IN THE UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

CAMPAIGN LEGAL CENTER,

Plaintiff,

v.

FEDERAL ELECTION COMMISSION,

Defendant.

Civil Action No. 20-CV-0809-ABJ

The Hon. Amy Berman Jackson

INSTITUTE FOR FREE SPEECH

AMICUS CURIAE BRIEF

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DISCLOSURE STATEMENT

Counsel for amicus curiae certify that the Institute for Free Speech is a nonprofit 

corporation, has no parent company, subsidiary, or affiliate, and that no publicly 

held company owns more than 10 percent of its stock. 

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TABLE OF CONTENTS

DISCLOSURE STATEMENT .................................................................................................i

TABLE OF CONTENTS .......................................................................................................ii

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

Interest of Amicus Curiae ............................................................................................. 1

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

FACTUAL AND LEGAL BACKGROUND ................................................................................ 2

1. The FEC’s structure and process. ....................................................................... 2

2. The scheme to overcome deadlocks and delegate the FEC’s enforcement 

authority to private actors................................................................................... 5

SUMMARY OF ARGUMENT .............................................................................................. 12

ARGUMENT .................................................................................................................... 13

I. THE COURT SHOULD NOT ENTER A DEFAULT JUDGMENT WITHOUT REVIEWING THE 

FEC’S ADMINISTRATIVE RECORD......................................................................... 13

II. THE SCHEME TO DELEGATE FEC ENFORCEMENT RESPONSIBILITIES TO PRIVATE 

PARTIES IS UNLAWFUL......................................................................................... 14

A. The Scheme violates the Fifth Amendment............................................. 15

B. The Scheme violates FECA. ..................................................................... 20

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

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TABLE OF AUTHORITIES

Cases

AFL-CIO v. Fed. Election Comm’n, 

333 F.3d 168 (D.C. Cir. 2003) ..................................................................... 11, 19

Ass’n of Am. R.R. v. Dep’t of Transp., 

721 F.3d 666 (D.C. Cir. 2013) ..................................................................... 17, 18

Baade v. Price, 

175 F.R.D. 403 (D.D.C. 1997) ........................................................................... 13

Bates v. City of Little Rock, 

361 U.S. 516 (1960)........................................................................................... 15

Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 

419 U.S. 281 (1974)........................................................................................... 21

Buchanan v. Fed. Election Comm’n, 

112 F. Supp. 2d 58 (D.D.C. 2000)......................................................... 21, 22, 23

Buckley v. Valeo, 

424 U.S. 1 (1976)............................................................................................... 15

Campaign Legal Ctr. v. Fed. Election Comm’n, 

312 F. Supp. 3d 153 (D.D.C. 2018) ................................................................... 22

Campaign Legal Ctr. v. Fed. Election Comm’n, 

No. 19-cv-2336 (D.D.C. filed August 2, 2019) .................................................... 2

Campaign Legal Ctr. v. Fed. Election Comm’n, 

No. 20-cv-00730 (D.D.C. filed Mar. 13, 2020) .................................................... 2

Campaign Legal Ctr. v. Fed. Election Comm’n, 

No. 20-cv-01778 (D.D.C. filed June 30, 2020) .................................................... 2

Campaign Legal Ctr. v. Fed. Election Comm’n, 

No. 21-cv-0406 (D.D.C. filed February 16, 2021)............................................... 2

Campaign Legal Ctr. & Democracy 21 v. Fed. Election Comm’n, 

952 F.3d 352 (D.C. Cir. 2020) ........................................................................... 22

Carter v. Carter Coal Co., 

298 U.S. 238 (1936)........................................................................................... 18

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Carvajal v. Drug Enf’t Agency, 

246 F.R.D. 374 (D.D.C. 2007) ........................................................................... 13

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

209 F. Supp. 3d 77 (D.D.C. 2016)..................................................... 4, 20, 21, 22

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

236 F. Supp. 3d 378 (D.D.C. 2017) ................................................................... 22

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

923 F.3d 1141 (D.C. Cir. 2019) ....................................................................... 4, 6

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

380 F. Supp. 3d 30 (D.D.C. 2019) .................................................................... 22

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

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

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

892 F.3d 434 (D.C. Cir. 2018) ................................................................... passim

Common Cause v. Fed. Election Comm’n, 

489 F. Supp. 738 (D.D.C. 1980) .......................................................................... 5

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

831 F.2d 1131 (D.C. Cir. 1987) ........................................................................... 5

DOC v. New York, 

139 S. Ct. 2551 (2019)....................................................................................... 20

FCC v. Fox TV Stations, Inc.,

567 U.S. 239 (2012)........................................................................................... 16

Fed. Election Comm’n v. Cent. Long Island Tax Reform Immediately Comm., 

616 F.2d 45 (2d Cir. 1980) ................................................................................ 15

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

966 F.2d 1471 (D.C. Cir. 1992) ................................................................. 5, 7, 22

Giaccio v. Pennsylvania, 

382 U.S. 399 (1966)........................................................................................... 16

Hannah v. Larche, 

363 U.S. 420 (1960)........................................................................................... 17

Heckler v. Chaney, 

470 U.S. 821 (1985)..................................................................................... 15, 17

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Holmes v. Fed. Election Comm’n, 

823 F.3d 69 (D.C. Cir. 2016)............................................................................. 16

In re Sealed Case, 

223 F.3d 775 (D.C. Cir. 2000) ................................................................... 4, 5, 22

Lassiter v. Dep’t of Soc. Servs., 

452 U.S. 18 (1981)....................................................................................... 16, 19

Mathews v. Eldridge, 

424 U.S. 319 (1976)..................................................................................... 17, 19

Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 

551 U.S. 644 (2007)........................................................................................... 21

Nat’l Ass’n of Regulatory Util. Comm’rs v. FCC, 

737 F.2d 1095 (D.C. Cir. 1984) ......................................................................... 18

Nat’l Rest. Ass’n Educ. Found. v. Shain, 

287 F.R.D. 83 (D.D.C. 2012) ............................................................................. 13

Orloski v. Fed. Election Comm’n, 

795 F.2d 156 (D.C. Cir. 1986) ........................................................................... 21

Payne v. Barnhart, 

725 F. Supp. 2d 113 (D.D.C. 2010) .................................................................. 13

Webb v. D.C., 

146 F.3d 964 (D.C. Cir. 1998) .......................................................................... 13

Statutes

5 U.S.C. § 554(d) .......................................................................................................... 17

5 U.S.C. § 706(2)(A) ..................................................................................................... 20

52 U.S.C. § 30106(a)(1).................................................................................................. 2

52 U.S.C. § 30106(b)(1)............................................................................................ 2, 12

52 U.S.C. § 30106(c)............................................................................................. 2, 8, 13

