UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CAMPAIGN LEGAL CENTER, et al., 

Plaintiffs, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant. 

 

Case No. 22-cv-3319 (CRC) 

MEMORANDUM OPINION AND ORDER 

Back in 2015, Plaintiffs Campaign Legal Center and Democracy 21 filed two 

administrative complaints with the Federal Election Commission (“FEC” or “Commission”)

concerning former Florida Governor Jeb Bush’s unsuccessful 2016 presidential campaign. The 

organizations accused the Bush campaign and its affiliated Right to Rise Super PAC of violating 

the Federal Election Campaign Act (“FECA”), see 52 U.S.C. § 30101 et seq., by improperly

coordinating their efforts, thereby violating the applicable contribution limits and disclosure 

requirements, and by failing to report “testing the waters” expenditures before Bush officially 

launched his candidacy. The complaints sat dormant before the Commission for nearly five 

years. Plaintiffs thus sought to spur action by suing the Commission in this Court, contending 

that the lengthy delay was contrary to law. The Court did not reach the merits of this charge, 

however, finding instead that Plaintiffs lacked standing to pursue their claims because they had 

not established an informational injury or any other constitutionally sufficient basis to sue. 

After the FEC ended the administrative limbo by closing the file on these complaints, the 

Plaintiffs returned to this Court with a new suit challenging those dismissals. The Commission 

has responded by filing a motion to dismiss, arguing that this Court’s prior determination that 

Plaintiffs lacked standing to pursue their prior case precludes Plaintiffs from attempting to reCase 1:22-cv-03319-CRC Document 23 Filed 09/26/23 Page 1 of 32
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enter federal court to bring another action based on the same underlying facts. And even if 

Plaintiffs were permitted to relitigate their Article III standing, the FEC maintains that dismissal 

would still be appropriate because any remand would be futile given that a controlling block of 

Commissioners has expressed the view that this matter ought to remain closed. 

The Court agrees the doctrine of issue preclusion bars Plaintiffs from a second crack at 

alleging informational injury. By contrast, the Court is unconvinced by the FEC’s argument that 

the previous rejection of Plaintiffs’ organizational injury in the delay case dooms their current 

allegation of organizational injury here. That does not mean that organizational standing offers 

Plaintiffs a clear path to federal court, however, as there are significant hurdles to this alternative 

basis for standing that the parties did not confront in their briefings. Namely, the parties did not 

examine whether the Court’s prior judgments concerning informational injury spill over and 

contaminate the organizational injury asserted here, or whether the Plaintiffs plausibly alleged an 

ongoing injury to their groups stemming from this long-passed presidential campaign. Nor did 

the parties adequately address whether remand would truly be an act of futility because 28 

U.S.C. § 2462’s five-year limitations period prevents the Commission from taking enforcement 

action at this late date. The Court will therefore deny the FEC’s motion to dismiss without 

prejudice to renewal so that the parties can ventilate these unresolved issues. 

I. Background 

The Court has described the procedural and legal background in several opinions in the 

prior case, so it provides only a summary of the relevant details here. See Campaign Legal Ctr. 

v. FEC (“RTR I”), 520 F. Supp. 3d 38 (D.D.C. 2021); Campaign Legal Ctr. v. FEC (“RTR II”), 

578 F. Supp. 3d 1 (D.D.C. 2021); Mem. Op. & Order, Campaign Legal Ctr. v. FEC (“RTR III”), 

Case 1:22-cv-03319-CRC Document 23 Filed 09/26/23 Page 2 of 32
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No. 20-cv-730 (CRC) (July 14, 2022) (ECF No. 39). But even this abbreviated rendition takes 

us on a long and winding journey to today’s decision. 

In 2015, Plaintiffs lodged two administrative complaints with the FEC alleging that 

former Florida Governor Jeb Bush violated the FECA through his extensive interactions with the 

Right to Rise Super PAC during his then-ongoing presidential bid. The first complaint in March 

2015 accused Governor Bush of violating various provisions of the statute by unlawfully 

delaying his registration as a candidate in the presidential race, failing to disclose “testing the 

waters” expenditures, and illegally funding his (still not yet official) candidacy with “soft 

money” contributions from Right to Rise that evaded FECA limitations. See Compl. ¶ 3. The 

second complaint filed two months later contended that Bush violated 52 U.S.C. § 30125(e) 

when he “establish[ed]” and “controll[ed]” Right to Rise as a ruse to raise millions of dollars on 

his behalf without regard for the FECA’s contribution limits or source prohibitions. See id. ¶ 4. 

Among other requested relief, these two complaints urged the FEC to require the Bush campaign 

and Right to Rise to make additional disclosures of two categories of information: “(1) Bush’s 

spending when he was (at the very least) testing the waters of a possible presidential bid; and (2) 

Right to Rise’s in-kind contributions to the Bush campaign” through its coordinated 

expenditures. RTR I, 520 F. Supp. 3d at 45. 

After these complaints had languished in administrative purgatory for nearly five years, 

Plaintiffs filed a petition in this Court arguing that the FEC’s failure to act was contrary to law 

under 52 U.S.C. § 30109(a)(8)(A) and requesting declaratory and injunctive relief to compel the 

FEC to consider their complaints. Id. at 41–42. In this “delay” case, the Plaintiffs asserted two 

injuries that they claimed were sufficient to confer Article III standing. First, they alleged that 

the Commission’s inaction had resulted in a cognizable informational injury because the FECA 

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entitled them to know “the extent of coordination between Right to Rise and the Bush campaign”

as well as “the extent of Bush’s campaign spending both during the testing the waters phase of 

his campaign and after Bush had moved beyond testing the waters to become a candidate under 

the FECA.” Id. at 42 (cleaned up). Second, Plaintiffs alleged they had suffered organizational

injuries due to the FEC’s inaction because the failure to close the administrative file and release 

the Commission’s underlying records forced these election watchdogs to divert their resources 

and efforts away from other organizational needs. Id. After the Commission did not appear 

through counsel to defend itself, Right to Rise successfully intervened as a defendant and moved 

to dismiss the Plaintiffs’ claims under Federal Rule of Civil Procedure 12(b)(1) based on their 

lack of standing. Id. 

The Court initially issued a split decision on informational standing, finding Plaintiffs 

had adequately alleged informational injury based on Bush’s purported failure to report testingthe-waters activities but failed to do so when it came to the allegations of coordinated spending 

between the Bush campaign and Right to Rise. Regarding the testing-the-waters activities, the 

Court reasoned that, on Plaintiffs’ account, Governor Bush was testing the waters of a possible 

presidential run as early as January 2015 but only disclosed expenditures going back to June of 

that year. Id. at 45. Taking these allegations as true, it appeared Plaintiffs had been deprived of 

nearly “five months of information that is statutorily required to be disclosed” and that would aid 

Plaintiffs in their missions to safeguard elections—a textbook informational injury. Id. at 46. 

As to the claims of unreported coordinated spending, the Court found that Plaintiffs failed 

to allege a legally cognizable informational injury. The Court first recounted Plaintiffs’ theory 

of their injury by noting the “FECA designates coordinated payment for goods or services for a 

candidate’s campaign as ‘contributions.’” Id. at 47 (quoting 52 U.S.C. § 30116(a)(7)(B)). As 

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contributions, the Court explained, coordinated expenditures are “subject to [the] FECA’s 

contribution limits and source restrictions, 52 U.S.C. §§ 30116(a), 30118(a), are counted towards 

the $5,000 threshold that triggers candidate status, id. § 30101(2), and are required disclosures 

for both the contributor and the recipient, id. § 30104(b); 11 C.F.R. § 104.13.” Id. at 47. In 

other words, if the Bush campaign established or controlled Right to Rise, both “would be 

required to provide detailed disclosures of each coordinated expenditure.” Id. Plaintiffs 

therefore claimed an informational injury because, in their telling, neither Right to Rise nor the 

Bush campaign disclosed any in-kind contributions. Id. 

