IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CAMPAIGN LEGAL CENTER and 

DEMOCRACY 21,

Plaintiffs,

Case No. 1:20-cv-00730

v.

Hon. Christopher R. Cooper

FEDERAL ELECTION COMMISSION,

Defendant,

RIGHT TO RISE SUPER PAC, INC.,

Intervenor-Defendant.

PLAINTIFFS’ REPLY IN FURTHER OPPOSITION TO 

INTERVENOR-DEFENDANT’S MOTION FOR RECONSIDERATION

Fred Wertheimer (DC Bar No. 154211)

DEMOCRACY 21

2000 Massachusetts Avenue N.W.

Washington, DC 20036

(202) 355-9600

Donald J. Simon (DC Bar No. 256388)

SONOSKY, CHAMBERS, SACHSE,

ENDRESON & PERRY, LLP

1425 K Street N.W., Suite 600

Washington, DC 20005

 (202) 682-0240

Tara Malloy (DC Bar No. 988280)

 tmalloy@campaignlegalcenter.org

Megan P. McAllen (DC Bar No. 1020509)

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Suite 400

Washington, D.C. 20005

(202) 736-2200

Case 1:20-cv-00730-CRC Document 31 Filed 05/21/21 Page 1 of 18
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INTRODUCTION

The basis for plaintiffs’ informational injury is simple: they allege that Governor John Ellis 

“Jeb” Bush and his 2016 presidential campaign failed to fully disclose his expenditures to “test the 

waters” or conduct campaign activity before he formally announced his candidacy, as the Federal 

Election Campaign Act (“FECA”) requires. Even intervenor Right to Rise Super PAC (“RTR”) 

concedes that a disclosure violation underlies these proceedings. RTR Suppl. Br. 1 (ECF No. 28) 

(acknowledging plaintiffs’ allegations that Bush “violated FECA by failing to comply with 

FECA’s ‘testing-the-waters’ disclosure requirements”).

There is no dispute that Bush incurred expenses for pre-candidacy activities, including 

many identified with particularity in the administrative complaints, that his campaign never 

disclosed. See May Admin. Compl. (ECF No. 1-1); Mar. Admin. Compl. (ECF No. 1-2). Plaintiffs 

maintain that these were activities undertaken to test the waters of candidacy—if not to further an 

undeclared, de facto candidacy—and were thus subject to disclosure under FECA. As this Court 

recognized in its February 19 order and opinion, “[d]eprivation of the disclosures that FECA 

requires for that disputed period constitutes an informational injury to sustain Article III standing.”

ECF No. 17 at 11. The inquiry should end there. 

Instead, to support its own motion for reconsideration, RTR demanded the opportunity to 

supply this missing information now, claiming it could demonstrate that all of Bush’s undisclosed 

campaign-related expenditures in the pre-candidacy period were in fact covered by the reported 

disbursements of RTR and/or Right to Rise PAC. Hr’g Tr. 12:8-17.

Plaintiffs believe that this entire endeavor is misplaced and inconsistent with relevant 

standing precedents: the informational rights created in FECA require more than the post hoc 

assemblage of unverified information recharacterizing a few transactions in the reports of two 

unconnected committees. 

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But these concerns may be moot, because RTR has utterly failed to make good on what it 

promised. Indeed, RTR appears to misunderstand the point of this supplemental briefing: to 

establish, with “declarations or evidence or something that the Court can actually cite,” Hr’g Tr. 

24:10-11, that all of the reportable expenses that Bush incurred over the pre-candidacy period but 

failed to disclose were fully paid for and reported by RTR or Right to Rise PAC.

Rather than submitting such evidence, RTR resumes its defense of Bush on the merits, 

reiterating the legal argument that Bush’s pre-candidacy travel, public appearances, and meetings 

with party leaders and other potential supporters did not constitute testing-the-waters or campaign 

activity under FECA. See, e.g., RTR Suppl. Br. 14 (“Bush’s attendance at CPAC was not a testingthe-waters event”). In an even more pernicious misinterpretation of FECA, intervenor devotes its 

remaining pages to the legal proposition that the RTR committees were required to pay for Bush’s 

expenses arising from non-RTR campaign-related events—on the pretext that the RTR committees

“benefited” from his participation at such events. Id. at 13.

