1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

CITIZENS FOR RESPONSIBILITY AND )

ETHICS IN WASHINGTON, et al., )

)

Plaintiffs, ) Civ. No. 17-2770 (ABJ)

)

v. )

) REPLY IN SUPPORT OF 

FEDERAL ELECTION COMMISSION, ) MOTION FOR JUDGMENT ON

) THE PLEADINGS

Defendant. )

)

DEFENDANT FEDERAL ELECTION COMMISSION’S REPLY 

IN SUPPORT OF ITS MOTION FOR JUDGMENT ON THE PLEADINGS

The Federal Election Commission (“FEC” or “Commission”) demonstrated in its initial 

brief that the Court of Appeals’s recent and controlling decision in Citizens for Responsibility 

and Ethics in Washington v. FEC, 892 F.3d 434 (D.C. Cir. 2018) (“CREW”), petition for 

rehearing en banc filed, No. 17-5049, Doc. #1742905 (July 27, 2018), requires that the 

Commission prevail here as a matter of law. Even if the Court were to assume that the 

Commission’s resolution of plaintiffs Citizens for Responsibility and Ethics in Washington and 

Anne L. Weismann’s administrative complaint constituted a dismissal within the meaning of 

52 U.S.C. § 30109(a)(8), as plaintiffs have contended in opposition to the Commission’s motion 

to dismiss, what plaintiffs propose to challenge in this case would be an exercise of prosecutorial 

discretion that is unreviewable under the D.C. Circuit’s decision in CREW.

Plaintiffs present no substantial arguments in opposition. Their contradictory objections

that this motion is both redundant and premature are misconceived and unsupported by practice 

in this District. Likewise meritless are plaintiffs’ attempts to fit this case into the two potential

exceptions to the general unreviewability of FEC prosecutorial decisions described in CREW. 

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While plaintiffs do not dispute that the alleged dismissal decision they challenge was based on 

prosecutorial discretion and that the CREW decision thus applies, plaintiffs now suggest that this 

case involves a matter of statutory interpretation or a general policy of the Commission 

abdicating its statutory responsibilities. Neither claim has merit. Any dismissal here was based 

on prosecutorial discretion, not an erroneous interpretation of 52 U.S.C. § 30122, and the idea 

that the Commission has abdicated statutory responsibility for enforcement against straw donors 

is belied by, among other things, the FEC’s successful conciliation in this very case, including 

the $350,000 penalty it obtained. The Court should grant judgment to the Commission. 

ARGUMENT

I. THE FEC’S MOTION FOR JUDGMENT ON THE PLEADINGS IS TIMELY, 

DISTINCT FROM ITS MOTION TO DISMISS, AND CAN BE ADJUDICATED

The Court can decide the FEC’s motion for judgment on the pleadings because the FEC’s 

motion is consistent with practice in this District, appropriate in light of the D.C. Circuit’s 

issuance of the decision in CREW following the parties’ briefing on the FEC’s distinct motion to 

dismiss, and readily satisfies the substantive standard for relief under Federal Rule of Civil 

Procedure 12(c). Rather than contesting the FEC’s “demonstrat[ion] that no material fact is in 

dispute and that it is entitled to judgment as a matter of law,” Lopez v. Nat’l Archives & Records 

Admin., 301 F. Supp. 3d 78, 83-86 (D.D.C. 2018) (internal quotation marks omitted), plaintiffs 

argue that the FEC’s motion is “both premature and redundant” (Pls.’ Opp’n to FEC’s Mot. for J.

on the Pleadings at 2 (Docket No. 34) (“Opp’n”)). These objections are meritless.

Plaintiffs’ claim that the FEC’s two motions are redundant because they supposedly 

“address the same issue” (Opp’n at 5) is incorrect. The FEC’s motion to dismiss contends that 

this Court lacks subject matter jurisdiction over this matter because the Federal Election 

Campaign Act (“FECA” or “Act”) does not authorize judicial review of plaintiffs’ claims here, 

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where the Commission secured redress for plaintiffs’ administrative complaint through a 

conciliation agreement and did not dismiss the complaint. (FEC’s Mem. in Supp. of Its Mot. to 

Dismiss at 10-20 (Docket No. 22) (“FEC MTD”).) In other words, there is no jurisdiction for 

plaintiffs to challenge an FEC dismissal of an administrative complaint under 52 U.S.C. 