Even accepting Plaintiffs’ allegations as true, however, the Court concluded “it is wellestablished that a plaintiff has no legally cognizable interest in a legal conclusion that carries 

certain law enforcement consequences nor in forcing the FEC to get the bad guys.” Id. (cleaned 

up). Plaintiffs insisted that they did not seek a simple legal determination but rather additional 

factual information—namely, which of Right to Rise’s disbursements were coordinated in-kind 

contributions. But the Court resolved that this “attempt to construe their request as being one for 

facts (rather than legal determinations)” ran contrary to Wertheimer v. FEC, 268 F.3d 1070 (D.C. 

Cir. 2001), which the Court found had foreclosed assertions of a “statutory right to determining 

whether an expenditure should be deemed a ‘coordinated’ (and thus an in-kind) contribution 

under [the] FECA.” RTR I, 520 F. Supp. 3d at 47–48. While it was “conceivable that certain 

facts are necessarily implied by the label ‘coordinated,’” the Court reasoned that Wertheimer had 

resolved this rabbit-duck problem when holding that “a finding of coordination is, at bottom, ‘a 

legal conclusion that carries certain law enforcement consequences.’” Id. at 48 (quoting 

Wertheimer, 268 F.3d at 1075). Plaintiffs attempted to distinguish Wertheimer on the ground 

that they did not aim to affix the label of “coordinated” on some designated set of expenditures 

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but instead sought to understand what portion of Right to Rise’s expenditures fit that mold. Id. 

Yet the Court found this distinction “immaterial” because it could not escape Wertheimer’s 

holding “that plaintiffs have no legally cognizable interest in labeling spending ‘coordinated’ if 

that spending has already been disclosed in some format.” Id. Because Right to Rise had in fact 

disclosed all the challenged expenditures in some form, the Court concluded that Plaintiffs 

lacked informational standing to inquire into which of those disbursements were coordinated 

with the Bush campaign. Id. 

The Court was not alone in reaching this result, as it cited to another decision from this 

District with a familiar case caption: Campaign Legal Center v. FEC (“CLC I”), 507 F. Supp. 3d 

79 (D.D.C. 2020). The court in CLC I held that “a faithful reading of Wertheimer” precluded the 

plaintiffs there from asserting an informational injury stemming from a super PAC’s failure to 

disclose coordinated expenditures with Hilary Clinton’s 2016 presidential campaign because, in 

its view, Wertheimer “squarely held that a finding of ‘coordination’ does not amount to a ‘fact’

that must be disclosed under the FECA, but rather is a ‘legal conclusion that carries certain law 

enforcement consequences.’” Id. at 85–86 (quoting Wertheimer, 268 F.3d at 1075). And as this 

Court was in RTR I, the court in CLC I was unmoved by plaintiffs’ counterarguments that they 

sought “additional factual information” in the form of disaggregation of expenditures that the 

super PAC had disclosed only as lump-sum expenses, such as salary and payroll, which the 

plaintiffs claimed should have been broken out into separate line items revealing which portions 

constituted in-kind contributions to the Clinton campaign. Id. at 87. Permitting this “end-run 

around Wertheimer” would render that decision a dead letter, the court insisted, as “a plaintiff 

armed with this theory could seemingly manufacture standing in nearly every conceivable case” 

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by claiming that a subset of previously disclosed expenditures should be treated as coordinated 

and then asserting an interest in knowing what precise portion that is. Id. at 87–88. 

 Although this Court fully agreed with CLC I on these matters in its first opinion, the case 

was set to proceed forward because the Court had found Plaintiffs adequately alleged an 

informational injury related to the purportedly unreported testing-the-waters activities between 

January and June of 2015. But that changed when Right to Rise filed a motion for 

reconsideration, arguing that all expenditures during this five-month period already had been 

disclosed in some format either in Governor Bush’s first campaign finance report or in Right to 

Rise’s disclosure reports. RTR II, 578 F. Supp. 3d at 3. Plaintiffs had pointed to five public 

appearances as to which they maintained Bush had not reported travel and lodging expenses, id. 

at 5, but an additional round of briefing and a hearing revealed that these expenditures were 

already in the public record, id. at 6–7. Before granting the motion for reconsideration and 

dismissing the case, the court noted that whether this pattern of spending violated the FECA’s 

soft-money prohibition did not change the standing analysis because the Court already had 

decided that “plaintiffs are not entitled to a legal conclusion that carries certain law enforcement 

consequences.” Id. at 6 n.4 (cleaned up). 

It was then Plaintiffs’ turn to move for reconsideration, which they did by requesting that 

the Court clarify its ruling on their organizational standing based on the FEC’s delay in acting on 

their administrative complaints and the Commission’s corresponding failure to release its Matter 

Under Review (“MUR”) detailing its internal deliberations and findings. On reconsideration, the 

Court rejected this alternative basis for standing on the ground that the D.C. Circuit had held that 

the FEC’s failure to process complaints in a timely manner is insufficient for Article III standing. 

See RTR III at 5. It also held Plaintiffs could not sidestep this result by reframing their injury 

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around access to the MURs because, under 52 U.S.C. § 30109(a)(12)(A), the FEC cannot release 

these files until the close of all administrative proceedings. Plaintiffs’ analogy to People for the 

Ethical Treatment of Animals v. USDA (“PETA”), 797 F.3d 1087 (D.C. Cir. 2015), was thus of 

no avail. Although PETA held that an organization suffers a concrete injury if its operations are 

disrupted by the nondisclosure of information that a group has no legal right to obtain, see id. at 

1094–95, the Court found “no legal authority” extending this theory to a circumstance where the 

law forbade disclosure, see RTR III at 8–9. Accordingly, the Court found Plaintiffs had failed to 

satisfy the standard for organizational standing. 

But there was still one last wrinkle. While Plaintiffs’ motion for reconsideration was 

pending, they filed a notice of supplemental authority alerting the Court to Campaign Legal 

Center v. FEC (“CLC II”), 31 F.4th 781 (D.C. Cir. 2022), which reversed CLC I and held that 

the plaintiffs in that case had suffered an informational injury based on the nondisclosure of 

whether certain super PAC expenditures were coordinated with the Clinton campaign, id. at 792–

93. The Circuit’s decision in CLC II began by observing that the “seminal case” of FEC v. 

Akins, 524 U.S. 11 (1998), had established that the FECA grants voters a legal interest in 

information about “the role [a political committee]’s financial assistance might play in a specific 

election,” CLC II, 31 F.4th at 789 (quoting Akins, 524 U.S. at 21). It then noted that the Circuit 

had carried that principle forward in Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008), when holding 

that “‘the injury deemed sufficient to create standing in Akins’ is present when a voter is denied 

FECA-required disclosures about coordinated in-kind expenditures they believe must be reported 

as contributions to a candidate,’” CLC II, 31 F.4th at 789 (quoting Shays, 528 F.3d at 923). That 

logic, the court held, applied equally to the plaintiffs’ alleged injuries in the case at hand, which 

could not be dismissed as merely requests for legal determinations. Id. at 790. The plaintiffs 

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instead sought information that was “not currently known and [could not] be gleaned from the 

disclosures that have already been made” because, while the super PAC had disclosed its 

aggregate expenses, it had not “broken down its expenditures to show which were coordinated 

contributions to the Clinton campaign.” Id. at 783. If plaintiffs prevailed, the super PAC and the 

Clinton campaign would have to disaggregate those figures to reveal “the numerical amounts of 

any coordinated expenditures.” Id. at 790 (emphasis in original). The Circuit held that these 

unknown amounts clearly “constitute factual information core to [plaintiffs’] established interests 

in knowing who is funding presidential candidates’ campaigns and how much money a candidate 

spent on an election.” Id. at 790–91 (citations and quotation marks omitted). The case was 

therefore governed by the well-established principle that where, as here, “a plaintiff demonstrates 

on the record that additional, statutorily-required information would be exposed under plaintiff’s 

theory of the law that would serve an interest Congress sought to protect through disclosure, the 

plaintiff has undoubtedly established an informational injury under Akins and Shays.” Id. at 

792; see also id. at 791 (“There is no doubt that those numerical amounts constitute factual 

information and that FECA requires them to be disclosed.”). 

