i 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, ) 

 ) 

 Plaintiff, ) Civ. No. 22-3281 (CRC) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant, ) 

 ) 

AMERICAN ACTION NETWORK, ) 

 ) 

 Intervenor-Defendant. ) 

 ) 

PLAINTIFF’S OPPOSITION TO DEFENDANT FEDERAL ELECTION 

COMMISSION’S MOTION TO DISMISS AND INTERVENOR AMERICAN ACTION 

NETWORK’S MOTION TO DISMISS

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TABLE OF CONTENTS 

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

STATEMENT OF FACTS ............................................................................................................. 2

I. Statutory and Regulatory Background ................................................................................ 2

A. Political Committee Disclosure .................................................................................... 2

B. The FECA’s Private Right of Action and the FEC’s Gatekeeping Adjudicatory Role 4

II. The FEC’s Adjudication of CREW’s Complaint and Exhaustion of CREW’s 

Administrative Remedies .................................................................................................... 7

III. The Continued Growth of Dark Money ............................................................................ 13

ARGUMENT ................................................................................................................................ 14

I. This Action is Not Futile Even if Further FEC Proceedings Are ..................................... 15

II. CREW has Standing ......................................................................................................... 19

III. CREW’s Suit is Timely .................................................................................................... 23

IV. Neither the Dismissal of CREW’s Citizen Suit nor New Models 

Justify Dismissal of This Suit ........................................................................................... 27

A. As the Challenged Dismissal Disclaims Prosecutorial Discretion, Prosecutorial 

Discretion Cannot Preclude Review ........................................................................... 28

B. The First Statement of Reasons Did Not Speak for the Agency and 

Could Not Invoke the Agency’s Prosecutorial Discretionary Powers ........................ 31

C. The FEC has Abdicated Enforcement Against AAN And Other De Facto 

Political Committees ................................................................................................... 33

D. New Models and CHGO Conflict with Binding Precedent and Must be 

Disregarded ................................................................................................................. 34

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

 

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TABLE OF AUTHORITIES 

Cases

Abbott Labs v. Garder, 387 U.S. 136 (1967) ................................................................................ 39 

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996) (en banc) ......................................................... 22, 36 

Buckley v. Valeo, 424 U.S. 1 (1976) ......................................................................... 2, 3, 21, 22, 43 

Burlington Res. Inc. v. FERC, 513 F.3d 242 (D.C. Cir. 2008) ................................................. 7, 40 

Center for Science in the Public Interest v. Regan, 727 F.2d 1161 (D.C. Cir. 1984)................... 29 

CFTC v. Schor, 478 U.S. 833 (1986) ............................................................................................ 42 

Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995) ........................................ 35, 37, 38 

Checkosky v. SEC, 139 F. 3d 221 (D.C. Cir. 1998) ...................................................................... 17 

Circus Circus Casinos, Inc. v. NLRB, 961 F.3d 469 (D.C. Cir. 2020) ......................................... 42 

Citizens United v. FEC, 558 U.S. 310 (2010) ..................................................................... 2, 22, 43 

CLC v. FEC, 31 F.4th 781 (D.C. Cir. 2022) ........................................................................... 19, 21 

CLC v. FEC, 952 F.3d 352 (D.C. Cir. 2020) .......................................................................... 35, 36 

CLC v. Iowa Values, 573 F. Supp. 3d 243 (D.D.C. 2021) ............................................................ 42 

Collins v. Yellen, 141 S. Ct. 1761 (2021) ..................................................................................... 42 

Common Cause v. FEC, 842 F.2d 436 (D.D.C. 1988) ......................................... 18, 25, 30, 32, 37 

CREW v. AAN, 410 F. Supp. 3d 1 (D.D.C. 2019) ................................... 7, 8, 10, 16, 19, 21, 22, 30 

CREW v. AAN, 415 F. Supp. 3d 143 (D.D.C. 2019) ..................................................................... 10 

CREW v. AAN, 590 F. Supp. 3d 165 (D.D.C. 2022) ............................................... 7, 10, 27, 28, 29 

CREW v. FEC, 209 F. Supp. 3d 77 (D.D.C. 2016) ............................................... 3, 7, 9, 15, 26, 33 

CREW v. FEC, 236 F. Supp. 3d 378 (D.D.C. 2017) ..................................................................... 25 

CREW v. FEC, 243 F. Supp. 3d 91 (D.D.C. 2017) ......................................................................... 8 

CREW v. FEC, 299 F. Supp. 3d 83 (D.D.C. 2018) ................................................................. 3, 7, 9 

Case 1:22-cv-03281-CRC Document 16 Filed 01/27/23 Page 3 of 52
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CREW v. FEC, 316 F. Supp. 3d 349 (D.D.C. 2018) ..................................................................... 19 

CREW v. FEC, 55 F.4th 918 

(D.C. Cir. 2022) (“New Models II”) ..................... 6, 7, 11, 18, 27, 36, 37, 38, 39, 40, 41, 42, 43 

CREW v. FEC, 799 F. Supp. 2d 78 (D.D.C. 2011) ....................................................................... 24 

CREW v. FEC, 892 F.3d 434 (D.C. Cir. 2018) (“CHGO I”) ...................... 6, 19, 25, 30, 33, 34, 41 

CREW v. FEC, 923 F.3d 1141 

(D.C. Cir. 2019) (“CHGO II”) ............................................ 4, 5, 6, 17, 35, 36, 37, 38, 40, 41, 43 

CREW v. FEC, 993 F.3d 880 (D.C. Cir. 2021) (“New Models I”) ..... 10, 28, 30, 35, 36, 37, 39, 41 

DCCC v. FEC, 831 F.2d 1131 (D.C. Cir. 1987) ................................... 6, 17, 18, 32, 35, 37, 38, 40 

Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019) ............................................................ 41 

Doe, 1 v. FEC, 920 F.3d 886 (D.C. Cir. 2019) ............................................................................. 24 

Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const. Trades Council, 

485 U.S. 568 (1988) .................................................................................................................. 43 

Env’t Texas Citizen Lobby, Inc. v. ExxonMobil Corp., 47 F.4th 408 (5th Cir. 2022) .................. 20 

FEC v. Akins, 524 U.S. 11 (1998) ..................................................... 5, 7, 15, 20, 22, 35, 36, 40, 41 

FEC v. Legi-Tech, 75 F.3d 704 (D.C. Cir. 1996) ......................................................................... 18 

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) ............................................................. 3 

Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394 (1981) ....................................................... 29 

Fogg v. Ashcroft, 254 F.3d 103 (D.C. Cir. 2001) ......................................................................... 17 

Friends of Animals v. Jewell, 828 F.3d 989 (D.C. Cir. 2016) ................................................ 20, 21 

Gerber v. Norton, 294 F.3d 173 (D.C. Cir. 2002) ........................................................................ 31 

Hagelin v. FEC, No. 96-2132, 96-2196, 1996 WL 566762 (D.D.C. Oct. 1, 1996) ...................... 18 

Hardison v. Alexander, 655 F.2d 1281 (D.C. Cir. 1981) .............................................................. 29 

Heckler v. Chaney, 470 U.S. 821 (1985) .................................................................... 19, 36, 39, 41 

ICC v. Bhd. Of Locomotive Eng’rs, 482 U.S. 270 (1987) ............................................................ 39 

In re FECA Litig., 474 F. Supp. 1044 (D.D.C. 1979) ................................................................... 18 

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Int’l Union, United Mine Workers v. Dep’t of Labor, 358 F.3d 40 (D.C. Cir. 2004) ................... 41 

Jordan v. FEC, 68 F.3d 518 (D.C. Cir. 1995) ........................................................................ 24, 26 

Keats v. Sebelius, No. 13-1524, 2019 WL 1778047 (D.D.C. Apr. 23, 2019)............................... 17 

Kelly v. RealPage, Inc., 47 F.4th 202 (3d Cir. 2022).............................................................. 20, 21 

Larsen v. U.S. Navy, 525 F.3d 1 (D.C. Cir. 2008) ........................................................................ 30 

Local 814, Int’l Broth. of Teamster v. NLRB, 546 F.2d 989 (D.C. Cir. 1976) ............................. 31 

Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mutual Auto. Insur. Co., 

463 U.S. 29 (1983) .................................................................................................................... 40 

Nat’l Cable & Telecomm’n Ass’n v. FCC, 567 F.3d 659 (D.C. Cir. 2009) .................................. 30 

Nat’l Parks Conservation Ass’n v. United States, 177 F. Supp. 3d 1 (D.D.C. 2016) ................... 17 

NCPAC v. FEC, 626 F.2d 953 (D.C. Cir. 1980) ........................................................................... 18 

NLRB v. Am. Geri-Care, Inc., 697 F.2d 56 (2d Cir. 1982) ........................................................... 17 

Oil, Chemical and Atomic Workers Int'l Union v. NLRB, 46 F.3d 82 (D.C. Cir.1995) .......... 16, 32 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) ...................................................................... 35, 38 

Parker v. D.C., 478 F.3d 370 (D.C. Cir. 2007)............................................................................. 22 

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996) ....................................................................... 5, 19, 42 

Public Citizen v. DOJ, 491 U.S. 440 (1989) ................................................................................. 20 

Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544 (4th Cir. 2012) ......................................... 3 

Rockwell Cap. Partners, Inc. v. CD Int’l Enter., Inc., 311 F. Supp. 3d 52 (D.D.C. 2018) .......... 35 

SE Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) .................................................................. 43 

Sierra Club v. Jackson, 648 F.3d 848 (D.C. Cir. 2011).......................................................... 27, 35 

Sierra Club v. Whitman, 268 F.3d 898 (9th Cir. 2001) ................................................................ 40 

Sorrell v. IMS Health, Inc., 564 U.S. 552 (2011) ......................................................................... 43 

Spann v. Colonial Vill., Inc., 899 F.2d 24 (D.C. Cir. 1990) ........................................................... 4 

Spannaus v. FEC, 990 F.2d 643 (D.C. Cir. 1993) ........................................................................ 24 

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Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) ................................................................................ 20 

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

Stop This Insanity Inc. Emp. Leadership Fund v. FEC, 761 F.3d 10 (D.C. Cir. 2014) ................ 43 

TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) ...................................................... 19, 20, 21 

Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990 (11th Cir. 2020) ....................................... 20 

United Food & Commercial Workers Int’l Union v. NLRB, 880 F.2d 1422 (D.C. Cir. 1989) ..... 32 

Webster v. Fall, 266 U.S. 507 (1925) ........................................................................................... 33 

Wells v. Int’l Network, Ltd. v. Sharif, 575 U.S. 665 (2015) .......................................................... 42 

Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001) ................................................................... 21 

Zivotofsky ex rel. Ari Z v. Sect’y of State, 444 F.3d 614 (D.C. Cir. 2006) .................................... 20 

Zivotosfky v. Clinton, 576 U.S. 1 (2012)....................................................................................... 20 

Statutes

52 U.S.C. § 30101(4) ...................................................................................................................... 3 

52 U.S.C. § 30103(a) ...................................................................................................................... 2 

52 U.S.C. § 30103(d) ...................................................................................................................... 2 

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

52 U.S.C. § 30106(a) ................................................................................................................ 5, 42 

52 U.S.C. § 30106(c) .............................................................................................. 4, 16, 25, 32, 33 

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

52 U.S.C. § 30109(a) ........................................................................ 5, 6, 15, 17, 18, 23, 26, 35, 36 

Regulations

11 C.F.R. § 100.5 ............................................................................................................................ 3 

11 C.F.R. § 104.20 .......................................................................................................................... 2 

11 C.F.R. § 104.3 ............................................................................................................................ 2 

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11 C.F.R. § 104.4 ............................................................................................................................ 2 

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

11 C.F.R. § 102.1 ............................................................................................................................ 2 

Other Authorities

FEC, Political Committee Status, Supplemental Explanation and Justification, 

72 Fed. Reg. 5595 (Feb. 7, 2007) (“Supplemental E&J”) .................................................. 10, 11 

FEC, Statement of Policy Regarding Commission Action in Matters at the Initial Stage 

of Enforcement, 72 Fed. Reg. 12,545 (Mar. 16, 2007) ....................................................... 24, 40 

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INTRODUCTION 

The Federal Election Commission (“FEC”) admits that its dismissal of Citizens for 

Responsibility and Ethics in Washington’s (“CREW”) complaint against American Action 

Network (“AAN”) was “contrary to law.” Compl. Ex. 5; see also FEC Mem. of P. & A. in Supp. 

of Mot. to Dismiss 9 (“FEC MTD”) (Weintraub’s statement provides the “controlling rationale” 

for dismissal). The FEC now, finally, agrees with the analysis required by the law, recognized by 

this Court, and urged by CREW when it first brought AAN’s lawbreaking to the FEC’s attention 

in 2012. Compl. ¶ 58. It finally agrees that electioneering communications, except in exceedingly 

rare and extraordinary cases, are not grounds to excuse groups from publicly reporting as a 

political committee. Id. It finally agrees that the “major purpose” analysis must focus on a single 

year of activity, and that if a group exhibits a major purpose to influence elections in any given 

year, it must register and continually report until it lawfully terminates pursuant to the FECA. Id.