§ 30109(a)(8) because there was no underlying section 30109(a)(8) dismissal here.1

 This 

motion, by contrast, explains that even accepting plaintiffs’ contention that there was a dismissal,

any such dismissal was based on an exercise of prosecutorial discretion and, accordingly, 

plaintiffs’ claims nevertheless still fail as a matter of law in light of the CREW decision, which 

found such dismissals unreviewable. (FEC’s Mem. in Supp. of Its Mot. for J. on the Pleadings at 

7-12 (Docket No. 32) (“FEC Mot. for Judgment”).)2 This motion, based upon the D.C. Circuit’s 

decision in CREW, does not “repeat[] arguments” (Opp’n at 5 (internal quotation marks omitted)

(alteration in original)) but rather presents an independent basis why the Commission should 

prevail in this case.

Nor are plaintiffs correct that this motion is “[f]acially [p]remature” because the FEC has 

not yet filed an answer. (Opp’n at 3-5.) The Court can award judgment to the FEC on the 

pleadings now based on the D.C. Circuit’s decision in CREW. Contrary to the out-of-jurisdiction 

 1 Plaintiffs’ insistence that the FEC’s dismissal motion, based on both Rules 12(b)(1) and 

Rule 12(b)(6) of the Federal Rules of Civil Procedure is actually “brought under Rule 12(b)(6)” 

(Opp’n at 5 n.2), is also incorrect. The FEC moved to dismiss this action pursuant to Rule 

12(b)(1) for lack of subject matter jurisdiction because FECA does not authorize judicial review 

of plaintiffs’ challenge. (FEC MTD at 1.) The FEC moved pursuant to Rule 12(b)(6) only with 

respect to plaintiffs’ Administrative Procedure Act claim (id. at 20-25), while noting that this 

claim could alternatively be dismissed for a lack of subject matter jurisdiction pursuant to Rule 

12(b)(1) rather than Rule 12(b)(6), as courts have “‘not always been consistent in maintaining 

the[] distinctions’ between the two rules” (id. at 21 n.3 (quoting Sierra Club v. Jackson, 648 F.3d 

848, 853 (D.C. Cir. 2011) (internal quotation marks omitted)).

2 The FEC continues to preserve its position that, notwithstanding the assumptions for the 

sake of argument in this motion, the Commission did not dismiss the underlying administrative 

matter. (FEC Mot. for Judgment at 7 n.4.)

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authorities plaintiffs rely on (id. at 3-4 & n.1), courts in this District have rejected oppositions to 

Rule 12(c) motions based on prematurity, explaining, for example, that “if a party files a Rule 

12(c) motion before its answer, the Court may treat it as a motion to dismiss under Rule 12(b)(6) 

for failure to state a claim.” Jung v. Ass’n of Am. Med. Colls., 339 F. Supp. 2d 26, 35 (D.D.C. 

2004), aff’d, 184 F. App’x 9 (D.C. Cir. 2006) (collecting cases) (cited in FEC Mot. for Judgment 

at 8 n.5); Holt v. Davidson, 441 F. Supp. 2d 92, 94-95 (D.D.C. 2006) (“If a party files a Rule 

12(c) motion before the answer, the court may treat it as a motion to dismiss under Rule 

12(b)(6).”); Dale v. Exec. Office of the President, 164 F. Supp. 2d 22, 24 (D.D.C. 2001) (same). 

Neither of the two cases from this District on which plaintiffs rely hold otherwise. In 

Lopez, this Court granted a renewed motion for judgment on the pleadings, which was filed in 

response to an amended complaint without the defendants first filing an amended answer, by 

taking a practical approach and deeming the defendants’ initial answer to have been treated as if 

it remained in effect and noting the defendants’ position that filing an amended answer would 

not change their arguments. 301 F. Supp. 3d at 83 & n.6, 91. In Murphy v. Dep’t of Air Force, 

the court rejected a defendant’s effort to answer and subsequently move to dismiss for failure to 

state a claim under Rule 12(b)(6). 326 F.R.D. 47, 48 (D.D.C. 2018). The Rule 12(b)(6) motion 

could not be adjudicated as a Rule 12(c) motion in that case, the court explained, because the 

Rule 12(b)(6) motion “d[id] not address the existence or absence of disputed material facts, nor 

d[id] it attempt to evaluate the merits of the complaint’s claims in light of existing law” and thus 

failed to satisfy the distinct Rule 12(c) standard. Id. at 50. Here, however, the FEC has shown 

the absence of any material facts (Mot. for Judgment at 9-11 (explaining that it is “common 

ground” among the parties and Court that “any dismissal here was based upon the FEC’s 

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prosecutorial discretion”)) and why the FEC prevails under the law established in CREW (id. at 

11-12). The motion thus best fits a Rule 12(c) analysis.