The Circuit managed to harmonize Wertheimer, despite what the district court had said 

below, insisting that “the facts in Wertheimer [were] markedly different from the facts in [CLC 

II].” Id. at 791. “The principal holding in Wertheimer,” it explained, “is that a plaintiff cannot 

establish injury based on information that is already available ‘from a different source’ and that 

would only result in ‘duplicative reporting.’” Id. (quoting Wertheimer, 268 F.3d at 1075). This 

holding doomed the plaintiffs’ challenge in Wertheimer because the political parties there 

already had reported all challenged transactions as coordinated expenditures and disaggregated 

the costs in their financial reports. Id. Any further enforcement action against the campaign for 

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failing to comply with the FECA therefore could reveal only the “same information from a 

different source.” Id. (quoting Wertheimer, 268 F.3d at 1075). It was in that rare circumstance 

that the Circuit found that the plaintiffs lacked a cognizable informational injury. But that was 

not true in CLC II, where the challenged expenditures had not been disaggregated because no

entity had reported them as coordinated contributions. Id. at 792. Wertheimer was thus inapt, 

the Circuit insisted, and any fears of an end-run around that decision were misguided because it 

was already “settled law that a denial of access to information qualifies as an injury in fact where 

a statute (on the claimants’ reading) requires that the information be publicly disclosed and there 

is no reason to doubt their claim that the information would help them.” Id. at 793 (citation and 

quotation marks omitted). 

This logic applied with equal force to the claims of coordination between Right to Rise 

and the Bush campaign, and thereby supplied the Plaintiffs here with a key to get into federal 

court. But, for some reason, they failed to turn the latch. While they noted CLC II in their 

motion for reconsideration and maintained that it “controvert[ed] the Court’s holding that 

plaintiffs did not suffer informational injury,” Plaintiffs did not request that the Court revisit its 

informational standing decision. RTR III at 11. As such, the Court held that CLC II was beyond 

the scope of their motion but informed Plaintiffs that they were “free to raise this argument on 

appeal.” Id. Plaintiffs declined this invitation, however, standing pat as the period to appeal 

elapsed on September 12, 2022. 

Perhaps CLC’s quiescence was spurred by the fact that, on August 29, the Commission 

finally acted by voting 4-1 to dismiss Plaintiffs’ underlying complaints—thereby mooting the 

delay case. See Opp’n at 20. Closure of the administrative case gave the Plaintiffs access to the 

trove of information previously hidden in the MURs, including records of several failed “reason 

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to believe” votes which, under 52 U.S.C. § 30106(c), must garner four affirmative votes for the 

Commission to investigate a complaint. See Mot. Dismiss at 7–8. 

The MURs revealed that, in February 2017, the Commission’s Office of General Counsel 

had issued a report recommending the Commission find reason to believe that (1) Governor Bush 

failed to timely register as a candidate; (2) the Bush campaign received unreported, excessive inkind contributions from Right to Rise; and (3) Bush and Right to Rise had violated the FECA’s 

soft-money restrictions because Bush effectively had established or controlled the PAC. See 

FEC, First General Counsel’s Report 4–5, MURs 6915 & 6927 (Feb. 8, 2017).1 In doing so, the 

report detailed Right to Rise’s funding of Governor Bush’s travel expenses related to what 

should have been characterized as campaign events. See id. Despite these recommendations and 

the underlying evidence, the Commission deadlocked 2-2 on this trio of charges in December 

2018 with then-Commissioners Hunter and Petersen dissenting. Mot. Dismiss at 8. When the 

Commission held a second vote one week later based on a pruned set of claims that abandoned 

the alleged soft-money violations, it deadlocked again—this time with Commissioners Walther 

and Weintraub in dissent. Id. These deadlocked reason-to-believe votes were followed by 

repeated rounds of failed efforts to close the administrative file, and thus formally dismiss the 

complaints, over the next three years. Id. In the interim, there was significant churn among the 

Commission’s members. In May 2022, three of the new members drafted a “Statement of 

Reasons” explaining their votes to close the file that Spring. See Statement of Reasons of 

Chairman Allen Dickerson and Comm’rs Sean J. Cooksey and James E. “Trey” Trainor, III, 

MURs 6915 & 6927 (May 13, 2022) ( “Dickerson Statement”).

2

 Declining to take a position on 

1

 Available at https://www.fec.gov/files/legal/murs/6927/6927_14.pdf. 

2

 Available at https://www.fec.gov/files/legal/murs/6927/6927_26.pdf. 

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the merits of the initial reason-to-believe vote, these Commissioners maintained that the failure 

to secure four affirmative votes in 2018 effectively terminated any proceeding based on the 

original complaint and that the “five-year statute of limitations ha[d] long passed” on considering 

the charges. Id. at 5 & n.28 (citing 52 U.S.C. §§ 30145(a), 2462). 

These Commissioners did not speak for the agency, however, and an official statement 

did not come until one month after the FEC finally voted to close the file when Commissioner 

Weintraub—who was part of the controlling block that prevented the trimmed charges from 

going forward—issued her own Statement of Reasons. See Mot. Dismiss at 10 (noting that 

Weintraub’s “statement provides the rationale for the Commission for purposes of judicial 

review for those claims”). Rather than mount a substantive defense of the dismissal or assert 

prosecutorial discretion, Weintraub criticized the Commission for turning a blind eye to the welldocumented allegations that Bush and Right to Rise had used soft money to advance Bush’s 

presidential campaign. Statement of Reasons of Comm’r Ellen L. Weintraub, MURs 6915 & 

6927 (Sept. 30, 2022).3

 She concluded her Statement by expressing her hope that the Plaintiffs 

would petition for judicial review and that the courts would break through the partisan gridlock. 

 That is exactly what Plaintiffs did. Two months later, Plaintiffs returned to this Court 

alleging that the FEC’s dismissal without an investigation violated 52 U.S.C. § 30109(a)(8)(A). 

Echoing their previous complaint, these election watchdogs claimed the FEC’s dismissal 

inflicted two distinct harms: (1) an informational injury by depriving them of FECA-required 

disclosures related to Bush’s testing-the-waters activities and coordinated expenditures with 

Right to Rise; and (2) an organizational injury by forcing them to divert resources from their 

3

 Available at https://www.fec.gov/files/legal/murs/6927/6927_27.pdf. 

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regular activities relating to governmental transparency and accountability to “fill in the gaps to 

the best of their ability, including by explaining to reporters, researchers, and partner 

organizations how they might attempt to find information not properly reported.” Opp’n at 41–

42. 

