Case 1:22-cv-03067-DLF Document 18 Filed 05/05/23 Page 1 of 36 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

) 

COMMON CAUSE GEORGIA, et al., ) 

) 

Plaintiffs, ) Civ. No. 22-3067 (DLF) 

) 

v. ) 

) REPLY IN SUPPORT OF MOTION 

FEDERAL ELECTION COMMISSION, ) FOR SUMMARY JUDGMENT 

) 

Defendant. ) 

) 

FEDERAL ELECTION COMMISSION’S REPLY 

IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT 

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

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

Christopher H. Bell (D.C. Bar No. 1643526) 

Attorney 

chbell@fec.gov 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

May 5, 2023 (202) 694-1650 
 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-03067-DLF Document 18 Filed 05/05/23 Page 2 of 36 

TABLE OF CONTENTS 

PAGE 

I. INTRODUCTION .........................................................................................................1 

II. PLAINTIFFS LACK STANDING TO CHALLENGE THE 

DISMISSAL OF MUR 7894 WITH REGARD TO FECA’S 

PROHIBITION ON CORPORATE CONTRIBUTIONS 

TO POLITICAL PARTIES ...........................................................................................3 

A. Plaintiffs Must Establish Standing for Each Statutory Violation 

They Allege........................................................................................................4 

B. Plaintiffs Have Failed to Establish Standing for Their Claim 

That Coordinated Expenditures Resulted in Unlawful Corporate 

Contributions to the Georgia GOP.....................................................................6 

III. THE DISMISSAL OF MUR 7894 WAS NOT CONTRARY TO LAW....................12 

A. The Controlling Commissioners’ Reasonable Interpretations of 

FECA Are Entitled to Deference Here ............................................................12 

B. The Controlling Commissioners Reasonably Determined That 

TTV’s Activities Were Not Undertaken “for the Purpose of 

Influencing” a Federal Election Under FECA.................................................15 

1. The Controlling Commissioners Reasonably Determined 

That TTV’s State Law Compliance Activities Here Were 

Beyond the Reach of FECA.................................................................15 

2. The Controlling Commissioners Reasonably Determined 

That TTV’s Ballot-Integrity Activities Constituted Issue 

Advocacy That Was Not Undertaken for the Purpose of 

Influencing a Federal Election.............................................................20 

C. The Controlling Commissioners Reasonably Determined That 

TTV’s Activities Were Not Coordinated with the Georgia GOP....................23 

D. Plaintiffs’ Attack on the Controlling Commissioners’ Factual 

Analysis Is Meritless and Does Not Establish That They Acted 

Contrary to Law ...............................................................................................25 

IV. CONCLUSION............................................................................................................28 

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TABLE OF AUTHORITIES 

PAGE(S) 

CASES 

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

Am. Soc’y for Prevention of Cruelty to Animals v. Feld Ent., Inc., 

659 F.3d 13 (D.C. Cir. 2011)....................................................................................................... 8 

Buckley v. Valeo, 424 U.S. 1 (1976)................................................................................. 15, 20, 22 

Campaign Legal Ctr. v. FEC, 31 F.4th 781 (D.C. Cir. 2022) .................................................... 7, 8 

Campaign Legal Ctr. v. FEC, 952 F.3d 352 (D.C. Cir. 2020)............................................ 2, 12, 14 

Carter/Mondale Presidential Comm., Inc. v. FEC, 775 F.2d 1182 (D.C. Cir. 1985)............. 26, 27 

Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).............................13-14 

Citizens for Responsibility & Ethics in Wash. v. FEC, 

209 F. Supp. 3d 77 (D.D.C. 2016)............................................................................................. 14 

Citizens for Responsibility & Ethics in Wash. v. FEC, 

267 F. Supp. 3d 50 (D.D.C. 2017)........................................................................................... 7, 8 

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

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) ............................................................. 13 

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006)................................................................... 4 

Davis v. FEC, 554 U.S. 724 (2008) ........................................................................................ 4, 5, 6 

Del. Dep’t of Nat. Res. & Env’t Control v. E.P.A., 

785 F.3d 1 (D.C. Cir. 2015)......................................................................................................... 5 

Democratic Senatorial Campaign Comm. v. FEC, 

139 F.3d 951 (D.C. Cir. 1998)................................................................................................... 11 

Diamond v. Charles, 476 U.S. 54 (1986) ....................................................................................... 9 

Disner v. United States, 888 F. Supp. 2d 83 (D.D.C. 2012)........................................................... 5 

Elec. Priv. Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, 

878 F.3d 371 (D.C. Cir. 2017)..................................................................................................... 5 

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Case 1:22-cv-03067-DLF Document 18 Filed 05/05/23 Page 4 of 36 

FEC v. Machinists Non-Partisan Political League, 

655 F.2d 380 (D.C. Cir. 1981)................................................................................................... 13 

FEC v. National Rifle Ass’n of America, 254 F.3d 173 (D.C. Cir. 2001)..................................... 14 

Fred Meyer Stores, Inc. v. NLRB, 865 F.3d 630 (D.C. Cir. 2017) ............................................... 27 

Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91 (1979)....................................................... 11 

Holtzman v. Oliensis, 91 N.Y.2d 488, 695 N.E.2d 1104 (1998) .................................................. 19 

Humane Soc’y of the U.S. v. Perdue, 935 F.3d 598 (D.C. Cir. 2019) .......................................... 11 

In re Cao, 619 F.3d 410 (5th Cir. 2010) ...................................................................................... 21 

Kisor v. Wilkie, 139 S. Ct. 2400 (2019)........................................................................................ 14 

Lewis v. Casey, 518 U.S. 343 (1996).............................................................................................. 4 

Loper Bright Enterprises v. Raimondo, 45 F.4th 359 (D.C. Cir. 2022) ....................................... 14 

Lujan v. Def’s. of Wildlife, 504 U.S. 555 (1992) ...................................................................... 9, 11 

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

Automobile Ins. Co., 463 U.S. 29 (1983) .................................................................................. 26 

Nader v. FEC, 854 F. Supp. 2d 30 (D.D.C. 2012)...................................................................27-28 

Oklahoma v. United States, 62 F.4th 221 (6th Cir. 2023) ...........................................................4-5 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986)................................................................ 12, 26, 27 

Priorities USA v. Nessel, 978 F.3d 976 (6th Cir. 2020)................................................................ 19 

Renal Physicians Ass’n v. U.S. Dep’t of Health & Human Servs., 

489 F.3d 1267 (D.C. Cir. 2007)................................................................................................. 11 

Sargent v. Dixon, 130 F.3d 1067 (D.C. Cir. 1997)......................................................................... 9 

Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004) .......................................................................... 9 

Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) ............................................................................... 21 

Solar Energy Indus. Ass’n v. FERC, 59 F.4th 1287 (D.C. Cir. 2023) .......................................... 14 

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Case 1:22-cv-03067-DLF Document 18 Filed 05/05/23 Page 5 of 36 

Teper v. Miller, 82 F.3d 989 (11th Cir. 1996) .............................................................................. 19 

TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) .................................................................... 5 

United States v. Mead Corp., 533 U.S. 218 (2001) ...................................................................... 14 

Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016) ..................................................................... 13 

Wagner v. FEC, 793 F.3d 1 (D.C. Cir. 2015)....................................................................... 5, 7, 13 

Weber v. Heaney, 793 F. Supp. 1438 (D. Minn. 1992) ................................................................ 19 

Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001)..................................................................... 8 

WinRed, Inc v. Ellison, 581 F. Supp. 3d 1152 (D. Minn. 2022), aff’d, 

59 F.4th 934 (8th Cir. 2023)...................................................................................................... 19 

Statutes 

52 U.S.C. § 30101(8)(A)(i)........................................................................................................... 17 

52 U.S.C. § 30104(b) .................................................................................................................. 3, 8 

52 U.S.C. § 30104(b)(3)(A)............................................................................................................ 7 

52 U.S.C. § 30109(a)(2)................................................................................................................ 27 

52 U.S.C. § 30109(a)(8)(C) .......................................................................................................... 12 

