UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

CAMPAIGN LEGAL CENTER and )

DEMOCRACY 21 )

)

Plaintiffs, ) Civ. No. 16-752 (JDB)

)

v. )

) MOTION TO DISMISS

FEDERAL ELECTION COMMISSION, )

)

Defendant, )

)

F8, ELI PUBLISHING, and )

STEVEN J. LUND, )

)

Intervenor-Defendants. )

)

FEDERAL ELECTION COMMISSION’S MOTION TO DISMISS

Pursuant to Federal Rule of Civil Procedure 12(b)(1), the Federal Election Commission

(“Commission” or “FEC”) hereby moves for an order dismissing plaintiffs’ complaint 

challenging under 52 U.S.C. § 30109(a)(8) the Commission’s dismissal of five administrative 

complaints. A supporting memorandum and a proposed order accompany this motion.1

 1 The Federal Election Commission (Commission) has historically voted by a majority 

vote (pursuant to 52 U.S.C. §§ 30106(c) and 30107(a)(6)) to authorize an appearance by the 

Office of General Counsel (OGC) on behalf of the Commission in a suit commenced pursuant to 

52 U.S.C. § 30109(a)(8). There are, however, two general categories of cases that may come 

before a court in which there are insufficient votes to pursue a matter arising from an 

administrative complaint. In the first category of cases, litigation is commenced against the 

Commission after it does not approve a recommendation by OGC to find “reason to believe” that 

a violation of the FECA or of its regulations occurred, and the file was consequently closed. 52 

U.S.C. § 30109(a)(8). In the second category of cases, the litigation is commenced against the 

Commission after OGC recommends dismissing the matter, and the Commission closes the file 

after three or more Commissioners approve OGC’s recommendation or there are otherwise three 

or fewer Commissioners voting to find reason to believe. In both instances, the reason for the 

inaction of the Commission is that there were not four or more Commissioners’ votes to find 

“reason to believe” regarding the allegations in the administrative complaint.

Case 1:16-cv-00752-JDB Document 13 Filed 07/01/16 Page 1 of 32
2

Respectfully submitted,

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

Deputy General Counsel – Law Acting Assistant General Counsel

lstevenson@fec.gov echlopak@fec.gov

Kevin Deeley s/ Steve Hajjar

Acting Associate General Counsel Steve Hajjar

kdeeley@fec.gov Attorney

 shajjar@fec.gov

July 1, 2016 FOR THE DEFENDANT

FEDERAL ELECTION COMMISSION

999 E Street NW

Washington, DC 20463

(202) 694-1650

 

Judicial review of the FEC dismissal of an administrative complaint requires the Court 

to examine the agency’s reasoning as expressed by Commissioners or, in some circumstances, by 

OGC. See Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131, 1134 (D.C. Cir. 1987). 

In the first category of cases described above, the court must be supplied with a “statement of 

reasons” of those Commissioners who voted against, or abstained from voting for, the OGC 

recommendation, who the court has called the “controlling group.” Id.; FEC v. Nat’l Republican 

Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992) (“[W]hen the Commission deadlocks 

3-3 and so dismisses a complaint, that dismissal, like any other, is judicially reviewable under 

Section [30109(a)(8)] . . . . [T]o make judicial review a meaningful exercise, the three 

Commissioners who voted to dismiss must provide a statement of their reasons for so voting. 

Since those Commissioners constitute a controlling group for purposes of the decision, their 

rationale necessarily states the agency’s reasons for acting as it did.”); Common Cause v. FEC, 

655 F. Supp. 619 (D.D.C. 1986), rev’d on other grounds, 842 F.2d 436 (D.C. Cir. 1988). 

In the second category of cases described above, any member or members of the group 

of Commissioners who approve OGC’s dismissal recommendation may issue their own 

statement(s) of reasons to provide the basis for his or her action. If one or more members who 

supported dismissal do not file a statement containing the basis of his or her action, the rationale 

provided in OGC’s report shall be among those considered by the Court. See FEC v. Democratic 

Senatorial Campaign Comm., 454 U.S. 27, 38 & n.19 (1981) (staff report may provide a basis 

for the Commission’s action). Although the views of the Commissioners who voted to pursue 

enforcement are not defended by OGC, their statements of reasons are made part of the 

administrative record as long as they are filed by the time the record is certified, and when filed 

shall be available for the Court’s consideration.

Case 1:16-cv-00752-JDB Document 13 Filed 07/01/16 Page 2 of 32
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

CAMPAIGN LEGAL CENTER and )

DEMOCRACY 21 )

)

Plaintiffs, ) Civ. No. 16-752 (JDB)

)

v. )

) MEMORANDUM

FEDERAL ELECTION COMMISSION, )

)

Defendant, )

)

F8, ELI PUBLISHING, and )

STEVEN J. LUND, )

)

Intervenor-Defendants. )

)

FEDERAL ELECTION COMMISSION’S MEMORANDUM OF POINTS AND 

AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS

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

Deputy General Counsel – Law Acting Assistant General Counsel

lstevenson@fec.gov echlopak@fec.gov

Kevin Deeley Steve Hajjar

Acting Associate General Counsel Attorney

kdeeley@fec.gov shajjar@fec.gov

 

FEDERAL ELECTION COMMISSION

July 1, 2016 999 E Street NW

Washington, DC 20463

(202) 694-1650

Case 1:16-cv-00752-JDB Document 13 Filed 07/01/16 Page 3 of 32
i

TABLE OF CONTENTS

Page

BACKGROUND .......................................................................................................................2

I. STATUTORY AND REGULATORY BACKGROUND .................................2

A. The FEC..................................................................................................2

B. FECA’s Administrative Enforcement Process and 

 Judicial-Review Standard .......................................................................2

 C. FECA’s Prohibition Against Contributions Made in the

 Name of Another....................................................................................5

 D. Political Committee Registration and Reporting

 Requirements..........................................................................................6

 II. FACTUAL BACKGROUND ...........................................................................7

ARGUMENT.............................................................................................................................9

I. PLAINTIFFS LACK STANDING TO CHALLENGE THE

DISMISSALS OF THEIR ADMINISTRATIVE COMPLAINTS....................9

A. Plaintiffs Bear the Burden of Establishing Article III 

Standing..................................................................................................9

1. Informational Injury ..................................................................10

2. Standing of Organizational Plaintiffs........................................12

B. Plaintiffs Have Not Suffered a Legally Cognizable

Injury in Fact........................................................................................12

1. Plaintiffs Have Not Suffered Any Cognizable 

 Informational Injury Because Their Judicial Complaint 

 Affirmatively Alleges The Very Information They 

 Could Possibly Obtain Through Their Judicial 

 Review Action...........................................................................12

2. Plaintiffs’ Disagreement With the Analyses in the 

 Controlling Statements of Reasons and Their Preference 

 for Different Administrative Determinations Are Insufficient 

 to Confer Standing ....................................................................14