These arguments are wrong and do damage to FECA’s core transparency and anticorruption objectives, but more importantly, they are irrelevant to the standing inquiry. Their 

length and superficial complexity do not obscure that RTR failed to submit any evidence germane 

to the guiding inquiry here: whether, as RTR claimed, the RTR committees’ 2015 reports contain

the missing information that Bush failed to disclose from his pre-candidacy period. Indeed, the 

one declaration intervenor offers is from Bush’s “Director of Scheduling,” who attests only that 

Bush attended three events in 2015. A less revealing fact would be hard to muster.

While RTR’s standing challenge grows more tenuous and self-contradictory with each 

successive round of briefing, its latest submission confirms that its guiding objective is less to 

elucidate the proceedings than to confuse and delay them. This Court should not reward the effort: 

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intervenor’s motion for reconsideration should be denied.

ARGUMENT

I. RTR has offered no new facts or evidence that would provide the missing FECArequired disclosure information that plaintiffs seek.

This Court directed supplemental briefing to address intervenor’s unsupported claim that 

all of Bush’s undisclosed pre-candidacy expenses were paid for by the RTR committees and 

reported, in some form, in their 2015 FEC filings. In particular, it asked RTR to substantiate this 

claim, noting that the “word of counsel” was insufficient to show that “all of the required 

disbursements were either reported by the campaign or reported by the PAC,” and that 

“declarations or [other] evidence” for this point were necessary. Hr’g Tr. 24:1-12.

But the sum total of RTR’s “evidentiary” submission is: (1) a declaration by Brandi Brown, 

a Bush scheduler,1 who attested only that, “on information and belief,” Bush in 2015 attended a 

College Republicans event and fundraisers for David Young and the South Carolina Republican 

House Caucus; and (2) a series of unsupported assertions that six “disbursements properly reported 

under FECA by either Right to Rise or Right to Rise Leadership PAC” “correlated” with several 

pre-candidacy events attended by Bush for which his campaign failed to report any expenditures. 

This “evidence” is utterly unresponsive to the inquiry at hand. Indeed, the most charitable 

conclusion one could draw from it is that intervenor simply does not know the true scope of Bush’s 

pre-candidacy activities, or who bankrolled them.

First, the declaration by Brown, who testifies only about three events Bush attended, has 

1

In another apparent example of an unreported Bush testing-the-waters expense, Brandi 

Brown attests that she was “Bush’s Director of Scheduling from January 2015 through February 

2016,” ECF No. 28-1, but his campaign did not report any payments to her until June 30, 2015.

See Ex. 1 to Pls.’ Suppl. Br. (ECF No. 29-1); Jeb 2016, Inc., Disbursements to Brandi Brown, 

2015-16, https://www.fec.gov/data/disbursements/?data_type=processed&committee_id=

C00579458&recipient_name=brandi+brown&two_year_transaction_period=2016. 

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no relevance to whether RTR financed and/or reported any outstanding campaign-related expenses 

incurred by Bush in the pre-candidacy period. If anything, the declaration further corroborates the 

allegations in plaintiffs’ two FEC complaints that Bush engaged in extensive campaign travel prior 

to June 2015. Otherwise, the utility of the declaration is unclear: plaintiffs certainly do not dispute 

that Bush attended many fundraisers.

Second, with respect to five Bush events in 2015 illustratively identified by plaintiffs, 

intervenor simply alleges that a small handful of expenditures reported by RTR and RTR PAC 

“correlate” with these events, Suppl. Br. 12-17; as to the factual basis of this allegation, the reader 

is left guessing. More specifically:

• With respect to the January 20 D.C. meeting with Republican lobbyists, intervenor flags 

a single “in-kind catering” transaction from RTR to Frederic Malek, id. at 12-13; 

• With respect to Bush’s February 27 CPAC speech and associated events, intervenor 

identifies no “correlating” disbursements by either RTR committee, id. at 13-14;

• With respect to the March 7 Iowa Agriculture Summit, intervenor points to three airfare 

transactions reported by RTR PAC that supposedly correlate with the event, and notes

that on the same trip Bush attended a fundraiser for an Iowa House candidate to whom

the PAC contributed,2id. at 14-15;

• With respect to the May 16 Lincoln Day Dinner, intervenor asserts that a $12,776.13 

payment by RTR PAC “paid for” “Bush’s airfare for the event,” id. at 15-16; and

• With respect to the March 17 Chamber of Commerce event in South Carolina, 

intervenor identifies a $204.83 RTR PAC payment to the Greenville Embassy Suites 

that supposedly correlates with the event, id. at 16-17.