52 U.S.C. § 30107(a)(6)........................................................................................ 2, 8, 13

52 U.S.C. § 30107(a)(7).................................................................................................. 8

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

52 U.S.C. § 30107(e)....................................................................................................... 2

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52 U.S.C. § 30109(a)(1).................................................................................................. 2

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

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

52 U.S.C. § 30109(a)(8)(A)....................................................................................... 7, 13

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

52 U.S.C. § 30109(a)(12).............................................................................................. 14

Regulations

11 C.F.R. 5.4(a) .............................................................................................................. 3

11 C.F.R. 5.4(a)(4)................................................................................................ 5, 6, 14

11 C.F.R. 111.9(a) .......................................................................................................... 2

11 C.F.R. 111.9(b) .................................................................................................... 3, 21

11 C.F.R. 111.10(b) ........................................................................................................ 2

11 C.F.R. 111.20............................................................................................................. 3

72 Fed. Reg. 12545 (March 16, 2007) (Statement of Policy Regarding Commission 

Action at the Initial Stage in the Enforcement Process) ......................................... 3

81 Fed. Reg. 50702 (August 2, 2016) (Disclosure of Certain Documents in 

Enforcement and Other Matters).................................................................... 3, 5, 15

Federal Rule of Civil Procedure

Fed. R. Civ. P. 55(d)..................................................................................................... 12

Local Rule of Civil Procedure

LCvR 7(n)(1)................................................................................................................. 13

Federal Election Commission Documents

FEC Commissioner Sean J. Cooksey, Mem. re: Motion to Amend Directive 68 to 

Include Additional Information in Quarterly Status Reports to Commission, June 

3, 2021.............................................................................................................. 7, 8, 20

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Supplemental Statement of Reason of FEC Vice Chair Allen Dickerson and 

Commissioners Sean J. Cooksey and James E. “Trey” Trainor, III, MUR 7271, 

(June 10, 2021)........................................................................................................... 6

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

ACT AMENDMENTS OF 1976 (1977) ............................................................................. 3

FEC open meeting, April 22, 2021, agenda item 2, Draft Statement of Policy Regarding Closing the File at the Initial Stage in the Enforcement Process (downloaded 

and saved audio file)........................................................................................ passim 

Statement of FEC Chair James E. “Trey” Trainor III, (August 28, 2020).......... 6, 7, 8

Statement of FEC Vice Chair Ellen L. Weintraub, (April 19, 2018) ........................... 6

Other Authorities

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

Than Ever: Here is the inside story of how Democrats, after a decade of defeats at 

the nation’s top campaign watchdog, are trying to enforce election laws in party by 

losing on purpose in federal court, N.Y TIMES, June 8, 2021....................... 8, 10, 11

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

the Public, POLITICO MAGAZINE, Oct. 22, 2019 ....................................................... 11

Nihal Krishan, Elections Commission Chief Uses the “Nuclear Option” to Rescue the 

Agency from Gridlock, MOTHER JONES, Feb. 20, 2019 ............................. 7, 9, 10, 11

What Next, Washington’s Most Broken Institution? How to play bipartisan hardball, 

SLATE, (Aug. 5, 2021) (podcast)............................................................................. 11

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INTEREST OF AMICUS CURIAE1

The Institute is a nonpartisan, nonprofit § 501(c)(3) organization that promotes 

and protects the First Amendment political rights of speech, press, assembly, and 

petition. In addition to scholarly and educational work, the Institute is actively 

involved in targeted litigation against unconstitutional laws at both the state and 

federal levels. A core aspect of the Institute’s mission is to ensure that the Federal 

Election Commission (“FEC,” the “Commission,” or the “Agency”) lawfully enforces 

federal campaign finance laws. 

INTRODUCTION

The Federal Election Commission’s unique structure requires a bipartisan 

agreement and vote before investigating or prosecuting alleged violations of the 

nation’s campaign finance laws—providing a check on potentially biased or 

overzealous enforcement. This safeguard is critical because the Commission’s every 

action impacts important First Amendment values; and it prevents partisan bias in 

a delicate area of regulation with the potential to directly tilt election outcomes in 

favor of one or the other party. 

Not content with this bipartisan enforcement process, some FEC commissioners 

have begun to deliberately conceal the Commission’s actions from the Court, with 

the apparent goal of dismantling this structural safeguard and enforcing the 

Federal Election Campaign Act (“FECA” or the “Act”) their own way. This faction 

seeks to delegate enforcement of federal campaign finance laws to organizations 

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

to file an amicus curiae brief. No counsel for a party authored this brief in whole or 

part, nor did any person or entity, other than amicus or its counsel, financially 

contribute to preparing or submitting this brief.

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such as the Plaintiff, by refusing to close case files after the Commission declines to 

prosecute complaints, and then refusing to allow the FEC to defend itself in court

once the Agency is sued for its alleged inaction.

This scheme: (1) violates the Due Process rights of respondents to FEC 

complaints, (2) is an abuse of the Commission’s discretion, (3) circumvents FECA’s 

complaint adjudication process, (4) causes the FEC to abdicate its responsibility to 

enforce federal campaign finance laws, and (5) manipulates the judicial process. 

The Court should not sanction this scheme by granting Plaintiff’s motion for a 

default judgment.

FACTUAL AND LEGAL BACKGROUND

1. The FEC’s structure and process.

The Federal Election Commission is the exclusive civil enforcement authority for 

FECA violations. 52 U.S.C. §§ 30106(b)(1), 30107(e). Congress created the FEC to 

operate by consensus; no more than three commissioners can belong to the same 

political party, and the six-member Commission can only bring enforcement actions

with an affirmative vote of four commissioners. 52 U.S.C. §§ 30106(a)(1), 30106(c), 

30107(a)(6). Four votes are also required before the Commission can initiate 

litigation or defend itself against accusations of inaction.2 52 U.S.C. §§ 30106(c), 

30107(a)(6), 30109(a)(8).

2 This case is one of several pending lawsuits challenging FEC inaction that the 

Commission has failed to enter an appearance. See, e.g., Campaign Legal Ctr. v. 

Fed. Election Comm’n, No. 21-cv-0406 (D.D.C. filed February 16, 2021); Campaign 

Legal Ctr. v. Fed. Election Comm’n, No. 20-cv-01778 (D.D.C. filed June 30, 2020);

Campaign Legal Ctr. v. Fed. Election Comm’n, No. 20-cv-00730 (D.D.C. filed Mar. 

13, 2020); Campaign Legal Ctr. v. Fed. Election Comm’n, No. 19-cv-2336 (D.D.C.

filed August 2, 2019).