52 U.S.C. § 30116(a)(7).................................................................................................................. 8 

52 U.S.C. § 30116(a)(7)(B)(ii) ............................................................................................... 21, 25 

52 U.S.C. § 30118(a) ........................................................................................................ 3, 4, 7, 14 

52 U.S.C. § 30118(b)(2) ............................................................................................................... 14 

52 U.S.C. § 30122........................................................................................................................... 7 

Miscellaneous 

11 C.F.R. § 104.3............................................................................................................................ 3 

11 C.F.R. § 108.7(c).................................................................................................................. 2, 17 

11 C.F.R. § 108.7(c)(3)................................................................................................................. 16 

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11 C.F.R. § 108.7(c)(4)................................................................................................................. 16 

11 C.F.R. § 114.2........................................................................................................................ 3, 4 

Fed. R. Civ. P. 12(b)(1)................................................................................................................... 5 

Fed. R. Civ. P. 56(e) ..................................................................................................................... 11 

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I. INTRODUCTION 

In its Motion for Summary Judgment and Opposition to Plaintiffs’ Motion for Summary 

Judgment (Docket Nos. 14, 14-1) (“Motion” or “Mot.”), defendant Federal Election Commission 

(“FEC” or “Commission”) explained that plaintiffs lack standing to bring a portion of their 

claims here, and that the dismissal of their administrative complaint was a reasonable and 

permissible exercise of enforcement discretion. In their Combined Reply in Support of 

Plaintiffs’ Motion for Summary Judgment and Memorandum in Opposition to Defendant’s 

Cross-Motion for Summary Judgment (Docket No. 17) (“Response” or “Resp.”), plaintiffs 

dispute those points, but they rely on overstatements and oversimplifications as to the applicable 

law and facts, and they fail to counter the FEC’s showing on the key issues in dispute. 

With respect to standing, plaintiffs primarily emphasize that they have been injured by a 

lack of information that the Republican Party of Georgia (“Georgia GOP”) was required to report 

regarding alleged coordinated, in-kind contributions made by True the Vote (“TTV”). But the 

Commission has not contested that point. Even assuming plaintiffs were indeed injured by the 

Georgia GOP’s failure to report such contributions, plaintiffs have not demonstrated an injury 

sufficient to challenge the decision not to pursue alleged violations of provisions of the Federal 

Election Campaign Act (“FECA”) prohibiting coordinated corporate contributions to political 

parties, provisions which require no disclosure and whose violation could not cause 

informational injury. In addition, plaintiffs have not met their burden of proof, as they must at 

the summary judgment stage, to establish that they have suffered organizational injury as a result 

of the alleged coordination by the Georgia GOP (as opposed to injury from ballot-integrity 

activities that TTV was undertaking anyway) which might serve as an independent basis to 

support standing. Because the Court has no jurisdiction to consider plaintiffs’ claims regarding 

alleged corporate contributions, that portion of plaintiffs’ complaint should be dismissed. 
 

 

 

 

 

 

 

 

 

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As to the merits of the dismissal of plaintiffs’ claims, the Commission is entitled to 

summary judgment because plaintiffs cannot meet their heavy burden of demonstrating that the 

dismissal of Matter Under Review (“MUR”) 7894 was contrary to law. As an initial matter, 

while plaintiffs accuse the Commission of relying too heavily on the principle of deference to 

agency decision-making, it is nonetheless well-established that deference is owed to a reasonable 

interpretation of its implementing statute generally, and more specifically it is owed to decisions 

(including split-vote FEC decisions like the one at issue here) that implicate the agency’s 

expertise in FECA administrative enforcement proceedings. See Campaign Legal Ctr. v. FEC, 

952 F.3d 352, 357 (D.C. Cir. 2020) (per curiam). 

The FEC showed that the controlling Commissioners dismissed MUR 7894 on multiple 

bases, each of which reflected a permissible view of the applicable law and a careful review of 

the factual record, and each of which is independently sufficient to support the dismissal. First, 

these Commissioners concluded that the activities at issue were directed at promoting 

compliance with state laws governing the administration of elections, an area that they 

determined is not within the scope of FECA, as reflected in an FEC regulation. See 11 C.F.R. § 

108.7(c). Second, these Commissioners reasonably concluded that the activities constituted nonpartisan issue advocacy with regard to such election administration, advocacy which like many 

activities could influence federal elections, but which was not undertaken for the purpose of 

doing so. Finally, the controlling Commissioners determined, after a comprehensive review of 

the facts in the administrative record, that the record did not contain sufficient evidence of actual 

“coordination” between TTV and the Georgia GOP within the meaning of FECA. 

In response, plaintiffs’ brief exaggerates the reach of the applicable law, how the 

controlling Commissioners applied it here, and the strength of the factual support for plaintiffs’ 

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claims. Plaintiffs accuse the controlling Commissioners of applying impermissibly high 

standards of proof and creating unjustified “categorical” exceptions. But these claims are belied 

by the permissible standards the Commissioners actually invoked and the careful, specific 

application of those standards to the facts at issue in the Statement of Reasons (“SOR”). 

Plaintiffs also argue that in reaching their conclusions the controlling group disregarded key 

facts, but this is belied by the comprehensive SOR addressing the broader factual record, not just 

the few portions on which plaintiffs focus so closely, in particular one document’s use of the 

word “request.” Plaintiffs’ Response underscores their sincere disagreement with the controlling 

group’s reasoning, but it fails to meet its heavy burden to demonstrate that the group acted in a 

manner that was arbitrary, capricious, and contrary to law. The controlling Commissioners took 

a reasonable approach consistent with courts’ repeated admonitions that the FEC interpret FECA 

with sensitivity to the First Amendment area in which the Commission regulates. Because the 

controlling analysis readily satisfies the deferential standard of review applicable here, the Court 

should grant the Commission’s motion for summary judgment and deny plaintiffs’ motion. 

II. PLAINTIFFS LACK STANDING TO CHALLENGE THE DISMISSAL OF MUR 

7894 WITH REGARD TO FECA’S PROHIBITION ON CORPORATE 

CONTRIBUTIONS TO POLITICAL PARTIES 

As the Commission explained in its Motion, plaintiffs in this matter have challenged the 

dismissal of their administrative complaint with regard to two basic categories of claims: (1) that 

TTV made and the Georgia GOP knowingly accepted in-kind corporate contributions in the form 

of coordinated expenditures, in violation of 52 U.S.C. § 30118(a) and 11 C.F.R. § 114.2; and (2) 

that the Georgia GOP failed to report those contributions to the FEC, in violation of 52 U.S.C. § 

30104(b) and 11 C.F.R. § 104.3. (Mot. at 12-19.) Plaintiffs lack standing with respect to the 

contribution claims because they have not met their burden to demonstrate a legally cognizable 

injury, redressable by this Court, stemming from the decision not to investigate those claims. 

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Plaintiffs’ rebuttal on the standing issue is devoted almost exclusively to emphasizing and 

re-iterating that they have suffered an informational injury due to the Georgia GOP’s failure to 

report coordinated, in-kind contributions from TTV (Resp. at 5-12) — a point that the 

Commission does not actually contest (Mot. at 16). However, plaintiffs err in suggesting that an 

informational injury is sufficient to confer standing to challenge a decision not to pursue alleged 

violations of the ban on corporate contributions to political parties through coordinated 

expenditures, as opposed to violations of provisions requiring the disclosure of such 

contributions. (Resp. at 5-12) In addition, plaintiffs’ limited effort to demonstrate a distinct 

organizational injury to support the contribution claims is fatally flawed, because it assumes 

injury based on the independent ballot-integrity efforts of TTV, without establishing that the 

conduct actually at issue here, i.e. TTV’s coordination with the Georgia GOP, was the proximate 

cause of plaintiffs’ claimed diversion of resources. (Id. at 12-13.) Thus, while plaintiffs may 

have standing to challenge alleged reporting violations, they have not made a sufficient showing 

with respect to the coordinated contributions they allege. Plaintiffs’ challenge with respect to 52 

U.S.C. § 30118(a) and 11 C.F.R. § 114.2 should accordingly be dismissed for lack of 

jurisdiction. 