None of these six disbursements—five made by an entity other than RTR—were in any way 

designated for Bush or the events at issue by the reporting committee. One might even suspect that 

2 RTR PAC did report giving $5,200 to Young for Iowa, but on February 5, 2015, a month prior 

to the event, so it is unclear how this contribution is relevant to that fundraiser or the expenses 

arising from the Iowa Agriculture Summit. See Right to Rise PAC, Disbursements to Young for 

Iowa, 2015-16, https://www.fec.gov/data/disbursements/?data_type=processed&committee_id=

C00571380&recipient_name=young+for+iowa&two_year_transaction_period=2016.

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RTR simply plucked disbursements out of committee reports with dates that roughly corresponded 

to the events in question. Certainly, RTR introduces no sworn testimony that these disbursements 

actually paid for Bush-related expenses arising from these events. This is particularly problematic 

because intervenor is now asserting that RTR PAC, not intervenor RTR, was the committee that 

principally reported Bush’s outstanding expenses. RTR PAC is not a party here and RTR asserts 

no authority to speak on its behalf; indeed, it stresses that the two are distinct.

But this lack of any corroborating evidence also underscores a more fundamental problem 

with intervenor’s claims: careful review of the representations in RTR’s brief reveals that they

almost universally stop short of saying that RTR or RTR PAC in fact paid for Bush’s expenses. 

Instead, RTR merely reiterates that “[i]t was appropriate” for the RTR committees “to sponsor the 

Governor’s travel and to disclose that expenditure.” Suppl. Br. 15 (emphasis added). See also id. 

at 17 (“The Governor’s participation in this event furthered the mission of Right to Rise Leadership 

PAC, which correctly disclosed the travel expense.”) (emphasis added). But alleging that RTR’s 

or RTR PAC’s disbursements were “appropriate” is a conclusion of law and irrelevant to the 

informational standing analysis.3It may be that RTR meant to convey that it indeed paid for Bush’s 

expenses, but it actually said something different.

Even if RTR had submitted evidence to substantiate its claims, however, and had 

specifically alleged that it paid for the costs Bush incurred, its showing would still be woefully 

incomplete. It cannot find any disbursements that even “correlate” to certain events identified by 

plaintiffs: most glaringly, with respect to Bush’s CPAC speech, where instead RTR resorts to the 

legal argument that this “was not a testing-the-waters event.” Suppl. Br. 14. A broader problem is 

3 The closest intervenor comes to saying that either RTR committee paid for and reported a specific 

Bush expense is its allegation that RTR PAC “appropriately paid for—and disclosed—Governor 

Bush’s airfare” in connection to the Iowa Lincoln Day Dinner. RTR Suppl. Br. 16.

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that even when intervenor RTR does flag a disbursement as “correlating” to an identified Bush 

trip, in each case, it highlights only one of the multiple expense categories that would arise from a 

day-long or weekend-long campaign swing—which would include, at a minimum, air and ground 

transportation and lodging, not just for Bush himself but also for his retinue of campaign staff. In 

addition, it would be typical for a well-financed frontrunner like Bush to also pay to develop 

talking points and speeches to promote his candidacy at these public events. But, for instance, with 

respect to Bush’s January 20 D.C. meeting with Republican lobbyists, RTR flags only one payment 

it made for “in-kind catering,” id. at 12-13, but no travel, lodging, or staffing costs for Bush.

Finally, this haphazard, piecemeal approach to identifying “correlating” RTR 

disbursements to cover information that the Bush campaign failed to disclose highlights the futility 

of this entire endeavor: RTR does not have the knowledge or authority to speak to the entire scope 

of Bush’s reportable pre-candidacy activities, and indeed, has never claimed otherwise. RTR 

focused entirely on the five Bush events identified by plaintiffs in the April 20 hearing, but ignored 

plaintiffs’ administrative complaints (and legal complaint), which made clear that these particular 

events were just the tip of the iceberg. As detailed in plaintiffs’ supplemental brief, the copious 

news reports and Bush statements cited in their FEC complaints documented many months of 

continuous campaigning, with Bush crisscrossing the nation, appearing and speaking at public 

events, and meeting with elected officials, party leaders, and potential supporters. See Pls.’ Suppl. 