Finally, the FEC agrees that based on that correct view of the law, “AAN met the definition of a 

political committee” by 2011 and “does have to disclose the identity of its donors.” Id. ¶ 57. 

If only it had reached this conclusion eleven years ago—the FEC could have remedied 

CREW’s injury and prevented eleven years of additional injuries to CREW and to the country. 

Notwithstanding this agreement, AAN and FEC counsel seek to delay AAN’s reckoning 

and to permit AAN to evade its legal responsibilities. For its part, the FEC acknowledges that 

CREW will never receive a fair hearing on its claims against AAN from AAN’s three partisan 

allies on the Commission, and that they have abdicated any attempt to apply the law to AAN. 

Yet that is no reason to dismiss this case. Rather, it is reason for the Court to expeditiously 

recognize CREW has exhausted (yet again) its attempts to obtain administrative relief, to 

authorize a direct action against AAN, and to create a forum for CREW to present the 

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voluminous evidence it obtained from AAN that proves CREW’s claim. 

AAN raises a number of unmeritorious arguments to permit it to continue to flout the 

law, while bemoaning the time it has taken to reach final judgment. But contrary to AAN’s 

arguments, CREW has standing, as this Court previously recognized; CREW’s claims are timely 

and AAN identifies no precedent suggesting otherwise; and New Models does not require 

dismissal here even if it did require dismissal of CREW’s citizen suit, not least because New 

Models is not binding caselaw in this Circuit. 

CREW’s relief has been too long denied. CREW urges this Court to reject the FEC’s and 

AAN’s attempts to deprive CREW of its rights any longer.

STATEMENT OF FACTS 

I. Statutory and Regulatory Background 

A. Political Committee Disclosure 

To ensure the public is “fully informed” about “[t]he sources of a candidate’s financial 

support,” Buckley v. Valeo, 424 U.S. 1, 67, 76 (1976), and about “who is speaking about a 

candidate” and might have officials “in [their] pocket,” Citizens United v. FEC, 558 U.S. 310, 

369, 370 (2010), the FECA imposes several disclosure obligations. Relevant here, it imposes an 

obligation on political committees to register and continually report and disclose information 

about their finances, including the identity of their donors who provide more than $200 a year. 

52 U.S.C. § 30103(a), id. § 30104(b), (f)(2); 11 C.F.R. §§ 102.1, 104.3, 104.4, 104.20. The 

political committee’s obligations continue until either it or the FEC terminates its status as 

permitted by the FECA. 52 U.S.C. § 30103(d). 

The FECA defines a political committee as any group that takes “contribut[ions] or 

[makes] expend[itures] [of] more than $1,000 in a calendar year.” CREW v. FEC, 209 F. Supp. 

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3d 77, 82 (D.D.C. 2016); 52 U.S.C. § 30101(4)(A); 11 C.F.R. § 100.5(a). The Supreme Court 

has carved out from the statutory test otherwise qualifying groups that are neither under the 

control of a candidate nor have the requisite “major purpose” to nominate or elect federal 

candidates. See Buckley, 424 U.S. at 79. Determination of a group’s “major purpose” is fact 

intensive, FEC, Political Committee Status, Supplemental Explanation and Justification, 72 Fed. 

Reg. 5595, 5601 (Feb. 7, 2007) (“Supplemental E&J”), but may be exhibited solely through a 

group’s spending significant sums to influence federal elections, see FEC v. Mass. Citizens for 

Life, Inc., 479 U.S. 238, 262 (1986). Spending on independent expenditures and all but “rare” 

and “extraordinary” electioneering communication can establish a group’s major purpose. CREW 

v. FEC, 299 F. Supp. 3d 83, 97 (D.D.C. 2018); accord CREW, 209 F. Supp. 3d at 93 (“[M]any or 

even most electioneering communications indicate a campaign-related purpose.”); Compl. ¶ 58 

& Ex. 5 (Statement of Reasons of Commissioner Ellen L. Weintraub, MUR 6589R (AAN) (Sept. 

30, 2022), https:/perma.cc/C9FDEESZ (the “Controlling FEC Statement”)). 

The test compares the group’s campaign-related and non-campaign related spending in a 

“calendar year.” Compl. Ex. 7 (Statement of Reasons of Commissioners Ann M. Ravel and Ellen 

L. Weintraub 3, MUR 6589R (AAN) (Dec. 5, 2016) (incorporated by reference in Controlling 

FEC Statement)); see also CREW, 209 F. Supp. 3d at 87–88 (deferring to controlling FEC 

opinion about the “relevant timespan” for major purpose test). Although neither courts nor the 

FEC have definitively decided the threshold, only groups that devote a majority of their spending 

to activity unrelated to influencing elections in a qualifying year may be excused from reporting. 

See Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544, 555-57 (4th Cir. 2012) (finding 

political committee status does not depend on whether “campaign-related speech amounts to 

50% of all expenditures”); FEC, Supplemental E&J, 72 Fed. Reg. at 5605 (noting group 

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spending “50-75%” on campaign activity qualified as political committee).

A qualifying group is a political committee subject to the duties to report, and “the law 

does not require a committee to register as a [political committee] in order to be one.” Statement 

of Reasons of Chairman Allen Dickerson, MUR 7920 (Oklahomans for T.R.U.M.P.) (June 29, 

2022), https://perma.cc/6Q2C-PDY8. 

B. The FECA’s Private Right of Action and the FEC’s Gatekeeping 

Adjudicatory Role 

The FECA includes “a feature of many modern legislative programs,” Spann v. Colonial 

Vill., Inc., 899 F.2d 24, 30 (D.C. Cir. 1990): paired civil enforcement through a government 

agency with private litigation, see 52 U.S.C. § 30107(e) (FEC’s “exclusive” civil enforcement 

power subject to “[e]xcept[ion]” of private suits “in section 30109(a)(8)”). 

Congress subjected both mechanisms to significant safeguards. “To avoid agency 

capture, [Congress] made the Commission partisan balanced, allowing no more than three of the 

six Commissioners to belong to the same political party,” CREW v. FEC, 923 F.3d 1141, 1143 

(D.C. Cir. 2019) (“CHGO II”) (Pillard, J., dissenting), while requiring a majority vote for any 

enforcement decision, id. at 1142 (Griffith, J., concurring) (“FECA thus requires that all actions 

by the Commission occur on a bipartisan basis.”); 52 U.S.C. § 30106(c). “That balance created a 

risk of partisan reluctance to apply the law,” however. CHGO II, 923 F.3d at 1143–44 (Pillard, 

J., dissenting). 

Moreover, even apart from partisan deadlock, Congress worried that enforcement “cannot 

be left to a commission that is under the thumb of those who are to be regulated,” FEC, 

Legislative History of Federal Election Campaign Act Amendments of 1976 at 72 (1977), 

https://perma.cc/G23G-SQ7T (Statement of Sen. Clark). Industry capture of the FEC was all but 

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guaranteed, as the commissioners were to be appointed and overseen by the very people the 

agency regulated. Indeed, while the FEC’s structure protected against partisan witch-hunts—a 

risk already guarded by the need to appeal to an independent judiciary, see 52 U.S.C. 

§ 30109(a)(6)—it compounded the risk that it would become a “toothless lapdog” rather than the 

“active watchdog” required to “restor[e] [] public confidence in the election process.” FEC, 

Legislative History at 75 (Statement of Sen. Scott).1 The structure meant that, unlike other 

agencies whose underenforcement would be subject to democratic correction through 

appointment of new leadership, an FEC that failed to faithfully enforce the law would be subject 

to no correction, as even the election of a pro-enforcement President cannot result in the 

appointment of a majority of similar-minded commissioners. See 52 U.S.C. § 30106(a). 

Accordingly, rather than rely solely on the agency, Congress provided private litigants 

with an avenue to protect the private rights to which the FECA entitles them, FEC v. Akins, 524 

U.S. 11, 22 (1998), subject to the safeguard obliging any plaintiff to obtain preliminary 

adjudication by the FEC, Stockman v. FEC, 138 F.3d 144, 153 (5th Cir. 1998) (dismissing 

lawsuit filed without first presenting claim to the FEC and obtaining judgment); see also Perot v. 

FEC, 97 F.3d 553, 559 (D.C. Cir. 1996) (“[T]he procedures [the FECA] sets forth ... must be 

followed before a court may intervene.”). The agency then acts as “first arbiter,” screening out 

meritless complaints, while the FECA assures “plausible claims” are pursued either by the 

agency or by the private litigant. CHGO II, 923 F.3d at 1143–44, 1149 (Pillard, J., dissenting); 

accord Caroline Hunter, How my FEC Colleague is Damaging the Agency and Misleading the 

Public, Politico, Oct. 22, 2019, https://perma.cc/AW3K-KF6M (“In enforcement actions, 

1 See also id. at 92 (Statement of Sen. Mondale) (expressing concerns of “history of weak 

enforcement of campaign financing laws”).

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commissioners are like judges.”).

The Commission does so by first adjudicating what is essentially an automatic motion-todismiss: judging whether a complaint raises a “reason-to-believe” a violation may have occurred. 

52 U.S.C. § 30109(a)(2). If a majority concludes it does, then “the Commission shall make an 

investigation.” Id. (emphasis added); CREW v. FEC, 55 F.4th 918, 923 (D.C. Cir. 2022) (“New 

Models II”) (Millett, J., dissenting) (“If at least four of the six commissioners determine there is 

reason to believe a violation occurred, the Commission must go forward with an investigation.”); 

accord CHGO II, 923 F.3d at 1144 (Pillard, J., dissenting). In that case, the FEC supplants the 

complainant in pursuing the case. If, on the other hand, the FEC, in its discretion, chooses not to 

pursue its own investigation contrary to that provision, that decision would trigger the 

complainant’s right to seek relief themself in court for a meritorious complaint. 52 U.S.C. 

§ 30109(a)(8)(C) (requiring judicial determination FEC’s nonenforcement was “contrary to 

law”). 

If a majority does not conclude the complaint raises a reason-to-believe, the FEC may 

then choose to close the case by a majority vote. The commissioners who judged the complaint 

to lack merit must then “state their reasons why” they voted that way to permit a court to 

“intelligently determine whether the Commission is acting ‘contrary to law.’” DCCC v. FEC, 

831 F.2d 1131, 1132 (D.C. Cir. 1987). “When the agency votes on whether there is a ‘reason to 

believe’ that a violation of FECA has occurred, it must give reasons for that action that are 

subject to judicial review.” CREW v. FEC, 892 F.3d 434, 445 (D.C. Cir. 2018) (“CHGO I”) 

(Pillard, J., dissenting). 

If judicial review demonstrates the analysis was correct, the FEC has lawfully performed 

its gatekeeping adjudicatory function and the case is at an end. If a court concludes the 

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commissioners’ analysis was erroneous, however, then the court declares the error and remands 

to the agency. “[T]he Commission is [then] given the right of first refusal on enforcement,” and 

“[i]f the agency is still opposed or unable to bring an enforcement action, no court will force it to 

do so; all that happens is that the private complainant is authorized to bring a lawsuit in its own 

name under the Act.” New Models II, 55 F.4th at 929 (Millett, J, dissenting). 

Thus, while the FEC has “discretion,” see Akins, 524 U.S. at 26, “prosecutorial 

discretion” only “settle[s] [the FEC’s] own claims,” and has no bearing in the FEC’s 

adjudication of a private plaintiff’s claims, Burlington Res. Inc. v. FERC, 513 F.3d 242, 247 

(D.C. Cir. 2008). “The statute, in other words, never requires the agency to bring an enforcement 

action that it does not want to bring.” New Models II, 55 F.4th at 923 (Millett, J., dissenting). “It 

just opens the door to private enforcement by an aggrieved party.” Id. That door may only be 

shut by a judicially-sustainable conclusion that the private complaint fails on the merits. 

II. The FEC’s Adjudication of CREW’s Complaint and Exhaustion of CREW’s 

Administrative Remedies 

The Court is familiar with the history of this matter from prior decisions. See CREW v. 

AAN, 590 F. Supp. 3d 165, 166–17 (D.D.C. 2022) on appeal 22-7038 (D.C. Cir. Mar. 2022); 

CREW v. AAN, 410 F. Supp. 3d 1, 7–11 (D.D.C. 2019); CREW, 299 F. Supp. 3d at 88–92; 

CREW, 209 F. Supp. 3d at 82–85. CREW nonetheless provides a brief recap and update. 

AAN was incorporated on July 23, 2009. Compl. Ex. 1, ¶ 7. Immediately upon its 

creation, AAN spent heavily to influence the 2010 federal elections. Id. ¶ 9, 10. Between May 6, 

2010 and June 30, 2011, AAN spent $4,096,909 on independent expenditures and $14,038,625 

on electioneering communications. Id. AAN’s electioneering communications included ads that 

accused a member of Congress of supporting “Viagra for rapists” and urged viewers to express 

Case 1:22-cv-03281-CRC Document 16 Filed 01/27/23 Page 14 of 52
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their disagreement “in November.” CREW, 410 Supp. 3d at 10. Combined, AAN’s independent 

expenditures and electioneering communications comprised no less than approximately 70.4 

percent of AAN’s total spending between July 1, 2010 and June 30, 2011, its fiscal year 

overlapping the 2010 election. Compl. ¶ 35. 