A. Plaintiffs Must Establish Standing for Each Statutory Violation They Allege 

It is a fundamental precept of federal jurisdiction that “standing is not dispensed in 

gross.” Davis v. FEC, 554 U.S. 724, 734 (2008) (quoting Lewis v. Casey, 518 U.S. 343, 358, n.6 

(1996)). Rather, “a plaintiff must demonstrate standing for each claim he seeks to press and for 

each form of relief that is sought.” Id. (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 

352 (2006)); see Allen v. Wright, 468 U.S. 737, 752 (1984) (“[T]he standing inquiry requires 

careful judicial examination of a complaint’s allegations to ascertain whether the particular 

plaintiff is entitled to an adjudication of the particular claims asserted” (emphasis added)); 

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Oklahoma v. United States, 62 F.4th 221, 233 (6th Cir. 2023) (“A plaintiff must establish 

standing for each claim he presses and each statutory provision he challenges.”) (citing 

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2207–08 (2021)) (emphasis added). 

Accordingly, courts in this Circuit have conducted a separate standing analysis of each 

part of a plaintiff’s claims alleging violations of multiple statutes and regulations, or subparts of 

such laws. See Del. Dep’t of Nat. Res. & Env’t Control v. E.P.A., 785 F.3d 1, 10 (D.C. Cir. 

2015) (plaintiff had standing to challenge one part of 2013 EPA rule regarding home power 

generation, but not another); Elec. Priv. Info. Ctr. v. Presidential Advisory Comm’n on Election 

Integrity, 878 F.3d 371, 377 (D.C. Cir. 2017) (separately analyzing plaintiff’s standing to 

challenge various subparts of government order regarding E-Government Act); see also Disner 

v. United States, 888 F. Supp. 2d 83, 87 (D.D.C. 2012) (“Pursuant to Federal Rule of Civil 

Procedure 12(b)(1), a defendant may move to dismiss a complaint, or any portion thereof, for 

lack of subject matter jurisdiction.”) (emphasis added). 

In all cases, the claimed injury must be commensurate with the challenged statute or 

regulation. For instance, in Wagner v. Federal Election Commission, 793 F.3d 1 (D.C. Cir. 

2015), plaintiffs alleged that FECA’s prohibition on federal contractors making federal campaign 

contributions while they negotiated or performed federal contracts violated contractors’ First 

Amendment and equal protection rights. Id. at 3. During the pendency of litigation two 

plaintiffs completed their contracts, mooting their claims. Id. at 4. The remaining plaintiff 

retained standing. Id. However, because his injury was “notably narrower than” those of the 

dismissed plaintiffs, he had standing “only as it applies to contributions to candidates and 

parties” and not as to contributions to political causes generally. Id. at 4-5 (citing Davis, 554 

U.S. at 734). 

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The FECA provisions at issue in this case are comparable to those involved in Davis. See 

554 U.S. 724. There, a former Congressional candidate brought a facial constitutional challenge 

to the “Millionaires’ Amendment,” a provision of the Bipartisan Campaign Reform Act that 

modified FECA to relax limits on the ability of the opponent of self-financed candidates to raise 

money from donors and coordinate campaign spending with party committees. Id. at 728-29. 

After the FEC informed the plaintiff candidate that it had reason to believe he had violated the 

Millionaire’s Amendment by failing to report personal expenditures during the 2004 campaign, 

he filed the suit alleging that the Amendment was unconstitutional. Id. The court determined 

that Davis had standing to challenge the disclosure requirements of the provision, id. at 733, but 

it noted that that did “not necessarily mean that [Davis] also [had] standing to challenge the 

scheme of contribution limitations that applie[d] when [the provision came] into play.” Id. at 

733-34. The court ultimately found Davis did have standing to challenge those as well, but it 

made clear that a distinct standing analysis was required. Id. 

B. Plaintiffs Have Failed to Establish Standing for Their Claim That 

Coordinated Expenditures Resulted in Unlawful Corporate Contributions to 

the Georgia GOP 

Because the above precedent makes clear that it is plaintiffs’ burden to establish standing 

as to each statutory provision they challenge, including that they have suffered an injury actually 

caused by the provision of law at issue, their attempt to establish standing to challenge the 

corporate contribution ban primarily based on their alleged informational injury must fail. 

Plaintiffs claim that because this case “presents only a single count alleging that the dismissal of 

plaintiffs’ administrative complaint was contrary to law[,]” and “the ‘coordination-related’ 

claims against TTV and the Georgia GOP are inextricable from those concerning the Georgia 

GOP’s failure to disclose in-kind contributions resulting from such coordination” (Resp. at 5), it 

is sufficient for them to show standing as to some part of these claims. However, the law is clear 

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that a plaintiff’s injury supporting standing to bring certain claims does not provide the Court 

with supplemental jurisdiction over claims unconnected to that injury. See Wagner, 793 F.3d at 

4-5. Plaintiffs’ claim regarding the prohibition on corporate contributions is not based on a “lack 

access to FECA-required information[,]” and “[i]f their challenge succeeds,” they will not “gain 

access to that information[.]” (Resp. at 6 (citing Campaign Legal Ctr. v. FEC, 31 F.4th 781, 

784, 793 (D.C. Cir. 2022) (“Correct the Record”)).) 

Nor can plaintiffs obtain standing for the corporate contribution allegation based on 

disclosure that might occur based on the contingency that they might succeed in their separate 

reporting allegation. Far from being “inextricably intertwined” (Resp. at 2), the various 

allegations are violations of separate provisions of law identified in plaintiffs’ administrative 

complaint. (Compl., Exh. 1, ¶¶ 37, 40 (Docket No. 1-1).) Standing to obtain the disclosure that 

could occur from pursuit of a “violation of FECA’s reporting requirements, 52 U.S.C. § 

30104(b)(3)(A)” does not provide standing to pursue a “violation of FECA’s prohibition on 

corporate contributions to a party committee, 52 U.S.C. § 30118(a).” (Id. ¶ 40.) Courts have 

rejected attempts to establish standing to challenge FEC enforcement decisions as to substantive 

campaign financing limitations or prohibitions that do not of their own force mandate the 

disclosure of information. See Citizens for Responsibility & Ethics in Wash. v. FEC, 267 F. 

Supp. 3d 50, 54 (D.D.C. 2017) (finding no standing where “plaintiffs cannot plausibly allege that 

an FEC enforcement action on [the straw donor prohibition, 52 U.S.C. § 30122] would require 

[the respondent] to disclose any information”). The D.C. Circuit requires such precision in 

claims to standing that even an allegation of a reporting violation is not sufficient for 

informational injury if the administrative complaint does not seek the required reporting as a 

remedy. Common Cause v. FEC, 108 F.3d 413, 418 (D.C. Cir. 1997) (per curiam) (reviewing 

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dismissal of administrative complaint alleging excessive contributions and failures to report 

them). 1 Just as with the CREW case, required disclosure cannot be “plausibly alleged” as a 

remedy for the alleged violation of the corporate contribution prohibition. Citizens for 

Responsibility & Ethics in Wash. v. FEC, 267 F. Supp. 3d at 54. The D.C. Circuit has already 

rejected conflation of allegations of unlawful coordination and failures to comply with reporting 

requirements when it declined to find standing for transactions already sufficiently reported but 

arguably required to be reported by another party. See Wertheimer v. FEC, 268 F.3d 1070, 

1074-75 (D.C. Cir. 2001); see also Am. Soc’y for Prevention of Cruelty to Animals v. Feld Ent., 

Inc., 659 F.3d 13, 23 (D.C. Cir. 2011) (no standing to challenge prohibition on certain activity 

where even injunction in plaintiffs’ favor “would [not] entitle plaintiffs to any information”). 