Br. 4-6 (ECF No. 29). It is unclear if RTR is even aware of the full extent of this activity, some of 

which predated its existence; it certainly has not accounted for it.

II. Plaintiffs allege direct violations of FECA’s candidate disclosure provisions, which are

hardly satisfied by the post hoc and unverified assertions RTR offers here. 

FECA is structured to shine the light of disclosure on all federal candidacies as soon as 

they commence. Accordingly, to vindicate the compelling interest in knowing “where political 

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campaign money comes from and how it is spent,” Buckley v. Valeo, 424 U.S. 1, 66 (1976), the 

law requires prompt, accurate, and complete disclosure of all funds a candidate receives and 

spends, including “disguised contributions” in the form of payments for services rendered directly 

to candidates’ campaigns or to defray their campaign costs, see id. at 46-47. 

This disclosure mandate applies to a would-be candidate as soon as he begins “testing the 

waters” of candidacy. See 11 C.F.R. § 101.3. Indeed, the FEC’s testing-the-waters regulations are 

a “limited exception” to the statutory rule that an individual immediately triggers candidate status 

by “receiv[ing] contributions aggregating in excess of $5,000” or “ma[king] expenditures 

aggregating in excess of $5,000.” 52 U.S.C. § 30101(2); 11 C.F.R. § 100.3(a). But the exception

does not excuse individuals who do become candidates from their statutory disclosure obligations

with respect to their pre-candidacy activity; it simply allows them to postpone when the disclosure 

occurs. Once an individual becomes a candidate, all funds received or payments made to test the 

waters are “contributions or expenditures under the Act,” 11 C.F.R. § 101.3—including any 

payments by federal political committees for such activities, which constitute in-kind contributions 

to the candidate, id. §§ 110.2(l), 9034.10—and must be disclosed, id. §§ 100.72(a), 100.131(a). 

There is no dispute that Bush spent the first half of 2015 crisscrossing the country to appear 

at numerous events, meetings, and fundraisers. Nor is there any dispute that Bush’s lone reported 

$1,089.08 disbursement for testing-the-waters travel does not remotely account for all of this 

activity. See Pls.’ Suppl. Br. 6-8. But rather than attempting to account for this informational 

shortfall, RTR repeats the tautology that all of “Bush’s testing-the-waters expenses were disclosed 

as FECA requires,” Suppl. Br. 3, so his undisclosed expenses were necessarily not for testing the 

waters—notwithstanding plaintiffs’ allegations and evidence refuting both propositions. 

But RTR primarily contends that other committees were permitted (or required) to 

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underwrite Bush’s expenses for this effort without disclosing those payments as in-kind 

contributions to the Bush campaign, and without the Bush campaign disclosing them at all. See

RTR Suppl. Br. 5-7, 12-17. That is a legal argument going to the merits of plaintiffs’ administrative 

complaints—and a specious one, see infra Part IV, that also conveniently sidesteps whether or to 

what extent the committees in fact made these “appropriate and legally required” payments, RTR 

Suppl. Br. 12. See supra Part I.

RTR then devotes some five pages to “FECA’s disclosure and verification requirements” 

for non-connected committees. RTR Suppl. Br. 5-7. By this, it seems to be suggesting that if RTR 

was not required to report information about Bush’s testing-the-waters expenses with “a level of 

specificity” that would allow its reported disbursements to be “correlated” to Bush, then FECA 

did not require this information to be disclosed by anyone. Id. at 5. This argument borders on 

farcical. FECA does not require non-connected committees to bankroll months of a candidate’s 

testing-the-waters activities in the first place, and in many cases it would be illegal. 11 C.F.R. 

§ 100.72(a) (“Only funds permissible under the Act may be used” to test the waters). But if they 

do, the information is unquestionably subject to disclosure—by both the committee and the 

candidate. Id. §§ 100.52(d)(1), 101.3, 104.13, 110.2(l). Nor do plaintiffs “claim they should be 

able to correlate Governor Bush’s pre-candidate activities with specific disbursements on FEC 

reports.” RTR Suppl. Br. 5. The only reason they are even addressing this issue is because 

intervenor thinks it can rebut their informational injury by attempting such a “correlation.”