Public records demonstrate AAN’s political activities did not end in 2011. AAN has 

spent more than $26 million on independent expenditures since 2011. See FEC, Independent 

Expenditures, American Action Network (last visited Jan. 26, 2023), https://perma.cc/44FP7DHE.

2

 That spending, however, ignores AAN’s primary role now, which is to act as a 

disclosure shield for contributions to its associated super PAC, the Congressional Leadership 

Fund (“CLF”). To date, AAN has funneled almost $113 million in contributions to CLF, dollars 

for which CLF would have had to identify their source but for the use of AAN as an 

intermediary. AAN spent a significant amount of its remaining funds on ads supporting or 

opposing electorally “vulnerable” candidates. Alexandra Marquez, Conservative group spends 

more to blast Democrats on inflation, NBC News, July 27, 2022, https://perma.cc/6F65-GCHZ; 

Paul Steinhauser, Conservative advocacy group targets two House Democrats from Virginia in 

wake of Youngkin Victory, FOXBusiness, Nov. 16, 2021, https://perma.cc/APT6-GYQY ; see 

also Anna Massoglia, ‘Dark money’ groups have poured billions into federal elections since the 

Supreme Court’s 2010 Citizens United decision, OpenSecrets, Jan. 24, 2023, 

https://perma.cc/UU2X-PPDV (reporting AAN spent $30.7 million in TV and online ads 

boosting or attacking candidates); AAN, 2019 Form 990, Part IV 8, https://bit.ly/3QVYr5r (“The 

2

 AAN’s last reported independent expenditure occurred in 2016, see id., the last election cycle 

before a Court struck down an FEC regulation that was unlawfully limiting disclosure for entities 

making independent expenditures, see CREW v. FEC, 243 F. Supp. 3d 91 (D.D.C. 2017). 

Case 1:22-cv-03281-CRC Document 16 Filed 01/27/23 Page 15 of 52
9 

vast majority of [AAN’s] expenditures were ... contributions to ... [CLF] ... [and] work on 

political matters.”). These included ads that would qualify as electioneering communications if 

they appeared on television, see, e.g., AAN, Tell Diana DeGette: Open American Energy 

Production (June 17, 2022), https://bit.ly/3CWZXhM. AAN’s President, Dan Conston, has also 

been hailed as part of the “nucleus of [newly elected House Speaker Kevin] McCarthy’s political 

operation.” Jake Sherman, Punchbowl News, Nov. 7, 2022, https://perma.cc/PFH3-NNQA; 

AAN, About Us (last visited Jan. 26, 2023), https://perma.cc/ANZ7-ZQHW. 

Based on AAN’s activities, CREW filed a complaint in 2012 with the FEC. Compl. ¶ 40. 

The FEC’s General Counsel found CREW’s complaint had merit, id. ¶ 41, but the three 

Republican commissioners judged the complaint to not even raise a reason to believe that AAN 

may have violated the FECA because, they concluded, the First Amendment and case law 

requires they treat AAN’s electioneering communications as reason to excuse the group from 

reporting, id. ¶ 42. In a footnote, the three also described their legal analysis as “prosecutorial 

discretion.” Id. ¶ 44. CREW challenged the subsequent dismissal, as well as a dismissal of a 

similar group based on similar analysis, and this Court concluded the justification offered “blinks 

reality.” Id. ¶ 46; CREW, 209 F. Supp. 3d at 93. 

On remand, the FEC again deadlocked, with the same three Republican commissioners 

again adjudicating CREW’s complaint as meritless. Compl. ¶ 47. CREW again sought judicial 

review. Id. ¶ 49. On summary judgment, the Court found the analysis was again erroneous and 

the dismissal was contrary to law. Id. ¶ 49; CREW, 299 F. Supp. 3d at 97, 101. With the matter 

on remand to the FEC, CREW filed an amended complaint in 2018 substituting its current 

executive director as a complainant for its previous executive director. Compl. ¶ 50. 

The FEC failed to conform with the Court’s judgment within thirty days, and CREW 

Case 1:22-cv-03281-CRC Document 16 Filed 01/27/23 Page 16 of 52
10 

therefor exhausted its administrative remedies. Compl. ¶ 52. Accordingly, CREW brought a suit 

directly against AAN, as permitted by the FECA. Id. At AAN’s request, the action was stayed 

for six months. See Minute Order, CREW v. FEC, No. 18-cv-945 (CRC) (D.D.C. Oct. 1, 2018). 

AAN subsequently moved to dismiss CREW’s suit, but this Court rejected the motion, holding 

that CREW had standing, CREW’s claims were exhausted, CREW’s claims were not timebarred, and the FEC’s statement of reasons were reviewable. See generally AAN, 410 F. Supp. 3d 

at 12–30. The Court rejected AAN’s request to stay the matter further to certify for interlocutory 

appeal. See CREW v. AAN, 415 F. Supp. 3d 143, 144 (D.D.C. 2019). 

The parties completed discovery on July 9, 2021. See Compl. ¶ 52; Joint Mot. to Modify 

Briefing Deadline ¶ 6, CREW v. AAN, No. 18-cv-945(CRC) (D.D.C. Sept. 16, 2021), ECF No. 

65. Rather than proceed to final briefing, AAN sought reconsideration of the Court’s decision 

about the impact of a passing reference to “prosecutorial discretion” in the superseded first 

statement of reasons. See Compl. ¶ 52. The Court found a recent divided panel decision 

precluded review of the second statement because it incorporated by reference the initial 

statement’s mention of prosecutorial discretion and thus precluded CREW’s citizen suit, id., 

while acknowledging the decision is in tension with earlier binding Circuit law and “gut[s]” the 

FECA’s statutory mechanism to exhaust private rights of action. AAN, 590 F. Supp. 3d at 168–69 

(applying CREW v. FEC, 993 F.3d 880 (D.C. Cir. 2021) (“New Models I”)). 

CREW appealed the court’s judgment. Compl ¶ 52. Given the centrality of the propriety 

of New Models to this Court’s decision—a decision over which the D.C. Circuit is “deeply split,” 

AAN, 590 F. Supp. 3d at 174—AAN did not oppose a stay pending the resolution of CREW’s 

petition to reconsider New Models en banc, CREW v. AAN, No. 22-7038 (D.C. Cir. Apr. 27, 

2022). That stay was recently lifted. See Order, No. 22-7038 (D.C. Cir. Jan. 13, 2023). 

Case 1:22-cv-03281-CRC Document 16 Filed 01/27/23 Page 17 of 52
11 

The en banc court recently issued its order on the petition, denying rehearing en banc, 

New Models II, 55 F.4th 918, with one vacancy, two judges appointed during the pendency of the 

petition declining to participate, and half of the remaining Judges concurring in denial en banc, 

id. at 918–22. The concurrence did not attempt to reconcile New Models with prior conflicting 

precedents, instead stating that it served the purpose of ensuring a partisan “vetogate” against 

any enforcement. Id. at 920. In a dissent from denial of rehearing en banc, Judges Millett and 

Pillard noted that the prior petition to rehear CHGO en banc lost in “an evenly split decision.” Id.

at 926. The dissenting judges further outlined the many conflicts between both CHGO and New 

Models and earlier binding precedent, including of the Supreme Court, and stated that New 

Models “wrongly treats CREW’s effort to pursue its private right to judicial review of [three] 

commissioners’ [adjudication of CREW’s claim] as if it were an attempt to force the 

Commission itself to proceed in the face of an agency exercise of constitutionally unreviewable 

prosecutorial discretion,” does “serious and recurring harm,” and makes a partisan non-majority 

bloc of the FEC a “law unto [them]sel[ves].” Id. at 922, 929. 

Shortly before the en banc decision, CREW received notice that the FEC had on remand 

once again dismissed CREW’s complaint against AAN. Compl. ¶ 53. The FEC then revealed 

that the Commission had taken a reason-to-believe vote on May 10, 2018, just after the Court’s 

second remand. Id. ¶ 54, Ex. 4. In that vote, three commissioners, including two who had 

previously voted against finding reason-to-believe AAN violated the FECA, now judged 

CREW’s complaint to be meritorious. Id. No vote was proposed to dismiss CREW’s complaint 

or otherwise exercise prosecutorial discretion, indicating that they abandoned their interest in 

exercising such discretion. Id. Nonetheless, the Commission still failed to secure four votes to 

open an investigation because Commissioner Weintraub declined to join with her colleagues. Id.

Case 1:22-cv-03281-CRC Document 16 Filed 01/27/23 Page 18 of 52
12 

In a statement released before the vote, Commissioner Weintraub explained that her colleagues 

had a “deep ideological commitment to impeding this country’s campaign-finance laws” and 

were committed to “find[ing] a way to block meaningful enforcement of the law in this and any 

other dark-money matter that comes before us.” Compl. Ex. 2 (Statement of Vice Chair Ellen L. 

Weintraub Regarding CREW v. FEC & American Action Network, (Apr. 19, 2018), 

https://perma.cc/LW5C-LN6P). 

Commissioner Weintraub, as the commissioner responsible for blocking the last reason to 

believe vote, released the “controlling rationale” for the dismissal. FEC MTD 9; Compl. ¶¶ 57–

60, Ex. 5. In it, the FEC “explicitly disclaim[ed] in [their] entirety the reasoning contained” in 

the prior statements of reasons in this matter, stated the FEC “did not dismiss this matter 

pursuant to its prosecutorial discretion” and “unequivocally disclaims prosecutorial discretion as 

a rationale for the Commission’s dismissal of this matter.” Compl. ¶ 56, Ex. 5. The FEC further 

stated the dismissal did not rest on the statute of limitations. Id. 

Rather, the FEC held, “the evidence before the Commission showed that AAN met the 

definition of a political committee, which does have to disclose the identity of its donors.” Id.

¶ 57, Ex. 5. The FEC held that “activity that extends well beyond express advocacy” is relevant 

to “determine political committee status.” Id. ¶ 58, Exs. 2, 5–7. In particular, all but “rare” or 

“extraordinary” electioneering communications exhibit an electoral purpose and cannot serve to 

excuse a group for political committee reporting. Id. Additionally the major purpose analysis 

looks to a single calendar year of activity, and if a group spends a majority of its funds to 

influence elections in the year it meets the statutory test, it cannot be excused. Id. Employing 

those standards, the FEC concluded AAN spent a least $17 million, or “at least 62.6 percent ... 

of AAN’s total spending [in 2010] [to] suppor[t] federal campaign activity.” Id. ¶ 59, Ex. 5. The 

Case 1:22-cv-03281-CRC Document 16 Filed 01/27/23 Page 19 of 52
13 

FEC held that the “dismissal of this matter was unreasonable, giving the facts before the 

Commission, the law governing this activity, and the reasoning” provided, and so “[t]he 

Commission’s dismissal of this matter was contrary to law.” Id. ¶ 60, Ex. 5. 

In complete agreement with the FEC, CREW brought the instant suit within sixty days of 

the vote to close to obtain a judicial declaration that the dismissal was contrary to law. See

Compl. ¶ 53. 

III. The Continued Growth of Dark Money 

In the decade-plus that the FEC has abdicated enforcement of the law against AAN, its 

failure to police dark money has bred the corrupt reality that groups like CREW feared. To 

provide just a few examples: Lev Parnas used a dark money vehicle to launder Russian money 

and use it to purchase influence over the President and other officials to win business licenses. 

Shayna Jacobs, Giuliani associate Lev Parnas convicted in campaign finance fraud case, Wash. 

Post., Oct. 22, 2021, https://perma.cc/7SAF-S94K; see also Anna Massoglia, GOP operatives 

funneling Russian money to Trump is the latest ‘straw’ donor scheme, OpenSecrets, Sept. 22, 

2021, https://perma.cc/DM7C-YG57. A crypto-currency billionaire—currently facing criminal 

charges—used his money to buy “bipartisan influence” and bragged about making tens of 

millions of dollars of those contributions “dark.” Nik Popli, Here's What we Know About Sam 

Bankman-Fried’s Political Donations, Time, Dec. 14, 2022, https://perma.cc/D3B5-FNVX. A 

truth-challenged congressman facing bi-partisan calls for resignation has been connected to a 

potentially fraudulent scheme to solicit donations on false pretenses, using the cover of an 

unregistered section 501(c)(4) nonprofit to solicit funds. Alexandra Berzon and Grace Ashford, 

The Mysterious, Unregistered Fund That Raised Big Money for Santos, NY Times, Jan. 12, 2023, 

https://perma.cc/Y5NE-YYSK. A speaker of a state house used a dark money group to carry out 

Case 1:22-cv-03281-CRC Document 16 Filed 01/27/23 Page 20 of 52
14 

a bribery scheme. Sharon Coolidge and Dan Horn, ‘Dark money’ group admits involvement in 

Householder bribery scandal, Cincinnati Enquirer, Feb 5, 2021, https://perma.cc/S9NV-EDX7. 