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Anyone can file an administrative complaint alleging a FECA violation. 52 

U.S.C. § 30109(a)(1). After reviewing the complaint and any responses, the 

Commission votes whether “it has reason to believe” that a respondent has violated 

or is about to violate FECA. Id. at § 30109(a)(2). On an “affirmative vote” of four 

commissioners, the FEC may investigate the “alleged violation, which may include 

a field investigation or audit, in accordance with the provisions of [FECA].” Id.; see 

also 11 C.F.R. 111.9(a); 11 CFR 111.10(b). 

FECA is silent on complaint dismissals—votes indicating that the Commission 

lacks sufficient consensus to believe the respondent violated the Act. “The statute 

specifically enumerates matters for which the affirmative vote of four members is 

needed and dismissals are not on this list, which suggests that they are not 

included under the standard construction that expressio unius est exclusio alterius.” 

Citizens for Responsibility & Ethics v. Fed. Election Comm’n (New Models), 993 F.3d 

880, 891 & n.10 (D.C. Cir. 2021). Even so, FEC regulations state that when a 

complaint is dismissed, the parties are notified and the FEC’s files are made public. 

See 11 C.F.R. 5.4(a); 11C.F.R. 111.9(b); 11 C.F.R. 111.20; 72 Fed. Reg. 12545 (March 

16, 2007) (Statement of Policy Regarding Commission Action at the Initial Stage in 

the Enforcement Process); 81 Fed. Reg. 50702 (August 2, 2016) (Disclosure of

Certain Documents in Enforcement and Other Matters).

The Commission’s structure and adjudication process compels commissioners to 

enforce FECA in a bipartisan fashion. This is a feature of Congress’s design for the 

FEC, not a bug. See FED. ELECTION COMM’N, LEGISLATIVE HISTORY OF THE FEDERAL 

ELECTION CAMPAIGN ACT AMENDMENTS OF 1976 89 (1977), https://tinyurl.com/ 

vc4n4jny (last visited Aug. 12, 2021) (bipartisan membership prevents the FEC 

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

to repeat the abuses of Watergate.” (statement of Sen. Alan Cranston)). 

Consequently, stalemates can and do occur in the complaint adjudication process. 

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Neither FECA nor the Commission’s regulations specify that a matter 

terminates when commissioners tie 3-3 on whether reason exists to believe the 

respondent violated the Act.3 But as a practical matter, a tie vote is an “‘agency 

action”’ that ends the complaint’s adjudication, because there are not the four votes 

legally required to find “reason to believe,” a necessary predicate to proceeding with 

an investigation. Citizens for Responsibility and Ethics in Wash. v. Fed. Election 

Comm’n (Comm’n on Hope), 892 F.3d 434, 437 (D.C. Cir. 2018). This is sometimes

known as a “deadlock dismissal” because it “result[s] from the failure to get four 

votes to proceed with an enforcement action.” New Models, 993 F.3d at 891.

A “deadlock dismissal” is a “no action decision [] made by the Commission itself, 

not the staff, and precludes further enforcement.” In re Sealed Case, 223 F.3d 775, 

780 (D.C. Cir. 2000). “[A]n FEC enforcement decision, even one produced by 

deadlock, is ‘part of a detailed statutory framework for civil enforcement ... 

analogous to a formal adjudication,’ . . . it ‘assumes a form expressly provided for by 

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

(American Action Network), 209 F. Supp. 3d 77, 85 n.5 (D.D.C. 2016) (quoting In re 

Sealed Case, 223 F.3d at 780) appeal dismissed 2017 U.S. App. LEXIS 5856 (D.C. 

Cir. 2017). Indeed, FECA does not “differentiate between a deadlock vote that 

prompts a dismissal and a vote by four or more Commissioners to dismiss the action 

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

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

denial of rehearing). “[T]he three Commissioners who voted to dismiss ... constitute 

a controlling group for purposes of the decision, their rationale necessarily states 

the agency’s reasons for acting as it did.” Fed. Election Comm’n v. Nat’l Republican 

3 Because four votes are required to proceed, a “stalemate” can also occur on votes of 

3-2 or 3-1 if one or more Commission seats are vacant or Commissioners do not vote.

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Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992) (“NRSC”). Accordingly, 

deadlock dismissals receive “great deference.” In re Sealed Case, 223 F.3d at 781.

Congress designed the FEC to occasionally have deadlock dismissals. See Id. at 

780 (noting that “the Commission [is] statutorily balanced between the major 

[political] parties.”). Accordingly, “[n]othing in the text of...FECA’s judicial review 

prescription precludes review of a dismissal due to a deadlock.” Democratic Cong. 

Campaign Comm. v. Fed. Election Comm’n, 831 F.2d 1131, 1133 (D.C. Cir. 1987). A 

deadlock dismissal, “like any other, is judicially reviewable.” NRSC, 966 F.2d at

1476.

2. The scheme to overcome deadlocks and delegate the FEC’s enforcement 

authority to private actors.

FECA “favors the resolution of complaints through informal methods with resort 

to the courts as a last resort.” Common Cause v. Fed. Election Comm’n, 489 F. Supp. 

738, 743 (D.D.C. 1980). But a faction of commissioners recently launched an

unprecedented change in the post-deadlock dismissal FEC adjudication process that 

will cause more litigation against complaint respondents. Indeed, they plan to 

effectively delegate the Commission’s enforcement powers to outside groups to 

achieve, via private enforcement actions, what the FEC has not voted to do on the 

statutorily required bipartisan basis, by refusing to dismiss cases or to allow the 

Commission to defend its decision not to proceed.

The FEC should disclose deadlock dismissals because the decision “terminates 

[Commission] proceedings” regardless of a vote to close a case. 11 C.F.R. 111.9(b). 

Traditionally, the FEC unanimously voted to close complaints after a deadlock 

dismissal and publicized the resolution as well as the case’s supporting documents. 

See 11 C.F.R. 5.4(a)(4); 81 Fed. Reg. 50702 (August 2, 2016) (Disclosure of Certain 

Documents in Enforcement and Other Matters); FEC Vice Chair Allen Dickerson, 

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FEC open meeting, April 22, 2021, agenda item 2, Draft Statement of Policy 

Regarding Closing the File at the Initial Stage in the Enforcement Process, 

downloaded and saved audio file at 42:25 – 43:00, https://tinyurl.com/w3cj4t3c (last 

visited Aug. 12, 2021) (“FEC Meeting”). But that tradition is no more.

Judge Griffith once asked what would happen “if the Commission split 3-3, 

refused to dismiss the case, and 120 days later, the petitioner brought suit in this 

court,” under 52 U.S.C. 30109(a)(8)(A), to address its grievance. Comm’n on Hope, 

923 F.3d at 1143 (Griffith, J., concurring in denial of rehearing). His hypothetical is 

now reality, because a faction of commissioners is determined to deprive the Court

of its ability to review deadlock dismissals, in order to pave the way for private 

enforcement of FECA via default judgments.