Case 1:16-cv-00752-JDB Document 13 Filed 07/01/16 Page 4 of 32
ii

3. Plaintiffs Lack Standing Because They Are Not Voters, 

 Do Not Claim Any Voting Members, and Are Not Otherwise 

 Participants in Political Elections and Campaigns....................17

4. Plaintiffs Do Not Allege That Their Programmatic Activities 

 Are Directly and Adversely Affected by the Challenged 

 Dismissal Decisions..................................................................19 

CONCLUSION........................................................................................................................22

Case 1:16-cv-00752-JDB Document 13 Filed 07/01/16 Page 5 of 32
iii

TABLE OF AUTHORITIES

Cases

Page

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996)..........................................................................20

Alliance for Democracy v. FEC, 362 F. Supp. 2d 138 (D.D.C. 2005) ..............................14, 18

Alliance for Democracy v. FEC, 335 F. Supp. 2d 39 (D.D.C. 2004) ..........................11, 17, 18

Am. Farm Bureau v. EPA, 121 F. Supp. 2d 84 (D.D.C. 2000)................................................10

Am. Legal Found. v. FCC, 808 F.2d 84 (D.C. Cir. 1987)........................................................10

Animal Legal Def. Fund, Inc. v. Espy, 23 F.3d 496 (D.C. Cir. 1994) .....................................10

ASPCA v. Feld Entm’t, Inc., 659 F.3d 13 (D.C. Cir. 2011).....................................................10

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam).....................................................................7

Citizens for Responsibility and Ethics in Washington (“CREW”) v. FEC, 

 799 F. Supp. 2d 78 (D.D.C. 2011).................................................................................9, 13

CREW v. FEC, 475 F.3d 337 (D.C. Cir. 2007)..........................................................4, 9, 13, 14

CREW v. FEC, 401 F. Supp. 2d 115 (D.D.C. 2005)......................11, 12, 14, 17, 18, 19, 20, 21

Citizens United v. FEC, 558 U.S. 310 (2010)..........................................................................21

Coal. for Mercury-Free Drugs v. Sebelius, 671 F.3d 1275 (D.C. Cir. 2012)............................9

Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997) .............................9, 11, 12, 15, 17, 19

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) ...........................................................4

Diamond v. Charles, 476 U.S. 54 (1986) ................................................................................19

FEC v. Akins, 524 U.S. 11 (1998)..................................................................................4, 11, 20

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981)....................................4

FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480 (1985) ...............................5

FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471 (D.C. Cir. 1992).........................4

Case 1:16-cv-00752-JDB Document 13 Filed 07/01/16 Page 6 of 32
iv

Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 

 528 U.S. 167 (2000)...........................................................................................................10

Haitian Refugee Ctr. v. Gracey, 809 F.2d 794 (D.C. Cir. 1987).............................................19

Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333 (1977) .................................12

Jones v. Ashcroft, 321 F. Supp. 2d 1 (D.D.C. 2004)..................................................................9

Judicial Watch, Inc. v. FEC, 180 F.3d 277 (D.C. Cir. 1999) ....................................................9

Judicial Watch, Inc. v. FEC, 293 F. Supp. 2d 41 (D.D.C. 2003) .............. 11, 13, 14, 15, 16-17

Kean for Congress Comm. v. FEC, 398 F. Supp. 2d 26 (D.D.C. 2005)..................................19

La Botz v. FEC, 61 F. Supp. 3d 21 (D.D.C. 2014) ....................................................................5

La Botz v. FEC, 889 F. Supp. 2d 51 (D.D.C. 2012) ..................................................................5

Linda R.S. v. Richard D., 410 U.S. 614 (1973) .......................................................................10

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ........................................9, 10, 14, 15, 21

McConnell v. FEC, 540 U.S. 93 (2003)...................................................................................21

Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428 (D.C. Cir. 1995)..................12, 19

SEC v. Chenery Corp., 318 U.S. 80 (1943)...............................................................................5

Spann v. Colonial Village, Inc., 899 F.2d 24 (D.C. Cir. 1990)................................................19

Vroom v. FEC, 951 F. Supp. 2d 175 (D.D.C. 2013)....................................................15, 16, 17

Warth v. Seldin, 422 U.S. 490 (1975)......................................................................................10

Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001)..................................................14, 15, 17

Zivotofsky v. Sec’y of State, 444 F.3d 614 (D.C. Cir. 2006)....................................................11

Statutes and Regulations

26 U.S.C. § 501(c)(3)...............................................................................................................18

52 U.S.C. § 30101(4)(A)............................................................................................................6

Case 1:16-cv-00752-JDB Document 13 Filed 07/01/16 Page 7 of 32
v

52 U.S.C. § 30101(8)(A)(i)........................................................................................................7

52 U.S.C. § 30101(9)(A)(i)........................................................................................................7

52 U.S.C. § 30101(11)...............................................................................................................6

52 U.S.C. § 30102..................................................................................................................1, 8

52 U.S.C. § 30103..............................................................................................................1, 6, 8

52 U.S.C. § 30104..................................................................................................................1, 8

52 U.S.C. § 30104(a)-(b) ...........................................................................................................6

52 U.S.C. § 30106......................................................................................................................2

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

52 U.S.C. § 30106(c) .............................................................................................................2, 3

52 U.S.C. § 30107......................................................................................................................2

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

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

52 U.S.C. § 30107(a)(9).............................................................................................................2

52 U.S.C. § 30109(a)(1).........................................................................................................2, 3

52 U.S.C. § 30109(a)(2).........................................................................................................2, 3

52 U.S.C. § 30109(a)(4)(A)(i) ...................................................................................................3

52 U.S.C. § 30109(a)(6).............................................................................................................2

52 U.S.C. § 30109(a)(6)(A).......................................................................................................3

52 U.S.C. § 30109(a)(8).............................................................................1, 7, 9, 11, 12, 16, 19

52 U.S.C. § 30109(a)(8)(A)...................................................................................................4, 9

52 U.S.C. § 30109(a)(8)(C) ...................................................................................................4, 5

52 U.S.C. § 30109(a)(12)...........................................................................................................3

Case 1:16-cv-00752-JDB Document 13 Filed 07/01/16 Page 8 of 32
vi

52 U.S.C. § 30111(a)(8).............................................................................................................2

52 U.S.C. § 30122..............................................................................................................1, 6, 8

11 C.F.R. § 100.5(a)...................................................................................................................6

11 C.F.R. § 110.4(b)(2)(i)-(ii)....................................................................................................6

11 C.F.R. § 111.4.......................................................................................................................3

26 C.F.R. § 1.501(c)(3)-1.........................................................................................................18

Case 1:16-cv-00752-JDB Document 13 Filed 07/01/16 Page 9 of 32
1

Plaintiffs Campaign Legal Center (“CLC”) and Democracy 21 seek judicial review of the 

Federal Election Commission’s (“Commission” or “FEC”) dismissal of administrative 

complaints alleging that certain individuals and entities “ma[de] ‘straw donor’ contributions in 

violation of various disclosure provisions of the Federal Election Campaign Act” (“FECA” or 

“Act”). (Compl. ¶ 1.) In particular, plaintiffs alleged violations of FECA’s prohibition against 

contributions made in the name of another, 52 U.S.C. § 30122, and the Act’s political committee 

registration and reporting requirements, 52 U.S.C. §§ 30102-04. Plaintiffs, however, lack Article 

III standing to obtain review pursuant to FECA’s narrow review provision, 52 U.S.C. 