An insurance executive used a dark money group’s spending as a bribe. Matt Corley, Convicted 

insurance exec’s nonprofit contributed to national dark money groups, CREW, Apr. 16, 2020, 

https://perma.cc/J9W8-A53A. A former state Attorney General used dark money groups to win 

favors for payday lenders. Nicholas Confessore, A Campaign Inquiry in Utah Is the Watchdogs’ 

Worst Case, NY Times, Mar. 18, 2014, https://perma.cc/DS9Q-5WBW. 

These examples are only the tip of the iceberg given the amounts of dark money that have 

flooded the system. One analysis concluded that more than $2.6 billion were spent in U.S. 

elections in the decade following Citizens United without disclosure as to its source. Massoglia, 

‘Dark money’ groups have poured billions into federal elections (aggregating FEC reported 

expenditures by groups not disclosing donors). Another analysis found that dark money topped 

$1 billion in the 2020 election alone. Anna Massoglia and Karl Evers-Hillstrom, ‘Dark money’ 

topped $1 billion in 2020, largely boosting democrats, OpenSecrets, Mar. 17, 2021, 

https://perma.cc/NK4L-E6MS (aggregating FEC reported spending, unreported political 

spending, and contributions to political groups by groups not disclosing donors). 

One prosecutor called dark money the “perfect animal for bribery.” Ohio corrupt case 

HB6: Winks, nods, texts and more can prove bribery, at 5:46–:50, Ohio Politics Explained (Jan. 

9, 2023), https://bit.ly/3HaD5wL. The FEC’s acquiescence, or worse, active abdication of 

campaign finance enforcement, including political committee registration and disclosure, has fed 

and nurtured that beast, which only continues to grow. 

ARGUMENT 

Neither the FEC nor AAN raise meritorious objections to this lawsuit. The FEC argues 

Case 1:22-cv-03281-CRC Document 16 Filed 01/27/23 Page 21 of 52
15 

this suit is futile, but only shows that the three Republican commissioners of the FEC are 

committed to abdicating enforcement of campaign finance laws against their partisan ally, AAN, 

and similar groups and that CREW will not have a fair hearing on remand. The import of the 

FEC’s argument, if any, is to show that any chance of FEC enforcement is nonexistent and that 

CREW’s citizen suit should be authorized immediately. For its part, AAN’s arguments fare no 

better: CREW has standing, this suit is timely, the FEC has now disclaimed any reliance on 

prosecutorial discretion, and the Court should disregard nonbinding precedent. 

I. This Action is Not Futile Even if Further FEC Proceedings Are 

The FEC asks this Court to dismiss this action because “three Commissioners—a 

sufficient number to vote down any reason to believe vote on remand—have released a statement 

explaining ... they opposed revisiting” the AAN matter and rather “favor[ed] closing the file.” 

FEC MTD 12. Accordingly, the FEC asserts this action is “futile.” Id. The FEC, however, cites 

no authority under § 30109(a)(8)(C) dismissing a suit where three commissioners are immovably 

committed to legal error and to granting impunity to their political allies. The simple reason for 

the omission is that Supreme Court authority flatly contradicts the FEC’s position. 

In FEC v. Akins, the FEC argued that a § 30109(a)(8)(C) lawsuit should be dismissed 

because, on remand, the FEC would “decid[e] in the exercise of its discretion not” to enforce. 

524 U.S. at 25. Yet the Supreme Court found that promise immaterial and refused to dismiss the 

suit, “even though the agency (like a new jury after a mistrial) might later, in the exercise of its 

lawful discretion, reach the same result for a different reason.” Id.; see also CREW, 209 F. Supp. 

3d at 85 n.3 (“[T]he mere fact the FEC has discretion to dismiss CREW’s complaint for another 

reason does not vitiate the redressability of CREW’s claim.”). 

Here, the FEC points to even less. There is no promise by the agency to exercise 

Case 1:22-cv-03281-CRC Document 16 Filed 01/27/23 Page 22 of 52
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prosecutorial discretion on remand—rather only a free-floating statement explaining no vote and 

with no legal effect that “take[s] no position” on the question of whether CREW’s claim should 

proceed written by three commissioners who may or may not be sitting if this case is remanded. 

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

James E. “Trey” Trainor, III, 6, MUR 6589R (AAN) (May 13, 2022) (“Dickerson, et al. 

Statement”), https://perma.cc/C4CX-7QAG (cited by FEC MTD 10, 12); see also Allison Desy, 

Keith Newell, & Willard West, Commissioners linger in ‘holdover’ status, IRW, Sept. 28, 2021, 

https://perma.cc/F8D7-6W5G (Commissioner Sean Cooksey’s term expired April 30, 2021). 

Even if the statement promised to vote to exercise discretion, the three commissioners could not 

alone exercise that power. See 52 U.S.C. § 30106(c); FEC, Statement of Policy Regarding 

Commission Action in Matters at the Initial Stage of Enforcement, 72 Fed. Reg. 12,545, 12,546 

(Mar. 16, 2007) (exercise of prosecutorial discretion “requires the vote of at least four 

Commissioners”); e.g. Certification, MUR 7460 (FPFG) (Apr. 8, 2021), https://perma.cc/WUB4-

4ST5 (6-0 vote to exercise prosecutorial discretion), see also Oil, Chemical and Atomic Workers 

Int'l Union v. NLRB, 46 F.3d 82, 92–93 (D.C. Cir.1995) (agency actions must occur through 

“majority-suppor[t]”). 

The FEC’s showing aside, the FEC is incorrect to assert that these three may 

“preordai[n]” the outcome of this case. FEC MTD 12. If the three commissioners once again 

voted against reason to believe on remand, that would merely demonstrate a failure to conform, 

and thus reinstate CREW’s citizen suit against AAN. That is what occurred in this very matter 

after this Court found, for the second time, that the FEC’s dismissal was contrary to law: a 

reason-to-believe vote failed, Compl. ¶ 54, and the FEC thereby failed to conform with this 

Court’s judgment and CREW was able to bring suit, see AAN, 410 F. Supp. 3d at 11. 

Case 1:22-cv-03281-CRC Document 16 Filed 01/27/23 Page 23 of 52
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This result flows from the structure and purpose of the FECA. The purpose of 

§ 30109(a)(8)(C) review is to ensure enforcement where the FEC proves “unable or unwilling” 

to enforce. DCCC, 831 F.2d at 1135 n.5. Where the FEC proves incapable of providing relief on 

a “plausible claim,” CHGO II, 923 F.3d at 1144 (Pillard, J., dissenting)—i.e., where any attempt 

at obtaining relief from the agency is “futile”—then that plaintiff may bring their own lawsuit. 

The FEC’s complete lack of on-point authority is thus unsurprising. Rather, the FEC cites 

authority where the outcome was mandated by statute, see Fogg v. Ashcroft, 254 F.3d 103, 111 

(D.C. Cir. 2001) (“the decision was not only right but legally inevitable”); Nat’l Parks 

Conservation Ass’n v. United States, 177 F. Supp. 3d 1, 35-36 n.10 (D.D.C. 2016) (any action on 

remand “would be near impossible to square [with] a requirement that the Forest Service’s 

exercise of its limited authority be done expeditiously”); where the agency provided an adequate 

alternative lawful basis for its actions, see NLRB v. Am. Geri-Care, Inc., 697 F.2d 56, 63–64 (2d 

Cir. 1982) (while ALJ cited potentially unlawful burden shifting precedent, it still independently 

found firing was “clearly pretextual” which would independently support result); or authority 

that did not even resolve whether remand would be futile, see Keats v. Sebelius, No. 13-1524, 

2019 WL 1778047, at *7 (D.D.C. Apr. 23, 2019) (raising, but not deciding, question whether 

remand would be futile to decide whether agency had and carried out legal duty to review 

employee file for employee being tried for possession of child pornography).3

 

3 The FEC also cites Checkosky v. SEC, 139 F. 3d 221 (D.C. Cir. 1998), but only for its limited 

authority on judicial notice, see FEC MTD 11, likely because the case undercuts its argument. 

There, the SEC sought to sanction an accountant, but could not “articulate a discernable 

standard” that commanded a majority of the commissioners. Checkosky, 139 F.3d at 227. The 

court concluded that because no such pronouncement was likely, it would not remand but rather 

dismiss the agency’s action as unlawful. Id. Here, too, there is little likelihood of a majority 

opinion commanding the approval of FEC commissioners, and the end result is that the agency’s 

action here, dismissal of CREW’s complaint, is contrary to law.

Case 1:22-cv-03281-CRC Document 16 Filed 01/27/23 Page 24 of 52
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Indeed, the only FECA-related authority the FEC cites, FEC v. Legi-Tech, 75 F.3d 704 

(D.C. Cir. 1996), expressly cuts against the FEC’s theory here. In that case, the court found that 

it would be futile to remand the agency’s decision to sue the defendant, notwithstanding the fact 

the original decision was unlawfully voted on by ex-officio members, because the FEC had 

already “ratif[ied]” the decision with a properly constituted Commission. Id. at 708. Notably, the 

court expressly rejected a claim of “statutory authority to review the FEC’s decision to sue,” and 

contrasted that with “a decision not to sue” which the court recognized was reviewable under 52 

U.S.C. § 30109(a)(8)(C). Id. at 709. In other words, a remand to reconsider a decision to sue was 

futile because it could not be reexamined; but that is not true of a decision to dismiss.4

Even if the FEC is correct that three commissioners on remand will refuse to conform 

with this Court’s judgment, then the import of that is not what the FEC suggests. Rather than 

provide a basis to dismiss CREW’s suit, it instead shows that providing the FEC “the right of 

first refusal,” New Models II, 55 F.4th at 929 (Millett, J., dissenting), is “no more ‘than an 

exercise in futility.” NCPAC v. FEC, 626 F.2d 953, 957 (D.C. Cir. 1980). Because “it is clear 

beyond doubt that the [FEC] will not grant the relief in question,” CREW should be found to 

have immediately exhausted its administrative remedies and be authorized to bring a citizen suit. 

Id.; see also Hagelin v. FEC, No. 96-2132, 96-2196, 1996 WL 566762, *4 (D.D.C. Oct. 1, 1996) 

4

 Presumably, the FEC intentionally ignores earlier FECA authority which cited futility in 

choosing not to remand a dismissal because that authority is clearly contravened by later case 

law barring courts from creating their own justifications and requiring them to rely solely on 

contemporary statement provided by the agency. Compare In re FECA Litig., 474 F. Supp. 1044, 

1047 (D.D.C. 1979) (refusing to remand as futile because court did “not believe that ascertaining 

the specific motive underlying the Commission’s decision” was necessary) with DCCC, 831 F.2d 

at 1135 (“The Commission or the individual Commissioners should first be afforded an 

opportunity to say why DCCC’s complaint was dismissed”) and Common Cause v. FEC, 842 

F.2d 436, 450 (D.D.C. 1988) (upholding dismissal in part on basis of futility solely because the 

court “decline[d] to give retroactive effect to our ruling in DCCC”). 

Case 1:22-cv-03281-CRC Document 16 Filed 01/27/23 Page 25 of 52
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(Hogan, J., from the bench) (“I believe that the Court may be able in certain extraordinary 

circumstances to hear a case if the pursuit of the FEC remedy would be futile.”).5 It demonstrates 

that the FEC has “abdicat[ed] [] its statutory responsibilities.” CHGO I, 892 F.3d at 440 n.9 

(quoting Heckler v. Chaney, 470 U.S. 821, 833 n.4 (1985)). 

If three commissioners are indeed wedded to immunizing AAN from the reach of the 

federal campaign finance laws, that merely demonstrates Congress’s wisdom in not leaving 

citizens’ vital rights to a partisan bloc of commissioners. The purported futility of remand does 

not demonstrate the dismissal was lawful or deprive CREW of its legal right to seek relief for its 

injuries; it merely justifies expeditiously permitting CREW to seek its own relief. 

II. CREW has Standing 

The FEC makes no further argument for dismissal, but intervenor AAN once again 

contests CREW’s standing. This Court has already concluded CREW has standing to seek relief 

from the injuries AAN caused and continues to cause. AAN, 410 F. Supp. 3d at 12–15; see also 

CLC v. FEC, 31 F.4th 781, 783 (D.C. Cir. 2022) (organization materially identical to CREW for 

these purposes has standing to bring FECA claim); CREW v. FEC, 316 F. Supp. 3d 349, 383 

(D.D.C. 2018) (CREW has standing to assert FECA informational injury claims). Aware of its 

previous failures, AAN argues a recent Supreme Court decision, TransUnion LLC v. Ramirez, 

141 S. Ct. 2190 (2021), revolutionized informational injury and swept away all prior precedents. 

AAN Mem. of P. & A. in Supp. of its Mot. to Dismiss 2 (“AAN MTD”). Not so. 

In relevant part, in TransUnion, a group of plaintiffs asserted an injury from “formatting 

5

 Although where “Congress specifically mandates, exhaustion is required,” Perot, 97 F.3d at 

559, CREW will have met all mandatory exhaustion requirements when it receives a judgment 

from this court in its favor. 