Plaintiffs’ informational harm stems from the Bush campaign’s failure to provide FECAmandated disclosure with respect to payments for activities that, “on [plaintiffs’] view of the law,”

FEC v. Akins, 524 U.S. 11, 21 (1998), were undertaken to advance his candidacy and are thus 

subject to statutory disclosure. Their standing is thus predicated on “a deprivation of information 

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that, on their reading of the statute, they are legally entitled to receive.” Maloney v. Murphy, 984 

F.3d 50, 61 (D.C. Cir. 2020). But RTR primarily uses its supplemental brief to argue that its own

spending, and that of other committees, was properly reported—which is neither true4nor germane 

to the factual challenge RTR asserts. 

III. The disclosure information plaintiffs seek is not “already available” to them.

RTR has at times suggested, albeit not always intelligibly or with precision, that all of the 

missing information at issue here is available in its own FEC reports or elsewhere. Based on this 

premise, it argues that plaintiffs are only seeking a “legal determination” and not the type of FECA 

information that would support standing. RTR Suppl. Br. 19. But because intervenor’s premise is 

wrong—for all of the reasons noted above—so too is this standing argument.

The touchstone of the informational standing analysis is “the nature of the information 

allegedly withheld.” Common Cause v. FEC, 108 F.3d 413, 417 (D.C. Cir. 1997). As this Court 

has recognized, “[t]he case law distinguishes between information in the form of legal conclusions 

and information in the form of facts; a plaintiff has no particularized right to the former, but does 

to the latter, so long as FECA requires that disclosure.” CREW v. Am. Action Network, 410 F. 

Supp. 3d 1, 13 (D.D.C. 2019). Circuit precedent thus draws a clear distinction between plaintiffs 

who show an informational injury based on their inability to obtain factual information subject to 

disclosure under FECA and plaintiffs whose supposed informational injury rests on the inability 

4 RTR asserts that “FECA does not require disclosure of any additional information” because “all 

three committees disclosed an adequate purpose for all their disbursements, and all disbursements 

were timely disclosed.” Suppl. Br. 19 (citing 11 C.F.R. § 104.3(b)(3)(i)(A), which outlines how 

non-candidate committees may describe disbursements). This claim simply ignores whether Bush

fully reported his pre-candidacy spending. And unless one assumes that none of the Bush activities 

plaintiffs identified were undertaken to test the waters—which is a merits judgment that is as 

misplaced as it is wrong—any payments by the RTR committees for these activities should have 

been reported as in-kind contributions. 11 C.F.R. §§ 110.2(l), 104.3(b)(3)(v). 

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to obtain “duplicative” information. See, e.g., Wertheimer, 268 F.3d 1070, 1075 (D.C. Cir. 2001). 

Intervenor concedes that plaintiffs’ allege that Bush violated FECA by failing to disclose 

his testing-the-waters activities, RTR Suppl. Br. 1, but attempts to recast the information sought 

as a “legal determination” and thereby shoehorn it into the Wertheimer line of cases. See id. at 19-

20; Recons. Mot. 13 (ECF No. 19). But in those cases, the allegedly illegal spending at issue was 

discrete, identifiable, and already known to the complainant. For example, in a case where the 

plaintiff already knew “(1) that an in-kind contribution took place, (2) the source of the 

contribution, (3) the amount of the contribution, (4) the purpose of the contribution, and (5) the 

date of the contribution”—and yet “more” due to a federal criminal prosecution involving the same 

transaction—there was no informational injury because “FECA require[d] no further disclosures” 

about the payment at issue. Free Speech for People v. FEC, 442 F. Supp. 3d 335, 343 (D.D.C. 

2020). Likewise, in Wertheimer, neither party contested “that each transaction appellants allege[d] 

[was] illegal [was] reported in some form.” 268 F.3d at 1074-75. 

Cases like Wertheimer and its progeny involved the legal redesignation of a defined 

universe of reported transactions contained in the FEC filings of exactly one committee and exactly 

one candidate, see id. at 1072, or indeed, the reattribution of a single transaction about which all 

FECA-required facts were already available. See, e.g., Judicial Watch, Inc. v. FEC, 293 F. Supp. 

2d 41, 47 (D.D.C. 2003) (no informational injury from alleged non-disclosure of the complainant’s 

own in-kind contribution). Moreover, some involved FEC complaints that failed to allege any

disclosure violations, making the asserted informational harms unredressable. See, e.g., CREW v. 