In any case, whether the Court analyzes the FEC’s motion in accordance with the 

opinions in this District that have applied the Rule 12(c) standard in similar fashion to the Rule 

12(b)(6) standard, as the Commission explained in its opening brief (FEC Mot. for Judgment at 

9), or formally converts the motion to a Rule 12(b)(6) motion, the Commission prevails.3

Alternatively, if the Court uses a standard closer to the summary judgment standard as in Lopez, 

301 F. Supp. 3d at 84, the Court should likewise grant judgment to the Commission. The 

Commission prevails either way because there is no material fact in dispute and the Commission 

is entitled to judgment as a matter of law. (FEC Mot. for Judgment at 9.) Plaintiffs present no 

serious reason to defer adjudication of the FEC’s motion for judgment or to sequence the Court’s 

resolution of the pending motions in their preferred way. Given the timing of the D.C. Circuit’s 

decision, adjudication of this motion is consistent with Rule 12, the practice in this District, and

the spirit of the Federal Rules, which “should be construed . . . to secure the just, speedy and 

inexpensive determination of every action.” Fed. R. Civ. P. 1.

II. CREW PRECLUDES JUDICIAL REVIEW HERE UNDER PLAINTIFFS’

THEORY OF THE CASE

Plaintiffs’ substantive arguments with respect to the application of the D.C. Circuit’s 

CREW decision here are similarly meritless. In CREW, the D.C. Circuit found that Commission 

dismissals for reasons of prosecutorial discretion are not subject to judicial review, with two 

 3 Plaintiffs’ only argument against converting the motion to a Rule 12(b)(6) motion is their

redundancy argument. See supra pp. 2-3. But even if that argument were not groundless, its 

effect would be that the arguments the FEC presents in this motion are already before the Court 

as part of its earlier motion to dismiss and thus ready for adjudication in the FEC’s favor under 

the dispositive supplemental authority of CREW. 

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potential exceptions noted. 892 F.3d at 439; FEC Mot. for Judgment at 6-7 nn.2-3 (noting 

exceptions). First, noting that “[t]he interpretation an agency gives to a statute is not committed 

to the agency’s unreviewable discretion,” the court acknowledged that the “Commission 

declin[ing] to bring an enforcement action on the basis of its interpretation of FECA” would be 

subject to judicial review. CREW, 892 F.3d at 441 n.11 (citing Heckler v. Chaney, 470 U.S. 821, 

833 n.4 (1985)). Second, the Court of Appeals noted that Heckler had “left open the possibility 

that an agency nonenforcement decision may be reviewed if ‘the agency has “consciously and 

expressly adopted a general policy” that is so extreme as to amount to an abdication of its 

statutory responsibilities.’” Id. at 440 n.9. While not disputing that the controlling 

Commissioners’ statement was based on prosecutorial discretion, plaintiffs now attempt to fit 

this case into one of these two categories. Neither applies. 

A. The Challenged Commissioner Decision Was Based on Prosecutorial 

Discretion and There Has Been No Abdication

As the FEC described in its initial brief, plaintiffs’ complaint focuses on challenging the 

statement of reasons issued by Commissioner Caroline C. Hunter and former Commissioner Lee 

E. Goodman in which they invoked prosecutorial discretion, and plaintiffs’ opposition to the 

FEC’s motion to dismiss acknowledges that these Commissioners applied prosecutorial 

discretion by devoting a section of that brief to arguing against the idea that such discretion 

immunizes the agency from judicial review. (FEC Mot. for Judgment at 9.) The 

Commissioners’ stated reasons for their decision included a lack of clarity regarding the law, the 

statute of limitations, the balancing of proceeding against the parties who ultimately conciliated 

against the potential complications of trying to expand the enforcement matter to encompass 

John Does 1 and 2, and the public interest. (Compl. Exh. 5 at 2-5 (Statement of Reasons of Vice 

Chair Caroline C. Hunter and Comm’r Lee E. Goodman, MUR 6920 (Dec. 20, 2017))

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(“statement”).) These are not interpretations of FECA but judgments regarding the agency’s use 

of resources and priorities. (FEC Mot. for Judgment at 10-11.) This Court has itself noted that 

the statement by Commissioners Hunter and Goodman relied on the agency’s prosecutorial 

discretion. Doe 1 v. FEC, 302 F. Supp. 3d 160, 173 n.7 (D.D.C. 2018). Plaintiffs do not contest 

any of these pre-CREW characterizations of the statement. 