§ 30109(a)(8). 

Courts in this Circuit have repeatedly held that to have standing to obtain review under 

section 30109(a)(8), a complainant must have suffered a legally cognizable injury, such as an

informational one, stemming from the Commission’s dismissal of its administrative complaint. 

And the courts have made explicitly clear that a desire for information about whether FECA has 

been violated is insufficient. Here, that is the only information plaintiffs seek. Indeed, while 

plaintiffs complain that they were “deprived of timely information about the sources” of certain 

contributions described in their administrative complaints (Compl. ¶ 6 (emphasis added)), 

plaintiffs’ own complaint for judicial review affirmatively identifies those sources, confirming 

that plaintiffs lack any cognizable informational injury that could be redressed through this 

judicial-review action.

In any event, even if plaintiffs did not already possess the sought-after information 

regarding the contributions at issue in their administrative complaints, they would still lack 

standing because plaintiffs are not voters, they do not claim to be membership organizations with 

members who are voters, and they are not otherwise participants in political elections and 

Case 1:16-cv-00752-JDB Document 13 Filed 07/01/16 Page 10 of 32
2

campaigns. Courts in this Circuit have made clear that non-membership organizational entities 

like CLC and Democracy 21 lack standing to assert a derivative harm based on their alleged 

inability to help others who are participants in the political process obtain information that those 

individuals may use in voting. 

For these reasons and those detailed below, plaintiffs’ complaint should be dismissed.

BACKGROUND

I. STATUTORY AND REGULATORY BACKGROUND

A. The FEC 

The FEC is a six-member independent agency of the United States government with 

exclusive jurisdiction to administer, interpret, and civilly enforce FECA. See generally 52 

U.S.C. §§ 30106-07. Congress authorized the Commission to “formulate policy” with respect to 

FECA, id. § 30106(b)(1); “to make, amend, and repeal such rules . . . as are necessary to carry 

out the provisions of [FECA],” id. §§ 30107(a)(8), 30111(a)(8); and to investigate possible 

violations of the Act, id. § 30109(a)(1)-(2). The Commission has exclusive jurisdiction to 

initiate civil enforcement actions for violations of the Act in the United States district courts. Id.

§§ 30106(b)(1), 30109(a)(6).

B. FECA’s Administrative Enforcement Process and Judicial-Review Standard

FECA provides that decisions of the Commission “with respect to the exercise of its 

duties and powers under the provisions of th[e] Act shall be made by a majority vote of the 

members of the Commission,” and that certain specified actions require “the affirmative vote of 

4 members of the Commission.” 52 U.S.C. § 30106(c). As explained in greater detail below, the 

decision to open an investigation or take other statutory steps in the process of enforcing against 

an alleged violation of FECA thus requires the assent of at least four Commissioners. 52 U.S.C. 

§§ 30106(c), 30107(a)(6), (9). When pursuit of an alleged violation is not supported by four or 

Case 1:16-cv-00752-JDB Document 13 Filed 07/01/16 Page 11 of 32
3

more votes of the agency’s six Commissioners, the statute precludes the opening of an

investigation or advancement of the enforcement process. 

FECA permits any person to file an administrative complaint with the Commission 

alleging a violation of the Act. Id. § 30109(a)(1); see also 11 C.F.R. § 111.4. After reviewing 

the complaint and any response filed by the respondent, the Commission considers whether there 

is “reason to believe” that FECA has been violated. 52 U.S.C. § 30109(a)(2). Any investigation 

under this provision is confidential until the administrative process is complete. Id. 

§ 30109(a)(12). If at least four of the FEC’s six Commissioners vote to find such reason to 

believe, the Commission may investigate the alleged violation; otherwise, the Commission 

dismisses the administrative complaint. Id. §§ 30106(c), 30109(a)(2). 

If the Commission votes to proceed with an investigation, it then must determine 

whether there is “probable cause” to believe that FECA has been violated. Id.

§ 30109(a)(4)(A)(i). Like a reason-to-believe determination, a determination to find probable 

cause to believe that a violation of FECA has occurred requires an affirmative vote of at least 

four Commissioners. Id. §§ 30106(c), 30109(a)(4)(A)(i). If the Commission so votes, it is 

statutorily required to attempt to remedy the violation informally and attempt to reach a 

conciliation agreement with the respondent. Id. § 30109(a)(4)(A)(i). If the Commission is 

unable to reach a conciliation agreement, FECA authorizes the agency to institute a de novo civil 

enforcement action in federal district court. Id. § 30109(a)(6)(A). Either entering into a 

conciliation agreement or instituting a civil action requires an affirmative vote of at least four 

Commissioners. Id. § 30106(c); 30109(a)(6)(A). 

If, at any point in the administrative process, the Commission determines that no 

violation has occurred or decides to dismiss the administrative complaint for some other reason, 

Case 1:16-cv-00752-JDB Document 13 Filed 07/01/16 Page 12 of 32
4

FECA provides the complainant with a narrow cause of action for judicial review of the 

Commission’s dismissal decision. See id. § 30109(a)(8)(A). That limited review applies equally 

to dismissals that result from an evenly divided vote. FEC v. Nat’l Republican Senatorial 

Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992) (“NRSC”) (“[A split vote] dismissal, like any 

other, is judicially reviewable under [§ 30109(a)(8)].”). In such cases, judicial review is based 

on the statement of reasons issued by the Commissioners who voted to dismiss. Id. “[T]hose 

Commissioners constitute a controlling group for purposes of the [dismissal] decision,” because 

their “rationale necessarily states the agency’s reasons for acting as it did.” Id.

By statute, the judicial task in such an action “is limited.” Common Cause v. FEC, 842 

F.2d 436, 448 (D.C. Cir. 1988) (describing judicial review under section 30109(a)(8)). As the 

Supreme Court has explained, the Commission “has the ‘sole discretionary power’ to determine 

in the first instance whether or not a civil violation of the Act has occurred” and “Congress 

wisely provided that the Commission’s dismissal of a complaint should be reversed only if 

‘contrary to law.’” FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981); 

see Citizens for Responsibility & Ethics in Washington (“CREW”) v. FEC, 475 F.3d 337, 340 

(D.C. Cir. 2007) (“[J]udicial review of the Commission’s refusal to act on complaints is limited 

to correcting errors of law.”). 