Plaintiffs rely (Resp. at 5) on Correct the Record, 31 F.4th at 790, in which a plaintiff did 

establish the cognizable informational injury required for standing to challenge the FEC's 

dismissal of an administrative complaint, but that case merely iterates a point the Commission 

does not contest: that an informational injury is sufficient to confer standing to challenge the 

dismissal of claims as to disclosure requirements. Id. at 793 (“Appellants have established an 

informational injury in fact”). Critically, that court was concerned exclusively with whether 

FECA “gives Appellants a statutory right to information[,]” and the court’s discussion was 

limited to FECA provisions which require disclosure or define terms relevant to it. Id. at 790 

(citing 52 U.S.C. §§ 30104(b), 30116(a)(7)). Thus, Correct the Record cannot be read to 

When pleading their requested remedies for all alleged violations, mandated reporting 

was not even sufficiently important to plaintiffs to include it as an explicit request. Plaintiffs’ 

administrative complaint here sought “sanctions . . . including civil penalties,” an injunction 

against future violations, and unspecified “additional remedies.” (Docket 1-1 ¶ 42.) Even as to 

their allegations of reporting violations, a catch-all provision is thus all that could potentially be 

construed to include the mandated reporting that plaintiffs’ court briefs belatedly attempt to 

prioritize. 

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approve standing to pursue challenges as to provisions of FECA that do not result in an 

informational injury to the litigant. 

In addition, plaintiffs briefly seek to establish an organizational injury to support their 

contribution claims, but they have not met their burden to support such an injury with evidence, 

and so it cannot serve as an independent basis to establish standing as to the contribution claims. 

In its Motion, the Commission noted that plaintiffs raise no challenge to TTV’s election-integrity 

activities standing alone, despite plaintiffs’ opposition to and efforts to counter such activities. 

(Mot. at 15.) Instead, plaintiffs’ administrative complaint challenges only the alleged unlawful 

coordination of such activities with the Georgia GOP. Plaintiffs cannot rely on their abstract 

desire to see the law enforced against TTV and the Georgia GOP to establish Article III standing 

for their contribution claims, because a plaintiff’s interest in “seeing that the laws are enforced” 

is not “legally cognizable within the framework of Article III.” Sargent v. Dixon, 130 F.3d 1067, 

1069 (D.C. Cir. 1997); see Lujan v. Defs. Of Wildlife, 504 U.S. 555, 573-74 (1992). And here, 

there is direct evidence in the record that TTV would have undertaken its ballot-integrity work 

regardless of its contacts with the Georgia GOP, whether those contacts are deemed to be 

unlawful coordination or not. (AR0044-45, 48; AR0285-86.) Thus, plaintiffs have not met their 

burden of showing that the decision not to pursue their allegations that coordinated expenditures 

resulted in unlawful contributions has caused them any harm. Plaintiffs further have not 

established causation in the Article III standing analysis, as the alleged injury must have “a nexus 

to the substantive character of the statute or regulation at issue.” Shays v. FEC, 337 F. Supp. 2d 

28, 46 (D.D.C. 2004) (citing Diamond v. Charles, 476 U.S. 54, 70 (1986)). Here, plaintiffs’ 

claim that the decision not to enforce provisions prohibiting in-kind corporate contributions 

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Case 1:22-cv-03067-DLF Document 18 Filed 05/05/23 Page 16 of 36 

caused harm to their voter protection work is simply too attenuated from the “substantive 

character” of these campaign finance restrictions. 

In their Response, plaintiffs argue that the decision not to move forward on their 

complaint “empowered TTV to more effectively engage in activities that impinge on eligible 

Georgians’ right to vote, thereby directly injuring Common Cause Georgia’s organizational 

efforts to protect that right.” (Resp. at 13.) Plaintiffs point to indications in the record that “TTV 

worked with members of the Georgia GOP to recruit volunteers” and that there was “a 

partnership between TTV and the Georgia GOP for the Georgia GOP to provide access to 

Georgia county residents willing to serve as ‘challengers’ and challenge the ballots identified by 

TTV[.]” (Resp at 13 (citing AR 60-61, 71).) But plaintiffs point to no tangible, specific harm to 

their own activities as a result of any coordination. The vague alleged connections to plaintiffs 

are too thin to support standing. Moreover, although the views of Commissioners are not owed 

deference in a standing analysis, the controlling Commissioners did review the record evidence 

and concluded that on balance, “TTV’s alleged activity was not undertaken ‘in cooperation, 

consultation, or concert with, or at the request or suggestion of’ the Georgia GOP[,]” and thus 

“no coordination occurred[.]” (AR0285; see Mot. at 35.) The Commissioners further 

determined that “TTV was pursuing these initiatives — and would have continued to do so — 

regardless of [TTV executive director] Engelbrecht’s meeting with the Georgia GOP.” 

(AR0285; see Mot. at 36.) These conclusions of Commissioners illustrate plaintiffs’ inability to 

establish that any alleged coordination was the cause of alleged injuries to plaintiffs’ voterprotection work. Similarly, plaintiffs have failed to show that their alleged injury would be 

redressed by a favorable decision by this Court, because they have not shown that TTV would 

alter the ballot-integrity work that plaintiffs have alleged has caused them harm (as opposed to 

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any alleged coordination with the Georgia GOP), and redressability cannot rest on mere 

speculation as to what third parties might do in response to a favorable ruling. See Renal 

Physicians Ass’n v. U.S. Dep’t of Health & Hum. Servs., 489 F.3d 1267, 1274-75 (D.C. Cir. 

2007). 

Finally, the necessary chain of causation is further attenuated because plaintiffs offer only 

one inadequate fact to demonstrate the required diversion of resources in response to the 

coordination they allege: the hiring of a contractor to work on voter protection efforts, “such as 

disinformation monitoring and public education on the implications of voter challenges like 

those brought by [TTV].” (Resp. at 13 (citing Dennis Decl. ¶ 13).) However, the generality of 

and qualifications in this statement mean that it falls far short of establishing the necessary 

specific relationship to any alleged coordinated activities by the Georgia GOP and TTV. 

While “[a]t the pleading stage, general factual allegations of injury resulting from the 

defendant’s conduct may suffice, . . . [i]n response to a summary judgment motion, . . . the 

plaintiff can no longer rest on such ‘mere allegations,’ but must ‘set forth’ by affidavit or other 

evidence ‘specific facts’” that demonstrate with admissible evidence that it has established the 

elements of standing. See Lujan, 504 U.S. at 561 (quoting Fed. R. Civ. P. 56(e); see Gladstone 

Realtors v. Vill. of Bellwood, 441 U.S. 91, 115 n. 31 (1979)); Democratic Senatorial Campaign 

Comm. v. FEC, 139 F.3d 951, 952 (D.C. Cir. 1998) (per curiam) (“evidence there must be” to 

establish the elements of standing at the summary judgment stage); Humane Soc’y of the U.S. v. 

Perdue, 935 F.3d 598, 602 (D.C. Cir. 2019) (quoting Lujan, 504 U.S. 561) (The plaintiffs “must 

prove injury in fact with ‘specific facts’ in the record.”). But plaintiffs have failed to identify 

such evidence to show they suffered harm as a result of any coordination between TTV and the 

Georgia GOP, nor that their organization diverted resources in response. Therefore, plaintiffs 

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have not met their burden at summary judgment, and their claims as to alleged coordination 

resulting in prohibited corporate contributions must be dismissed. 

III. THE DISMISSAL OF MUR 7894 WAS NOT CONTRARY TO LAW 

A. The Controlling Commissioners’ Reasonable Interpretations of FECA Are Entitled 

to Deference Here 

In its Motion, the Commission showed that FECA’s “contrary to law” standard of review 

is highly deferential and that the decision under review here is entitled to that deference. (Mot. 

at 19-26.) In their Response, plaintiffs concede that the well-established standard for judicial 

review of a claim pursuant to 52 U.S.C. § 30109(a)(8)(C), as stated in Orloski v. Federal 

Election Commission, 795 F.2d 156, 161 (D.C. Cir. 1986), is a “deferential inquiry[.]” (Resp. at 

15 (citing Campaign Legal Ctr. v. FEC, 952 F.3d 352, 357 (D.C. Cir. 2020) (per curiam)).)2 

However, plaintiffs effectively attempt to carve out key portions of the controlling Statement of 

Reasons from that deferential review, particularly what plaintiffs characterize as the controlling 

Commissioners’ “view of the Commission’s limited role in our Constitutional structure, . . . their 

interpretation of federal court decisions construing the scope of FECA preemption,” and “their 

speculation about abuse that might result from the Commission’s proper enforcement of the 

law[.]” (Resp. at 17.) Each of these arguments is misguided. 