1. The Basis of the Challenged Commissioners’ Decision Was 

Prosecutorial Discretion, Not an Interpretation of FECA

Plaintiffs now argue that judicial review nevertheless remains available under CREW

because the “two commissioners misconstrued 52 U.S.C. § 30122 to not apply to” certain 

funders. (Opp’n at 1; id. at 6-8.) Plaintiffs’ claim is belied by the statement itself. In that

statement, Commissioners Hunter and Goodman explained that they did not decline “to bring an 

enforcement action on the basis of [an] interpretation of FECA,” CREW, 892 F.3d at 441 n.11, 

but rather chose not to pursue enforcement against the Does on the basis of prosecutorial 

discretion. They noted that, because “there is scant legal precedent applying 52 U.S.C. 

§ 30122’s ‘true source’ rule to funders three or four layers behind the reportable contribution to a 

Super PAC,” these “issues were likely to be contested and litigated.” (Compl. Exh. 5, Statement 

at 2.) These Commissioners thus chose to exercise the agency’s enforcement prerogative to 

conciliate with certain parties to avoid the complications that pursuing the Does would have 

entailed. (Id. at 5 (“This matter could have gone in a different direction, one that would have 

delayed any resolution for years. We avoided that.”); id. at 4 (“A majority of Commissioners 

expressed concerns about concluding the case before the statute of limitations ran, and we 

believed the most efficient prosecutorial path forward was to finalize the case against the three 

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Respondents as efficiently and expeditiously as possible, whether by conciliation or civil 

action.”).) 

Importantly, these Commissioners did not state that section 30122 was inapplicable to the 

Does. Rather, in keeping with the views expressed in another enforcement matter they cited in 

their statement, the Commissioners pointed out that, among other things, “the legal theory 

underlying the [FEC’s Office of General Counsel’s] ‘reason to believe’ recommendation 

concerning [the Does] was unclear, and that more factual investigation on the question of intent 

was needed because ‘the Commission had circumstantial evidence but not direct evidence.’” 

Doe 1, 302 F. Supp. 3d at 173 n.7 (summarizing and quoting statement). In the statement issued 

in that other matter — which plaintiffs wrongly characterize as an “LLC Enforcement Policy” 

(Opp’n at 9) — Commissioners Hunter, Goodman, and Matthew S. Petersen explicitly stated 

their view that “closely held corporations and corporate LLCs may be considered straw donors” 

under FECA, and they articulated how they intended to apply the statute in such situations going 

forward. Statement of Reasons of Chair Matthew S. Petersen and Comm’rs Caroline C. Hunter 

and Lee E. Goodman at 8, 12-13, MUR 6485 (W Spann LLC, et al.) (Apr. 1, 2016) (emphasis 

added), http://eqs.fec.gov/eqsdocsMUR/16044391107.pdf (“MUR 6485 SOR”); see also FEC 

Mot. for Judgment at 4 n.1 (noting that another court in this District has upheld these 

Commissioners’ exercise of prosecutorial discretion set forth in that statement). 

Thus, contrary to plaintiffs’ claim that the statement of Commissioners Hunter and 

Goodman interpreted FECA not to apply to the Does, the statement and its reference to another 

matter indicate that although these Commissioners found that section 30122 may apply to certain 

non-natural persons, they chose to exercise prosecutorial discretion in this case for a number of 

reasons, including litigation risk and statute of limitations concerns, efficiency, and the public 

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interest. (Compl. Exh. 5, Statement at 2-5.) CREW held that such decisions not to enforce based 

on prosecutorial discretion are not reviewable. 892 F.3d at 438. Moreover, under CREW and 

other Circuit precedent that the decision cited, the presence of legal interpretation in a statement 

of reasons for a dismissal based on prosecutorial discretion does not make the dismissal 

reviewable. See id. at 441-42 (noting that “even if some statutory interpretation could be teased 

out of the Commissioners’ statement of reasons,” the dismissal cannot be subject to judicial 

review because “[t]he law of this circuit ‘rejects the notion of carving reviewable legal rulings 

out from the middle of non-reviewable actions’” (quoting Crowley Caribbean Transp., Inc. v. 