FECA also expressly limits the scope of relief available to a plaintiff challenging an FEC 

dismissal decision. The reviewing court may only (a) declare that the Commission’s dismissal 

was “contrary to law” and (b) order the Commission to “conform with” the court’s declaration 

within 30 days. 52 U.S.C. § 30109(a)(8)(C). A judicial order to “conform with” a contrary-tolaw declaration cannot mandate a different outcome on remand; the Commission remains free to 

reach the same outcome based on a different rationale. FEC v. Akins, 524 U.S. 11, 25 (1998) 

Case 1:16-cv-00752-JDB Document 13 Filed 07/01/16 Page 13 of 32
5

(explaining that even where a reviewing court finds that an FEC administrative dismissal was 

contrary to law, the Commission “(like a new jury after a mistrial) might later, in the exercise of 

its lawful discretion, reach the same result for a different reason” (citing SEC v. Chenery Corp., 

318 U.S. 80 (1943))); La Botz v. FEC, 889 F. Supp. 2d 51, 63 n.6 (D.D.C. 2012) (“La Botz I”) 

(clarifying that a judicial determination that an FEC dismissal of an administrative complaint 

was contrary to law does not mean “that the FEC is required to reach a different conclusion on 

remand” and suggesting the “possib[ility]” that “the [dismissal] . . . could have been justified 

entirely by the FEC’s prosecutorial discretion, which is ‘considerable’” (citation omitted)); La 

Botz v. FEC, 61 F. Supp. 3d 21 (D.D.C. 2014) (“La Botz II”) (dismissing judicial-review action 

on mootness grounds following FEC’s dismissal of plaintiff’s administrative complaint upon 

remand; explaining further that even if the court had jurisdiction, FEC’s dismissal represented a 

reasonable exercise of prosecutorial discretion that was not contrary to law under FECA).

1

 

C. FECA’s Prohibition Against Contributions Made in the Name of Another

FECA’s prohibition against contributions made in the name of another person 

complements the Act’s contribution limits, disclosure requirements, and source restrictions. It

does so by independently prohibiting the “true source” of a contribution from concealing his 

identity by making his contribution through a mere pass through, or what is commonly known as 

a “straw donor,” i.e., an intermediary or conduit: “No person shall make a contribution in the 

name of another person or knowingly permit his name to be used to effect such a contribution,

 1 If the Commission fails to conform with a contrary-to-law declaration within 30 days, 

FECA permits the administrative complainant to bring “a civil action to remedy the violation 

involved in the original [administrative] complaint.” 52 U.S.C. § 30109(a)(8)(C); see FEC v. 

Nat’l Conservative Political Action Comm., 470 U.S. 480, 488 (1985).

Case 1:16-cv-00752-JDB Document 13 Filed 07/01/16 Page 14 of 32
6

and no person shall knowingly accept a contribution made by one person in the name of another 

person.” 52 U.S.C. § 30122.2

Commission regulations illustrate the types of activities and transactions that constitute 

making a contribution in the name of another. These include making a contribution, all or part of 

which was provided by another without disclosing the true source of the contributor, or making a 

contribution and attributing its source to another person who was not the contribution’s true 

source. See, e.g., 11 C.F.R. § 110.4(b)(2)(i)-(ii). Both the Act and Commission regulations 

provide that a person who furnishes another with funds for the purpose of contributing to a 

candidate or committee makes the resulting contribution. 

D. Political Committee Registration and Reporting Requirements

FECA imposes several different kinds of disclosure obligations that apply depending 

upon the nature of the organization making the communications and the timing, form, and 

content of the communications. In addition to imposing certain event-driven disclosure 

requirements that apply whenever speakers’ communications meet certain regulatory criteria, 

FECA provides that certain organizations, which qualify as “political committees,” must, inter 

alia, register with the Commission, appoint a treasurer, maintain names and addresses of 

contributors, and file periodic reports disclosing to the public most receipts of $200 or more. 52 

U.S.C. §§ 30103, 30104(a)-(b). Under FECA, any “committee, club, association, or other group 

of persons” that receives more than $1,000 in “contributions” or makes more than $1,000 in 

“expenditures” in a calendar year is a “political committee.” 52 U.S.C. § 30101(4)(A); 11 C.F.R. 

§ 100.5(a). The Act defines “contribution” and “expenditure” to include any payment of money 

 2 The term “person” for purposes of the Act as well as this prohibition includes 

partnerships, corporations, and “any other organization or group of persons.” 52 U.S.C. 

§ 30101(11). 

Case 1:16-cv-00752-JDB Document 13 Filed 07/01/16 Page 15 of 32
7

to or by any person “for the purpose of influencing any election for Federal office.” 52 U.S.C. 

§ 30101(8)(A)(i), (9)(A)(i). In Buckley v. Valeo, however, the Supreme Court explained that the 

way FECA defines political-committee status “only in terms of amount of annual ‘contributions’ 

and ‘expenditures’ ” might result in an overbroad application by reaching “groups engaged 

purely in issue discussion.” 424 U.S. 1, 79 (1976) (per curiam). The Court therefore concluded 

that, in order to “fulfill the purposes of the Act,” FECA’s political-committee provisions “need 

only encompass organizations that are under the control of a candidate or the major purpose of 

which is the nomination or election of a candidate.” Id. Buckley thus established that an entity 

that is not controlled by a candidate must register as a political committee only if the group 

(1) crosses the $1,000 threshold of contributions or expenditures and (2) has as its “major 

purpose” the nomination or election of federal candidates.

II. FACTUAL BACKGROUND

According to the complaint, plaintiff CLC is a nonpartisan, nonprofit organization based 

in Washington, D.C. that works “to ensure that the public has access to information about the 

financing of our election campaigns” including through litigation involving campaign finance

matters, as well as participation in rulemaking and advisory opinion proceedings before the 

Commission. (Compl. ¶¶ 10-11.) The complaint similarly alleges that plaintiff Democracy 21 is 

a nonpartisan, nonprofit organization that participates in litigation involving the constitutionality 

of campaign finance laws as well as rulemakings, advisory opinions, and other administrative 

matters before the Commission. (Id. ¶ 14.)

In this action for judicial review under section 30109(a)(8), plaintiffs challenge the 

Commission’s dismissal of five administrative complaints filed by plaintiffs in which they made 

similar allegations regarding specific contributions received by certain independent-expenditureCase 1:16-cv-00752-JDB Document 13 Filed 07/01/16 Page 16 of 32
8

only political committees (also known as “super PACs”), as disclosed in those groups’ reports to 

the Commission. Specifically, plaintiffs’ administrative complaints alleged that several different 

closely held corporations or corporate limited liability companies (LLCs) may have been used by 

certain individuals to make so-called “straw donor” contributions to the identified super PACs, in 

violation of 52 U.S.C. § 30122. (Compl. ¶¶ 1-2.) Plaintiffs also alleged that four of the five 

identified LLCs may have violated 52 U.S.C. §§ 30102, 30103, and 30104, by failing to register 

and file reports as political committees. (Compl. ¶ 2.) 

On February 23, 2016, the Commission voted and lacked the statutorily required four 

affirmative votes to find reason to believe that “a violation of FECA had occurred with respect to 

the allegations in plaintiffs’ administrative complaints” and the Commission accordingly 

dismissed each of the administrative complaints. (Compl. ¶¶ 3, 34, 39, 43, 50.) As described in 

their judicial complaint, plaintiffs disagree with the legal analyses and conclusions in the 

controlling Commissioners’ Statement of Reasons (id. ¶¶ 52-55), and claim that the dismissals of 

their administrative complaints deprived plaintiffs “as well as the public . . . of timely

information about the sources, of the contributions made to the super PACs.” (Id. ¶ 6 (emphasis 

added); see also id. ¶¶ 60, 63, 66, 69.) Plaintiffs do not allege that they continue to lack such 

information regarding the sources of the contributions they identify; on the contrary, plaintiffs’ 

judicial complaint repeatedly identifies the individuals that provided the money used to make the 

contributions that are the basis for each of plaintiffs’ administrative complaints. 