Case 1:22-cv-03281-CRC Document 16 Filed 01/27/23 Page 26 of 52
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defects in certain mailings sent to them by TransUnion.” 141 S. Ct. at 2200. The Court found the 

plaintiffs failed to establish an injury-in-fact. Id. at 2212–13. The United States, as amicus 

curiae, suggested the plaintiffs suffered an informational injury, citing FEC v. Akins, 524 U.S. 

11, and Public Citizen v. DOJ, 491 U.S. 440 (1989). Id. at 2214. In distinguishing those cases, 

the Court reaffirmed such standing where plaintiffs “allege they failed to receive any required 

information” under “public-disclosure law[s].” Id. In an aside, the Court added that, “[m]oreover, 

the plaintiffs have identified no ‘downstream consequences’ from failing to receive the required 

information.” Id. (citing Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990, 1004 (11th Cir. 

2020) (recognizing failure to disclose information required by the FECA will have “downstream 

consequences” because the information “would help [plaintiffs] (and others to whom they would 

communicate it) to evaluate candidates for public office” (quoting Akins, 524 U.S. at 21))). 

Contrary to AAN’s suggestion, courts considering TransUnion have concluded that, even 

treating the need to show at least one “downstream effect[]” as a necessary element to establish 

an informational injury,6

 the case does not “wor[k] a sea change to its informational injury 

jurisprudence.” Kelly v. RealPage, Inc., 47 F.4th 202, 214 (3d Cir. 2022); see also Env’t Texas 

Citizen Lobby, Inc. v. ExxonMobil Corp., 47 F.4th 408, 416 (5th Cir. 2022) (“TransUnion did not 

upset our approach to injury-in-fact”). That is true for the D.C. Circuit as well. 

6 The sentence is ambiguous in context. It is not clear if the Court was merely noting that 

plaintiffs had not alleged some other injury that was caused by the formatting error, or reversing 

precedent to append another requirement for informational injury in a single passing sentence 

without even acknowledging that fact. Cf. Friends of Animals v. Jewell, 828 F.3d 989, 992 (D.C. 

Cir. 2016) (“[A] plaintiff seeking to demonstrate that it has informational standing generally 

‘need not allege any additional harm beyond the one Congress has identified.’” (quoting Spokeo, 

Inc. v. Robins, 578 U.S. 330, 342 (2016)); Zivotofsky ex rel. Ari Z v. Sect’y of State, 444 F.3d 

614, 617 (D.C. Cir. 2006) (“[W]hy [plaintiff] wants the information, what he plans to do with it, 

what harm he suffered from the failure to disclose—are irrelevant to his standing.”), aff’d in 

relevant part, Zivotosfky v. Clinton, 576 U.S. 1 (2012). 

Case 1:22-cv-03281-CRC Document 16 Filed 01/27/23 Page 27 of 52
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As this Court recognized in previously adjudicating CREW’s standing, the D.C. Circuit 

already required plaintiffs claiming informational injury to show the information “would help 

them.” AAN, 410 F. Supp. 3d at 13 (quoting Jewell, 824 F.3d at 1040–41). “Whether framed as” 

a deprivation of useful information “or a ‘downstream consequence,’ ... the upshot is the same: a 

plaintiff seeking to assert an informational injury must establish a nexus among the omitted 

information to which [it] was entitled, the purported harm caused by that specific violation, and 

the ‘concrete interest’ that Congress identified as ‘deserving of protection’ when it created the 

disclosure requirement.” Kelly, 47 F.4th at 213. That is precisely what CREW has alleged here: 

“it regularly review[s] disclosure reports required by the FECA and uses the information they 

contain regarding campaign expenditures for a host of programmatic activities.” AAN, 410 F. 

Supp. 3d at 13; see also Compl. ¶¶ 9–11; CLC, 31 F.4th at 783 (recognizing standing by 

“watchdog group” after TransUnion based on similar allegations) 

AAN nonetheless argues that the downstream effects of its deprivation of CREW’s 

informational rights are not cognizable, because it describes CREW’s work as “asses[ing] 

anyone else’s legal compliance,” which AAN asserts does not establish an injury in fact. AAN 

MTD 15–16. But CREW does not seek a “legal conclusion.” Wertheimer v. FEC, 268 F.3d 1070, 

1075 (D.C. Cir. 2001). Rather, CREW seeks facts to which it is entitled to permit it to help 

“others to whom CREW would communicate” to “evaluate candidates for office,” to permit it 

and others “to evaluate the role that [AAN’]s financial assistance might play in a specific 

election,” CLC, 31 F.4th at 783, to “deter actual corruption and avoid the appearance of 

corruption by exposing large contributions and expenditures to the light of publicity” and to 

“gather[] data necessary to detect violations” of the Act, Buckley, 424 U.S. at 67–68 (listing 

purposes of FECA disclosure). The FEC’s failure to protect against the deprivation of that 

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22 

information has clear “downstream effects.” TransUnion, 141 S. Ct. at 2214. It not only prevents 

CREW’s work and “necessarily reduces the quantity of [CREW’s] expression” in violation of 

CREW’s First Amendment rights, see Citizens United, 558 U.S. at 339, but undermines the very 

“free functioning of our national institutions,” Buckley, 424 U.S. at 66. 

AAN has previously contested such uses are “derivative,” see AAN, 410 F. Supp. 3d at 

12, but again that is not so. CREW uses the information to evaluate potential corruption and to 

pursue violations of the Act. Compl. ¶¶ 9–10. While CREW cannot use the information to vote, 

neither could the plaintiffs in Akins, but the Court recognized they had standing because the 

restraint on speech was itself an injury. See Akins, 524 U.S. at 21 (standing for plaintiffs who 

may share info with others to use to evaluate candidates), rev’g in relevant part Akins v. FEC, 

101 F.3d 731, 738 (D.C. Cir. 1996) (en banc) (requiring plaintiffs to establish information was 

“[]related to any election in which they voted” and that they “vote[d] in various federal elections 

in which [the defendant] allegedly made contributions that qualified it as a political committee”). 

AAN also asserts that the information is not in fact useful to CREW because, it claims, 

“the Complaint only seeks the identity of AAN’s donors for activities that took place mid-2009 

to mid-2011.” AAN MTD 16. AAN is wrong on three grounds. First, CREW’s relief is not 

limited to pre-2011 information. As this Court recognized, if AAN qualified as a political 

committee by 2011, “[m]aking CREW ‘whole’” would “require ordering AAN to disclose 

everything it would have had to disclose had it complied with the law in the first instance”: 

specifically, its donors “from post-June 2011” through to today and into the future. AAN, 410 F. 

Supp. 3d at 21, 22.7 Second, even knowledge of AAN’s 2009–11 donors is useful to CREW’s 

7 AAN contests this result and its qualification as a political committee prior to 2011, of course, 

see AAN MTD 1, but for purposes of standing, the court must “assume that on the merit the 

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work. See, e.g., Matt Corley, Hensel Phelps donations to pro-Buck dark money group finally 

revealed, CREW, Nov. 19, 2019, https://perma.cc/J99A-ZU2X (reporting on government 

contractor contributor revealed after nine years who made illegal contribution to a member of 

Congress who was also the contributor’s former employee). AAN does not suggest these donors 

are no longer involved in influencing elections. Those donors supported candidates of the 

Republican party and helped flip the House, and many members serving then still serve today. 

Moreover, the influence AAN’s donors were able to exert and continue to exert likely impacts 

policies that remain in effect. Third, AAN cites nothing to suggest that its personal assessment of 

what is and what is not interesting has any bearing on whether the information is useful to 

CREW and thus has any bearing this Court’s jurisdiction. 

Since 2009 and continuing through today, AAN has funneled millions in funds from 

unknown and potentially illegal sources into US elections without any disclosure, buying 

influence and access and corrupting the democratic processes. AAN clearly has no plans to stop. 

Yet the FEC has shown itself unable and unwilling to apply the law to AAN, injuring and 

continuing to deprive CREW of information which has severe downstream effects. 

III. CREW’s Suit is Timely 

The FEC dismissed CREW’s complaint against AAN on August 29, 2022. Compl. ¶ 53 

& Ex. 3 (citing Certification, MUR 6589R (AAN) (Aug. 29, 2022), https://perma.cc/B8ETSUNH). CREW filed this suit on October 27, 2022, see Compl., within the sixty days provided 

by the FECA to challenge a dismissal, see 52 U.S.C. § 30109(a)(8)(B). AAN nevertheless claims 

CREW’s suit is “untimely.” AAN MTD 2. AAN oddly accuses CREW of a “novel” claim that 

plaintiffs would be successful in their claims.” Parker v. D.C., 478 F.3d 370, 377 (D.C. Cir. 

2007).

Case 1:22-cv-03281-CRC Document 16 Filed 01/27/23 Page 30 of 52
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the FECA’s clock runs from the date the FEC voted to close the file. See id. at 17. Yet it is 

AAN’s nonsensical reading that is “far outside the mainstream” and “brazen.” Id. at 19. 

Until recently, it was undisputed that it is the vote to “clos[e] the file” that “terminat[es] 

[the FEC’s] proceedings.” Doe, 1 v. FEC, 920 F.3d 886, 871 n.9 (D.C. Cir. 2019). It is that vote 

to close the file that starts the FECA’s sixty-day clock. See Spannaus v. FEC, 990 F.2d 643, 644 

(D.C. Cir. 1993) (“[T]he date of dismissal was January 9, 1991.”) and Certification, MUR 2163 

(Am. Jewish Comm.) (Jan. 9, 1991), available at page 618, https://perma.cc/92CJ-6UD2 (6-0 

vote to “[c]lose the file”); Jordan v. FEC, 68 F.3d 518, 518 (D.C. Cir. 1995) (“The Commission 

voted to dismiss Jordan’s complaint on July 24, 1991”) and Certification, MUR 3178 (Handgun 

Control PAC) (July 24, 1991), available at page 195, https://perma.cc/G952-TAXW (5-0 vote to 

“[c]lose the file”); CREW v. FEC, 799 F. Supp. 2d 78, 83 (D.D.C. 2011) (“[T]he FEC voted to 

dismiss MUR 5908 on June 29, 2010, thereby triggering Plaintiffs’ 60-day clock in which to 

appeal the dismissal”) and Certification, MUR 5908 (Peace Through Strength PAC) (June 29, 

2010), https://perma.cc/VZ5R-NWNU (5-0 vote to “[c]lose the file”).8 Even those who now 

suggest votes to close are meaningless previously recognized that “[w]ithout four votes to close 

the file, the matter remains in limbo.” See Statement of Chair James E. “Trey” Trainor III on the 

Dangers of Procedural Disfunction 7 (Aug. 28, 2020), https://perma.cc/W8QV-R7QP; see also 

Institute for Free Speech Amicus Curiae Brief 4, CLC v. FEC, 20-cv-809-ABJ (D.D.C. Aug. 16, 

2021) (former employer of Republican commissioner Allen Dickerson recognizing that 

“[n]either the FECA nor the Commission’s regulations specify that a matter terminates when 

8 This rule permits the FEC to continue to deliberate in the face of an apparent deadlock. See

Certification, MUR 6920 (ACU) (Jan. 24, 2017), https://perma.cc/SST6-2TR2 (approving 

conciliation after prior deadlock on merits)

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commissioners tie 3-3 on whether reason exists to believe the respondent violated the Act”). 9

Indeed, AAN’s own authority demonstrates this rule. In CHGO I, the Court recognized 

the dismissal occurred “in 2015,” with the vote “to close the file,” 892 F.3d at 436, 441 n.13, not 

when the relevant deadlock occurred in 2014, CREW v. FEC, 236 F. Supp. 3d 378, 387 (D.D.C. 

2017). Similarly, in Common Cause, the “deadlock dismissal” referred to occurred in 1983, 842 

F.2d at 438, when six commissioners voted to “close the file,” Certification, MUR 1252/1299 

(Am. for An Effective Presidency) (May 24, 1983), available at page 28–29, 

https://perma.cc/56RH-ULU7, not at the time of the challenged deadlock in 1980, Certification, 

MUR 1252 (Am. for An Effective Presidency) (Sept. 17, 1980), available at page 982–84, 

https://perma.cc/Y58V-GE4W.

10 

This rule was uncontested, but that changed when FEC commissioners responded to the 

radical revision of precedent in CHGO. While that case conferred on the blocking commissioners 

a unilateral power to terminate judicial review, it only applied to closed cases, and closure still 

required the consent of another commissioner. See 52 U.S.C. § 30106(c). Previously, a 

commissioner believing a complaint raised a reason to believe might still vote to close “in the 

interests of transparency of agency operations, closure for respondents, public accountability for 

the nay-saying commissioners, or in the hopes the complainant will sue the agency and obtain 

9

 Commissioner Weintraub does not contest any contrary D.C. Circuit authority, cf. AAN MTD 

2, because no such authority exists. Rather she criticized erroneous decisions that permit a nonmajority of the Commission to invoke, after the fact, powers the Commission rejects, or that 

defer to a non-majority’s interpretation of law, see Compl. Ex. 5 at 3 n.11 & 12. 10 CREW exhaustively reviewed FEC and judicial precedent on the matter in a recent amicus

brief filed in another matter. See Br. of Amicus Curiae CREW in Supp. of FEC Mot. to Dismiss,

45Committee v. FEC, 1:22-cv-01749 (D.D.C. Aug. 29, 2022), ECF No. 18-1. In short, the FEC 

and the courts have always required an affirmative majority vote by the Commission to terminate 

a proceeding and begin the clock to sue. 