Pena, 37 F.3d 671, 676 (D.C. Cir. 1994)). And there certainly can be no argument that any 

dismissal was “based entirely on [an] interpretation of” FECA. Id. at 441 n.11 (emphasis added).

The cases plaintiffs cite do not refute this point. FEC v. Akins, 524 U.S. 11 (1998), does 

not affect the application of the CREW decision because that opinion did not, as plaintiffs state,

“explicitly allow[] review of the FEC’s interpretation of law underlying a dismissal, the agency’s 

invocation of its prosecutorial discretion notwithstanding.” Opp’n at 6; compare CREW, 

892 F.3d at 438 n.6 (noting that “[t]he only issue the Court decided in Akins dealt with standing”

and “[t]he [Akins] Court held only that the complainants had standing even though, on remand, 

the Commission might invoke its prosecutorial discretion to dismiss the remaining charge”).4

 

The dismissal at issue in Akins was predicated entirely on the FEC’s interpretation of the statute; 

it did not involve prosecutorial discretion. What the Supreme Court found was that the mere 

possibility of a subsequent discretionary dismissal did not break the chain of causation for Article 

III standing purposes. Akins, 524 U.S. at 25. Even then, however, the Court strongly suggested 

 4 Contrary to plaintiffs’ straw man assertion that “the FEC interprets CREW to block all 

judicial review of its nonenforcement decisions” (Opp’n at 6), the FEC argues simply that CREW

applies to prosecutorial discretion dismissals such as the one plaintiffs claim occurred here. 

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that a non-merits discretionary dismissal would be permissible. Id. (noting that “it is possible” 

that the Commission would “have decided in the exercise of its discretion not to” enforce FECA 

in that case). Thus, the only question Akins actually decided was the plaintiffs’ standing, id. at 

25-26, not whether plaintiffs may challenge a dismissal that was in fact based on prosecutorial 

discretion.

Plaintiffs’ reliance on NAACP v. Trump, 298 F. Supp. 3d 209 (D.D.C. 2018) (Opp’n at 6-

7), is similarly unavailing. To begin, as a D.C. Circuit decision post-dating the decision in 

NAACP, CREW is controlling in the event of conflict. The case is also distinguishable because 

the plaintiffs in NAACP brought their challenge in relevant part under the Administrative 

Procedure Act (“APA”), which section 30109(a)(8) of FECA precludes. (See FEC MTD at 20-

25.) Most importantly, the NAACP decision does not stand for what plaintiffs claim it does. The 

NAACP case was one of several challenges to the Department of Homeland Security’s rescission 

of the Deferred Action for Childhood Arrivals (“DACA”) program. NAACP, 298 F. Supp. 3d at

215. In part, the plaintiffs challenged the rescission of DACA as arbitrary and capricious. Id. at 

223. The government argued that the rescission was unreviewable under Heckler because it 

“involves a ‘complicated balancing’ of the agency’s enforcement and resource-allocation 

priorities, and it resembles the ‘[c]hanges in policy as to criminal prosecutorial discretion’ that 

‘regularly occur within and between presidential administrations.’” Id. at 229-30 (internal 

quotation omitted) (alteration in original). In analyzing this claim, the court recognized that

“‘agency decisions to refuse enforcement’ . . . are ‘general[ly] unsuit[able] for judicial

review . . . .’” Id. at 227 (alterations in original) (quoting Heckler, 470 U.S. at 831). The court 

explained that “[s]uch decisions call for ‘a complicated balancing of a number of factors which 

are peculiarly within [the agency’s] expertise,’ including ‘whether agency resources are best 

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spent on this violation or another, whether the agency is likely to succeed if it acts, [and] whether 

the particular enforcement action requested best fits the agency’s overall policies.’” Id.

(alterations in original) (quoting Heckler, 470 U.S. at 831). 