This time, the FEC entered an appearance and promptly moved to dismiss the case under 

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The Commission primarily argues that 

Plaintiffs lack standing to proceed in federal court, despite what the D.C. Circuit held in CLC II, 

because the doctrine of issue preclusion bars Plaintiffs from re-litigating this Court’s judgment in 

the prior proceeding finding Plaintiffs have no legally cognizable injury. But even if the Court 

had jurisdiction over the present claims, the FEC contends that the requested relief—remand to 

the agency—would be futile given that “three Commissioners have indicated that they view the 

matter as long settled and expressed concerns related to the statute of limitations.” Mot. Dismiss 

at 20; see Am. Train Dispatchers Ass’n v. ICC, 26 F.3d 1157, 1163 (D.C. Cir. 1994) (“A remand 

is unnecessary where, as here, the outcome of a new administrative proceeding is preordained.”). 

The Court will now once more wade into the troubled waters of this protracted dispute. 

II. Legal Standards 

When analyzing a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, 

courts must “assume the truth of all material factual allegations in the complaint and construe the 

complaint liberally, granting plaintiff[s] the benefit of all inferences that can be derived from the 

facts alleged.” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (cleaned up). 

That said, courts need not accept bare legal conclusions nor unsupported inferences. See, e.g., 

Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). To overcome a Rule 12(b)(1) motion, 

plaintiffs must show “by a preponderance of the evidence that the Court has subject matter 

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jurisdiction to hear [the] case.” Biton v. Palestinian Interim Self-Gov’t Auth., 310 F. Supp. 2d 

172, 176 (D.D.C. 2004). 

To survive a Rule 12(b)(6) motion to dismiss, the “complaint must contain sufficient 

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ramirez 

v. Blinken, 594 F. Supp. 3d 76, 85 (D.D.C. 2022) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009)). Although a court must accept all well-pleaded factual allegations, it need not accept 

legal conclusions. Browning, 292 F.3d at 242. “In determining whether a complaint fails to 

state a claim, [a court] may consider only the facts alleged in the complaint, any documents 

either attached to or incorporated in the complaint and matters of which [the court] may take 

judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). 

III. Analysis 

Plaintiffs raise two bases for their Article III standing to pursue this case: informational 

standing and organizational standing. While Plaintiffs have a winning argument on the merits of 

their invocation of informational standing, the doctrine of issue preclusion prevents the Court 

from reconsidering that matter now. With respect to organizational standing, however, the FEC 

failed to demonstrate that the decision in RTR III finding that Plaintiffs lacked any cognizable 

organizational injury to challenge the FEC’s delay and accompanying refusal to release the 

MURs necessarily implies Plaintiffs lack organizational standing to challenge the subsequent 

dismissal of their complaints. The Court will thus deny the Commission’s current Rule 12(b)(1) 

motion at this juncture. But that does not mean that Plaintiffs have satisfied Article III. Rather, 

the Court has significant concerns over (1) whether the preclusive effect of this Court’s prior 

judgments in RTR I and RTR II infect this alternative theory, and (2) whether Plaintiffs 

adequately alleged an ongoing injury required for the injunctive relief they seek. Because the 

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briefs do not delve into these jurisdictional challenges, the dismissal here will be without 

prejudice to renewal. If Plaintiffs choose to push forward with their theory of organizational 

standing, the Commission is invited to submit a further motion to dismiss addressing these 

issues. 

Until the Court settles this jurisdictional matter, it would be premature to adjudicate the 

FEC’s futility argument. The Court nonetheless notes the only plausible path for asserting that 

the outcome of any further proceedings is preordained is if the limitations period has tolled—an 

argument the Commission gestures toward but does not forcefully assert. The Court accordingly 

directs the Commission to clarify its position on the matter if it opts to renew this argument in a 

subsequent motion to dismiss. 

A. Informational Standing 

Plaintiffs first and foremost rely on informational standing to “satisfy the ‘irreducible 

constitutional minimum’ of Article III standing: injury-in-fact, causation, and redressability.” 

Shaw v. Marriott Int’l, Inc., 605 F.3d 1039, 1042 (D.C. Cir. 2010) (quoting Lujan v. Defs. of 

Wildlife, 504 U.S. 555 (1992)). Under this doctrine, “denial of access to information qualifies as 

an injury in fact where a statute (on the claimants’ reading) requires that the information be 

publicly disclosed and there is no reason to doubt their claim that the information would help 

them.” Campaign Legal Ctr. v. FEC, 952 F.3d 352, 356 (D.C. Cir. 2020) (citation omitted). The 

D.C. Circuit in CLC II made clear that this test is satisfied under the exact fact pattern presented 

here: an election watchdog challenging the Commission’s dismissal of its administrative 

complaints and alleging that the dismissal deprived the group access to FECA-required 

information concerning a super PAC’s coordinated expenditures with a presidential campaign. 

The FEC does not contest as much, nor could it. The Commission instead claims that the 

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similarities are beside the point because, under the doctrine of issue preclusion, the Court’s prior 

judgments that Plaintiffs lacked informational standing in RTR I and RTR II based on materially 

identical factual allegations bar Plaintiffs from asserting this basis for standing in the present 

action. The Court agrees. While its prior rulings on the matter were erroneous in light of CLC 

II, Plaintiffs chose not to appeal those decisions when they had the chance and are now bound by 

the determination that they lack informational standing. 

A party asserting issue preclusion must show that three conditions are met: (1) “the same 

issue now being raised must have been contested by the parties and submitted for judicial 

determination in the prior case”; (2) “the issue must have been actually and necessarily 

determined by a court of competent jurisdiction in that prior case”; and (3) “preclusion in the 

second case must not work a basic unfairness to the party bound by the first determination.” 

Martin v. Dep’t of Justice, 488 F.3d 446, 454 (D.C. Cir. 2007). A “court conducting an issue 

preclusion analysis does not review the merits of the determinations in the earlier litigation,” 

Consol. Edison Co. of N.Y. v. Bodman, 449 F.3d 1254, 1257 (D.C. Cir. 2006), and “even a 

patently erroneous first judgment is insufficient to bar issue preclusion,” Canonsburg Gen. Hosp. 

v. Burwell, 807 F.3d 295, 306 (D.C. Cir. 2015) (cleaned up). This test “applies to threshold 

jurisdictional issues like standing as well as issues going to a case’s merits.” Nat’l Ass’n of 

Home Builders v. EPA, 786 F.3d 34, 41 (D.C. Cir. 2015). However, this Circuit has recognized 

a “curable defect” exception to the preclusive effect of prior jurisdictional determinations which 

“permits an action to proceed if the jurisdictional ground for dismissal of the original suit has 

been remedied by occurrences arising after the dismissal of the first action.” Newdow v. Bush, 

355 F. Supp. 2d 265, 274–75 (D.D.C. 2005). 

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There is no real beef that the first and second requirements for issue preclusion are met 

here. The prior “delay” case involved the same cast of characters making identical arguments 

about Plaintiffs’ alleged informational injuries stemming from the Commission’s purported

failure to enforce the FECA by requiring the Bush campaign and Right to Rise to (1) disclose all 

testing-the-waters expenditures prior to Governor Bush announcing his candidacy, and (2) 

identify and disaggregate all coordinated expenditures. Those are the same informational 

injuries Plaintiffs claim here. And while Plaintiffs are now challenging the FEC’s dismissal of 

their complaints rather than its initial delay in considering them, that distinction carries little 

weight here because “[i]ssue preclusion bars relitigation ‘even if the issue recurs in the context of 

a different claim.’” Swanson Grp. Mfg. LLC v. Jewell, 195 F. Supp. 3d 66, 73 (D.D.C. 2016) 

(quoting Taylor v. Sturgell, 553 U.S. 880, 892 (2008)).4 It is also beyond dispute that the Court 

decided this matter against Plaintiffs in RTR I and RTR II and that this determination was 

integral to the Court’s dismissal of the delay action for lack of standing. Whether Plaintiffs are 

barred from relitigating their claim of informational injury therefore turns on the third 

requirement: that preclusion must not work a basic unfairness on Plaintiffs in this action. 