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judicial reversal.” Statement of Commissioner Ellen L. Weintraub on the Opportunities Before 

the D.C. Circuit in the New Models Case to Re-Examine En Banc its Precedents Regarding 

‘Deadlock Deference,’ 9 (Mar. 2, 2022), https://perma.cc/NY99-B9BZ (“Weintraub, Deadlock 

Deference”). But in the wake of CHGO, closure no longer promised judicial review of rules that 

would guide regulated entities, even those that “blink[] reality.” CREW, 209 F. Supp. 3d at 93. 

Faced with that dilemma, commissioners seeking to faithfully enforce the law began withholding 

their vote to close so they could continue to negotiate with their colleagues or permit a plaintiff 

to challenge a failure to act in court and thus seek the judicial review that the FECA guarantees 

but that CHGO obliterated in dismissal cases. Weintraub, Deadlock Deference 11. 

Only when the need to obtain bipartisan agreement was a condition on the Republican 

commissioners desired outcome did AAN’s novel interpretation emerge: the claim that “a split 

vote on whether to initiate enforcement ... in practical terms, results in an agency ‘action’ 

terminating the complaint.” Amicus Curiae Brief of 45Committee 2, CLC v. FEC, No. 20-cv0809 (D.D.C. Jan. 7, 2022). But that is not the law. 

For its part, it’s not clear what exactly AAN thinks dismissed this case if not the August 

2022 vote to close the file. AAN does not suggest the case closed at the time of the last reasonto-believe deadlock in 2018, see Compl. ¶ 54, a suggestion that would be disproven by the 

authority above and would violate CREW’s due process rights, as CREW was not (and lawfully 

could not be) informed about the vote within its 60-day window to sue, see Jordan, 68 F.3d at 

519; 11 C.F.R. § 5.4(a)(4). AAN appears to suggest that the case might have been dismissed in 

2014. Of course, it was—when the Commission voted to “close the file.” Compl. ¶ 42. CREW 

sued within sixty days and won judgment declaring that dismissal, as well as another dismissal 

against another de facto political committee, was contrary to law. See CREW, 209 F. Supp. 3d at 

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95. The Court then reinstated the case and remanded. Id. To the extent that AAN suggests that 

CREW is limited to a single suit under § 30109(a)(8)(C) and may not challenge a subsequent 

dismissal on remand, no matter the legal or constitutional error committed, it is AAN’s 

suggestion that rests on no “judicial opinion, scholarly writing, or other authority.” Cf. AAN 

MTD 19. For the same reasons, any suggestion that the FEC’s subsequent unlawful dismissal in 

2016—a dismissal also judged contrary to law before the matter was again remanded to the 

agency—has no bearing here. Cf. AAN MTD 19. 

In sum, CREW’s suit here, filed within sixty days of the FEC’s dismissal, is timely. 

AAN’s revisionist history and attempts to mislead this Court on the state of the law fails to carry 

its burden to justify the dismissal it seeks. 

IV. Neither the Dismissal of CREW’s Citizen Suit nor New Models Justify Dismissal of 

This Suit 

Finally, AAN argues that this case is precluded because three ex-commissioners, 

explaining their decision to block enforcement in 2014, vaguely mislabeled their legal analysis 

“prosecutorial discretion.” AAN MTD 22.11 AAN rests this argument on this Court’s recent 

dismissal of CREW’s citizen suit against AAN. Id. at 23 (citing AAN, 590 F. Supp. 3d at 174, on 

appeal 22-7038). Yet there are key differences between this suit and that citizen suit. Moreover, 

the FEC has now confirmed the statement is part of the commissioners’ abdication of 

enforcement. Further, that dismissal rested on law that cannot be reconciled with earlier 

precedents of this Circuit and “gut[s] the statutory scheme that Congress created in the FECA.” 

11 Thus, in contrast to the statement in New Models, the initial statement here “reference[d] their 

merits analysis as [the only] ground for exercising prosecutorial discretion.” Cf. New Models II, 

55 F.4th at 920 (Rao, J., concurring). Accordingly, even under the terms of New Models, review 

remained available. See id. (only because the statement provided “an independent ground of 

prosecutorial discretion” was review unavailable). 

Case 1:22-cv-03281-CRC Document 16 Filed 01/27/23 Page 34 of 52
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AAN, 590 F. Supp. 3d at 168–69. Accordingly, if this case cannot be distinguished from CHGO

and New Models, those decisions must be disregarded. Sierra Club v. Jackson, 648 F.3d 848, 854 

(D.C. Cir. 2011) (“[W]hen a decision of one panel is inconsistent with the decision of a prior 

panel, the norm is that the later decision, being in violation of that fixed law, cannot prevail.”). 

A. As the Challenged Dismissal Disclaims Prosecutorial Discretion, 

Prosecutorial Discretion Cannot Preclude Review 

This suit challenges the FEC’s dismissal of CREW’s complaint in 2022. The FEC 

recognizes that the “controlling rationale” for that dismissal is found in the 2022 Statement of 

Commissioner Weintraub, as she is the latest commissioner to prevent a reason-to-believe vote. 

FEC MTD 9 & n.4. In that statement, the FEC “disclaims in its entirety the reasoning contained” 

in prior controlling statements of reasons and “unequivocally disclaims prosecutorial discretion 

as a rationale for the Commission’s dismissal of this matter.” Compl. ¶ 56 & Ex. 5. Accordingly, 

“here, [t]he statement of reasons issued by the controlling Commissioner[] explicitly [does not] 

rel[y] on prosecutorial discretion.” New Models I, 993 F.3d at 885. 

The Controlling FEC Statement is unlike the one whose challenge gave rise to CREW’s 

previous citizen suit. There, the Court found the statement of reasons “incorporate[d] by 

reference” the first’s reference to prosecutorial discretion. AAN, 590 F. Supp. 3d at 174 n.7. The 

Court thus concluded review of the statement was effectively precluded. Id.12

No such incorporation can be inferred here. Rather, the official position of the FEC 

disclaims any exercise of prosecutorial discretion in CREW’s case against AAN. 

Aware of this, AAN exclusively relies on the Court’s hypothetical for dismissing 

12 CREW does not “acknowledge” that incorporation occurred, cf. AAN MTD 24 n.4, but it does 

acknowledge that incorporation served as the Court’s basis to dismiss. 

Case 1:22-cv-03281-CRC Document 16 Filed 01/27/23 Page 35 of 52
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CREW’s citizen suit: “if the passing reference to prosecutorial discretion in the initial statement 

made the first dismissal unreviewable under New Models, then the Court lacked the power to 

issue the remand order that resulted in the second statement” and “[t]he result would have been a 

dismissal of CREW’s case, and the Commissioners never would have issued a second 

statement.” AAN, 590 F. Supp. 3d at 174 n.7. The Court did not rely on this, finding it need not 

reach the question because of incorporation, addressed above, but AAN now argues that the first 

statement not only precluded that second suit, but all future attempts by CREW to seek relief for 

its injuries from AAN. 

AAN’s argument runs headlong into binding precedent to the contrary, however. For 

example, in Center for Science in the Public Interest v. Regan, 727 F.2d 1161 (D.C. Cir. 1984), 

after a district court struck an agency’s rule due to a failure to “provide an adequate 

explanation,” the agency revised the rule and explanation rather than appeal the adverse 

judgment, id. at 1162–63. An intervening party wished to defend the prior explanation as 

“adequate,” and thus urged the appellate court to find the district court had erred. Id. at 1165. 

Nevertheless, the D.C. Circuit rejected the attempt because the prior explanation had been 

superseded by new agency action, rendering it a “dead letter [that] cannot be revived in favor of 

intervenors.” Id. at 1165–66. 

Here, too, the first two statements of reasons are now “dead letter[s].” Regan, 727 F.2d at 

1165. Indeed, they died from willful abandonment. First, the FEC could have appealed its losses, 

but chose not to. See Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981) 

(“[C]onsequences of a final, unappealed judgment on the merits [are not] altered by the fact that 

the judgment may have been wrong on a legal principle subsequently overruled in another 

case.”); Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981) (“whether initial judgment 

Case 1:22-cv-03281-CRC Document 16 Filed 01/27/23 Page 36 of 52
30 

was correct or not” has no impact on consequences once final). Second, the commissioners who 

first claimed to support prosecutorial discretion reversed course and voted in favor of pursuing 

CREW’s claims and did not move to exercise prosecutorial discretion. See Compl. ¶ 54 & Ex. 4 

(Certification MUR 6589R (AAN) (May 10, 2018), https://perma.cc/US95-WQDP). Their vote 

indicates they abandoned any claim to prosecutorial discretion. Third, the Controlling FEC 

Statement now expressly “disclaims” prosecutorial discretion. Id. ¶ 56 & Ex. 5. While AAN 

prefers the FEC’s earlier position, it is “axiomatic that an agency is free to change its mind.” 

Nat’l Cable & Telecomm’n Ass’n v. FCC, 567 F.3d 659, 667 (D.C. Cir. 2009). 

AAN protests the treatment of Commissioner Weintraub’s statement as the controlling 

rationale, claiming that it is “effectively a dissent.” AAN MTD 27. Yet, as the FEC recognizes, 

the very D.C. Circuit precedent that AAN chastises Commissioner Weintraub for opposing 

commands the result it rejects. Under that precedent, courts “requir[e] a statement of reasons by 

the declining-to-go-ahead Commissioners when a deadlock vote results in an order of dismissal.” 

Common Cause, 842 F.2d at 449; accord New Models I, 993 F.3d at 883 (the “controlling 

Commissioners” are “[t]he Commissioners who voted against proceeding” and speak as “the 

Commission”). Here, Commissioner Weintraub is the person who caused the Commission to 

“fail[] to muster four votes in favor of initiating an enforcement proceeding,” CHGO I, 892 F.3d 

at 437, and thus she now speaks as the Commission in this matter. 

Nor, for that matter, did the failed reason-to-believe vote put this Court’s jurisdiction in 

the citizen suit “in question.” AAN MTD 27. That suit was premised on CREW’s exhaustion of 

its administrative remedies and the FEC’s failure to “conform” with the Court’s 2016 declaration 

in thirty days. AAN, 410 F. Supp. 3d at 11. Once those thirty days passed, the FECA provides no 

additional basis for the FEC to undermine CREW’s citizen suit. Moreover, even if the FEC could 

Case 1:22-cv-03281-CRC Document 16 Filed 01/27/23 Page 37 of 52
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later conform outside of the thirty days, a failed reason-to-believe vote hardly does so. Nor 

would it in any way “moot” CREW’s citizen suit. AAN MTD 27, because it did not preclude a 

court from providing “an effective remedy,” Larsen v. U.S. Navy, 525 F.3d 1, 4 (D.C. Cir. 2008): 

requiring AAN to disclose unlawfully withheld information. 

Accordingly, this case is in no way premised on reviewing a statement of reasons that 

invokes, even by incorporation, prosecutorial discretion. Rather, it concerns a statement that 

disclaims prosecutorial discretion, including any past invocations by anyone. AAN cites nothing 

for its proposition that once a commissioner invokes prosecutorial discretion, it binds all future 

commissioner determinations, nor anything to support its but-for counterfactual speculation.13 As 

the FEC now disclaims any prosecutorial discretion to justify non-enforcement against AAN, 

prosecutorial discretion cannot prevent judicial review. 

B. The First Statement of Reasons Did Not Speak for the Agency and Could Not 

Invoke the Agency’s Prosecutorial Discretionary Powers 

Putting aside its being superseded and disclaimed, the first statement of reasons that 

purported to invoke prosecutorial discretion was still signed by only three commissioners and 

issued nearly two months after the majority action to close the file that it purported to explain. 

See Compl. ¶¶ 42–43. Accordingly, the statement is nothing more than a “post-hoc 

rationalization” that fails to express the views of “the proper decision makers.” Local 814, Int’l 

Broth. of Teamster v. NLRB, 546 F.2d 989, 992 (D.C. Cir. 1976). 

13 Such counterfactual speculation is hardly reliable. For example, it fails to account for CREW’s 

2018 Amended Complaint. Compl. ¶ 50. If the Court held that it could not review the first 

statement of reasons, nothing would have precluded CREW, or its then new executive director, 

from filing a new complaint against AAN rather than asking to amend a purportedly legally 

defunct complaint. In that case, the only dismissal in this MUR would be the 2022 dismissal and 

the only statement of reasons would be Commissioner Weintraub’s 2018 statement. 