FEC, 475 F.3d 337, 339 (D.C. Cir. 2007) (CREW’s only asserted informational injury was the 

precise valuation of a mailing list that Grover Norquist allegedly gave Bush-Cheney ’04, which 

its FEC complaint did not seek and OGC had already deemed de minimis). 

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This case is different. Here, the full universe of Bush’s pre-candidacy spending is not

known—or knowable, absent action to remedy the disclosure violations alleged in plaintiffs’ 

March 2015 administrative complaint. And there is simply no basis, legally or factually, for RTR’s 

claim that Bush fully disclosed his extensive pre-candidacy campaign expenditures as FECA 

requires, nor for RTR’s alternative claim that the missing information can be gleaned by reviewing 

the general disbursements reported by untold other groups—including, but perhaps not limited to, 

the two RTR committees. See supra Part I. 

IV. RTR’s legal challenges to the merits of plaintiffs’ administrative complaints have no 

place in the standing inquiry—but fail regardless.

Intervenor dedicates much of its supplemental brief to legal arguments that go to the merits 

of plaintiffs’ administrative complaints, not to whether they have shown informational harm. But 

“[w]hether a plaintiff has a legally protected interest that supports standing does not require that 

he show he will succeed on the merits . . . . Instead, ‘when considering whether a plaintiff has 

Article III standing, a federal court must assume, arguendo, the merits of his or her legal claim.’” 

Estate of Boyland v. USDA, 913 F.3d 117, 123 (D.C. Cir. 2019) (citation omitted), cert. denied, 

140 S. Ct. 947 (2020). Nevertheless, because RTR’s arguments reflect such a blatant, and 

dangerous, misreading of FECA, plaintiffs will address them briefly.

A. RTR’s legal arguments have no foundation in FECA and threaten to upend its entire 

system of candidate contribution limits and disclosure requirements.

RTR relies heavily on the claim that none of Bush’s unreported activity over the precandidacy period constituted testing-the-waters activity, so no FECA disclosures were required, 

even with respect to numerous prototypical campaign events Bush attended in early primary states. 

But the FEC has explicit standards governing both when pre-candidacy activity qualifies 

as testing the waters, and when such activity indicates the commencement of a de facto candidacy. 

See 11 C.F.R. §§ 100.72(b); 100.131(b). Indeed, FEC regulations enumerate specific, nonCase 1:20-cv-00730-CRC Document 31 Filed 05/21/21 Page 12 of 18
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exhaustive examples of activities indicating that “an individual has decided to become a 

candidate,” id., and Bush engaged in most of them: 

• Bush “raise[d] funds in excess of what could reasonably be expected to be used for 

exploratory activities” 11 C.F.R. § 100.131(b)(2), e.g., in establishing RTR, which by 

its own admission was formed to “rais[e] a war chest” for Bush, RTR Mot. to Dismiss 

2; see also Mar. Admin. Compl. ¶¶ 5-16; May Admin. Compl. ¶¶ 16-26.

• He “ma[de] or authorize[d] written or oral statements that refer to him or her as a 

candidate for a particular office,” 11 C.F.R. § 100.131(b)(3), e.g., when he confirmed 

on film in May 2015: “I’m running for president,” May Admin. Compl. ¶ 4.

• He “conduct[ed] activities . . . over a protracted period of time,” 11 C.F.R. 

§ 100.131(b)(4): even Bush’s minimally reported testing-the-waters activities span a 

period of thirteen months, see Ex. 1 to Pls.’ Suppl. Br. 

RTR does not engage with this authority, perhaps because it so convincingly refutes RTR’s 

contrary characterizations of Bush’s activity. Instead, it asserts the radical proposition that 

candidates can simply redesignate their testing-the-waters activity as “benefiting” another group 

and thereby avoid the contribution and disclosure requirements that would otherwise apply. 

This proposition relies on two premises, both untenable: first, that Bush’s attendance at 

various pre-candidacy events did not advance his campaign, but instead “furthered the mission” of 

some other group, whether RTR, RTR PAC, “College Republicans,” or someone else; and second, 

that the “benefiting” committee was therefore “legally required” to pay for all of the activity. RTR 

Suppl. Br. 3-4, 11-17. The argument is both factually dubious and legally unfounded. And, more 

to the point, it is dangerous. This interpretation would invite individuals to hold themselves out as 

candidates to the public, organize one or more allied groups, and then, prior to the commencement 

of their formal candidacy, campaign for months outside of FECA’s contribution limits and 

disclosure requirements—all under the guise of “furthering the mission” of the allied group. 