This case is in its present posture because Commissioner Ellen Weintraub 

decided to “break the glass” on a plan (the “Weintraub Scheme” or the “Scheme”) for 

a faction of commissioners to abdicate the FEC’s regulatory responsibilities, see

Statement of FEC Vice Chair Ellen L. Weintraub, (April 19, 2018), https://

tinyurl.com/pv94yz9z (last visited Aug. 12, 2021) (“Weintraub Statement”) (citing 52 

U.S.C. § 30109(a)(8)(C)), and manipulate the Court into allowing private entities, 

such as Citizens for Responsibility & Ethics in Washington (“CREW”) and the 

Campaign Legal Center, to enforce FECA through a ‘“citizen-suit’” under the Act.

Comm’n on Hope, 892 F.3d at 440 (labeling a FECA private enforcement action, 

under 52 U.S.C. 30109(a)(8)(C), a ‘“citizen-suit’”).

Under the Scheme, current Commission Chair Shana Broussard requires four 

votes to close a case when a complaint is dismissed by deadlock, usually resulting in 

another deadlocked vote. See Statement of FEC Chair James E. “Trey” Trainor III, § 

II.B., (August 28, 2020), https://tinyurl.com/5fced68j (last visited Aug. 12, 2021)

(“Trainor Statement”) (redactions in original) (“Commissioners who are ideologically 

aligned with the professional complainants have adopted [a] tactic to deny 

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meaningful judicial review of the Commission’s decision not to move forward in 

matters where Commissioners did not agree: refusing to vote to close the file.”). 

Indeed, even when a majority votes to dismiss a case, the Commission can still 

deadlock on a vote to close the file. See Supplemental Statement of Reasons of FEC 

Vice Chair Allen Dickerson and Commissioners Sean J. Cooksey and James E. 

“Trey” Trainor, III, MUR 7271, (June 10, 2021), https://tinyurl.com/4ksfaz7b (last 

visited Aug. 12, 2021).

Because the case is not officially closed, the complainant and respondent are 

never informed of the resolution of the matter, see 11 C.F.R. 5.4(a)(4), which “hide[s] 

[the commissioners’] deliberation and the [case] outcomes from the respondents,”

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

in “limbo,” Trainor Statement, and “effectively left to twist in the wind,” FEC Vice 

Chair Allen Dickerson, FEC Meeting at 7:27 – 7:33, while “keep[ing] federal courts 

in the dark.” FEC Commissioner Sean J. Cooksey, FEC Meeting at 24:14 – 24:35.

Indeed, “these cases [become] zombie matters—dead but unable to be laid to rest. 

They remain with the [A]gency and on [its] enforcement docket indefinitely, despite 

having been adjudicated, with the vote outcome and [c]ommissioners’ reasoning 

withheld from the complainant, the respondent, and the public.” FEC Commissioner 

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

Information in Quarterly Status Reports to Commission, June 3, 2021, 2, https://

tinyurl.com/hwa798e6 (last visited Aug. 12, 2021) (“Cooksey Mem.”).

Traditionally, after the FEC closes a case dismissed by deadlock and publicizes 

the result, it releases a statement of reasons from the “controlling group,” the three 

commissioners that voted to dismiss. NRSC, 966 F.2d at 1476. Complainants may

subsequently sue the Commission, arguing “dismissal of the complaint ... is 

contrary to law.” 52 U.S.C. §§ 30109(a)(8)(A), (C). The FEC then explains that the 

complaint was dismissed by deadlock and defends the decision of the “control 

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group.” According to Commissioner Weintraub, until now, the FEC has never before 

refused to defend itself “in the history of the agency.” Nihal Krishan, Elections 

Commission Chief Uses the “Nuclear Option” to Rescue the Agency from Gridlock, 

MOTHER JONES, Feb. 20, 2019, https://tinyurl.com/e3exdfnn (“Mother Jones”). 

But under the Scheme, the statement of reasons from the controlling 

commissioners is precluded from being revealed to anyone, including the reviewing 

court. The complainant then acts on the statutory authorization to sue the FEC for 

failing “to act on [the] complaint” within 120 days after “the complaint is filed,” 52 

U.S.C. 30109(a)(8)(A)—even though the FEC has acted. That action, however, is 

hidden from the reviewing court.

Refusing to close a file was unheard-of over the past 40 years. But now it 

frequently occurs under the Scheme.4 And if the complainant sues the FEC for 

delay and the Agency refuses to defend itself in court, the private entity moves for 

default judgment. See 52 U.S.C. 30106(c); 52 U.S.C. §§ 30107(a)(6), (7), (8), (9); 

Trainor Statement. Federal courts are given the false impression that these 

“deadlocked cases are unresolved.” Shane Goldmacher, Democrats’ Improbable New 

F.E.C. Strategy: More Deadlock Than Ever: Here is the inside story of how 

Democrats, after a decade of defeats at the nation’s top campaign watchdog, are 

trying to enforce election laws in party by losing on purpose in federal court, N.Y

TIMES, June 8, 2021, at A13, https://tinyurl.com/fx8jnsw (“NYT Article”).

“[A] court may not authorize a citizen suit unless it first determines that the 

Commission acted ‘contrary to law’ under FECA or under the APA’s equivalent ‘not 

in accordance with law.’” Comm’n on Hope, 892 F.3d at 440 (quoting 52 U.S.C. §

30109(a)(8)(C); 5 U.S.C § 706(2)(A)). But if the Commission cannot appear in court 

to defend itself and the reasoning of the “control group,” see 52 U.S.C. §§ 30106(c), 

4 In 2020, the FEC failed to close four cases dismissed by deadlock. As of May 2021, 

the Commission has failed to close 13 of these cases. See Cooksey Mem. at 3.

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30107(a)(6), 30109(a)(8)(C), at some point the Court will issue a default judgment 

on the claim that the FEC unlawfully failed to act. If the FEC fails to respond to the 

Court’s order, then the private entity “may bring” an original action against the 

complaint respondent “to remedy the violation involved in the original complaint.” 

52 U.S.C. § 30109(a)(8)(C).

This is the final part of the Scheme: To “refuse to comply with the court order” to 

“prompt an independent lawsuit (say, by CREW against Crossroads GPS), which 

would enable the court to bypass the FEC and [ultimately] decide whether the 

[respondent] broke the law.” Mother Jones.