Specifically, with respect to Matter Under Review (“MUR”) 6485 (W Spann), plaintiffs’ 

judicial complaint identifies Edward Conard as having “authorized W Spann to make the $1 

million contribution” to Restore Our Future, a super PAC that supported Mitt Romney’s 2012 

presidential campaign. (Compl. ¶ 32; see id ¶ 31, 34.) With respect to MURs 6487 and 6488 

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9

(F8/Eli Publishing), plaintiffs’ judicial complaint identifies Steven J. Lund as “the source of the 

two $1 million contributions” to Restore Our Future in March 2011. (Id. ¶ 36; see id. ¶ 37.) 

Regarding MUR 6711 (Specialty Investments Group, Inc., et al.), plaintiffs’ judicial complaint 

identifies Richard Stephenson as having “made twenty contributions totaling over $12 million” 

to the super PAC FreedomWorks for America through the Specialty Investment Group Inc. and 

Kingston Pike Development LLC. (Id. ¶ 41.) And finally, regarding MUR 6930 (Pras Michel), 

plaintiffs’ judicial complaint identifies Pras Michel as having “provided $1.225 million in total to 

Black Men Vote,” including $875,000 contributed “in the name of SPM Holdings LLC.” (Id.

¶ 49.) 

ARGUMENT

I. PLAINTIFFS LACK STANDING TO CHALLENGE THE DISMISSALS OF 

THEIR ADMINISTRATIVE COMPLAINTS

A. Plaintiffs Bear the Burden of Establishing Article III Standing

This Court has “‘an affirmative obligation to ensure that it is acting within the scope of its 

jurisdictional authority.’” Jones v. Ashcroft, 321 F. Supp. 2d 1, 5 (D.D.C. 2004) (citation 

omitted). As the parties invoking the court’s jurisdiction, plaintiffs bear the burden of 

establishing the elements of constitutional standing. Lujan v. Defenders of Wildlife, 504 U.S. 

555, 561 (1992); Coal. for Mercury-Free Drugs v. Sebelius, 671 F.3d 1275, 1279 (D.C. Cir. 2012). 

And plaintiffs cannot simply rely on 52 U.S.C. § 30109(a)(8), the statutory provision that allows 

challenges to the dismissal of an administrative complaint, to satisfy the standing requirements of 

Article III. “Section [30109(a)(8)(A)] does not confer standing; it confers a right to sue upon 

parties who otherwise already have standing.” Common Cause v. FEC, 108 F.3d 413, 419 (D.C. 

Cir. 1997) (per curiam); accord, e.g., CREW, 475 F.3d at 330-31; Judicial Watch, Inc. v. FEC,

180 F.3d 277 (D.C. Cir. 1999); CREW v. FEC, 799 F. Supp. 2d 78, 85 (D.D.C. 2011). 

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In general, to demonstrate Article III standing a plaintiff must establish that: “(1) it has 

suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not 

conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the 

defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed 

by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 

528 U.S. 167, 180-181 (2000) (citing Lujan, 504 U.S. at 560-561). Thus, where, as here, “a 

plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation (or lack of 

regulation) of someone else,” standing is “substantially more difficult” to prove. Lujan, 504 U.S. 

at 562 (quotation marks omitted); see also Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) 

(“[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of 

another.”). Standing “focuses on the complaining party to determine ‘whether the litigant is 

entitled to have the court decide the merits of the dispute or of particular issues.’” Am. Legal 

Found. v. FCC, 808 F.2d 84, 88 (D.C. Cir. 1987) (quoting Warth v. Seldin, 422 U.S. 490, 498 

(1975)).

1. Informational Injury

In limited circumstances, an injury for purposes of Article III standing can arise from a 

statute that has “explicitly created a right to information.” Am. Farm Bureau v. EPA, 121 F.

Supp. 2d 84, 97 (D.D.C. 2000) (quoting Animal Legal Def. Fund, Inc. v. Espy, 23 F.3d 496, 502 

(D.C. Cir. 1994)). “For a plaintiff to successfully claim standing based on an informational 

injury, he must allege that he is directly deprived of information that must be disclosed under a 

statute.” ASPCA v. Feld Entm’t, Inc., 659 F.3d 13, 23 (D.C. Cir. 2011) (“For purposes of 

informational standing, a plaintiff ‘is injured-in-fact . . . because he did not get what the statute 

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11

entitled him to receive.’”) (quoting Zivotofsky v. Sec’y of State, 444 F.3d 614, 618 (D.C. Cir.

2006)). 

In evaluating whether an administrative complainant has informational-injury standing to 

seek judicial review under section 30109(a)(8), “the nature of the information allegedly withheld 

is critical to the [court’s] standing analysis.” Common Cause, 108 F.3d at 417; CREW 401 F. 

Supp. 2d 115, 120 (D.D.C. 2005) (“The character of the information sought weighs heavily on 

the informational standing analysis.”). The Supreme Court has thus explained that to 

demonstrate standing in a suit brought under section 30109(a)(8), the information of which 

plaintiffs claim to have been deprived must be “directly related to voting” to constitute a legally 

cognizable injury. Akins, 524 U.S. at 24-25. The D.C. Circuit has similarly explained that a 

particularized informational injury is sufficient to create standing where plaintiffs have alleged 

that “voter[s] [we]re deprived of useful [political] information at the time” of voting, e.g., 

information showing “how much money a candidate spent in an election,” or the identity of 

donors to a candidate’s campaign, and the denied information is “useful in voting and required 

by Congress to be disclosed.” Common Cause, 108 F.3d at 418 (citation omitted). In addition, 

courts in this District have recognized that the sought-after information must “have a concrete 

effect on plaintiffs’ voting,” i.e., that plaintiffs (or their members) must be participants in 

political elections and campaigns. Alliance for Democracy v. FEC (“Alliance I”), 335 F. Supp.

2d 39, 48 (D.D.C. 2004); see also Judicial Watch, Inc. v. FEC, 293 F. Supp. 2d 41, 46 (D.D.C. 

2003) (explaining that in a section 30109(a)(8) action, a legally cognizable information injury 

“occurs when a voter is deprived of information showing how much money a candidate spent 

during an election, or the identity of donors to a candidate’s campaign, because both types of 

information are useful in voting and are required by Congress to be disclosed”).

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2. Standing of Organizational Plaintiffs

“The injury in fact component of the standing inquiry is often difficult for 

organizational plaintiffs . . . to satisfy.” CREW, 401 F. Supp. 2d at 120. If an organization has 

members or is a trade association, it may qualify for representative or associational standing on 

behalf of those members or constituents. Hunt v. Washington State Apple Adver. Comm’n, 

432 U.S. 333, 342-44 (1977). As the D.C. Circuit has explained, where an organizational 

plaintiff brings suit on its own behalf, “it must establish ‘concrete and demonstrable injury to the 

organization’s activities — with [a] consequent drain on the organization’s resources —

constitut[ing] . . . more than simply a setback to the organization’s abstract social interests.’” 