While plaintiffs are correct that “[t]he FEC is not entitled to deference for its 

interpretations of the Constitution or judicial precedent” (Resp. at 16), this statement distorts the 

way in which the controlling Commissioners permissibly considered binding precedent in 

interpreting FECA here. In its Motion (Mot. at 24-25), the Commission noted that the 

controlling Commissioners had explicitly observed that “federal courts have carefully limited our 

Plaintiffs do argue at length that “deferential review does not excuse impermissible 

constructions of the Act or arbitrary and unreasoned decisionmaking” (Resp. at 14; see id. at 14-

17), which is also not disputed. 

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jurisdiction as a matter of constitutional imperative[,]” and that “[t]o respect those limits is to 

remain mindful that, to put it plainly, not everything that could impact an election is a potential 

FECA violation.” (AR0281; see id. n.36.) These Commissioner concerns are evidence of their 

reasoned decision-making, not because they receive deference in interpreting the Constitution, 

but because the stated views are an accurate statement of how the FEC is to engage in its duty to 

interpret its organic statute, as articulated by the Supreme Court and this Circuit over the course 

of decades. (AR0281 n.36 (listing cases).) As the Commission also noted, when evaluating the 

reasonableness of the FEC’s statutory constructions of FECA, courts have deferred to the 

agency’s reasoning specifically because it was consistent with a limited approach in this delicate 

area of constitutionally protected activity. (Mot. at 25 (citing Van Hollen v. FEC, 811 F.3d 486, 

491 (D.C. Cir. 2016); FEC v. Machinists Non-Partisan Pol. League, 655 F.2d 380, 394 (D.C. 

Cir. 1981); Common Cause v. FEC, 842 F.2d 436, 448 (D.C. Cir. 1988).)) 

By highlighting caselaw discussing the scope and purpose of FECA, including the extent 

of the statute’s preemption of state laws, the controlling Commissioners sought to interpret 

FECA in a manner consistent with decades of precedent in an area of constitutionally protected 

activity. Plaintiffs’ attempt to use this discussion of the caselaw to reduce the scope of the 

deference owed to the controlling group’s interpretation of FECA could discourage reference to 

such binding precedent in future statements of reasons, potentially decreasing the quality of such 

statements and even hampering judicial review. Instead, the proper role for the Court is to 

evaluate all of the stated reasons that the Commissioners offered for their decision in this case, 

and certainly nothing requires the Court to do otherwise. 

Furthermore, plaintiffs continue to claim that the controlling Commissioners’ reasoning 

is not entitled to Chevron deference (Resp. at 17-19), but plaintiffs fail to engage with the 

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controlling authority the Commission offered in its Motion. (See Mot. at 21-24; Chevron U.S.A., 

Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).) For instance, plaintiffs again argue 

that United States v. Mead Corporation, 533 U.S. 218 (2001), forecloses deference to an FEC 

split-vote dismissal (Resp. at 17), while disregarding cases cited by the Commission where 

courts in this Circuit have reaffirmed the applicability of Chevron to such dismissals in multiple 

post-Mead decisions. (Mot. at 22 (citing Campaign Legal Center, 952 F.3d at 357; FEC v. NRA, 

254 F.3d 173, 184-86 (D.C. Cir. 2001); CREW v. FEC, 209 F. Supp. 3d 77, 85-86 n.5 (D.D.C. 

2016) (rejecting argument that Mead altered the standard of review)).) And plaintiffs again 

claim that a statement of two FEC Commissioners cannot receive deference because it is not “the 

agency’s ‘authoritative’ or ‘official position’ on the law.” (Resp. at 17-18 (quoting Kisor v. 

Wilkie, 139 S. Ct. 2400, 2416 (2019)).) Yet this claim ignores that the Commission, in its 

Motion, demonstrated that Kisor was explicitly limited to an agency’s interpretation of its 

regulations, as opposed to its implementing statute (Mot. at 22 (citing Kisor, 139 S. Ct. at 2425 

(Roberts, J., concurring in part)), and that post-Kisor, courts in this Circuit have continued to 

apply Chevron deference in this context without reference to Kisor. (Mot. at 22-23 (citing Solar 

Energy Indus. Ass’n v. FERC, 59 F.4th 1287, 1292 (D.C. Cir. 2023); Loper Bright Enterprises v. 

Raimondo, 45 F.4th 359, 369 (D.C. Cir. 2022)).) 

Plaintiffs alternatively argue that, even if Chevron deference did apply in this context, 

“the challenged decision would fail at Chevron step one” because “FECA explicitly and 

unambiguously prohibits corporations like TTV from providing a political party like the Georgia 

GOP ‘anything of value . . . in connection with any election.’” (Resp at 18-19 (citing 52 U.S.C. § 

30118(a), (b)(2)).) But plaintiffs fail to show that the application of FECA’s general standards 

are so clear and unambiguous in this context. The Supreme Court found the language “for the 

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purpose of . . . influencing” any election for Federal office to be unconstitutionally vague in the 

context of the “expenditure” definition. Buckley v. Valeo, 424 U.S. 1, 78 (1976). And the 

application of this language to the alleged coordinated expenditures here, where the fact of 

coordination is in dispute, and the expenditures relate to compliance with state voter registration 

and verification laws and related issue advocacy, is subject to multiple reasonable interpretations. 

As the FEC showed (Mot. at 19-26), the controlling group’s decision here is entitled to great 

deference. 

B. The Controlling Commissioners Reasonably Determined That TTV’s 

Activities Were Not Undertaken “for the Purpose of Influencing” a Federal 

Election Under FECA 

1. The Controlling Commissioners Reasonably Determined That TTV’s 

State Law Compliance Activities Here Were Beyond the Reach of 

FECA 

The FEC showed in its opening brief that the controlling Commissioners permissibly 

found TTV’s alleged activities to be directed at compliance with voting requirements under 

Georgia law and thus beyond the reach of FECA. (Mot. at 27-30.) Contrary to plaintiffs’ 

contentions, the Commissioners’ reliance in part on that quality of TTV’s activities was plainly 

not an “invented” rationale. (Resp. at 19.) Commission regulations regarding FECA’s 

interaction with such state statutes are clearly relevant to the facts here, and it was reasonable for 

the Commissioners to find that those regulations provide guidance as to FECA’s reach in this 

case. Thus, claims that this rationale was “plucked out of thin air” and that “this case implicates 

no questions about the scope, validity, or application of any state law” (Resp. at 20) are belied by 

the Commissioners’ detailed reasoning on this point. Similarly, plaintiffs’ criticism of arguments 

in the FEC’s opening brief about the controlling statement that there may be reasonable 

disagreement regarding these issues (id.) reflects a misconception of the applicable standard of 

review. The controlling group’s interpretation need only be a reasonable one. 

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First, plaintiffs’ attack on the controlling Commissioners’ “preemption” rationale as one 

that could undermine FECA enforcement exaggerates the position these Commissioners actually 

took. The Commissioners’ SOR did not say that anything “arguably relating” to state law 

compliance was exempt from FECA. (Resp. at 23.) Instead, the Commissioners simply found, 

based on their review of the record, that TTV’s activities in this case “targeted compliance with 

valid Georgia laws governing signature-verification, ballot-curing, ballot drop boxes, and 

residence requirements” (AR0282) — laws that they found to be “at the heart of TTV’s 

activities” (id.) —and therefore relevant Commission regulations indicated that those activities 

were beyond FECA’s reach. See 11 C.F.R. § 108.7(c)(3), (4). 