In considering this fairness prong, courts are reluctant to apply issue preclusion “when 

there has been [1] an intervening change in controlling legal principles, [2] when a party to be 

bound lacked an incentive to litigate in the first trial, especially in comparison to the stakes of the 

second trial, and [3] when the prior proceedings were seriously defective.” UMC Dev., LLC v. 

District of Columbia, 401 F. Supp. 3d 140, 157 (D.D.C. 2019) (cleaned up). Plaintiffs hang their 

4

 That in no way means Plaintiffs are forever barred from asserting informational 

standing, as there is a well-established exception to issue preclusion for questions of law, such as 

this, “arising in successive actions involving unrelated subject matter.” United States v. Stauffer 

Chem. Co., 464 U.S. 165, 171 (1984) (cleaned up). The issue for Plaintiffs is that the subject 

matter here is not unrelated from the prior suit—indeed, it is essentially the same. 

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hat on the first hook, maintaining that the D.C. Circuit’s ruling in CLC II constituted a change in 

the law by reversing CLC I, a decision upon which this Court relied in rejecting Plaintiffs’ 

theories of informational standing in the delay case. See Opp’n at 25. The Commission retorts 

that CLC II did not change the law but rather applied “settled” precedent to correct the district 

court’s misapplication of existing legal principles and misreading of what the Circuit had held in 

Wertheimer. See Mot. Dismiss at 19 (quoting CLC II, 31 F.4th at 793). The Commission has 

the better of the argument. 

The Court is tempted to avoid admitting error in the delay case by maintaining that, under 

then-prevailing law, it was right to reject the invocation of informational injury but that the legal 

landscape has since shifted beneath its feet. That is not how the D.C. Circuit saw things, 

however. As described above, CLC II did not claim to overturn any existing law. The Circuit 

insisted that it was engaged in nothing more than a straightforward application of longstanding 

principles stretching back to Akins and Shays, which held that citizens have a cognizable injury 

when they are denied access to FECA-required disclosures. CLC II, 31 F.4th at 789–90. 

Contrary to what the district court below held, the Circuit insisted that Wertheimer did not upend 

these principles or create a special carve out for the disclosure of coordinated expenditures by 

casting them off as simple “legal conclusions.” It instead expressed “no doubt” that the 

requested disaggregation of coordinated expenditures “constitute[d] factual information and that 

FECA requires them to be disclosed,” id. at 791, and concluded that Wertheimer stood for the 

limited proposition “that a plaintiff cannot establish injury based on information that is already 

available ‘from a different source’ and that would only result in ‘duplicative reporting,’” id. 

(quoting Wertheimer, 268 F.3d at 1075). Thus, outside of the rare case where some party has 

Case 1:22-cv-03319-CRC Document 23 Filed 09/26/23 Page 18 of 32
19 

already reported and disaggregated all coordinated expenditures, Wertheimer does not stand in 

the way of citizens pursuing an FECA claim in federal court. See id. at 791–93. 

One might question whether this is an accurate characterization of Wertheimer, as the 

district court on remand noted that the Circuit’s characterization did “not really grappl[e] with 

[its] contrary analysis.” Campaign Legal Ctr. v. FEC (“CLC III”), No. 19-cv-2336 (JEB), 2022 

WL 17496220, at *4 (D.D.C. Dec. 8, 2022). Indeed, it is noteworthy that CLC II described 

Wertheimer’s “principal holding” by quoting from Judge Garland’s limiting concurrence. CLC 

II, 31 F.4th at 791 (quoting Wertheimer, 268 F.3d at 1075 (Garland, J., concurring)). But no 

matter how this Court reads Wertheimer, it is not free to double down on its own understanding 

by disregarding the Circuit’s binding interpretation of that decision or characterization of what it 

was up to in CLC II. The Court must accept that CLC II did not change any controlling law but 

rather reasserted what Wertheimer had meant all along. At most, then, CLC II corrected a 

misperception that was pervasive among courts in this District, and the fact it overruled CLC I—

a case this Court cited to in RTR I—is immaterial to the calculus here because this decision of 

another district court did not establish controlling law. Cf. Apotex, Inc. v. FDA, 393 F.3d 210, 

218 (D.C. Cir. 2004) (holding that a non-binding district court decision was not a change in law 

sufficient to overcome res judicata).5

 

The critical question thus becomes whether the conclusion that CLC II did not change 

existing law but simply cleared up confusion among the district courts ends all debate over 

whether this exception to issue preclusion applies here. Unfortunately, the law on what counts as 

5

 With that said, the decision in Free Speech for People v. FEC, 442 F. Supp. 3d 335 

(D.D.C. 2020), can be read as aligning with CLC II’s interpretation of Wertheimer because the 

court assured itself that all expenditures had been reported in some form before concluding that 

the plaintiffs lacked standing, id. at 343–44. But see CLC I, 507 F. Supp. 3d at 86 (reading Free 

Speech as supporting its own interpretation of Wertheimer). 

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a sufficient change to vitiate a prior judgment’s preclusive effect is murky. When introducing 

this concept in Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591 (1948), the Supreme 

Court described the necessary shift as “a judicial declaration intervening between the two 

proceedings [that] so change[s] the legal atmosphere as to render the rule of collateral estoppel 

inapplicable,” id. at 600 (emphasis added). This would appear to be a relatively relaxed 

standard. But in more recent opinions, the Supreme Court has required an “intervening change 

in the applicable legal context,” Herrera v. Wyoming, 139 S. Ct. 1686, 1697 (2019) (emphasis 

added and cleaned up), or even a “significant change[] in controlling . . . legal principles,” 

Montana v. United States, 440 U.S. 147, 157 (1979) (emphasis added); accord Canonsburg Gen. 

Hosp., 807 F.3d at 306 (requiring an “intervening change in controlling legal principles”

(cleaned up)). These divergent descriptors reflect an underlying uncertainty on what is required 

to free a party from the bonds of issue preclusion. The Supreme Court in Herrera recognized that 

“it may be difficult at the margins to discern whether a particular legal shift warrants an 

exception to issue preclusion,” 139 S. Ct. at 1698, with Justice Alito adding that the Court has 

never “defined how much the relevant ‘legal context’ must change in order for the exception to 

apply” and warning that an overly broad definition “could dangerously undermine the important 

interests served by issue preclusion,” id. at 1707–08 (Alito, J., dissenting). As a result, while an 

outright reversal or explicit abrogation of prior binding precedent is clearly an adequate shift in 

the legal landscape, see, e.g., id. at 1698, it is not always apparent what else suffices for a change 

in the legal landscape to nullify a prior ruling’s preclusive effect. 

Some courts have treated clarifications resolving confusion among the lower courts as a 

sufficient change in the “legal atmosphere,” latching onto Sunnen’s broad terminology. See, 

e.g., Keyes v. Lynch, 214 F. Supp. 3d 267, 276 (M.D. Pa. 2016); see also Minnis v. U.S. Dep’t 

Case 1:22-cv-03319-CRC Document 23 Filed 09/26/23 Page 20 of 32
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of Agric., 737 F.2d 784, 786 n.1 (9th Cir. 1984) (“It has long been the rule in this circuit that an 

intervening Supreme Court decision clarifying an issue that had been uncertain in the lower 

courts defeats collateral estoppel.”). But such a capacious view of the required change in the law 

risks having the exception swallow the rule, as issue preclusion is supposed to apply even to 

decisions that misconstrue controlling law. See Canonsburg Gen. Hosp., 807 F.3d at 306. 