Common Cause, 108 F.3d at 417 (quoting Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 

1428, 1433 (D.C. Cir. 1995)); see also id. (“The organization must allege that discrete 

programmatic concerns are being directly and adversely affected by the challenged action.”). 

This standing requirement for organizations suing on their own behalf “may only be satisfied by 

a showing that [the plaintiff] has suffered a ‘concrete and demonstrable injury’ to its 

organizational activities, in conjunction with a depletion of resources, that constitutes more than 

a simple inconvenience to ‘abstract social interests.’” CREW, 401 F. Supp. 2d at 120 (citing 

Nat’l Taxpayers Union, Inc., 68 F.3d at 1433).

B. Plaintiffs Have Not Suffered a Legally Cognizable Injury In Fact

1. Plaintiffs Have Not Suffered Any Cognizable Informational Injury 

Because Their Judicial Complaint Affirmatively Alleges The Very 

Information They Could Possibly Obtain Through Their Judicial 

Review Action

In light of the well-established requirement that section 30109(a)(8) plaintiffs have 

suffered a cognizable informational injury, courts have explained that where the information 

plaintiffs purport to seek through such an action is already available to them, the plaintiffs lack 

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standing to bring their claims. See, e.g., Judicial Watch, 293 F. Supp. 2d at 47 (holding that a 

plaintiff who had alleged reporting violations regarding his own contributions to a candidate 

lacked standing because he was “already aware of the facts underlying his own alleged 

contributions” and his judicial-review action was unlikely to produce additional facts of which 

the plaintiff was not already knowledgeable); CREW, 799 F. Supp. 2d at 89 (holding that 

plaintiffs lacked a cognizable informational injury where they failed to “allege any specific 

factual information . . . that [wa]s not already publicly available”); see also CREW, 475 F.3d at 

339-40 (holding that plaintiffs lacked standing in part because “any citizen who wants to learn 

the details of the transaction . . . can do so by visiting the Commission’s website, which contains 

the [sought after] list and a good deal more”).

Here, plaintiffs apparently attempt to establish standing through their general claim that 

they “were deprived of timely information about the sources[] of the contributions” at issue in the 

underlying administrative matters. (Compl. ¶ 6 (emphasis added); see id. ¶¶ 60, 63, 66, 69 

(same).) But this carefully worded allegation, repeated throughout plaintiffs’ complaint, is

revealing. Regardless of when plaintiffs obtained the information they sought through their 

underlying administrative complaints, they have such information now. Indeed, as described 

supra pp. 8-9, plaintiffs’ judicial complaint repeatedly identifies the individuals that provided the 

money used to make the contributions that are the basis of each of plaintiffs’ administrative 

complaints. (See Compl. ¶¶ 31-32, 34 (describing contributions at issue in MUR 6485); id.

¶¶ 36, 37 (describing contributions at issue in MURs 6487 and 6488); id. ¶ 41 (describing 

contributions at issue in MUR 6711); id. ¶ 49 (describing contributions at issue in MUR 6930).) 

Thus here, as in CREW, plaintiffs have failed to allege a cognizable informational injury because 

they are “already privy to the information” they could potentially obtain if they were to prevail in 

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this judicial-review action. 401 F. Supp. 2d at 123; see also Alliance for Democracy v. FEC,

362 F. Supp. 2d 138, 145 (D.D.C. 2005) (“Alliance II”) (concluding that “the plaintiffs lack 

standing because they already have the information they are seeking and therefore have not 

suffered an informational injury”); Judicial Watch, 293 F. Supp. 2d at 47 & n.9 (holding that 

plaintiff lacked a cognizable information injury where he was already “aware of the facts”

concerning certain allegedly unreported contributions, and where the underlying administrative 

complaint was “unlikely” to “yield additional facts about [the] alleged reporting violations”)

(citing Wertheimer v. FEC, 268 F.3d 1070, 1074-75 (D.C. Cir. 2001)); CREW, 475 F.3d at 

339-40 (holding that plaintiffs lacked standing in part because “any citizen who wants to learn 

the details of the transaction . . . can do so by visiting the Commission’s website”). 

The “existence of federal jurisdiction ordinarily depends on the facts as they exist when 

the complaint is filed.” Lujan, 504 U.S. at 569 n.4. Plaintiffs’ claims to have been deprived of 

timely information are thus of no moment, since the relevant question here is: did plaintiffs lack 

information to which they are entitled under FECA when they filed suit? As described supra, 

plaintiffs’ judicial complaint affirmatively alleges the very information plaintiffs complain was 

not “timely” disclosed — information that plaintiffs were, and continue to be, free to use for all 

the purposes they claim. Plaintiffs thus fail to allege any legally cognizable informational injury 

that could be remedied through this judicial review action.

2. Plaintiffs’ Disagreement With the Analyses in the Controlling 

Statements of Reasons and Their Preference for Different 

Administrative Determinations Are Insufficient to Confer Standing 

Plaintiffs’ mere disagreement with the legal analyses and conclusions in the Statement of 

Reasons issued by the controlling group of Commissioners is likewise insufficient to establish 

their standing to bring this action. Courts have repeatedly distinguished as not legally cognizable 

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“an injury that occurs when a person is deprived of information that a law has been violated.” 

Judicial Watch, 293 F. Supp. 2d at 46. Where plaintiffs merely seek information “‘that a 

violation of FECA has occurred,’ the plaintiff has not suffered the type of injury that satisfies the 

standing requirement.” Id. (quoting Common Cause, 108 F.3d at 418); see Wertheimer, 268 F.3d

at 1075 (holding that plaintiffs lacked standing to seek a legal determination that certain 

transactions constitute coordinated expenditures); Vroom v. FEC, 951 F. Supp. 2d 175, 178-79

(D.D.C. 2013) (holding that plaintiff lacked standing to seek a legal determination that certain 

political committees were affiliated). The D.C. Circuit has thus explicitly refused “[t]o hold that 

a plaintiff can establish injury in fact merely by alleging that he has been deprived of the 

knowledge as to whether a violation of the law has occurred.” Common Cause, 108 F.3d at 418; 

see id. (explaining that such a holding “would be tantamount to recognizing a justiciable interest 

in the enforcement of the law”). Indeed, “while ‘Congress can create a legal right . . . the 

interference with which will create an Article III injury,’ Congress cannot, consistent with 

Article III, create standing by conferring ‘upon all persons . . . an abstract, self-contained, 

noninstrumental ‘right’ to have the Executive observe the procedures required by law.’” Id.

(quoting Lujan, 504 U.S. at 573).