The court explained that, under D.C. Circuit precedent that the CREW decision relied 

upon, Heckler’s presumption of unreviewability applied to “an agency’s refusal to act on a single 

complaint,” but did not apply to “‘an agency’s statement of a general enforcement policy’ that 

was either ‘expressed . . . as a formal regulation after the full rulemaking process . . . or . . .

otherwise articulated . . . in some form of universal policy statement.’” NAACP, 298 F. Supp. 3d 

at 229 (quoting Crowley, 37 F.3d at 676). In accordance with Crowley, the court noted that “an 

individual nonenforcement decision is presumptively unreviewable even if it is based solely on 

legal grounds,” while “‘an agency’s statement of a general enforcement policy may be 

reviewable for legal sufficiency.’” Id. at 229 (quoting Crowley, 37 F.3d at 676-77). Here, the 

Commissioners’ vote to not pursue the Does occurred in a single administrative matter, so even 

if the controlling Commissioners had made a nonenforcement decision based on a legal 

interpretation of FECA, which they did not, such a determination would be unreviewable even 

under NAACP. Accord CREW, 892 F.3d at 441-42. 

2. The FEC Has Not Abdicated Its Statutory Responsibilities

Plaintiffs’ suggestion that the FEC has abdicated its statutory responsibilities with respect 

to the enforcement of section 30122 (Opp’n at 8-11), is without basis and must be rejected. 

There has been no abdication. The Commission’s resolution of plaintiffs’ administrative 

complaint itself demonstrates that the Commission enforces section 30122 against LLCs and that 

there is no general policy of nonenforcement: Government Integrity, LLC, which the 

Commission uncovered in its investigation of plaintiffs’ administrative complaint, was included 

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in the conciliation agreement for violation of section 30122. (FEC MTD at 5-6.) This 

conciliation agreement, which resolved alleged violations of the same statutory provision 

plaintiffs allege has been abdicated, included the respondents’ agreement to pay a sizeable 

$350,000 penalty. (Id. at 6.)5 That is enforcement, not abdication.

Indeed, plaintiffs’ willingness to claim abdication for any FEC enforcement less than 

what they believe is warranted is itself fundamentally contrary to the concept of prosecutorial 

discretion. They thus err in claiming that the statement of Commissioners Hunter and Goodman, 

“when read in light of other statements of the two commissioners incorporated therein,” reflects 

“a conscious and express abdication of the agency’s statutory responsibility to identify the ‘true 

source’ of contributions.” (Opp’n at 8.)6

 But FECA does not mandate that the Commission 

prosecute every administrative complaint alleging potential violations of section 30122 until it 

has uncovered the ultimate source of funds for a contribution. Rather, FECA leaves it to the 

Commission to decide how to expend its limited resources in investigations and conciliations. 

 5 Consistent with its long history of enforcing section 30122, the Commission is also 

currently pursuing several affirmative civil cases to enforce section 30122. See FEC v. Johnson, 

Civ. No. 2:15-0439 (D. Utah filed June 19, 2015); FEC v. Rivera, Civ. No. 17-22643 (S.D. Fla. 

filed July 14, 2017) (dismissed Sept. 27, 2018); FEC’s Mot. to Reopen Case & For Leave to File 

Amended Compl. FEC v. Rivera, Civ. No. 17-22643 (Docket No. 32) (S.D. Fla. Oct. 22, 2018). 

And it conciliated other matters just last year as well. See Conciliation Agreement, 

MUR 7247 (Sept. 7, 2017), https://www.fec.gov/files/legal/murs/7247/17044430333.pdf ($6,700 

civil penalty); Conciliation Agreement, MUR 7005, et al. (Aug. 11, 2017), 

https://www.fec.gov/files/legal/murs/7056/17044424631.pdf ($65,000 civil penalty). 

6 The Court should reject plaintiffs’ attempt to broaden the scope of review to other 

administrative matters. In a previous case, CREW and another plaintiff argued that the 

Commission’s approach to its political committee analysis during several prior administrative 

proceedings amounted to a “de facto regulation.” CREW v. FEC, 164 F. Supp. 3d 113, 118 

(D.D.C. 2015). The court rejected that improper attempt to mount “‘an across-the-board 

challenge’” to the Commission’s treatment of these previous matters, holding that the “exclusive 

remedy” for aggrieved parties is to “challenge those particular decisions under the judicial 

review provision of FECA.” Id. at 120. Plaintiffs’ attempt to broaden the scope of this case to 

include other administrative matters in the guise of an abdication claim should likewise be 

rejected.