“That’s not the way [FECA] was intended to work. It’s not the way the courts or 

the public have long assumed it works. And it is not a process that is in any way 

fair to the interest of the parties before [the Commission], respondents or 

complainants.” FEC Vice Chair Allen Dickerson, FEC Meeting at 8:32 – 8:45. “By 

closing the file and making the complaint, response, and certain [FEC] internal 

documents public, [commissioners] ensure the credibility of [FEC] enforcement by 

providing complainants, respondents, and the public with transparency regarding 

the Commission’s actions and reasoning. And [the FEC] provide[s] for the orderly 

development of the law as courts consider [the Commission’s] arguments in 

litigation raised from one of the matters [the FEC] consider[s].” Id. at 9:02 – 9:26.

Commissioner Weintraub asserts that leaving FEC cases open gives the 

Commission an opportunity to build consensus about FECA enforcement. See

Commissioner Ellen Weintraub, FEC Meeting at 14:11 – 15:25; Vice Chair Allen 

Dickerson, FEC Meeting at 20:10 – 20:27; Commissioner Steven Walther, FEC 

Meeting at 27:56 – 29:30; Chair Shana Broussard, FEC Meeting at 33:28 – 33:51.

But the Scheme is not engendering consensus among commissioners on deadlocked 

matters, and it is not seriously intended to. 

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None of the “cases where there has been an initial split [vote] and then a refusal 

to close the file [has been] put back on the agenda for the Commission to consider.” 

Commissioner James E. “Trey” Trainor, III, FEC Meeting at 38:14 – 39:15. And if 

no “consensus” develops before a Section 8 lawsuit is filed, it is misleading to 

pretend that the Commission has not acted on the matter. Indeed, it is “very 

disingenuous” for Weintraub to assert that her scheme is designed to cause the FEC 

“to work toward compromise,” and “very misleading to the public to [indicate

consensus building is] going on behind closed doors and [the commissioners are] 

trying to get to some sort of compromise.” Id. at 39:17 – 39:47. Instead, Weintraub 

and her faction of commissioners are deceiving, misleading, and hiding information 

from the parties to the administrative complaint, and from the courts. See FEC 

Commissioner Sean J. Cooksey, FEC Meeting at 22:16 – 22:58.

In sum,

First, the Democrats [on the Commission] are declining to formally 

close some cases after the Republicans vote against enforcement. That 

leaves investigations officially sealed in secrecy and legal limbo. Then 

the Democrats are blocking the F.E.C. from defending itself in court 

when advocates sue the commission for failing to do its job.

NYT Article. As the New York Times understated, “the new maneuver drastically 

accelerates and smooths the way for outside groups to pursue campaign finance 

challenges in the federal courts.” Id. “[B]ecause the agency [is not] defending itself 

in [these] lawsuits, groups have a mostly clear path to sue [political groups,] 

candidates[,] and campaigns directly.” Id.

As a result, complaint respondents are faced with discovery obligations and 

other litigation burdens, all because the three Commissioners are refusing to close a 

case that was dismissed by deadlock, and defend the Commission’s decision. 

Accordingly, “the Commission’s policy creates an incentive for political groups to file 

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complaints against their opponents in order to gain access to their strategic plans, 

as well as to chill the opponents’ activities.” AFL-CIO v. Fed. Election Comm’n, 333 

F.3d 168, 172 (D.C. Cir. 2003). That is why Commissioner Weintraub said, ‘“I find 

myself in the odd position of sometimes rooting for [the FEC] to lose.’” Mother 

Jones.

Weintraub’s scheme demonstrates her “desire to engage in gamesmanship and to 

engage in procedural hijinks” to “hide” adjudicated cases. FEC Commissioner Sean 

J. Cooksey, FEC Meeting at 23:39 – 24:01. She says her scheme is necessary 

because her colleagues are being “obstinate.” See NYT Article. Indeed, “Weintraub 

has complained for years that the FEC was dysfunctional when her Republican 

colleagues disagreed with her legal positions and outvoted her. Now, she is 

dismissing her colleagues’ views, boasting publicly about her plans to block the 

agency from defending itself in court whenever she disagrees with its legal 

position.” Former FEC Commissioner Caroline Hunter, How My FEC Colleague is 

Damaging the Agency and Misleading the Public, POLITICO MAGAZINE, Oct. 22, 

2019, https://politi.co/2zRfIJY.

In the words of sympathetic ideological journalists, Commissioner Weintraub’s 

scheme “is effectively an effort to sabotage her own agency” and use citizen-suits

brought by ideological groups to determine set policies that cannot be approved by 

majority vote at the Commission. See Mother Jones. The problem is, it also 

sabotages the statutory plan, the rights of respondents, and the reviewing role of 

federal courts.

Commissioner Weintraub admits her scheme is unprecedented and a deliberate 

surrender of the FEC’s enforcement powers to private parties. See What Next, 

Washington’s Most Broken Institution? How to play bipartisan hardball, SLATE, at 

11:45 – 12:23, 25:44 – 26:12 (Aug. 12, 2021), https://tinyurl.com/man2hf95. Indeed, 

abrogating the Commission’s authority is “the point” of her plan. See NYT Article. 

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SUMMARY OF ARGUMENT

The Weintraub Scheme is an unconstitutional violation of respondents’ due 

process rights, and violates FECA. Rather than participate in this unprecedented 

maneuver, the Court should thwart it by refusing to issue a default judgment in 

this case.

The Scheme is not an unreviewable assertion of the Commission’s prosecutorial 

discretion, but a dereliction of the Agency’s duty to “formulate policy” and exercise 

“exclusive jurisdiction with respect to the civil enforcement of [FECA],” 52 U.S.C. § 

30106(b)(1), and to be truthful with respondents, the public, and the courts. 

Americans’ constitutional right to engage in political expression must be protected 

from such devious governmental interference. The Fifth Amendment’s Due Process 

clause does not allow an administrative agency to intentionally delegate its 

enforcement function to private entities, much less to groups that are ideologically 

averse to the individuals and organizations that are the targets of a complaint. 

Fundamental fairness principles, encompassed in the Due Process clause, demand 

that people subject to the regulation of their First Amendment freedoms enjoy the 

protections of the procedures Congress laid out in FECA. The Weintraub Scheme 

greatly impacts these fundamental rights and carries a high risk of infringing on 

their First Amendment liberties with no benefit to the government. Therefore, the 

Scheme is unconstitutional under the Fifth Amendment.

Likewise, this arbitrary and capricious scheme constitutes an abuse of discretion 

and, thus, violates FECA. The Scheme defies Commission regulations, the D.C. 

Circuit’s view of the Agency’s adjudication process, and departs from the 

Commission’s history and tradition. Accordingly, the Weintraub Scheme is contrary 

to law.

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ARGUMENT

I. THE COURT SHOULD NOT ENTER A DEFAULT JUDGMENT WITHOUT REVIEWING THE 

FEC’S ADMINISTRATIVE RECORD.