For these reasons, plaintiffs’ “slippery slope” hypotheticals are inapposite. It is simply 

not the case that “[t]his interpretation would allow any person to evade FECA’s contribution 

limits and disclosure requirements so long as their coordinated expenditures relate in some way 

to ‘compliance’ with state election law[]” (Resp. at 26-27), as there is no reason to believe that in 

future enforcement proceedings Commissioners will rely on bare claims that the respondent’s 

activities “relate in some way” to complying with state election laws, without evaluating the 

record to determine, as the Commissioners did here, whether the activities actually focus on 

compliance with state law requirements that are beyond FECA’s reach as indicated in 11 C.F.R. 

§ 108.7(c)(3) and (4). Similarly, the SOR did not state or imply that a party could ask a 

corporation to conduct its “entire field operation[.]” (Resp. at 27.) Such an arrangement implies 

high levels of coordination and partisan electoral purpose which are a far cry from what the 

controlling group found in the record in this matter. Nor did the SOR indicate that a corporation 

could simply “gift” services to parties such as “collecting signatures to get on the ballot, 

obtaining and updating voter files, and even maintaining unemployment insurance for 

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employees[.]” (Id.) Such a transparent effort to advance the electoral prospects of a particular 

candidate or political party would be very different from the ballot-integrity activities that were 

involved in this matter. 

Furthermore, while the SOR did state that “state law compliance is categorically 

excluded from the Commission’s enforcement jurisdiction” (AR0281), this is a reasonable 

reading of the limits of the reach of FECA under FEC regulations. 11 C.F.R. § 108.7(c) provides 

that FECA “does not supersede State laws” including “Voter registration[,] [p]rohibition of false 

registration, voting fraud, theft of ballots, and similar offenses[.]” Plaintiffs repeat variations of 

the phrase “categorically excluded” many times (Resp. at 1, 17, 19, 20, 22, 23, 28, 35), implying 

that the controlling Commissioners began and ended their analysis with this simple observation. 

Yet as noted, the record demonstrates that the Commissioners carefully reviewed both the text of 

11 C.F.R. § 108.7(c) and the record evidence of TTV’s actual conduct before concluding that its 

activities were best understood as falling outside FECA’s scope. (AR0281-82.) 

Second, plaintiffs unjustifiably discount rational concerns about what would happen if 

FECA enforcement were deemed to cover expenditures to comply with state laws in the context 

of federal elections. The Commissioners reasonably concluded that this case does, in fact, “raise 

the specter of a possible conflict between FECA and a particular state law[.]” (Resp. at 25.) 

Plaintiffs argue that “the controlling Commissioners did not purport to justify their ‘nonpreemption’ theory by claiming to have ‘foresee[n] a chilling effect’ on ‘state law compliance’ 

activities” (Resp. at 23), but this constitutes an overly restrictive reading of the SOR. The 

Commissioners’ specific discussion of state law compliance is brief (AR0281-82 n.__), but it is 

only one part of a five-page, extensively supported subsection discussing the relevant “for the 

purpose of influencing any election for Federal office” standard at 52 U.S.C. § 30101(8)(A)(i). 

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(AR0281-85.) In this subsection, the Commissioners discussed concerns with over-regulating 

activity that is not obviously intended to impact a federal election but that is typically subject to 

regulation under state law. For instance, the Commissioners cited litigation regarding election 

administration issues by non-profits (like TTV) challenging “mail-in ballot requirements,” 

“buffer zones around polling places,” and “numerous other election-related laws and practices” 

which are rightly considered “expenditures and not contributions under [FECA].” (AR0283.) 

The Commissioners concluded that bringing this activity “within FECA’s ambit . . . would 

establish a rule with no logical endpoint, unconstitutionally subjecting a broad swath of protected 

advocacy and civic participation to the specter of Commission enforcement action.” (AR0284.) 

This discussion, within the SOR subsection discussing the purpose for which TTV’s 

expenditures were made, is reasonably viewed as relating to the potential for a “chilling effect” 

on “state law compliance activities,” as the Commission previously indicated. (Mot. at 27-30.) 

That is particularly so given the SOR’s immediately preceding discussion regarding the 

limitations of FECA’s legislative grant. (AR0280-81; see supra pp. 12-15.) And plaintiffs have 

not demonstrated, as they must, that such concerns were unreasonable or unwarranted. 

In a related vein, plaintiffs go too far by suggesting that “[t]his case . . . does not even 

theoretically implicate the validity of any state law[.]” In fact, such an implication is not difficult 

to imagine. The activities engaged in by TTV include “a statewide election integrity hotline[,]” 

“host[ing] election worker training and signature verification courses,” and “provid[ing] the data 

and research to preemptively challenge potentially ineligible voters.” (AR0278.) Voter 

eligibility is a matter of state law. If all expenditures by any person or organization aimed at 

ensuring those who sought to vote were eligible to do so were regarded as “expenditures” in 

accordance with FECA, this could fundamentally reshape such efforts. Organizations that 

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previously were subject only to state regulation would instead operate within FECA’s 

compliance regime, and funding of such organizations would be subject to new and potentially 

conflicting disclosures and limitations. However, the controlling Commissioners here 

reasonably elected to interpret the law so as to avoid such a conflict. 

Plaintiffs do not seriously dispute that there is some limit to the reach of FECA, or that an 

unduly expansive interpretation of the statute could raise serious concerns, including where such 

an interpretation would affect the states’ central role in administering the conduct of voting in 

elections. On multiple occasions courts have determined that state laws governing activity with 

the potential to impact federal elections nevertheless fell outside FECA’s scope. See WinRed, 

Inc v. Ellison, 581 F. Supp. 3d 1152 (D. Minn. 2022), aff’d, 59 F.4th 934 (8th Cir. 2023); 

Priorities USA v. Nessel, 978 F.3d 976, 983 (6th Cir. 2020); Holtzman v. Oliensis, 91 N.Y.2d 

488, 695 N.E.2d 1104 (1998). 

At base, though plaintiffs clearly disagree with the controlling Commissioners’ 

interpretation of FECA and whether it reaches TTV’s conduct in this matter, this amounts to no 

more than a reasonable disagreement on those issues. And those issues, like others regarding 

FECA’s scope, fall squarely within the Commission’s expertise, to which deference is owed. 

See Teper v. Miller, 82 F.3d 989, 998 (11th Cir. 1996) (“An agency like the FEC, to which 

Congress has delegated broad discretion in interpreting and administering a complex federal 

regulatory regime, is entitled to significant latitude when acting within its statutory authority, 

even in its decisions as to the scope of preemption of state law.”) (emphasis added); Weber v. 

Heaney, 793 F. Supp. 1438, 1455 (D. Minn. 1992) (“Determining the scope of preemption 

appears to fall within the competence of the commission in light of its administrative 

responsibilities.”), aff’d, 995 F.2d 872 (8th Cir. 1993). 

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2. The Controlling Commissioners Reasonably Determined That TTV’s 

Ballot-Integrity Activities Constituted Issue Advocacy That Was Not 

Undertaken for the Purpose of Influencing a Federal Election 

As the Commission explained in its Motion (Mot. at 31-35), the controlling 

Commissioners also reasonably determined that TTV’s activities in “trying to influence how 

elections are administered” were, “as a policy matter, [] different from acting ‘for the purpose of 

influencing’ a federal election” and therefore “fall outside our jurisdiction” (AR0282 (citing 

Buckley, 424 U.S. at 79)). This basis for the controlling group’s decision not to proceed with 

enforcement was reasonable, and it is entitled to deference from this Court. 

Plaintiffs’ attack on this part of the controlling Commissioners’ reasoning argues 

primarily that the Commissioners erred in applying a narrowed construction of FECA’s “for the 

purpose of influencing” language to TTV’s conduct at issue, because that conduct constituted a 

“contribution” in the form of coordinated expenditures, not the “expenditures” to which the 

Buckley court had applied such a construction. (Resp. at 28-32.) However, the application of 

these distinctions is not nearly so clear in the context of the activity at issue in this case, and the 

controlling group’s analysis was a reasonable one. 