The D.C. Circuit and courts in this district have consistently applied that principle in 

circumstances underscoring plaintiffs’ lack of standing here. For example in Wertheimer,

several individuals associated with “good government” groups alleged that the Commission had 

failed to identify certain disbursements by the major political parties as impermissible 

coordinated expenditures. 268 F.3d at 1071-73. The plaintiffs attempted to rely on Akins in 

claiming that the Commission’s failure deprived them of “required information about the source 

and amount of candidates’ financing.” Id. at 1073. The D.C. Circuit held, however, that the 

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plaintiffs “do not really seek additional facts but only the legal determination that certain 

transactions constitute coordinated expenditures.” Id. at 1075. The Court of Appeals further 

concluded that the plaintiffs lacked standing because they not only failed “to show . . . that they 

[we]re directly being deprived of any information,” but also that “the legal ruling they [sought] 

might lead to additional factual information.” Id. at 1074. Here, as in Wertheimer, plaintiffs 

merely seek legal determinations that are different from the conclusions reached by the 

controlling group of Commissioners. Under Wertheimer, such an interest is insufficient. 

A court in this District similarly found no informational injury in Vroom, where the 

plaintiff had attempted to challenge the Commission’s dismissal of his administrative complaint 

alleging that one corporate political committee had improperly disaffiliated from another 

corporate political committee and in doing so, violated FECA’s contribution limits. 951 F. Supp. 

2d at 175-75, 178-79. Noting that the contributions by both political committees were “already 

fully disclosed,” the court concluded that the plaintiff did not seek additional facts about the 

political committees’ financing, but rather sought a legal determination that the committees were

affiliated and that their contributions in the aggregate exceeded FECA’s limits. Id. at 178-79. In 

other words the court held that Mr. Vroom, like plaintiffs here, lacked standing to obtain judicial 

review under section 30109(a)(8) on the basis of his disagreement with the Commission’s legal 

analysis and conclusions.

And in yet another case in this District, a court again found no informational injury where 

the plaintiff was “already aware of the facts” concerning the contributions at issue in his 

administrative complaint and thus was “really seeking . . . a legal determination by the 

Commission” that the allegations he had asserted established “a violation of the FECA,” i.e., “for 

the [Commission] to ‘get the bad guys,’ rather than disclose information.” Judicial Watch, 293 

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F. Supp. 2d at 47 (quoting Common Cause, 108 F.3d at 418). In Judicial Watch, as here, the 

plaintiff lacked “a justiciable interest in the enforcement of the law,” and the court accordingly 

found that his “alleged ‘informational injury’ [wa]s not cognizable injury under FECA, sufficient 

to satisfy the standing requirement.” The same is true here.

Like the unsuccessful plaintiffs in Wertheimer, Vroom, and Judicial Watch, CLC and 

Democracy 21 merely seek “a legal conclusion that carries certain law enforcement 

consequences,” Wertheimer, 268 F.3d at 1075, specifically the determination that certain entities 

and individuals violated FECA by “making ‘straw donor’ contributions in violation of various 

disclosure provisions” of the Act. (Compl. ¶ 1.) Even if plaintiffs’ allegations were true and 

their alternative legal analyses were correct, their desire “for the Commission to ‘get the bad 

guys’” is not a legally cognizable interest that confers standing to bring this action. Common 

Cause, 108 F.3d at 418; CREW, 401 F. Supp. 2d at 122. “[T]he government’s alleged failure to 

‘disclose’ that certain conduct is illegal by itself does not give rise to a constitutionally 

cognizable injury.” Wertheimer, 268 F.3d at 1074. This Court thus lacks jurisdiction under 

section 30109(a)(8) to hear plaintiffs’ challenge to the Commission’s dismissal of their 

administrative complaints.

3. Plaintiffs Lack Standing Because They Are Not Voters, Do Not Claim 

Any Voting Members, and Are Not Otherwise Participants in Political 

Elections and Campaigns 

As explained above, cases in this Circuit require that the information sought by section 

30109(a)(8) plaintiffs must “have a concrete effect on plaintiffs’ voting,” i.e., that plaintiffs (or 

their members) must be participants in political elections and campaigns. Alliance I, 

335 F.Supp.2d at 48 (emphasis added); Judicial Watch, 293 F. Supp. 2d at 46; CREW, 401 F. 

Supp. 2d at 120. In Alliance I, for example, the district court held that the plaintiffs had not 

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18

suffered a cognizable injury because they had “failed to show how information about the precise 

value of a mailing list . . . could have a concrete effect on plaintiffs’ voting in future elections 

involving different candidates.” 335 F. Supp. 2d at 48; see also Alliance II, 362 F. Supp. 2d at 

144-45 (same). Likewise in CREW, the court found that CREW’s interest in learning the value 

of a contact list that was allegedly donated to a presidential campaign as an unlawful in-kind 

contribution was insufficient to establish an informational injury. The court reached that 

conclusion, in part, because the value of the list could “[]not be useful to CREW in voting,” 

because of CREW’s status as a non-profit corporation that is not a “participant[] in the political 

election and campaign process” and that already knew the identities of those involved in the 

transaction. 401 F. Supp. 2d at 120-21. In affirming the district court’s decision, the D.C. 

Circuit distinguished Akins because unlike the voters in that case, “who wanted certain 

information so that they could make an informed choice among candidates in future elections, 

CREW cannot vote; it has no members who vote; and because it is a § 501(c)(3) corporation 

under the Internal Revenue Code, it cannot engage in partisan political activity.”3

 The same is 

true of plaintiffs here. 

CLC and Democracy 21 are merely “asserting a derivative harm — an alleged inability to 

help others (participants in the political process) realize that they may have been deprived of 

information.” CREW, 401 F. Supp. at 121. As the district court in CREW explained, “[T]o 

withstand the rigors of Article III, an injury in fact must be suffered by the plaintiff or the 

plaintiff’s members; one cannot piggyback on the injuries of wholly unaffiliated parties.” Id. 

 3 Section 501(c)(3) corporations are prohibited by law from participating in political campaigns. 

See 26 U.S.C. § 501(c)(3); 26 C.F.R. § 1.501(c)(3)-1.

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CLC and Democracy 21 are “simply the wrong part[ies] to seek redress for the injury that has 

allegedly been suffered.” Id.

4 

4. Plaintiffs Do Not Allege That Their Programmatic Activities Are 

Directly and Adversely Affected by the Challenged Dismissal 

Decisions 

In addition to lacking any legally cognizable informational injury, CLC and Democracy 

21 cannot demonstrate standing in any representative or associational capacity. Plaintiffs claim 

no members and are not trade associations, see supra p. 7; they are suing on their own behalf 

(Compl. ¶¶ 10-16) and are therefore required to allege a direct and adverse effect on specific 

programmatic concerns from the challenged dismissals to meet Article III’s injury requirement. 

See, e.g., Nat’l Taxpayers Union, Inc., 68 F.3d at 1433; Common Cause, 108 F.3d at 417; 

CREW, 401 F. Supp. 2d at 120. CLC and Democracy 21 have failed to do so. Their complaint 

nowhere alleges anything that could fairly be read to suggest that their resources have been 

depleted. Nor do plaintiffs allege concrete and direct harm to their programmatic activities.5 

Common Cause, 108 F.3d at 417. 