The logic of intervenor’s argument would allow a super PAC to avoid the strict requirement 

that it maintain independence from the candidates it supports and to pay for a candidate’s campaign 

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activities on the pretext that these activities “benefit” the super PAC. Id. at 12-13. This makes a 

mockery of the “independence” upon which super PAC status is based. See Advisory Op. 2010-

11 at 2 (Commonsense Ten) (conditioning super PAC status on agreement not to “make any 

monetary or in-kind contributions . . . to any other political committee”). While the FEC has 

permitted a candidate to attend a super PAC’s fundraiser under strict guidelines, see Advisory Op. 

2011-12 at 4-5 (Majority PAC), no law authorizes the super PAC to pay the candidate for such an 

appearance, and FECA provides quite the opposite, 52 U.S.C. § 30125(e)(1)(A) (federal candidate 

may not “solicit, receive, direct, transfer, or spend [soft-money] funds”). There is no authority for 

RTR’s extraordinary misinterpretation of law, and RTR, tellingly, cites none. RTR Suppl. Br. 12.

B. Recently released dispositions and case files in similar FEC matters drive home the 

indefensibility of RTR’s legal arguments—and of the Commission’s inaction here. 

RTR’s insistence that plaintiffs lack any informational injury ultimately turns on its belief 

that Bush was not required to report any testing-the-waters expenses as long as they had some 

alleged nexus to an alternative purpose or committee. Even if it were appropriate in a standing 

inquiry to credit this characterization of the law and facts, RTR is simply wrong. 

The FEC’s recently released disposition in an enforcement case against another 2015-16 

presidential candidate, former Wisconsin Governor Scott Walker, drives this point home.5 There, 

FEC complaints alleged that Walker, his campaign, and an entity supporting his “pre-candidacy” 

activities committed testing-the-waters and soft-money violations that were similar to, but less 

5 The Commission also resolved a parallel matter against John Kasich, his presidential campaign, 

and a 527 group, finding reason to believe, inter alia, that the campaign failed to report testingthe-waters activities apparently funded in part by the 527. MURs 6955 & 6983 (Kasich), https://

www.fec.gov/data/legal/matter-under-review/6955. Evidence for this finding included Kasich’s 

travel to early primary states, his public statements regarding a prospective candidacy, and indicia 

that the 527 was formed to support his activities. See Factual & Legal Analysis (“F&LA”) at 11-

16, MURs 6955 & 6983 (May 1, 2019), https://www.fec.gov/files/legal/murs/6955/6955_14.pdf.

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egregious than, the scheme undertaken here. The Commission’s analysis of the allegations against 

Walker makes clear that a candidate cannot evade disclosure requirements or contribution limits 

merely by asserting that his testing-the-waters activities advanced a different group’s mission.

As revealed in the recently released case file,6the Commission unanimously found reason 

to believe that Walker, his campaign, and a 527 group, Our American Revival (“OAR”), violated 

the law when OAR made, Walker and his campaign accepted, and the campaign failed to disclose 

excessive in-kind contributions from OAR in the form of payments for Walker to test the waters; 

it also found reason to believe that Walker filed his statement of candidacy late.7In making its 

recommendation to proceed at the reason-to-believe stage, the FEC’s Office of General Counsel 

(“OGC”) notably rejected arguments that the campaign “properly disclosed its activities during 

Walker’s testing the waters period,” which relied in large part on the claim that these activities 

advanced OAR’s mission; OGC also emphasized that it would “require an investigation to 

ascertain the amount that OAR paid for Walker’s testing the waters activities.”8

To support its reason-to-believe recommendations, OGC relied on facts close to those here: 

Walker’s involvement in creating OAR, and statements from Walker and his associates that he 

intended to use the group “to determine whether his ideas resonated with voters”; OAR’s 

subsidization of Walker’s travel to events at which he “made statements regarding a potential 

candidacy”—such as Walker’s own February 2015 CPAC speech, delivered the day before Bush’s; 

6

See MURs 6917 & 6929 (Walker et al.), https://www.fec.gov/data/legal/matter-underreview/6929/. 