As a threshold matter, whether TTV in fact made contributions to the Georgia GOP in the 

form of expenditures coordinated with that party, or whether TTV simply made independent 

expenditures that it would have made regardless of any cooperation or discussion with the 

Georgia GOP, is a contested factual matter. After reviewing the record evidence here, plaintiffs 

clearly reached a conclusion different from the controlling Commissioners, but as the 

Commission has explained (Mot. at 35-39) and discusses further below (infra pp. 23-25), the 

Commissioners’ conclusion on that point was reasonable. Spending by TTV that was not 

coordinated would be subject only to the narrower construction of “for the purpose of 

influencing” articulated by the Buckley court. Indeed, the SOR explicitly noted that “TTV’s 

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activities can only arguably be regarded as in-kind ‘contributions’ if they were ‘coordinated’ 

with the Georgia GOP, 52 U.S.C. § 30116(a)(7)(B)(ii)[,]” and, referencing the relevant 

discussion, the SOR noted that “this is not satisfied here.” (AR0283 n.45). 

Moreover, plaintiffs’ treatment of coordinated expenditures as indistinguishable, legally 

and factually, from contributions is overly simplistic treatment of such conduct that does not take 

sufficient account of the constitutional and statutory concerns at play. As this Circuit has 

explained, “to qualify as [an] ‘expenditure’ in the first place, spending must be undertaken ‘for 

the purpose of influencing’ a federal election (or else involve ‘financing’ for redistribution of 

campaign materials).” Shays v. FEC, 414 F.3d 76, 99 (D.C. Cir. 2005). The fact-intensive 

nature of determining what constitutes a “coordinated” expenditure is thus carried out in the 

Commission’s regulations, which describe the features of such expenditures in different contexts. 

11 C.F.R. §§ 109.20, 109.21; see In re Cao, 619 F.3d 410, 418 (5th Cir. 2010) (en banc) (“The 

FEC regulations make abundantly clear that the only coordinated expenditures captured by the 

statutory reach of FECA are campaign-related expenditures which Buckley recognized that 

Congress could regulate as contributions.”). Here, there is no concrete evidence that the staff of 

the Georgia GOP provided any level of detail or input into TTV’s operations, discussed the level 

of their spending, or weighed in on similar matters. Plaintiffs admit that the “for the purpose of 

influencing” limitation applies to expenditures by “independent actors[.]” (Resp. at 30.) To the 

extent the controlling group reasonably determined that TTV was not making “expenditures,” 

using the narrower construction was permissible. 

At the very least, there is no support for a simplistic, one-dimensional analysis that fails 

to engage with the different factors that affect the existence of “coordination,” and thus whether 

spending should be classified as a permissible expenditure or an impermissible contribution. For 

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instance, plaintiffs argue that TTV’s organizational purpose should play no part in the 

Commissioners’ consideration here because “[t]he statutory standard they were purporting to 

apply does not look to the spender’s general organizational purpose or turn on whether its 

activities could incidentally impact the outcome of federal elections[.]” (Resp. at 33.) Indeed, 

plaintiffs explicitly note that they do not even concede that TTV’s efforts at issue here were 

undertaken “at least in part” to advance the organization’s policy goals, i.e. election integrity and 

voter verification. (Resp. at 34 n.6.) However, an organization’s overall purpose is clearly at 

least germane to whether it had the “purpose of influencing” a federal election in undertaking 

specific activities. An organization that was formed to advance bona fide public issues through 

the political process has a First Amendment interest in expressing itself that is distinct from 

influencing federal elections, even if the distinction is not always easy to draw. See Buckley, 424 

U.S. at 42 (“Candidates, especially incumbents, are intimately tied to public issues involving 

legislative proposals and governmental actions.”). Thus, a political party’s “partnership” with 

such an organization can differ from that party’s “partnership” with, for example, a roofing 

contractor. 

Plaintiffs similarly overreach by arguing that none of the relevant precedent relied on by 

the controlling Commissioners is “remotely supportive of the decision.” (Resp. at 35.) As the 

FEC explained (Mot. at 32-33), despite some differences the MURs the Commissioners cited 

remain analogous and instructive. For instance, in the Van Hollen MUR the Commission made 

clear that the fact that services rendered may benefit a campaign does not answer the question of 

whether such services were provided for the purpose of influencing a federal election. MUR 

7024, FEC Factual & Legal Analysis at 5-8, https://eqs.fec.gov/eqsdocsMUR/17044420401.pdf. 

There, the pro bono legal services rendered by Campaign Legal Center and the other groups 

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were provided to advance their core purpose to impact how federal elections are conducted and 

administered. Id. Yet the Commission concluded that the mere potential impact of the 

organizations’ work on a particular candidate’s election was too indirect and attenuated to 

constitute a contribution. Id. at 6. So here, it was reasonable for the controlling group to 

determine that the potential impact of TTV’s work on particular electoral outcomes was not clear 

enough to be considered a contribution. 

Finally, with respect to TTV’s alleged “intent” to influence the outcome of the Georgia 

runoff elections in 2021, plaintiffs offer some evidence that is probative (Resp. at 37) but is still 

only part of a larger picture that is subject to different interpretations. For instance, it is 

noteworthy that much of the evidence relied on by plaintiffs, including quotations from TTV’s 

executive director to the effect that “illegal votes” occur “in Democrat counties” and that their 

purpose was to “‘win by eliminating votes and changing the count,” comes from testimony in 

litigation in Texas that did not necessarily relate to Georgia. In addition, plaintiffs do not credit 

other evidence, such as the contemporaneous statements of TTV emphasizing its core interest in 

election integrity or its subsequent explanations in the course of this enforcement proceeding. 

(AR0047-48.) In reaching their conclusion, the Commissioners were entitled to consider all 

evidence before them and reasonably determined that the whole picture was consistent with an 

effort to promote compliance with ballot integrity, rather than influencing the election in a 

partisan way. 

C. The Controlling Commissioners Reasonably Determined That TTV’s Activities 

Were Not Coordinated with the Georgia GOP 

As the FEC explained, the controlling Commissioners reasonably concluded that the TTV 

activities at issue in this matter were not coordinated with the Georgia GOP. (Mot. at 35-39.) 

Contrary to plaintiffs’ contention (Resp. at 38), the Commission did not state that plaintiffs 

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challenged “only” the weight to be given to the record evidence for and against coordination 

between TTV and the Georgia GOP. Instead, in its brief the FEC discussed in detail the 

evidence the controlling Commissioners did in fact rely upon and simply observed that plaintiffs’ 

criticism of the Commissioners’ reasoning in large part focused on their alleged failure to credit 

other evidence to a greater extent. (Mot. at 35-39.) 

In their Response, plaintiffs stress very heavily that “[t]he Commissioners unreasonably 

disregarded the Georgia GOP’s explicit ‘request’ for help” (Resp. at 38), relying on the use of 

that term in one TTV document. However, the lack of a specific reference to that single term is 

not dispositive in light of the full record. The Commissioners did explicitly acknowledge and 

address the “reference to a ‘partnership’ between TTV and the Georgia GOP” (AR0286), a 

comparable shorthand term used to describe the relation between these entities. As the FEC 

explained (Mot. at 37), the Commissioners were permitted to credit TTV’s explanation in the 

record for its use of the term “partnership,” where it stated that it had used the term not “in an 

official sense” or to indicate a “joint venture[,]” but rather to refer “to all persons who were also 

pursuing election integrity,” including “parties, voters, other organizations, individuals, and 

others who were pursuing election integrity through their own efforts.” (AR0047-48.) 

Furthermore, while the SOR did not directly cite this portion of the record, it did reference “the 

record” showing that the use of the term “partnership” here had a “colloquial and not a legal 

significance” (AR0286), and the factual background section of the SOR is replete with citations 

to the Engelbrecht Declaration (see AR0277-79) which addresses the “request,” making clear 

that the Commissioners considered this evidence in reaching their conclusions. 

Plaintiffs emphasize that neither FECA nor FEC regulations require the presence of a 

formal agreement for the Commission to find coordination and allege that “[t]he Commissioners’ 

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approach of . . . demanding proof of a formal agreement or official partnership was flatly 

contrary to FECA” (Resp. at 40), but the Commissioners made no such demand, and plaintiffs 

fail to identify one in the SOR. There is no dispute that the statutory definition of coordination is 

found at 52 U.S.C. § 30116(a)(7)(B)(ii), and it was this language that the Commissioners 

repeatedly invoked as their baseline for determining whether there was reason to believe either 

TTV or the Georgia GOP violated this standard. (See AR0280, AR0283 n.45, AR0285.) 