Likely for that reason, most courts have pared back Sunnen’s more expansive language by 

requiring that the intervening decision effectively overrule or otherwise nullify some prior 

precedent. See, e.g., Am. Med. Int’l, Inc. v. Sec’y of Health, Ed. & Welfare, 677 F.2d 118, 120 

(D.C. Cir. 1981) (noting Sunnen has been limited to cases where there is a “significant change in 

the legal climate” in the form of a change in controlling legal principles (quotation marks 

omitted)); Kamilche Co. v. United States, 53 F.3d 1059, 1062 n.3 (9th Cir. 1995) (noting that 

“Sunnen’s scope has been substantially narrowed by the Supreme Court ” (quotation marks 

omitted)); Feit Elec. Co., Inc. v. CFL Techs. LLC, 800 F. App’x 911, 912 (Fed. Cir. 2020)

(rejecting “a version of the change-in-law exception so broad that it would deny preclusion based 

on judicial decisions that merely clarify earlier interpretations of a statute” (quotation marks 

omitted)). Applying this more stringent standard, circuit courts have rejected attempts to skirt 

issue preclusion where, as here, a party points to an intervening decision that purported to 

reiterate and apply (not overturn or alter) existing law. See, e.g., United States v. Arterbury, 961 

F.3d 1095, 1104 (10th Cir. 2020); Steen v. John Hancock Mut. Life Ins. Co., 106 F.3d 904, 914 

(9th Cir. 1997); Paulo v. Holder, 669 F.3d 911, 918–19 (9th Cir. 2011). The Court follows that 

prevailing approach here and finds that CLC II’s clarification of Wertheimer does not constitute 

a significant enough change in the legal landscape to undermine the preclusive effect of its prior 

decisions in RTR I and RTR II. 

Case 1:22-cv-03319-CRC Document 23 Filed 09/26/23 Page 21 of 32
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In doing so, the Court finds no “basic unfairness” in holding Plaintiffs to those prior 

judgments (even if wrongly decided) because Plaintiffs had their chance to take advantage of 

CLC II’s clarification and thereby nullify RTR I and RTR II but, for whatever reason, passed on 

that opportunity. CLC II was handed down while a motion for reconsideration was pending 

before this Court and before the window to appeal had elapsed. Plaintiffs were well aware of 

this development. After all, Campaign Legal Center was a party in both suits and Plaintiffs 

alerted the Court to the ruling in a notice of supplemental authority. As described above, the 

Court declined to consider the new decision because Plaintiffs never requested reconsideration of 

its ruling on their informational injury. But the Court informed Plaintiffs that they were “free to 

raise this argument on appeal.” RTR III at 11. Plaintiffs decided not to exercise this right, 

opting to leave the Court’s rulings in place. That sets the present case apart from the normal 

circumstance where this exception is applied because Plaintiffs could have benefited from the 

purported intervening change in the original proceeding. Cf. Voter Verified, Inc. v. Election Sys. 

& Software LLC, 887 F.3d 1376, 1381–82 (Fed. Cir. 2018) (finding no “intervening” change 

because the new decision was decided while appeal of the first case was still pending). 

Plaintiffs perhaps felt that an appeal was not worthwhile because the FEC mooted their 

delay case by dismissing their complaints on August 29, 2022, two weeks before the deadline to 

appeal. See Opp’n at 24 & n.6. This argument runs into a second possible reason to alleviate a 

party from the preclusive effect of a prior judgment—namely, that the party lacked a sufficient 

incentive to litigate the matter. Here, the argument would be that, while Plaintiffs were initially 

motivated to push their informational standing before this Court, any such incentive evaporated 

before appellate proceedings began when the Commission mooted their delay case. That might 

be a winning argument in the lion’s share of jurisdictions that do not require a party to pursue 

Case 1:22-cv-03319-CRC Document 23 Filed 09/26/23 Page 22 of 32
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vacatur of an already moot decision on appeal. See Hurd v. District of Columbia, 864 F.3d 671, 

680 (D.C. Cir. 2017) (noting the general rule that “when the earlier ‘controversy has become 

moot’ on appeal, the unreviewed lower court judgment cannot have preclusive effect” (quoting

Restatement (Second) of Judgments § 28 cmt. a)). But the federal courts play by a different set 

of rules. Under United States v. Munsingwear, Inc., 340 U.S. 36 (1950), a judgment that is 

rendered unreviewable before the conclusion of appellate proceedings is accorded full preclusive 

effect unless a party requests the appellate court to dismiss the case with instructions to vacate 

the judgment below. See Restatement (Second) of Judgments § 28; 18 Charles A. Wright & 

Arthur Miller, Federal Practice and Procedure § 4433 (2023) (“[I]t is settled that if the parties fail 

to request [an order vacating the judgment] and the appellate court merely dismisses the appeal, 

the judgment of the trial court continues to command preclusive effects.”). Had Plaintiffs done 

so in the delay case, the Circuit would have followed this “standard practice” and this entire 

issue could have been avoided. Planned Parenthood of Wisc., Inc. v. Azar, 942 F.3d 512, 519 

(D.C. Cir. 2019). “The case is therefore one where [Plaintiffs], having slept on [their] rights,” 

now request that the Court “do what by orderly procedure it could have done for itself.” 

Munsingwear, 340 U.S. at 40. But, as in Munsingwear, that ship has sailed. Plaintiffs are now 

stuck with the consequences of their (in)actions. 

 In a final attempt to avoid this result, Plaintiffs maintain that even if controlling law has 

not changed since the delay case, the existence of new material facts triggers the “curable defect” 

exception to issue preclusion. This exception permits relitigation of jurisdictional claims that 

would normally be barred by issue preclusion in the limited set of cases where a plaintiff can 

demonstrate that “a precondition requisite to the court’s proceeding with the original suit was not 

alleged or proven, and is supplied in the second suit.” Nat’l Ass’n of Home Builders, 786 F.3d at 

Case 1:22-cv-03319-CRC Document 23 Filed 09/26/23 Page 23 of 32
24 

41 (cleaned up). In particular, the plaintiff must be able to identify “occurrences subsequent to 

the original dismissal that remedy the jurisdictional deficiency.” Id. (cleaned up). The claims of 

informational injury in this case do not squeeze through this narrow exception. 

Plaintiffs contend that the Commission’s dismissal of their administrative complaints and 

ensuing release of the MURs, including the Office of General Counsel’s findings, provided them 

with the facts they need to assert an informational injury concerning allegedly undisclosed 

testing-the-waters expenditures. See Opp’n at 25–26, 33–34. In making this argument, Plaintiffs 

contend that they “can now identify from the recently-released public case file several additional 

Bush campaign events that his campaign failed to report.” Id. at 33. But this reasoning has two 

fatal flaws. First, the Court held in RTR II that Plaintiffs lacked informational injury so long as 

either the Bush campaign or Right to Rise has released the requested information in some form. 

See 578 F. Supp. 3d at 5–6. Because Right to Rise already had reported costs for all five of the 

purported testing-the-waters events that Plaintiffs identified, the Court concluded that Plaintiffs 

had not alleged an informational injury. Id. Plaintiffs do not demonstrate that the MURs “cure” 

this defect, as they simply contend that “there is no way to ascertain whether [Right to Rise’s] 

undesignated disbursements for ‘travel’ or related purposes covered these outstanding events.” 