“A default judgment may be entered against the United States, its officers, or its 

agencies only if the claimant establishes a claim or right to relief by evidence that 

satisfies the court.” Fed. R. Civ. P. 55(d). “[D]efault judgments are disfavored 

because entering and enforcing judgments as a penalty for delays in filing is often 

contrary to the fair administration of justice.” Nat’l Rest. Ass’n Educ. Found. v. 

Shain, 287 F.R.D. 83, 86 (D.D.C. 2012) (internal quotation marks and citations

omitted). Because of “a strong policy favoring the adjudication of a case on its 

merits,” Baade v. Price, 175 F.R.D. 403, 405 (D.D.C. 1997), a default judgment 

“must be a sanction of last resort.” Webb v. D.C., 146 F.3d 964, 971 (D.C. Cir. 1998)

(internal quotation marks and citation omitted). “The disfavor in which [default] 

judgments are held is especially strong in situations where the defendant is the 

government.” Payne v. Barnhart, 725 F. Supp. 2d 113, 116 (D.D.C. 2010). 

Because a “default judgment may not be entered against the United States 

absent an independent factual showing of a meritorious claim,” Carvajal v. Drug 

Enf’t Agency, 246 F.R.D. 374, 375 (D.D.C. 2007), administrative agencies must “file 

a certified list of the contents of the administrative record with the Court within 30 

days” of their initial responsive pleadings in all cases that, like this one, “involve[e] 

the judicial review of administrative agency actions.” LCvR 7(n)(1). 

Civil rules typically do not address entities that are not before the Court, but 

court orders often do. And because a default judgment requires an independent 

factual showing as much as any other, the Court should order the FEC to produce 

its administrative record in this case before even considering a default judgment. 

Because the Weintraub Scheme exists, the Court cannot assume that the FEC is 

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still adjudicating this case, or that there has been a “failure ... to act on such 

complaint,” as required by the statute. 52 U.S.C. § 30109(a)(8). The Court cannot 

force the FEC to defend itself, but it can compel the production of government 

documents necessary for the administration of justice.

Although the Commission failed to obtain the necessary votes to defend this 

action, see 52 U.S.C. §§ 30106(c); 30107(a)(6), that failure does not excuse the FEC

from producing the documents underlying the adjudication of this case. No FECA 

voting requirement covers this ministerial action. The Court is tasked with 

determining whether the FEC has acted within its legal authority. If the 

Commission voted on the administrative complaint at issue here, then disclosure of 

that vote and any accompanying Statement of Reasons is crucial to the Court’s task. 

The Court should order the Commission to produce the record for the

administrative complaint at issue in this case before ruling on Plaintiff’s motion for

a default judgment.

II. THE SCHEME TO DELEGATE FEC ENFORCEMENT RESPONSIBILITIES TO PRIVATE 

PARTIES IS UNLAWFUL.

The Commission’s refusal to close dismissed cases, combined with its subsequent 

refusal to defend itself against default judgments, works a constructive delegation 

of the Commission’s enforcement powers to private parties. This practice is 

unconstitutional, because it denies respondents in FEC enforcement matters their 

Fifth Amendment right to due process of law. Furthermore, the Commission’s 

failure to close complaints that it will not pursue is an arbitrary and capricious 

application of FECA and an abuse of discretion. 

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A. The Scheme violates the Fifth Amendment.

FEC complaint respondents are being deprived of their constitutional liberty to 

engage in the most “fundamental First Amendment activities,” Buckley v. Valeo, 

424 U.S. 1, 14 (1976) (per curiam), without due process of law, in violation of the 

Fifth Amendment. 

“The First Amendment affords the broadest protection [for] political expression 

in order to assure the unfettered interchange of ideas for the bringing about of 

political and social changes desired by the people.” Id. (internal punctuation marks 

and citation omitted). The Commission’s refusal to close a complaint that will not be 

pursued means that its decision to decline prosecution of the matter is never 

disclosed to the respondent (or anyone else). See 52 U.S.C. § 30109(a)(12); 11 C.F.R. 

5.4(a)(4); 81 Fed. Reg. 50702 (August 2, 2016) (Statement of Policy on Disclosure of 

Documents). Consequently, neither respondents nor the public learn if the conduct 

in the complaint is legal or not. Instead of being informed that they are no longer in 

jeopardy, respondents, and similarly situated political actors, remain in legal limbo, 

unaware of the Commission’s interpretation of the statute. This will naturally 

cause such actors to shy away from engaging in legally permissible and 

constitutionally protected activities.

“Freedoms such as these are protected not only against heavy-handed frontal 

attack, but also from being stifled by more subtle governmental interference.” Bates 

v. City of Little Rock, 361 U.S. 516, 523 (1960). “Officials can misuse even the most 

benign regulation of political expression to harass those who oppose them.” Fed. 

Election Comm’n v. Cent. Long Island Tax Reform Immediately Comm., 616 F.2d 45, 

54 (2d Cir. 1980) (Kaufman, C.J., concurring). 

The Weintraub Scheme is not an unreviewable exercise of prosecutorial 

discretion, but a general policy that abdicates the FEC’s duty to administer FECA.

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The Commission cannot close or disclose cases dismissed by deadlock because a 

faction of its members “consciously and expressly adopted a general policy that is so 

extreme as to amount to an abdication of its statutory responsibilities.” Heckler v. 

Chaney, 470 U.S. 821, 833 n.4 (1985) (internal quotation marks and citation 

omitted). Consequently, the FEC is violating complaint respondents’ Due Process 

rights, and the matter must be reviewed by the Court. 

“[L]iberty [is] specifically protected by the [Fifth] Amendment against any 

[government] deprivation which does not meet the standards of due process, and 

this protection is not to be avoided by the simple label [the government] chooses to 

fasten upon its conduct or its statute.” Giaccio v. Pennsylvania, 382 U.S. 399, 402 

(1966). Due process standards depend on a law’s function, regardless of whether it

takes a criminal or civil regulatory form. See, e.g., FCC v. Fox TV Stations, Inc., 567 

U.S. 239, 253-54 (2012) (applying the criminal law’s fair-notice requirements to an 

agency’s civil enforcement action). The FEC does not stand above the Fifth 

Amendment. Just as the FEC’s regulations are susceptible to Fifth Amendment 

challenges, see Holmes v. Fed. Election Comm’n, 823 F.3d 69, 76 (D.C. Cir. 2016), so 

are its uncodified practices. People accused of violating campaign finance laws are 

entitled to due process.

Procedural due process “has never been, and perhaps can never be, precisely 

defined.” Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 24 (1981). It “is not a technical 

conception with a fixed content unrelated to time, place, and circumstances.” Id.