 4 One court in this district has held that, in addition to voters, candidates, authorized 

candidate committees, and other political committees may have standing to allege an 

informational injury under section 30109(a)(8). Kean for Congress Comm. v. FEC, 398 F. Supp. 

2d 26, 38 (D.D.C. 2005) (concluding that the campaign committee of an unsuccessful former 

candidate had alleged a cognizable informational injury). Kean for Congress does not support 

any claim of standing by plaintiffs here, however, because CLC and Democracy 21 are neither 

voters, nor do they claim to be membership organizations with members who are voters, nor are 

they registered as political committees. See supra p. 7; (Compl. ¶¶ 10-16). 

5 It is well established that resources expended on litigation cannot be deemed injury for Article III 

purposes. “‘An organization cannot . . . manufacture the injury necessary to maintain a suit from its 

expenditure of resources on that very suit.’” National Taxpayers Union, 68 F.3d at 1434 (quoting Spann 

v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C. Cir. 1990)). This position “would enable every litigant 

automatically to create an injury in fact by filing a lawsuit,” and “has been expressly rejected by the 

Supreme Court.” Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 799 n.2 (D.C. Cir. 1987) (citing 

Diamond v. Charles, 476 U.S. 54, 55 (1986)).

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Instead, plaintiffs assert that they use information obtained from disclosure reports filed 

with the Commission for “legal analysis and advice” (Compl. ¶ 11), “campaign finance 

litigation” (id. at ¶ 12), “public education efforts” (id. at ¶ 14), “in preparing testimony before 

Congress and state and local legislatures and agencies, publications, op-eds, blog posts and other 

commentary” (id. at ¶ 13; footnote omitted), and so on. But plaintiffs’ list of the typical ways in 

which they utilize campaign finance-related information offers only abstract generalities without 

specifying, for example, any particular litigation, scheduled testimony, or current or looming 

outreach activity that the Commission’s dismissal decisions challenged here might have 

hindered. This amounts to little more than speculation that the “timely information” plaintiffs 

claim to have been deprived of (Compl. ¶¶ 6, 60, 63, 66, 69) might someday prove useful in one 

of these broad categories of activity. Such conjecture hardly meets the exacting definition of 

informational injury: “[T]his type of injury is narrowly defined; the failure must impinge on the 

plaintiff’s daily operations or make normal operations infeasible in order to create injury-infact.” Akins v. FEC, 101 F.3d 731, 735 (D.C. Cir. 1996) (en banc), vacated on other grounds, 

524 U.S. 11 (1998); see supra pp. 10-11. 

This case is on all fours with CREW, 401 F. Supp. 2d 115, and for the very same reasons 

identified by the court in that case, plaintiffs here have not suffered any injury to their 

programmatic activities. In CREW, the district court found that the plaintiff non-profit 

organization had not sufficiently identified any programmatic activities adversely affected by the 

Commission’s dismissal of its administrative complaint, nor could it since the plaintiff already 

possessed the information it sought. Id. at 121. Here, as in CREW, plaintiffs have not “specified 

any programmatic concerns that have been concretely and directly impacted adversely by the 

FEC’s actions,” nor have they identified any “particular plan” for using any information they 

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21

could obtain if they were to prevail in this action. Id. at 122-23. Moreover, while the court in 

CREW acknowledged “that it may be difficult to detail how information will be used when 

a plaintiff does not yet possess that information,” here, as in CREW, “such hardship is not 

implicated [because plaintiffs are] already privy to the information that [they could] seek[].” Id.; 

see supra pp. 8-9. Plaintiffs thus lack any injury in fact that is “concrete,” “distinct and 

palpable,” and “actual or imminent.” McConnell v. FEC, 540 U.S. 93, 225 (2003), overruled on 

other grounds by Citizens United v. FEC, 558 U.S. 310 (2010). Indeed, despite their own 

affirmative allegations regarding the original sources of the contributions at issue in their 

administrative complaints, see supra pp. 8-9, plaintiffs do not even aver that they have 

publicized or plan to publicize the facts they already have, further suggesting that any 

generalized programmatic injuries are neither actual nor imminent.

Plaintiffs’ remaining allegations (Compl. ¶¶ 5-6) of harm to abstract social interests are 

even vaguer and do not, in any event, support standing. Alleged harms shared in equal measure 

by all citizens, e.g., that “[e]ffective enforcement of FECA disclosure requirements is essential to 

ensure that the public can trust it is receiving accurate information” and that dismissal of their 

complaints “undermined FECA’s purposes, including its goal of promoting transparency in 

elections” are not cognizable injuries. Courts, including the Supreme Court, have “consistently 

held that a plaintiff raising only a generally available grievance about government — claiming 

only harm to his and every citizen’s interest in proper application of the Constitution and laws, 

and seeking relief that no more directly and tangibly benefits him than it does the public at large 

— does not state an Article III case or controversy.” Lujan, 504 U.S. at 573-74; see CREW, 401 

F. Supp. 2d at 122 (“It is axiomatic that standing cannot rest on a plaintiff’s alleged interest in 

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22

having the law enforced . . . because such an injury is too generalized and ideological.”) (citation 

omitted).

In sum, plaintiffs have failed to provide evidence of a concrete and particularized injury 

to any “discrete programmatic concerns,” let alone demonstrate that the plaintiffs are being 

directly and adversely affected by the organization’s purported lack of “timely” information 

regarding the contributions that are the subject of their administrative complaints. This failure 

independently reveals that the plaintiffs cannot demonstrate Article III standing. 

CONCLUSION

For all the foregoing reasons, the Court should dismiss plaintiffs’ complaint for lack of 

jurisdiction. 

Respectfully submitted,

Lisa J. Stevenson (D.C. Bar No. 457628) Erin Chlopak (D.C. Bar No. 496370)

Deputy General Counsel – Law Acting Assistant General Counsel

lstevenson@fec.gov echlopak@fec.gov

Kevin Deeley s/ Steve Hajjar

Acting Associate General Counsel Steve Hajjar

kdeeley@fec.gov Attorney

 shajjar@fec.gov

July 1, 2016 FOR THE DEFENDANT

FEDERAL ELECTION COMMISSION

999 E Street NW

Washington, DC 20463

(202) 694-1650

Case 1:16-cv-00752-JDB Document 13 Filed 07/01/16 Page 31 of 32
1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

CAMPAIGN LEGAL CENTER and )

DEMOCRACY 21 )

)

Plaintiffs, ) Civ. No. 16-752 (JDB)

)

v. )

) [PROPOSED] ORDER

FEDERAL ELECTION COMMISSION, )

)

Defendant, )

)

F8, ELI PUBLISHING, and )

STEVEN J. LUND, )

)

Intervenor-Defendants. )

)

[PROPOSED] ORDER

Upon consideration of the defendant Federal Election Commission’s Motion to 

Dismiss, any opposition filed by plaintiffs Campaign Legal Center and Democracy 21, and the 

Commission’s reply, it is hereby

ORDERED that the Federal Election Commission’s Motion to Dismiss is GRANTED.

Dated: _______________, 2016 ____________________________

The Hon. John D. Bates 

United States District Judge

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