Finally, plaintiffs take issue with what they describe as the controlling Commissioners’ 

“new and impermissible exceptions to FECA for in-kind contributions that are purportedly made 

available to both parties or placed in the public domain.” (Resp. at 41.) However, this too 

exaggerates the position the Commissioners in fact took. The Commissioners simply took note 

of the fact that TTV offered its services to the general public, including outreach to the Georgia 

Democratic Party, as one factor among several it considered in reaching its conclusion. 

(AR0279.) The Commissioners further cited several MURs where the Commission had declined 

to make a finding of coordination based, in part, on the public nature of the communications at 

issue. (AR0286 n.63 (citing MUR 7797 (Sara Gideon for Maine, et al.) (no coordination based 

upon public tweet); MUR 7700 (VoteVets, et al.) (same).) The Commissioners’ reliance on this 

factor was reasonable, as organizations like TTV have every ability to provide their services only 

to particular parties and candidates if they seek to influence electoral outcomes in their favor. 

D. Plaintiffs’ Attack on the Controlling Commissioners’ Factual Analysis Is 

Meritless and Does Not Establish That They Acted Contrary to Law 

Plaintiffs conclude their Response by arguing that the dismissal of MUR 7894 was 

“arbitrary, unreasonable, and wholly contrary to the record” (Resp. at 43), but this section is 

largely redundant, re-iterating several arguments addressed above and failing to offer an 

independent basis to find that the controlling group acted contrary to law. (Resp. at 43-47.) 

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Plaintiffs’ one-sided recitation of the facts does not paint a complete picture of the record before 

the Commissioners in this matter, and it cannot establish that they acted unreasonably. 

In addition, plaintiffs’ concluding argument fails to acknowledge the high degree of 

deference owed to agency decision-making generally, and to the Commission’s campaign 

finance expertise in particular. As discussed supra pp. 12-15 and in the Commission’s Motion 

(Mot. at 40), the Court must be “extremely deferential” to the agency’s decision-making in an 

enforcement context, which “requires affirmance if a rational basis . . . is shown,” Orloski, 795 

F.2d at 167 (internal quotation marks omitted). Courts must defer to the FEC unless the agency 

fails to meet the “minimal burden of showing a coherent and reasonable explanation [for] its 

exercise of discretion.” Carter/Mondale Presidential Comm., Inc. v. FEC, 775 F.2d 1182, 1185 

(D.C. Cir. 1985) (internal quotation marks omitted); see Motor Vehicle Mfrs. Ass’n of U.S., Inc. 

v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983) (Courts will not overturn agency 

decisions absent evidence that the agency “entirely failed to consider an important aspect of the 

problem, offered an explanation for its decision that runs counter to the evidence before the 

agency, or is so implausible that it could not be ascribed to a difference in view or the product of 

agency expertise.”). 

Here, the controlling Commissioners plainly met the standards for deference and 

affirmance, as evidenced by their detailed and thoroughly supported SOR, which extensively 

referenced Commission enforcement proceedings, advisory opinions, and judicial precedents. 

(AR0277-86.) The SOR addressed each of the central contentions made in plaintiffs’ 

administrative complaint, and plaintiffs do not suggest otherwise. In their Response, plaintiffs 

again focus narrowly on the controlling Commissioners’ alleged failure to address the Georgia 

GOP’s “request” that TTV assist with the Senate runoff elections. (Resp. at 44.) However, as 

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previously explained, the Commissioners directly addressed the record evidence referring to a 

“partnership” between TTV and the Georgia GOP, as well as the remainder of the underlying 

factual record, and they clearly met the “minimal burden of showing a coherent and reasonable 

explanation [for] its exercise of discretion.” Carter/Mondale Presidential Comm., 775 F.2d at 

1185 (internal citation omitted). Plaintiffs’ assertion that there was a “complete failure to 

reasonably reflect upon the information contained in the record” (Resp. at 44 (citing Fred Meyer 

Stores, Inc. v. NLRB, 865 F.3d 630, 638 (D.C. Cir. 2017)) itself fails to fully engage with the 

actual analysis the Commissioners undertook. 

Finally, plaintiffs again argue that the controlling Commissioners “imposed a heightened 

standard of proof” at the “pre-investigatory stage of FEC enforcement matters[,]” but this claim 

too is mistaken. (Resp. at 45.) First, plaintiffs’ arguments for a lower standard of proof could 

alter the fundamental deference owed to agency decision-making in this context. See supra pp. 

19-24; Orloski, 795 F.2d at 167 (applying an “extremely deferential standard” to the FEC’s 

determination that a complaint failed to establish “reason to believe” (internal quotation marks 

omitted)). And again, plaintiffs greatly understate the extent to which the controlling 

Commissioners carefully evaluated the record, before simply reaching a different conclusion 

from the one plaintiffs would prefer. 

Plaintiffs’ attempts to distinguish the Court’s opinion in Nader v. Federal Election 

Commission, 854 F. Supp. 2d 30 (D.D.C. 2012) are unavailing, and that case remains analogous 

to the matter at bar. The plaintiff in that case argued that the district court had placed an 

“improper evidentiary burden” on him by requiring “actual proof” of FECA violations rather 

than the less stringent “reason to believe” standard of what is now 52 U.S.C. § 30109(a)(2), the 

same standard under which plaintiffs’ complaint was evaluated here. 854 F. Supp. 2d at 34. 

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Like plaintiffs, Nader alleged that he was being held to an impermissibly higher standard of 

proof, despite the court’s citations and references to the correct evidentiary standard under 

FECA. Compare id. with Resp. at 45. The court determined that, without more, there was 

simply no reason to assume that the court had applied an evidentiary burden higher than the one 

it specifically invoked and referenced in response to Nader’s allegations. 854 F. Supp. 2d at 35-

36. Likewise here, there is no evidence that “the Commissioners imposed a heightened standard 

of proof that has no place at the threshold, pre-investigatory stage of FEC enforcement matters” 

(Resp. at 45), or that they would require a “sworn admission, in a Non-Prosecution Agreement 

with the Department of Justice” before making the requisite finding in this or any other case (id. 

at 46). In fact, plaintiffs’ claims are contradicted by the legal standard the Commissioners 

explicitly invoked and referenced multiple times. (See, e.g., AR0285 (“we found no reason to 

believe that an expenditure occurred”); AR0286 (“we found no reason to believe”) (listing FECA 

and FEC regulations at issue).) 

In sum, the controlling Commissioners issued a lengthy, detailed SOR explaining their 

reasoning in this matter. They addressed the facts in the record and cited numerous applicable 

precedents in support of their conclusions. The usual deference to that decision is fully 

warranted, and the dismissal of plaintiffs’ administrative complaint was reasonable. 

IV. CONCLUSION 

For the foregoing reasons, plaintiffs’ Motion for Summary Judgment should be denied, 

and the Commission’s Motion for Summary Judgment should be granted. 

Respectfully submitted, 

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

Acting General Counsel 

lstevenson@fec.gov 

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Case 1:22-cv-03067-DLF Document 18 Filed 05/05/23 Page 35 of 36 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

/s/ Christopher H. Bell 

Christopher H. Bell (D.C. Bar No. 1643526) 

Attorney 

chbell@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

May 5, 2023 (202) 694-1650 

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Case 1:22-cv-03067-DLF Document 18 Filed 05/05/23 Page 36 of 36 

CERTIFICATE OF SERVICE 

I hereby certify that on May 5, 2023, I served the foregoing pursuant to Fed. R. Civ. P. 

5(b)(2)(E) on counsel of record, as a registered ECF user, through the Court’s ECF system. 

/s/ Christopher H. Bell 

Christopher H. Bell (D.C. Bar No. 1643526) 

Attorney 

chbell@fec.gov 

30