(internal quotation marks and citation omitted). “Due process is flexible and calls 

for such procedural protections as the particular situation demands.” Gilbert v. 

Homar, 520 U.S. 924, 930 (1997) (internal quotation marks and citation omitted). 

“Applying the Due Process Clause is therefore an uncertain enterprise which must 

discover what ‘fundamental fairness’ consists of in a particular situation by first 

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considering any relevant precedents and then by assessing the several interests 

that are at stake.” Lassiter, 452 U.S. at 24. 

“Accordingly, resolution of the issue whether the administrative procedures 

provided here are constitutionally sufficient requires analysis of the governmental 

and private interests that are affected.” Mathews v. Eldridge, 424 U.S. 319, 334 

(1976). To assess the interests at stake the Court generally considers three factors: 

(1) the private interests affected by the government’s action; (2) the risk of an 

erroneous deprivation of the private party’s interest under the government’s 

procedures; and (3) the government’s interest. Id. at 335. And “when governmental 

agencies,” like the FEC, “adjudicate or make binding determinations which directly 

affect the legal rights of individuals, it is imperative that those agencies use the 

procedures which have traditionally been associated with the judicial process.” 

Hannah v. Larche, 363 U.S. 420, 442 (1960).

“Although today ‘prosecutorial’ usually refers to criminal proceedings, it was not 

always so. Under the APA, agency attorneys who bring civil enforcement actions are 

engaged in ‘prosecuting functions,’ 5 U.S.C. § 554(d).” Comm’n on Hope, 892 F.3d at

438. Indeed, the “Supreme Court has recognized that federal administrative 

agencies in general, and the Federal Election Commission in particular, have

[nearly] unreviewable prosecutorial discretion to determine whether to bring an 

enforcement action.” Id. (internal citations omitted); Chaney, 470 U.S. at 833 n.4 

(example of an exception to unfettered prosecutorial discretion). Therefore, an FEC 

adjudication is akin to a criminal prosecution, see Chaney, 470 U.S. at 832, and, 

consequently, requires analogous constitutional safeguards.

The Commission’s constructive delegation of civil enforcement authority violates

the Fifth Amendment’s Due Process Clause. An administrative agency’s 

adjudication function shares “the characteristics of [an indictment] decision [by] a 

prosecutor in the Executive Branch []—a decision which has long been regarded as 

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the special province of the Executive Branch, inasmuch as it is the Executive who is 

charged by the Constitution to ‘take Care that the Laws be faithfully executed.’” Id.

(quoting U.S. Const., Art. II, § 3). 

Accordingly, regulatory authority cannot be delegated “to a private entity.” Ass’n 

of Am. R.R. v. Dep’t of Transp., 721 F.3d 666, 670 (D.C. Cir. 2013) (vacated and 

remanded on other grounds sub nom Dep’t of Transp. v. Ass’n of Am. R.R., 575 U.S. 

43 (2015)). “Although objections to delegations are ‘typically presented in the 

context of a transfer of legislative authority from the Congress to agencies,’” the 

D.C. Circuit held “that ‘the difficulties sparked by such allocations are even more 

prevalent in the context of agency delegations to private individuals.’” Id. at 670-71 

(quoting Nat’l Ass’n of Regulatory Util. Comm’rs v. FCC, 737 F.2d 1095, 1143 (D.C. 

Cir. 1984)). “[D]elegating the government’s powers to private parties saps our 

political system of democratic accountability.” Id. at 675. Executive powers should 

remain with “disinterested government agencies [that] ostensibly look to the public 

good, not private gain.” Id.

The Weintraub Scheme is a delegation of responsibility “in its most obnoxious 

form; for it is not even delegation to an official or an official body, presumptively 

disinterested, but to private persons whose interests may be and often are adverse 

to the interests of others in the same business.” Carter v. Carter Coal Co., 298 U.S. 

238, 311 (1936). Indeed, the Scheme “attempts to confer [executive] power” on 

private entities to regulate their political opponents—“an intolerable and 

unconstitutional interference with personal liberty []. The delegation is [] clearly 

arbitrary, and [] clearly a denial of rights safeguarded by the due process clause of 

the Fifth Amendment.” Id.

When a prosecutor does not retry a defendant after a jury deadlocks, or 

otherwise dismisses charges with prejudice, the defendant obtains some knowledge 

of what the law requires. Moreover, it is “fundamental to how” rights are 

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adjudicated “in this country” and in “every [legal] system” in history “that the 

presumption is in favor of the defense, in the favor of the respondent. And that to 

overcome that presumption the government needs to bear a burden; it needs to get 

to a majority of whatever the decision body is.” FEC Vice Chair Allen Dickerson, 

FEC Meeting at 43:22 – 43:54. It is a “very basic concept that where a body is 

evenly divided on whether to move forward with enforcement, you don’t move 

forward with enforcement,” id. at 43:58 – 44:06, and a “really basic principle of due 

process.” Id. at 44:43 – 44:46.

When the Commission deliberately fails to follow traditional judicial processes 

and denies respondents their Fifth Amendment due process rights by refusing to 

close the case and inform them of a deadlock dismissal, it hangs the Sword of 

Damocles over their exercise of fundamental speech rights. 

FEC complaint respondents’ right to have their case closed and the resolution 

disclosed after a deadlock dismissal outweighs any purported governmental interest 

in concealing the case outcome. See Lassiter, 452 U.S. at 24; Eldridge, 424 U.S. at 

334. 

The Commission must “avoid unnecessarily infringing on First Amendment 

interests.” AFL-CIO, 333 F.3d at 179. The FEC’s failure to close the matter and 

disclose its dismissal greatly affect the private First Amendment interests of 

complaint respondents, and of those similarly situated. Eldridge, 424 U.S. at 335. 

Refusing to close a case inhibits respondents’ political advocacy efforts by placing 

them in legal limbo of not knowing if their conduct was unlawful, paralyzing them 

from pursuing additional political advocacy lest they suffer greater penalties, and 

forcing them to allocate resources, which could be used for their First Amendment 

activities, for a potential FEC fine that will never occur because the case was 

dismissed. Consequently, “the risk of an erroneous deprivation of [the private 

party’s] interest [under the government’s] procedures” is high. Id. And the FEC has 

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no legitimate “interest” in refusing to close a case after a deadlock dismissal 

because it neither gains nor loses anything from denying respondents their Fifth 

Amendment due process rights after a deadlock dismissal. Id.

When a complaint results in a deadlock dismissal, the Commission is making an 

adjudication and/or a binding determination that “directly affect[s] the legal rights 

of” complaint respondents. See Hannah, 363 U.S. at 442. Accordingly, “it is 

imperative that [the Commission] use the procedures which have traditionally been 

associated with the judicial process.” Id. But the FEC is not doing so.