Opp’n at 34. But just as such speculation about unreported testing-the-waters expenditures did 

not suffice in RTR II, it does not cut it here. Second, and more fundamentally, Plaintiffs fail to 

explain why they were unable to identify these alleged testing-the-waters events in the delay case 

when the Court afforded them ample opportunities to do so, dedicating an entire round of 

briefing and a hearing to this issue. See RTR II, 578 F. Supp. 3d at 5–7. Their failure to 

highlight this information is all the more puzzling considering that the Office of General Counsel 

apparently identified that these were campaign events by reviewing CSPAN footage and other 

Case 1:22-cv-03319-CRC Document 23 Filed 09/26/23 Page 24 of 32
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materials in the public domain.6

 See Reply at 17–18. It is thus not that this information couldn’t

be discovered but that Plaintiffs simply didn’t discover it when given the opportunity. That is no 

reason to excuse Plaintiffs from issue preclusion; it is the reason issue preclusion exists. 

 The Court may have erred in RTR I and RTR II, but it took two to tango. Plaintiffs put 

themselves in this predicament when they failed to push their claims of informational standing to 

the hilt in the prior case by neither discovering materials in the public record nor appealing and 

seeking vacatur once CLC II revealed this Court’s errors. Those prior litigation miscues leave 

the Court with no choice but to conclude that Plaintiffs are precluded from relitigating this theory 

of standing in the present action. 

B. Organizational Standing 

With informational standing off the table, the Court now turns its attention to Plaintiffs’ 

assertion of organizational standing. An organization suing on its own behalf “must establish 

concrete and demonstrable injury to the organization’s activities—with a consequent drain on the 

organization’s resources—constituting more than simply a setback to the organization’s abstract 

social interests.” Common Cause v. FEC, 108 F.3d 413, 417 (D.C. Cir. 1997) (cleaned up). In 

particular, the plaintiff must first show “that the agency’s action or omission to act injured the 

organization’s interest,” and second, the plaintiff must show that it “used its resources to 

counteract that harm.” PETA, 797 F.3d at 1094 (cleaned up). Use of resources in litigation does 

not give rise to Article III standing, nor does an organization suffer a concrete injury by 

6

 The Commission makes a more categorical argument when asserting that the Office of 

General Counsel’s report must have been based on public materials because, under 52 U.S.C. 

§ 30109(a)(2), the Commission may not investigate until there is a successful reason-to-believe 

vote. Reply at 16–18. That is not entirely accurate because the Commission can make voluntary 

requests for information from the accused—a power that it used in this case. But that does not 

change the fact that most of the relevant information in the MURs was publicly available here. 

Case 1:22-cv-03319-CRC Document 23 Filed 09/26/23 Page 25 of 32
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“expend[ing] resources to educate its members and others unless doing so subjects [it] to 

operational costs beyond those normally expended.” Food & Water Watch, Inc. v. Vilsack, 808 

F.3d 905, 920 (D.C. Cir. 2015) (cleaned up). An organization instead must identify expenditures 

of money or time that are above and beyond those normally incurred in carrying out its advocacy 

mission. Id. At this stage, however, the Court cannot conclusively determine what effect the 

preclusion analysis above might have on this alternative theory of standing or whether Plaintiffs 

can demonstrate an ongoing injury that is required for the injunctive relief they seek. 

First, regarding issue preclusion, the parties spill most of their ink on the matter debating 

whether RTR III’s finding that Plaintiffs lacked a cognizable organizational injury to challenge 

the FEC’s delay bars the Plaintiffs from contesting the FEC’s dismissal of their complaints. See 

Reply at 11–14. But unlike with informational standing, this prior analysis of the organizational 

injury was cabined to issues unique to the delay suit that do not carry forward here. The Court in 

RTR III reasoned that Plaintiffs could not assert an injury to their organizations by claiming they 

diverted resources to compensate the Commission’s failure to release the MURs. The Court 

reached this result by noting that (1) the Circuit has held that the Commission’s failure to process 

a complaint is insufficient to confer Article III standing, see RTR III at 5 (citing Common Cause, 

108 F.3d at 419); and (2) the FEC cannot release an MUR until it has fully processed a case and 

closed the file, see id. (citing 52 U.S.C. § 30109(a)(12)(A)). Stitching these two observations 

together, the Court found that any diversion of resources stemming from the Commission’s

nondisclosure of the MURs is not a cognizable injury. Id. at 5–11. None of this analysis applies 

to Plaintiffs’ new assertions of organizational injury that derive not from the Commission’s 

refusal to release the MURs but from the Commission’s alleged failure to enforce the law to 

require the Bush campaign and Right to Rise to divulge “required FECA disclosure information 

Case 1:22-cv-03319-CRC Document 23 Filed 09/26/23 Page 26 of 32
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that both plaintiffs need to inform the public about candidates’ financial support.” Opp’n at 40 

(citing Compl. ¶¶ 14–15, 19). RTR III therefore does not preclude Plaintiffs from claiming 

organizational standing here. 

Whether the Court’s decisions in RTR I and RTR II undermine Plaintiffs’ organizational 

standing claims, however, is less clear. Plaintiffs’ assertion of organizational standing revolves 

around their claim that the Commission’s failure to enforce the FECA is depriving them of 

mandatory disclosures and forcing them to expend their own resources to compensate for this 

informational black hole. These arguments are in significant tension with the Court’s previous 

judgments that Plaintiffs did not assert a valid informational injury because they are not entitled 

to the disclosures that they seek—particularly, the “legal determination” that certain expenditures 

were coordinated between Right to Rise and the Bush campaign. To be sure, as the Court noted 

in RTR III, the Circuit’s decision in PETA demonstrates that the elements of informational and 

organizational standing diverge in important respects. See RTR III at 8 n.2 (citing PETA, 797 

F.3d at 1092, 1095–96). While a party asserting informational injury must show it is legally 

entitled to the information, a plaintiff claiming organizational injury need only demonstrate that 

deprivation of the information impairs its daily operations. Id. This difference may suggest that 

the Court’s finding that Plaintiffs had no legal right to the disclosure of coordinated expenditures 

does not foreclose them from contending that they nonetheless have a weighty interest in those 

disclosures and that the absence of this information has interfered with their programmatic 

activities. At the same time, however, the Court’s categorical language that Plaintiffs have “no 

legally cognizable interest in labeling spending ‘coordinated’ if that spending has already been 

disclosed in some format” may slam shut that door to federal court. RTR I, 520 F. Supp. 3d at 

48. Unfortunately, the parties did not delve into these thorny issues in their briefs. Nor did they 

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touch on whether Plaintiffs might be able to circumvent these challenges by identifying some 

testing-the-waters expenditures that neither the Bush campaign nor Right to Rise ever disclosed 

in any fashion—possibly because, as discussed above, Plaintiffs have not pointed to a specific 

disbursement for any such event that Right to Rise failed to include in its annual reports. 

