 

should be reviewed. Those continuing effects include the effect that a lower court 

opinion, interpreting the application of federal campaign finance laws to internet 

communications, has on both the Commission and private parties, as well as its 

effect undermining the FEC’s exclusive enforcement authority. (Br. 14-15, 52-54). 

Complainants respond (Resp. Br. 32-33), that the FEC’s showing on continuing 

legal effect is insufficient, but those effects easily defeat CLC’s claim of mootness. 

Indeed, if this Court were to reverse and remand, further proceedings in the 

district court could vitiate the jurisdictional prerequisite for the private right of 

action and result in the dismissal of that action. Complainants acknowledge that 

the defendants in the private suit could potentially obtain a dismissal of that action. 

20 
USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 29 of 34 

Within the briefing on the Motion for Stay of the private right of action case, 

which was granted, Complainant Campaign Legal Center pointed out that “should 

this Court’s jurisdiction over the citizen suit come into question following the D.C. 

Circuit’s decision, Defendants could simply move to dismiss.” Memorandum 

Opinion, CLC v. Correct the Record, No. 23-0075, at 8 (Apr. 7, 2023 D.D.C.) 

(ECF No. 17) (citing CLC Opp. to Motion for Stay, CLC v. Correct the Record, 

No. 23-0075, at 24 (Mar. 6, 2023) (ECF No. 14).) 

Complainants argue that the FEC’s failure to act on the remand from the 

district court renders this appeal moot. (Resp. Br. at 33.) They argue that “upon 

expiration of the conformance period and the filing of CLC’s citizen suit, the 

district court’s directive to conform ceased to have any practical significance.” (Id. 

at 32 (citing cases). But rather than take up the administrative matter again, the 

agency has now appealed that decision, as is its right. The agency cannot do both 

simultaneously, as acting on remand potentially moots an appeal. Agencies are 

permitted to appeal under an exception to the finality requirement for precisely this 

reason. An “agency cannot later challenge its own actions complying with a 

remand order, whereas a private party dissatisfied with the action on remand may 

still challenge the remanded proceedings” after they are complete. Sierra Club v. 

U.S. Dep’t of Agric., 716 F.3d 653, 656-57 (D.C. Cir. 2013). The D.C. Circuit has 

been able to decide cases the FEC appealed from remand orders to the agency and 

21 
USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 30 of 34 

has determined that is the proper course. See, e.g., Common Cause v. FEC, 842 

F.2d 436, 449 (D.C. Cir. 1988) (appeal from remand order from district court); 

Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131, 1135 (D.C. Cir. 

1987) (explaining that remand should be remedy rather than district court 

“dictating the ultimate outcome”). Indeed, if the FEC complied with the Court 

order in a way that Complainants urge here, the agency could hardly sue itself for 

further review of the initial decision. The decision in FEC v. National Republican 

Senatorial Committee, 966 F.2d 1471 (D.C. Cir. 1992) proves this 

point. Complainants observed before the district court that the case establishes that 

“the D.C. Circuit may still defer to the views of the original controlling 

Commissioners” (Opp’n at 14 n.4 (ECF No. 75), but point to no procedural 

mechanism by which the FEC itself could appeal the case to that court. 

To illustrate the point, FECA requires the Commission to attempt 

conciliation prior to the filing of any enforcement action against an administrative 

respondent, and any conciliation agreement is a “complete bar to any further action 

by the Commission.” 52 U.S.C. § 30109(4)(A)(i). If the Commission chose to 

conform with the district court’s previous remand order by reaching a conciliation 

agreement, it could not then later appeal the Court’s ruling. 

True, the Commission could conform with the Court’s ruling by asserting 

another basis for nonenforcement, which presumably Complainants would 

22 
USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 31 of 34 

challenge again. But it could not reassert the basis for dismissal previously relied 

on by the controlling Commissioners and rejected by the Court. 

Complainants ineffectively try to have it both ways when they argue that the 

existence of the private suit moots the appeal but is impermissible to take into 

account to determine whether the district court’s order has any continuing effect. 

(Resp. Br. 27-28, 30-32, 33-34). As explained above, they have it backwards on 

both counts. The appeal will evaluate the propriety of the jurisdictional 

prerequisites for the private-right action. Complainants’ mootness argument is at 

odds with both the general authority of this Court to review the actions of the 

courts below and the specific agency exception to finality for appeals of remand 

orders.

 If this Court were to reverse the district court order, the Commission’s 

exclusive enforcement authority under 52 U.S.C. § 30107(e) would be vindicated 

given the likely downstream impact on the citizen suit that was enabled in error. 

Similarly, if this Court were to revise or narrow the scope of the remand order, the 

Commission could address any further order from the district court after appeal in 

the manner that FECA contemplated. And as explained, supra p. 19, the district 

court has explained the continuing effect of this case, both the influence of the 

decision and this case’s effect on its jurisdiction. 

23 
 

 

USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 32 of 34 

CONCLUSION 

For all the foregoing reasons, the Court should reverse the decision below in 

its entirety and remand to the FEC for consideration of allegations regarding 

disclosure violations. 

Respectfully submitted, 

Lisa J. Stevenson 

Acting General Counsel 

Kevin Deeley 

Associate General Counsel 

/s/ Greg J. Mueller 

Greg J. Mueller 

Attorney 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

July 14, 2023 (202) 694-1650 

24 
 

 

USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 33 of 34 

CERTIFICATE OF COMPLIANCE 

This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B)(ii) because the brief contains 5,421 words, excluding the parts of the 

brief exempted by Fed. R. App. P. 32(f). 

The brief also complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type-style requirements of Fed. R. App. P 32(a)(6) because the 

brief uses the proportionally spaced typeface Microsoft Word 14-point Times New 

Roman. 

/s/ Greg J. Mueller 

Greg J. Mueller 

Attorney 

Federal Election Commission 
 

 

USCA Case #22-5336 Document #2008025 Filed: 07/14/2023 Page 34 of 34 

CERTIFICATE OF SERVICE 

I hereby certify that on this 14th day of July 2023, I electronically filed the 

Brief for Federal Election Commission with the Clerk of the United States Court of 

Appeals for the D.C. Circuit by using the Court’s CM/ECF system. Service was 

made on the following through CM/ECF: 

Tara Malloy 

Megan P. McAllen 

Campaign Legal Center 

1101 14th St. NW, Suite 400 

Washington, DC 20005 

I further certify that I also will cause the requisite number of paper copies of 

the brief to be filed with the Clerk. 

 /s/ Greg J. Mueller

 Greg J. Mueller 

Federal Election Commission 

 1050 First Street NE 

 Washington, DC 20463 

 (202) 694-1650 

gmueller@fec.gov