Case 1:22-cv-03281-CRC Document 16 Filed 01/27/23 Page 38 of 52
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First, “[c]ourts do not ... give credence to ... post hoc rationalizations for agency action, 

but instead ‘consider only the regulatory rationale offered by the agency at the time of such 

action.’” Gerber v. Norton, 294 F.3d 173, 184 (D.C. Cir. 2002). There is nothing in the record to 

indicate the rationalization provided accurately memorializes a contemporary analysis. 

Second, the statement is not from the proper decisionmakers, i.e. it is not “a majoritysupported statement’” that explains the majority’s vote to dismiss. Cf. Oil, Chemical and Atomic 

Workers, 46 F.3d at 92 (quoting United Food & Commercial Workers Int’l Union v. NLRB, 880 

F.2d 1422, 1436–37 (D.C. Cir. 1989)); see also id. at 93 (“We insist that the agency, to which 

Congress has delegated principal policymaking authority, choose and clearly articulate its 

rules.”). Since DCCC, courts have, as a matter of convenience, reasonably assumed that where a 

majority “dismiss[es] due to a deadlock,” that majority is dismissing because of their colleagues’ 

decision to vote against the merits of the complaint. See DCCC, 831 F.2d at 1133; Common 

Cause, 842 F.2d at 449 (statement needed from only deadlocking commissioners “when a 

deadlock vote results in an order of dismissal”). Accordingly, it at least approximates the 

requirement for the majority decisionmakers to issue a statement when courts assume that 

statement would merely point to their colleagues’ adjudication of the merits of the complaint. 

But it ignores the need for a statement from the decisionmakers to examine the 

deadlocking commissioners’ statement outside of the context in which it is offered. The 

deadlocking commissioners’ statement does not explain the dismissal—only a statement by the 

majority voting to close the file may do that. Rather, it is a statement serving to explain their 

judgment on the merits of the complaint as failing to raise a reason-to-believe that precluded 

enforcement by either the FEC or a private party. It is only because the non-majority judged the 

complaint to lack merit could they deadlock agency action, and only that deadlock on the merits 

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motivated the majority to dismiss. A non-majority’s vote to invoke prosecutorial discretion on its 

own would have no legal effect. See 52 U.S.C. § 30106(c); FEC, Statement of Policy, 72 Fed. 

Reg. at 12,546. By voting to close the file, the majority is not delegating, and legally cannot 

delegate, to the minority a power to invoke powers through its obligation to provide a statement. 

See 52 U.S.C. § 30106(c). 

To be sure, the statements at issue in CHGO and New Models were also post-hoc 

rationalizations by commissioners other than the proper decisionmakers. But neither case 

addressed either issue, and “[q]uestions which merely lurk in the record, neither brought to the 

attention of the court nor ruled upon, are not to be considered as having been so decided as 

constitute precedents.” Webster v. Fall, 266 U.S. 507, 511 (1925). 

C. The FEC has Abdicated Enforcement Against AAN And Other De Facto

Political Committees 

Further, assuming the superseded initial post-hoc statement by non-decision-makers is 

determinative for purposes of this case, it does not preclude review because the FEC has 

“abdicat[ed] [] its statutory responsibilities” with respect to AAN and, indeed, against any de 

facto political committee. CHGO I, 892 F.3d at 440 n.9. It is the FEC’s position here that the 

Republican commissioners will never faithfully enforce the law against AAN. Although two 

eventually voted to find CREW’s complaint raised a reason to believe, Compl. ¶ 54, they 

apparently did so to use that vote to undermine CREW’s suit and were still committed to 

“find[ing] a way to block meaningful enforcement of the law in this and any other dark-money 

matter that comes before us.” Compl. Ex. 2. 

Indeed, the only apparent modern case where the FEC required a group to report as a 

political committee is Americans for Jobs Security—and only because of this Court’s order. See 

Case 1:22-cv-03281-CRC Document 16 Filed 01/27/23 Page 40 of 52
34 

CREW, 209 F. Supp. 3d at 82; Meghan Faulkner, Uncovering Massive Dark Money Donors, 3 

Lawsuits Later, CREW, Sept. 20, 2019, https://perma.cc/GN9N-XMTF; Statement of Reasons of 

Commissioner Caroline C. Hunter 1, MUR 6538R (July 2, 2020), https://perma.cc/WVV6-

M4NN (enforcing law only because “my hand was effectively forced by a federal district 

court”). That disclosure revealed important information, even nine years after the fact, that 

showed among other things a donor to a member of Congress was a prohibited source: a federal 

contractor and the member’s former employer. Matt Corley, Hensel Phelps donations to proBuck dark money group finally revealed. In no other case in the eleven years since CREW first 

filed its complaint against AAN has the FEC required a de facto political committee to disclose 

its donors to the public, as required by law, including in numerous cases found to be meritorious 

by either the FEC’s General Counsel or the Democratic commissioners. 

The FEC admits that three commissioners will not permit any repeat of its Americans for 

Job Security enforcement, and that they will not afford CREW a fair hearing on remand. Indeed, 

the FEC’s representations to this Court show CREW has never had a fair hearing from the 

Commission for its claims against AAN, and never will against any de facto political committee. 

Rather, because the FEC—or at least a sufficient number of commissioners to block action—

have “abdicat[ed]” enforcement, its dismissal is reviewable, CHGO I, 892 F.3d at 440 n.9 

(claims of prosecutorial discretion do not terminate review if they are part of the agency’s 

abdication of enforcement), even if the initial post-hoc superseded statement by a non-majority 

were the determinative explanation for review here. 

D. New Models and CHGO Conflict with Binding Precedent and Must be 

Disregarded 

Finally, even assuming that this case is “on all fours” with New Models, AAN MTD 22, 

Case 1:22-cv-03281-CRC Document 16 Filed 01/27/23 Page 41 of 52
35 

that would still not support dismissal. That is because New Models, and the earlier precedent on 

which it relies, CHGO, irreconcilably conflicts with earlier binding precedents of the Supreme 

Court and D.C. Circuit, as both members of the D.C. Circuit and this Court have recognized. As 

both New Models and CHGO are “inconsistent with the decision[s] of a prior panel,” these 

decisions, “being in violation of that fixed law, cannot prevail.” Sierra Club, 648 F.3d at 854; see 

e.g., Rockwell Cap. Partners, Inc. v. CD Int’l Enter., Inc., 311 F. Supp. 3d 52, 56 n.3 (D.D.C. 

2018) (“To the extent that [a later Circuit decision] is contrary to [an earlier decision], the Court 

is bound to follow [the earlier decision] because it was decided first.”). 

1. Applying New Models and CHGO Here Conflicts with FECA Precedent

New Models is “not binding” because it, and its precursor, CHGO, “conflict[] with ... the 

Supreme Court’s decision in [Akins], 524 U.S. 11[]; and with [this Court’s] decisions in 

Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995); [DCCC], 831 F.2d 131[], and 

Orloski [v. FEC], 795 F.2d 156 [(D.C. Cir. 1986)].” CHGO II, 923 F.3d at 1145 (Pillard, J., 

dissenting) (citing Sierra Club, 648 F.3d at 854); accord New Models I, 993 F.3d at 900–01 

(Millett, J., dissenting); CLC v. FEC, 952 F.3d 352, 358–59 (D.C. Cir. 2020) (Edwards, J., 

concurring).14 

First, New Models conflicts with binding Supreme Court authority in Akins. The majority 

in New Models held that the “FECA cannot alter the APA’s limitation on judicial review,” New 

Models I, 993 F.3d at 889, and that, notwithstanding the plain language of 52 U.S.C. 

14 See also generally Br. of Election Law Scholars as Amici Curiae in Supp. of Appellants’ Pet. 

for Rehearing En Banc, CREW v. FEC, No. 19-5161 (D.C. Cir. June 30, 2021) (explaining 

“significant conflict in the rulings of this Court” with New Models, that decision permits “one 

party [to] dominate the FEC’s decision-making” and “threatens Congress’s carefully crafted 

framework for the enforcement of campaign finance law”).

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§ 30109(a)(8)(A), “the [FEC’s] decision not to bring an administrative enforcement action is 

‘committed to agency discretion by law’ and therefore unreviewable,” id. at 888. In contrast, 

Akins recognized the APA’s “traditiona[l]” limit on review, but found that the FECA “explicitly 

indicates [] the contrary.” Id. at 900 (Millett, J., dissenting) (quoting Akins, 524 U.S. at 26 

(holding Chaney, 470 U.S. 821, does not apply to review of FEC dismissals)); accord CHGO II, 

923 F.3d at 1146 (Pillard, J., dissenting); CLC, 952 F.3d at 361 (Edwards, J., concurring). 

Rather, “as the Supreme Court has specifically held, ‘reason-to-believe’ assessments under the 

[FECA] are expressly excepted from the general presumption that decisions not to enforce the 

law are unreviewable.” New Models II, 55 F.4th at 927 (Millett, J., dissenting).15

New Models tried to revise Akins’s history to limit the case to dismissals premised on 

“only legal reasons.” 993 F.3d at 889 n.8. Yet the FEC in Akins claimed the dismissal under 

review was discretionary, compare id. with Reply Br. for Pet’r, FEC v. Akins, 524 U.S. 11 (1997) 

(No. 96-1590), 1997 WL 675443, at *9 n.8 (invoking prosecutorial discretion), and the Supreme 

Court expressly stated that the FECA extends review to even “discretionary agency decision[s]” 

to correct any “improper legal ground” given to support dismissal. Akins, 524 U.S. at 25. Rather, 

courts “cannot know that the FEC would have exercised its prosecutorial discretion” with a 

correct view of the law. Id. 

In short, Akins recognizes the FECA provides “an unusual statutory provision which 

permits a complainant to bring to federal court an agency’s refusal to institute enforcement 

proceedings,” Akins, 101 F.3d at 734, without exception. Indeed, the provision is not so unusual 

15 New Models’s textual hook for discretion was the FEC’s discretion in the remedy at the end of 

an enforcement action it pursues. 993 F.3d at 890 (quoting 52 U.S.C. § 30109(a)(6)(A)). But that 

discretion exists for every action, including the action in Akins, and yet the Court recognized the 

“decision not to undertake an enforcement action” was still reviewable. 524 U.S. at 26. 

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when the statutory scheme is understood as a whole. The FECA does not “attempt to force the 

Commission itself to proceed in the face of an agency exercise of constitutionally unreviewable 

prosecutorial discretion.” New Models II, 55 F.4th at 929 (Millett, J., dissenting). Rather, it 

authorizes judicial review of the agency’s adjudication of a private party’s claim to permit it to 

show exhaustion and “pursue its private right[s].” Id. 

Second, New Models conflicts with this Court’s decision in DCCC, which recognized the 

FEC’s discretionary dismissals, even those with unanimous backing, are reviewable. 831 F.2d at 

1133–34 (recognizing both “6-0 decision” and “3-2-1 decision” to “exercise of prosecutorial 

discretion” are reviewable). Rather than limit review to dismissals based “exclusively on an 

interpretation of the relevant statutory and regulatory standards,” New Models I, 993 F.3d at 894, 

DCCC held the FECA did not “confin[e] the judicial check to cases in which ... ‘the 

Commission acts on the merits,’” 831 F.2d at 1134; see also Common Cause, 842 F.2d at 449 

(applying DCCC to discretionary rationales). Instead, review extends to commissioners’ 

“unwilling[ness]” to enforce to ensure they do not “shirk [their] responsibility to decide” a matter 

on the merits. DCCC, 831 F.2d at 1134, 1135 n.5. 

Third, New Models conflicts with Chamber, which similarly held the Commission’s 

“unwillingness” to proceed was reviewable, and that it presented an “easy” case for reversal. 69 

F.3d at 603. In Chamber, the court’s jurisdiction depended on the fact that, “even without a 

Commission enforcement action” due to prosecutorial discretion, “[plaintiffs] [were] subject to 

litigation challenging ... their actions” because “the Commission’s refusal to enforce would be 

based not on a dispute over the meaning of the applicability of the rule’s clear terms” and thus 

would be contrary to law. Id.; see also CHGO II, 923 F.3d at 1150 (Pillard, J., dissenting) 

(Commission “oblig[ed] to pass on the merits of a complaint,” and “[i]f three Commissioners 

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could vote ‘no’ at the reason-to-believe stage on grounds of prosecutorial discretion, there would 

be little to check ‘the Commission’s unwillingness to enforce its own rule’” (quoting Chamber, 

69 F.3d at 603)). But that is only true if a discretionary dismissal could be found contrary to law. 

Fourth, New Models conflicts with Orloski, which held that all FEC dismissals are 

subject to review. 795 F.2d at 161. Indeed, Orloski recognized that, as the first step in any 

review, the commissioners must demonstrate their analysis is based only on “permissible 

interpretation[s]” of law. Id. Moreover, “a decision dismissing a complaint ‘is contrary to law’ 

even ‘under a permissible interpretation of the statute’ if it involves ‘an abuse of discretion.’” 

CHGO II, 923 F.3d at 1147 (Pillard, J., dissenting) (quoting Orloski, 795 F.2d at 161). 