The Court ought not participate in the FEC’s machinations to pretend 

complaints dismissed by deadlock are open and violate the Fifth Amendment by 

outsourcing the Commission’s enforcement powers to private groups. The FEC must 

verify that the complaint is truly open, and the obstructive commissioners should 

reveal whether they are in fact coordinating with outside groups to act on

unactionable complaints, before the Court lends its hand to the Scheme. “As a 

federal agency sworn to uphold the law and serve the public interest, the 

Commission has no legitimate interest in obscuring or hiding [its case closure]

activities from scrutiny.” Cooksey Mem. at 3-4.

B. The Scheme violates FECA.

“The Administrative Procedure Act embodies a basic presumption of judicial 

review and instructs reviewing courts to set aside agency action that is arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law.” DOC v. 

New York, 139 S. Ct. 2551, 2567 (2019) (internal quotation marks and citations 

omitted).

“FECA’s procedures are entirely compatible with the APA, which [] allows for 

judicial review to determine whether agency action is contrary to law.” New Models, 

993 F.3d at 890. “In FECA, Congress adopted a ‘contrary to law’ standard that 

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mirrors the APA, which requires courts to set aside agency action that is ‘otherwise 

not in accordance with law.’” Id. (citing 5 U.S.C. 706(2)(A)).

The “same standard of review applies to all FEC decisions, whether they be 

unanimous or determined by tie vote.” American Action Network, 209 F. Supp. 3d at 

85 (string cite of D.C. Cir. cases omitted). 

“[C]ourts may review an agency’s statutory interpretation.” New Models, 993 

F.3d at 894 (citing Orloski v. Fed. Election Comm’n, 795 F.2d 156 (D.C. Cir. 1986)). 

And “the Commission cannot apply an otherwise permissible interpretation of 

FECA in an unreasonable way—which is the same review that courts regularly 

conduct under Section 706 of the APA.” Id. (citing Orloski and 5 U.S.C. 706(2)(A)). 

Accordingly, when the Commission makes ‘“an impermissible interpretation of 

FECA,” or its conduct is ‘“arbitrary or capricious, or an abuse of discretion,’” courts 

may intervene. American Action Network, 209 F. Supp. 3d at 85 (quoting Orloski, 

795 F.2d at 161) (internal brackets omitted).

“[T]he FEC’s decisions are reversible if the Court determines that the agency 

‘entirely failed to consider an important aspect of the relevant problem’ or has 

‘offered an explanation for its decision that runs counter to the evidence before it.’” 

Id. at 88 (quoting Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 658 

(2007)) (brackets omitted). At a minimum, “the agency must articulate a rational 

connection between the facts found and the choice made.” Id. (citing Bowman 

Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-86 (1974)) 

(internal quotation marks and brackets omitted). The FEC’s “burden of showing a 

coherent and reasonable explanation for its exercise of discretion” may be 

“minimal,” but the Commission must nevertheless carry it. Buchanan v. Fed. 

Election Comm’n, 112 F. Supp. 2d 58, 70 (D.D.C. 2000) (internal quotation marks 

and citation omitted). 

The Commission cannot meet its burden here.

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The Weintraub Scheme is contrary to law, arbitrary, capricious, and an abuse of 

the Commission’s discretion. No provision of FECA requires four commissioner 

votes to close a case. Indeed, this policy defies the FEC’s own regulations requiring 

notification to a respondent when the proceedings are “otherwise terminate[d].” 11 

C.F.R. 111.9(b). Therefore, its refusal to close deadlocked dismissal cases is contrary 

to law. 

The Commission’s new policy also constitutes an abuse of discretion. The FEC 

cannot make a “coherent and reasonable explanation” for its refusal to close a case 

dismissed by deadlock. Buchanan, 112 F. Supp. 2d at 70. The deadlocked vote 

terminates the proceedings against the complaint respondent. Commission tradition 

necessitated that these cases be dismissed, see FEC Vice Chair Allen Dickerson, 

FEC Meeting at 42:25 – 43:00, and courts in the D.C. Circuit take it for granted 

these cases are closed, see, e.g., Citizens for Responsibility & Ethics in Wash. v. Fed. 

Election Comm’n (New Models), 380 F. Supp. 3d 30, (D.D.C. 2019), aff’d 993 F.3d 

880, 883 (D.C. Cir. 2021); Citizens for Responsibility & Ethics in Wash. v. Fed. 

Election Comm’n (Comm’n on Hope), 236 F. Supp. 3d 378, 390 (D.D.C. 2017), aff’d

892 F.3d 434, 437 (D.C. Cir. 2018); In re Sealed Case, 223 F.3d at 779, 781; Nat’l 

Republican Senatorial Comm., 966 F.2d at 1476; Crossroads GPS, 316 F. Supp. 3d

at 366; American Action Network, 209 F. Supp. 3d at 81,5—demonstrating the 

ministerial and perfunctory nature of closing deadlocked cases.

It is the Commission’s job to enforce FECA. See Buckley, 424 U.S. at 124-41 

(duly appointed commissioners must enforce FECA); Buchanan, 112 F. Supp. 2d at 

5 The panel in Campaign Legal Ctr. & Democracy 21 v. Fed. Election Comm’n, 952 

F.3d 352, 355 (D.C. Cir. 2020) (per curium), observed that after a deadlocked vote 

on whether to start an investigation, the commissioners “voted unanimously to 

dismiss all five complaints.” And Judge McFadden noted that after a deadlocked 

reason to believe vote, the Commission held another vote to close the file. Campaign 

Legal Ctr. v. Fed. Election Comm’n, 312 F. Supp. 3d 153, 158 (D.D.C. 2018). That 

vote was unanimous too. Id. 

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72 (the FEC is “expected” to evaluate FECA complaints). But because of the 

Scheme, the Commission is abdicating its responsibilities to administer FECA and 

manipulating the Court so that private entities may pursue litigation against 

complaint respondents. See NYT Article; Weintraub Statement; Trainor Statement. 

There is no “rational,” American Action Network, 209 F. Supp. 3d at 88, or 

“reasonable explanation” for this decision. Buchanan, 112 F. Supp. 2d at 70.

Therefore, the Commission is abusing its discretion.

CONCLUSION

Plaintiff’s application for a default judgment should be denied.

Dated: August 16, 2021 Respectfully submitted,

/s/ Ryan Morrison 

Ryan Morrison 

(DC Bar No. 1660582)

Julie Smith 

(DC Bar No. 435292)

INSTITUTE FOR FREE SPEECH

1150 Connecticut Ave., NW 

Suite 801

Washington, DC 20036

T: 703.894.6800

F: 703.894.6811

E: rmorrison@ifs.org

Counsel for Amicus Curiae 

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