Second, even if Plaintiffs can work around the preclusion issues described above, there is 

still an open question as to whether they can plausibly allege an ongoing organizational injury all 

these years after the 2016 presidential campaign has concluded. In their complaint, Plaintiffs 

identify themselves as nonpartisan groups committed to strengthening democracy by educating 

the public and ensuring compliance with campaign-finance laws. See Compl. ¶¶ 12, 18. To 

fulfill this mission, the groups claim they “rel[y] on accurate and complete reporting of campaign 

finance information.” Id. ¶ 14. They further allege the Commission’s dismissal of their two 

administrative complaints frustrates that mission by depriving them of “FECA-required 

information regarding the amounts, dates, and purposes of [Right to Rise’s] in-kind contributions 

to the Bush campaign.” Id. ¶ 23. Without this information, Plaintiffs maintain they have “had to 

divert resources from other planned organizational needs to research relevant law and fill in the 

gaps to the best of their ability, including by explaining to reporters, researchers, and partner 

organizations how they might attempt to find information not properly reported.” Opp’n at 41–

42; see also Compl. ¶¶ 17, 20. But while that may have been true when Bush was a frontrunner 

for the White House, it is not self-evident that these organizations are still diverting resources to 

address questions about a campaign that ended in defeat more than six years ago. Campaign 

Legal Center claims “reporters often contact CLC for guidance as to whether or where they can 

find the campaign finance information that is not being properly reported.” Id. ¶ 17. But are 

reporters still dialing CLC’s line to ask about Jeb Bush’s campaign tabs from 2015? That, after 

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29 

all, is what Plaintiffs must demonstrate to prove an ongoing injury that the Court can remedy 

with the injunctive relief sought. See City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). 

The Court has its doubts that these calls are still incoming, and thus that the injury is 

ongoing, but the Commission does not raise this argument in its motion to dismiss because it 

attacks the assertion of organizational standing only on issue-preclusion grounds. That oversight 

cannot carry the day, however, because a court always must assure itself of its own jurisdiction. 

See, e.g., In re Marin, 956 F.2d 339, 340 (D.C. Cir. 1992). But, once again, it would be helpful 

to hear from the parties before reaching out to decide this matter. 

Accordingly, because the Commission failed to show RTR III precludes the Plaintiffs’ 

current assertion of an organizational injury, the Court will deny its Rule 12(b)(1) motion at this 

time. That dismissal will be without prejudice, however, as the Court still has significant doubts 

about whether this alternative basis for standing will win out. The Court therefore invites the 

FEC to renew its jurisdictional challenge with a subsequent motion to dismiss addressing: 

(1) Whether RTR I and RTR II have preclusive effect on organizational standing, 

focusing on PETA’s distinction between informational and organizational standing 

as well as RTR I’s statements that Plaintiffs have no legal interest in the disclosure 

of coordinated expenditures. 

(2) Whether Plaintiffs can identify testing-the-waters expenditures that neither the 

Bush campaign nor Right to Rise disclosed in any form, and, if so, whether 

Plaintiffs may assert an organizational injury stemming from the failure to disclose 

these activities even if they are precluded from claiming an organizational injury 

related to the non-disclosure of coordinated expenditures. 

(3) Whether Plaintiffs plausibly alleged an ongoing injury to their organizations 

that is required for the requested injunctive relief. 

Given the multiple challenges facing their purported organizational injuries, Plaintiffs are free to 

inform the Court whether they wish to forgo a further motion to dismiss by dropping this theory 

of standing. Doing so would allow Plaintiffs to immediately appeal the Court’s determination 

Case 1:22-cv-03319-CRC Document 23 Filed 09/26/23 Page 29 of 32
30 

that they are precluded from claiming informational standing or, alternatively, put to rest their 

challenges to the election activities of a campaign that wrapped up over a half decade ago. 

C. Futility 

Given that the Court is unsure of its jurisdiction to consider this matter, it is premature to 

adjudicate the Commission’s futility argument at this juncture. But seeing that another motion to 

dismiss is possibly on the menu, some table setting is in order. 

As the Commission notes, a district court “may forego the futile gesture of remand to the 

agency” where “the outcome of a new administrative proceeding is preordained.” Berge v. 

United States, 949 F. Supp. 2d 36, 43 (D.D.C. 2013) (citation omitted). This is a narrow 

exception, however, that is reserved for the rare cases in which there is “only one rational 

course” for an agency to follow. Id. While this standard is satisfied when the agency’s decision 

is “legally inevitable,” Fogg v. Ashcroft, 254 F.3d 103, 111 (D.C. Cir. 2001), the doctrine does 

not give courts free range to guess which of multiple possible options an agency is most likely to 

follow and refuse to remand based on that hunch. Much of the Commission’s futility argument, 

including that a cadre of three Commissioners has expressed limited appetite in reconsidering 

Plaintiffs’ administrative complaint, sounds in this impermissible guessing game. See, e.g., End 

Citizens United PAC v. FEC, 69 F.4th 916, 922–23 (D.C. Cir. 2023) (“[T]he Supreme Court has 

contemplated that ‘a reviewing court . . . will set aside’ Commission action taken contrary to law 

and ‘remand the case,’ even though the Commission might later ‘reach the same result exercising 

its discretionary powers lawfully.’” (quoting Akins, 524 U.S. at 25)). 

The sole exception is the Commission’s vague suggestions the limitations period might 

foreclose any further action in this matter, but it is unclear what the Court should make of these 

gestures to the claims being time-barred. The FEC repeatedly asserts that the abovementioned 

Case 1:22-cv-03319-CRC Document 23 Filed 09/26/23 Page 30 of 32
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group of three Commissioners “expressed concerns related to the statute of limitations,” Mot. 

Dismiss at 20 (citing Dickerson Statement at 7–9), referring to the five-year limitations that 28 

U.S.C. § 2462 imposes on “any civil fine, penalty, or forfeiture, pecuniary or otherwise.” Yet 

these Commissioners’ “concerns”—even if stated in more definite terms—do not constitute the 

official position of the agency, as the Commission acknowledges that “the sole Statement of 

Reasons (‘SOR’) that controls as the explanation for the Commission’s actions in this case was 

issued by Commissioner Weintraub in September of 2022.” Reply at 22. And in its briefing, the 

Commission conspicuously declines to commit itself to whether it believes § 2462 applies to the 

injunctive actions Plaintiffs are requesting from the FEC here. That may be because, from what 

the Court can divine, the law appears unsettled on this issue. Some courts in this District have 

held that while “28 U.S.C. § 2462 may protect [parties] from being assessed a civil fine, penalty 

or forfeiture for conduct in violation of the FECA that occurred five years before the Complaint 

was filed, this general statute of limitation provides no such shield from declaratory or injunctive 

relief.” FEC v. Christian Coal., 965 F. Supp. 66, 71 (D.D.C. 1997); accord FEC v. Nat’l 

Republican Senatorial Comm., 877 F. Supp. 15, 21 (D.D.C. 1995). Yet other courts within this 

District and beyond have come to the opposite conclusion. See, e.g., FEC v. Nat’l Right to Work 

Comm., 916 F. Supp. 10, 14–15 (D.D.C. 1996); FEC v. Williams, 104 F.3d 237, 240 (9th Cir. 

1996). Without a clearer argument or more concrete position from the Commission, then, the 

Court is not inclined to conclude that the result on remand is “legally inevitable.” Fogg, 254 

F.3d at 111. 

Thus, if the Commission seeks to renew its futility argument in any further motion to 

dismiss, it is invited to clarify its position on how the five-year statute of limitations applies to 

this case. 

Case 1:22-cv-03319-CRC Document 23 Filed 09/26/23 Page 31 of 32
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IV. Conclusion

For these reasons, it is hereby 

ORDERED that [Dkt. No. 12] the Federal Election Commission’s Motion to Dismiss is

DENIED without prejudice to renewal.

SO ORDERED.

CHRISTOPHER R. COOPER

United States District Judge

Date: September 26, 2023 

Case 1:22-cv-03319-CRC Document 23 Filed 09/26/23 Page 32 of 32