7

See Certification at 1-2, MURs 6917 & 6929 (Apr. 24, 2019), https://www.fec.gov/files/legal/

murs/6929/6929_13.pdf; F&LA at 1-2, MURs 6917 & 6929 (May 1, 2019), https://www.fec.gov/

files/legal/murs/6929/6929_14.pdf.

8 First Gen. Counsel’s Rep. at 3-4, 7-9, 20, MURs 6917 & 6929 (Mar. 6, 2017), https://www.fec.

gov/files/legal/murs/6929/6929_12.pdf (emphasis added).

Case 1:20-cv-00730-CRC Document 31 Filed 05/21/21 Page 15 of 18
15

and Walker’s “solicit[ation of] funds for a potential candidacy through events sponsored by 

OAR.”9 Following OGC’s investigation, it recommended a probable cause finding, again rejecting 

the argument that Walker’s OAR-funded activity pertained to “issues”: “It is OAR’s payment, with 

Walker’s consent, for activities directed to an evaluation of the feasibility of Walker’s candidacy 

that is the basis of Walker and the Committee’s liability under the Act, irrespective of Walker’s or 

OAR’s engagement on issues.”10

Reviewing the disposition and OGC analyses in this matter confirms that RTR’s legal 

arguments have no grounding in agency precedent, much less in FECA. But it also highlights a 

separate concern. The revelation that the Commission has taken action in other matters involving 

substantially similar conduct—and even proceeded to investigations—makes its apparent failure 

to take any action on these administrative complaints all the more bewildering and inexcusable. 

Plaintiffs thus reiterate that they suffer distinct informational and organizational injuries based on 

the FEC’s delay itself, see Pls.’ Suppl. Br. 20; until it resolves the case, plaintiffs have no access 

to its decisionmaking and related documents in the MUR file. 52 U.S.C. § 30109(a)(4)(B)(ii); 11 

C.F.R. § 111.20. Because the MUR file remains confidential, plaintiffs can only guess at the 

reasons for the disparate treatment of their complaints and the Commission’s now six-year delay 

CONCLUSION

For these reasons, intervenor’s motion for reconsideration should be denied.

9

See id. at 11-13.

10 Gen. Counsel’s Br. to Walker at 2, 19-20, 28, MURs 6917 & 6929 (May 11, 2020), https://www.

fec.gov/files/legal/murs/6929/6929_26.pdf (emphasis added); Gen. Counsel’s Br. to OAR at 2, 28, 

MURs 6917 & 6929 (May 11, 2020), https://www.fec.gov/files/legal/murs/6929/6929_25.pdf. 

The Commission ultimately dismissed the complaints on discretionary grounds, citing a 

“significant case backlog.” Statement of Reasons of Vice Chair Dickerson & Comm’rs Cooksey 

& Trainor at 2-4, MURs 6917, 6929, 6955 & 6983 (Apr. 29, 2021), https://www.fec.gov/files/

legal/murs/6929/6929_47.pdf.

Case 1:20-cv-00730-CRC Document 31 Filed 05/21/21 Page 16 of 18
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Dated: May 21, 2021

Respectfully submitted,

/s/ Tara Malloy

Tara Malloy (DC Bar No. 988280)

 tmalloy@campaignlegalcenter.org

Megan P. McAllen (DC Bar No. 1020509)

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Suite 400

Washington, D.C. 20005

(202) 736-2200

Fred Wertheimer (DC Bar No. 154211)

DEMOCRACY 21

2000 Massachusetts Avenue N.W.

Washington, DC 20036

(202) 355-9600

Donald J. Simon (DC Bar No. 256388)

SONOSKY, CHAMBERS, SACHSE,

ENDRESON & PERRY, LLP

1425 K Street N.W., Suite 600

Washington, DC 20005

(202) 682-0240

Attorneys for Plaintiffs 

Case 1:20-cv-00730-CRC Document 31 Filed 05/21/21 Page 17 of 18
17

CERTIFICATE OF SERVICE

I hereby certify that on May 21, 2021, I caused a true and correct copy of the foregoing

document to be served upon all counsel of record registered with the Court’s ECF system, by

electronic service via the Court’s ECF transmission facilities.

Respectfully submitted,

/s/ Tara Malloy

Tara Malloy (DC Bar No. 988280)

tmalloy@campaignlegalcenter.org

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Suite 400

Washington, D.C. 20005

(202) 736-2200

.

Case 1:20-cv-00730-CRC Document 31 Filed 05/21/21 Page 18 of 18