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(FEC MTD at 19-20.) For plaintiffs to be able to second guess such choices, they must first 

demonstrate that the FEC has “‘consciously and expressly adopted a general policy’ that is so 

extreme as to amount to an abdication of its statutory responsibilities.” CREW, 892 F.3d at 440 

n.9. Plaintiffs have shown no such conscious and express policy because none exists. 

Not only did the Commissioners referenced in plaintiffs’ opposition enforce section 

30122 in the underlying matter, but, as explained above, see supra pp. 7-8, they also have found 

that closely held corporations and corporate LLCs may be considered straw donors under section 

30122 and identified circumstances in which such findings would be warranted. At the same 

time, they and a colleague have articulated their views that the Supreme Court’s decision in 

Citizens United v. FEC, 558 U.S. 310 (2010), significantly altered the agency’s historical 

approach to corporate contributions and FECA’s prohibition against contributions in the name of 

another. MUR 6485 SOR at 1-2. They concluded that in the pre-Citizens United era “the 

Commission ha[d] never addressed the inverse of the conventional corporate straw-donor 

scheme,” in which a corporation or corporate LLC could be considered to be making a 

contribution in the name of another in violation of section 30122, as alleged in the administrative 

complaints at issue there. Id. at 7. Because corporations could not make any contributions under 

FECA at the time the prohibition against conduit contributions was enacted, the Commissioners 

further found that “Congress likely did not contemplate that corporations could violate the 

prohibition against giving in the name of another by acting as straw donors for contributions.” 

Id. at 9. These Commissioners thus determined that the question presented by the administrative 

complaints in those matters was an issue of first impression and ultimately warranted the use of 

prosecutorial discretion. Id. Commissioners Hunter and Goodman cited that reasoning in the 

analysis plaintiffs seek to challenge here. (Compl. Exh. 5, Statement at 2 & nn.5-6.)

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Upholding the exercise of prosecutorial discretion articulated in the MUR 6485 SOR in 

an opinion issued shortly before CREW was decided, the district court determined that the 

question of when a closely held corporation or corporate LLC may be a straw donor under 

section 30122 was “an issue of first impression for the Commission,” that “even sophisticated 

lawyers were confused” by the regulatory environment, and credited the controlling 

Commissioners’ concerns about notice and due process, as well as the importance of 

safeguarding First Amendment activity. Campaign Legal Ctr. v. FEC, 312 F. Supp. 3d 153, 162, 

165-66 (D.D.C. 2018) (“CLC”), appeal docketed, No. 18-5239 (D.C. Cir. Aug. 8, 2018). The 

district court thus concluded that “there was a rational basis for the Commission’s exercise of its 

prosecutorial discretion.” Id. at 156. Any similar exercise of prosecutorial discretion as to the 

Does that occurred here is not an abdication of statutory responsibility. CREW, 892 F.3d at 440 

n.9. Thus, CREW bars judicial review.

B. CREW Also Precludes CREW’s APA Claims

Finally, plaintiffs assert without support that “CREW has no application to [plaintiffs’]

APA claim.” (Opp’n at 6 n.3.) But the D.C. Circuit found in CREW that “if an action is 

committed to the agency’s discretion under APA § 701(a)(2) — as agency enforcement decisions 

are — there can be no judicial review for abuse of discretion, or otherwise.” 892 F.3d at 441. 

CONCLUSION

For the foregoing reasons, as well as those set forth in the FEC’s initial brief, the Court 

should enter judgment on the pleadings in favor of the FEC and dismiss plaintiffs’ complaint.

 Respectfully submitted,

Lisa J. Stevenson (D.C. Bar No. 457628)

Acting General Counsel

lstevenson@fec.gov

/s/ Tanya Senanayake 

Tanya Senanayake (D.C. Bar No. 1006218)

Attorney

tsenanayake@fec.gov

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Kevin Deeley

Associate General Counsel

kdeeley@fec.gov

Charles Kitcher (D.C. Bar No. 986226)

Acting Assistant General Counsel 

ckitcher@fec.gov

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463

(202) 694-1650

October 26, 2018

Case 1:17-cv-02770-ABJ Document 35 Filed 10/26/18 Page 15 of 15