Each of these decisions accords with the FECA’s basic structure for review of private 

complaints: the FEC acts as a “first arbiter” to weed out unmeritorious complaints, subject to 

judicial review. CHGO II, 923 F.3d at 1149. But where nonenforcement is the result of the 

FEC’s “unwillingness,” DCCC, 831 F.2d at 1134; accord Chamber, 69 F.3d at 603; see also 

Orloski, 795 F.2d at 161, review is not thwarted. Rather, that is an “easy” case because it 

demonstrates that there is no dispute over the complaint’s merit. Chamber, 69 F.3d at 603. 

Courts do not thereby compel the FEC to act; rather, they merely find a plaintiff has exhausted 

their attempts to seek administrative relief and permit the plaintiff to bring a suit in its own name. 

New Models, however, corrupts this system. It confuses the FEC’s prosecutorial 

discretion over the pursuit of its own claims with a power to veto claims private litigants wish to 

bring. Indeed, “[t]he harm worked by this decision is serious and recurring.” New Models II, 55 

F.4th at 929 (Millett, J., dissenting) (citing evidence that, since the CHGO decision, two-thirds of 

dismissals contrary to the agency’s general counsel’s recommendation have cited prosecutorial 

discretion). Indeed, at a time the FEC’s lax enforcement has enabled incidents like a donor’s 

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scheme to shunt tens of millions of dollars into elections through straw donors, see Chad Day, 

Paul Kiernan, Sam Bankman-Fried’s Alleged Campaign Finance Violations Explained, Wall 

Street Journal, Dec. 14, 2022, https://perma.cc/X4JF-PH2T, New Models has proven fatal to 

every private litigant trying to protect their rights under the FECA where they seek to challenge a 

FEC dismissal that occurred after the decision came down. 

Courts are bound to follow the earlier line of cases that faithfully applied the FECA and to 

disregard CHGO and New Models. Accordingly, they cannot serve as a basis to dismiss this action. 

2. Applying New Models and CHGO Here Conflicts with Settled Administrative 

Law

In addition to the FECA precedents discussed above, New Models further conflicts with 

earlier settled authority on administrative law that leaves the FEC as an agency unlike any other: 

a “law unto itself.” New Models II, 55 F.4th at 922 (Millett, J., dissenting).16 

First, New Models conflicts with the rule that it is “formal action, rather than its 

discussion, that is dispositive” on reviewability. ICC v. Bhd. Of Locomotive Eng’rs, 482 U.S. 

270, 281 (1987). The question of “judicial review of a final agency action” is a matter “of 

Congress,” Abbott Labs v. Garder, 387 U.S. 136, 140 (1967), rather than something 

commissioners can voluntarily decline, cf. Chaney, 470 U.S. at 837 (nonenforcement decisions 

categorically unreviewable under APA). “[T]he availability of judicial review [does not] turn[] 

on an agency’s prose composition,” New Models I, 993 F.3d at 887, like whether a “statement of 

reasons explain[ing] the dismissal turned in whole or in part on enforcement discretion,” id. at 

16 See also generally Br. of Profs. of Administrative Law as Amici Curiae in Supp. of Pls.-

Appellants, CREW v. FEC, No. 19-5161 (D.C. Cir. June 30, 2021) (New Models contravenes 

“clear statutory test (and an on-point Supreme Court case interpreting that text)” and “lacks 

support in the law”).

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894; cf. id. at 883 (courts cannot “teas[e] out” reviewable reasons from unreviewable action). 

Here, even improperly looking to the first statement of reasons, the action the agency 

took was to deadlock on a vote to find reason to believe a violation occurred, and then to 

unanimously close the case. Compl. ¶ 42. Where there is a “dismissal due to a deadlock” on a 

reason to believe vote, courts look to review that “deadlock[ing]” action, DCCC, 831 F.2d at 

1133, and Congress “explicitly” provided for review of such votes, Akins, 524 U.S. at 26. 

Consequently, the first judgment against reason-to-believe was reviewable, and an attempt to 

“justify [that] reviewable action with a discretionary reason, ... does not thereby [render that 

action] unreviewable,” CHGO II, 923 F.3d at 1148 (Pillard, J., dissenting). 

Second, New Models conflicts with the obligation to provide an explanation “rational[ly] 

connect[ed] [to] the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of the U.S., 

Inc. v. State Farm Mutual Auto. Insur. Co., 463 U.S. 29, 43 (1983). Here, the initial choice made 

was to close the file due to three commissioners negatively adjudicating CREW’s complaint: an 

adjudication that not only blocked FEC enforcement, but suit by CREW too. Compl.¶ 42. 

Accordingly, the commissioners needed to “state their reasons why” they concluded CREW 

could not bring its own suit. DCCC, 831 F.2d at 1132. In other words, because the 

commissioners adjudicated the complaint on the merits, any justification must be “rational[ly] 

connect[ed]” to the merits. State Farm, 463 U.S. at 43. 

Prosecutorial discretion cannot explain, however, a decision adjudicating a private 

complaint. Burlington Res., 513 F.3d at 247 (“prosecutorial discretion” may only “settle[e] 

[agency’s] own claims”); Sierra Club v. Whitman, 268 F.3d 898, 905 (9th Cir. 2001) (“If [the] 

failure to [enforce] results from the desire of the [commissioners] to husband federal resources 

for more important cases, a citizen suit against the violator can still enforce compliance without 

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41 

federal expense.”); cf. New Models II, 55 F.4th at 919 (Rao, J. concurring) (only “an agency’s 

refusal to institute” its own “proceedings falls within ‘the special province of the Executive 

Branch’”). The invocation of prosecutorial discretion was a non-sequitur that failed to explain 

the commissioners’ judgment that CREW’s complaint lacked merits and that CREW could not 

pursue its claim on its own. Rather, an explanation must go to the merits of CREW’s complaint, 

a subject for which there is always “law to apply” and not “peculiarly within [the agency’s] 

expertise.” Chaney, 470 U.S. at 831; CHGO I, 892 F.3d at 445 (Pillard, J., dissenting) 

(commissioners “must give reasons for that action that are subject to judicial review.”). This 

Court therefore did not review the “unreviewable,” cf. New Models I, 993 F.3d at 889; it 

disregarded it as beside the point. The invocation of prosecutorial discretion was, to the extent it 

had any intention, a “pretextual basis” offered only to cut off review. Dep’t of Commerce v. New 

York, 139 S. Ct. 2551, 2573 (2019). 

Third, New Models ignores the rule that courts “are [not] free to guess ... what the 

agency would have done had it realized that it could not justify its decision” through the analyses 

provided. New Models I, 993 F.3d at 902, n.5 (Millett, J., dissenting) (quoting Int’l Union, 

United Mine Workers v. Dep’t of Labor, 358 F.3d 40, 44–45 (D.C. Cir. 2004)); accord CHGO II, 

923 F.3d at 1147 (Pillard, J., dissenting) (quoting Akins, 524 U.S. at 25). Here, even assuming 

the second statement incorporated discretion, the agency eventually realized its error and 

disclaimed discretion, and the very same commissioners voted to proceed with enforcement. For 

the same reason, the decision did not produce an “advisory opinion,” cf. New Models II, 55 F.4th 

at 921 (Rao, J., concurring). “Even [though] the Commission [was initially] determined for 

reasons within its discretion not to pursue this case, [this Court’s] judicial decision on whether 

the complaint shows reason to believe the Act was violated ha[d] concrete consequences for the 

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ability of private complainants to file suit.” New Models II, 55 F.4th at 928–29 (Millett, J., 

dissenting). Specifically, it permitted CREW to bring its citizen suit. 

New Models exempts the FEC from these general rules of administrative law. Indeed, by 

ignoring the FECA’s structure and subjecting private complainants’ right to seek judicial relief to 

an unreviewable veto by a partisan block of executive officials, New Models “impermissibly 

threatens the institutional integrity of the Judicial Branch.” CFTC v. Schor, 478 U.S. 833, 851 

(1986). By abandoning judicial review of FEC adjudication of private complaints, courts are not 

avoiding “order[ing] the Executive Branch to undertake an enforcement action it opposes,” but 

rather empowering that branch to preclude private individuals from appealing to the judiciary by 

“bring[ing] a lawsuit in [their] own name under the Act.” New Models II, 55 F.4th at 929 

(Millett, J., dissenting). To avoid “offend[ing] the separation of powers,” however, “Article I 

adjudicators” may only “decide claims submitted to them by consent” and only “so long as 

Article III courts retain supervisory authority over the process.” Wells v. Int’l Network, Ltd. v. 

Sharif, 575 U.S. 665, 678 (2015); see also Circus Circus Casinos, Inc. v. NLRB, 961 F.3d 469, 

475 (D.C. Cir. 2020) (Rao, J.) (existence of “appellate review” that provides “adequate 

opportunity to secure judicial protection against arbitrary action” necessary for agency 

adjudication to satisfy due process); CLC v. Iowa Values, 573 F. Supp. 3d 243, 256 (D.D.C. 

2021) (complainant’s § 30109 claims do not assert “public rights,” but private ones). New 

Models violates all these conditions. No party consents to present their private right claims to the 

FEC; rather, they do so under mandate of the FECA. Perot, 97 F.3d at 559. Worse still, New 

Models subjects an Article III court’s supervisory authority to “a judicial-review kill switch,” 

New Models II, 55 F.4th at 922 (Millett, J., dissenting), operated at the whim of Article I 

bureaucrats not subject to any “degree of electoral accountability,” Collins v. Yellen, 141 S. Ct. 

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1761, 1784 (2021); see 52 U.S.C. § 30106(a)(1) (president forbidden from appointing majority 

of like-minded commissioners). Not only do separation of powers concerns “ha[ve] no purchase” 

here, New Models II, 55 F.4th at 929, New Models brings about a violation of the separation of 

powers. 

New Models’s departure from precedent also offends the First Amendment by 

empowering an unaccountable partisan-aligned non-majority with “unbridled discretion” to 

censor plaintiff’s access to “facts”—“the beginning point for much of the speech that is most 

essential to advance human knowledge and to conduct human affairs”—and thus “necessarily 

reduce[] the quantity of expression” by CREW and others. Sorrell v. IMS Health, Inc., 564 U.S. 

552, 570 (2011); Citizens United, 558 U.S. at 341 (FEC acts unconstitutionally when it blocks 

“voters [ability] to obtain information”); Buckley, 424 U.S. at 19; SE Promotions, Ltd. v. Conrad, 

420 U.S. 546, 553 (1975); see also Stop This Insanity Inc. Emp. Leadership Fund v. FEC, 761 

F.3d 10, 16 (D.C. Cir. 2014) (“First Amendment rights ... to know the identity of those who seek 

to influence their vote.”). New Models presents “serious constitutional problems” due to its 

complete departure from “the intent of Congress” and all precedent. Edward J. DeBartolo Corp. 

v. Fla. Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575 (1988). 

Under New Models, not just the FEC, but a partisan-aligned electorally-unaccountable 

non-majority bloc of FEC commissioners are “law unto [them]sel[ves].” New Models II, 55 F.4th 

at 922 (Millett, J., dissenting). That law, however, is a radical departure from all binding 

precedents, and thus is “not binding” here. CHGO II, 923 F.3d at 1145 (Pillard, J., dissenting). 

Accordingly, this Court may disregard New Models and CHGO, and permit CREW to fulfill the 

purposes of the FECA and finally protect itself from AAN’s interminable lawlessness. 

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CONCLUSION 

CREW has suffered over a decade of injuries from AAN’s malfeasance. It is past time to 

show AAN that it is not above the law. Unfortunately, notwithstanding the FEC’s recent 

enlightenment, the FEC’s counsel admits that CREW will never receive a fair hearing for its 

complaint before the Commission as at least three commissioners have permanently abdicated 

any enforcement of CREW’s claims against AAN. That simply proves the FEC correct: the 

dismissal here was “contrary to law.” This Court should deny the motions to dismiss so it can 

proceed to expeditiously authorize CREW to bring its own citizen suit and permit CREW its day 

in court to present the evidence of AAN’s overwhelming electoral activities and purposes. 

Dated: January 27, 2023. 

/s/ Stuart McPhail 

Stuart McPhail 

smcphail@citizensforethics.org 

(D.C. Bar No. 1032529) 

Adam J. Rappaport 

arappaport@citizensforethics.org 

(D.C. Bar No. 479866) 

Citizens for Responsibility and Ethics 

in Washington 

1331 F. Street N.W., Suite 900 

Washington, D.C. 20004 

Telephone: (202) 408-5565 

Fax: (202) 588-5020 

COUNSEL FOR CITIZENS FOR RESPONSIBILITY 

AND ETHICS IN WASHINGTON 

Case 1:22-cv-03281-CRC Document 16 Filed 01/27/23 Page 51 of 52
1 

CERTIFICATE OF SERVICE 

I hereby certify that on this 27th day of January, 2023, I served Plaintiff’s Opposition to 

Defendant Federal Election Commission’s Motion to Dismiss and Intervenor American Action 

Network’s Motion to Dismiss and accompanying proposed order by using the court’s CM/ECF 

system, thereby serving all persons required to be served. 

/s/ Stuart McPhail 

Stuart McPhail 

 

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