1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

CAMPAIGN LEGAL CENTER, et al., )

)

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

)

v. )

)

FEDERAL ELECTION COMMISSION, )

)

Defendant, )

) REPLY IN SUPPORT OF

F8, et al., ) MOTION TO DISMISS

)

Intervenor-Defendants. )

)

FEDERAL ELECTION COMMISSION’S REPLY IN SUPPORT

OF ITS MOTION TO DISMISS

In its opening memorandum, the Federal Election Commission (“FEC” or 

“Commission”) showed that plaintiffs Campaign Legal Center (“CLC”) and Democracy 21 lack 

Article III standing to pursue this action for judicial review of the Commission’s dismissal of 

certain administrative complaints. The Commission explained that to demonstrate standing to 

obtain review pursuant to the Federal Election Campaign Act’s (“FECA” or “Act”) narrow 

review provision, 52 U.S.C. § 30109(a)(8), a plaintiff must identify a concrete and particularized 

injury, such as an informational one, resulting from the Commission’s dismissal of its 

administrative complaint. And it clarified that a legally cognizable informational injury in this 

context must concern a deprivation of information that is useful in electoral voting and required 

by Congress to be disclosed. A desire merely to establish that FECA has been violated — what 

plaintiffs plainly seek here — is inadequate. The Commission also detailed courts’ clear and 

repeated holdings that section 30109(a)(8) plaintiffs (or their members) must be voters or other 

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participants in political elections and campaigns. Non-membership organizations like CLC and 

Democracy 21 cannot demonstrate standing based on derivative harms resulting from an alleged 

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

individuals may use in voting. 

Plaintiffs’ response to the Commission’s dismissal motion confirms their lack of 

standing. Rather than explain how their allegations satisfy their burden, plaintiffs attempt to 

minimize it by misconstruing the holdings in two recent cases. Those case actually support the 

FEC’s position, emphasizing that even where, as here, plaintiffs have invoked a statutory right to 

sue, they still must satisfy Article III’s injury-in-fact requirement by demonstrating a concrete 

and particularized injury. Plaintiffs fail to do so. Indeed, their opposition underscores the 

attenuated connection between the dismissal decisions at issue here and plaintiffs’ hypothetical 

injuries. Plaintiffs speculate about the “broad impact of the FEC’s actions” in future 

circumstances, suggest that “others donors” may rely on the dismissal decisions as a “roadmap” 

to violate FECA in the future, and hyperbolically suggest that the challenged dismissal decisions 

“cast[] doubt on the accuracy of all donor information reported by super PACs.” (Pls.’ Opp’n at 

2, 3, 24 (emphasis added).) But neither plaintiffs’ erroneous legal arguments nor their 

unfounded speculation about future circumstances that are not the subject of any of their 

administrative complaints cure the deficiencies apparent on the face of their judicial complaint. 

Plaintiffs’ opposition makes clear that what they really seek here is a determination whether 

FECA has been violated. Because plaintiffs sustain no particularized injury by virtue of not 

having received such a declaration, this case should be dismissed.

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ARGUMENT

I. PLAINTFFS FAIL TO SATISFY THEIR BURDEN TO STATE A PLAUSIBLE 

CLAIM OF STANDING IF THE FACTUAL ALLEGATIONS IN THEIR 

COMPLAINT ARE ACCEPTED AS TRUE

It is well settled that this Court has “an affirmative obligation to ensure that it is acting 

within the scope of its jurisdictional authority.” Citizens for Responsibility & Ethics in 

Washington (“CREW”) v. FEC, 799 F. Supp. 2d 78, 84 (D.D.C. 2011); Jones v. Ashcroft, 321 F. 

Supp. 2d 1, 5 (D.D.C. 2004) (citation omitted); see also Herbert v. Nat’l Acad. of Sciences, 974 

F.2d 192, 196 (D.C. Cir. 1992) (“[A]s courts of limited jurisdiction, we are affirmatively obliged 

to consider whether the constitutional and statutory authority exist for us to hear each dispute put 

to us.”). It is also not disputed that plaintiffs bear the burden of establishing the elements of 

Article III standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). 

To survive the Commission’s motion to dismiss under Federal Rule of Civil Procedure

12(b)(1), plaintiffs’ complaint “must contain sufficient factual matter, accepted as true, to ‘state a 

claim [of standing] that is plausible on its face.’” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 

2015) (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Court 

must accept as true all of the plaintiff’s well-pled factual allegations and draw all reasonable 

inferences in favor of the plaintiff, but need not accept the plaintiff’s legal conclusions as true. 

See Alexis v. District of Columbia, 44 F. Supp. 2d 331, 336-37 (D.D.C. 1999).

As explained further below, plaintiffs allege that specific persons made contributions in 

the name of another that should have been disclosed, by routing the funds through limited 

liability companies and other entities. See infra pp. 16-17. In each case where plaintiffs 

continue to seek filing of disclosure reports by the alleged straw entity, plaintiffs allege that the 

entity engaged in no activity other than the purported contributions at issue. (Pls.’ Opp’n at 41.) 

Because the Court must accept those allegations as true at this stage of the proceedings, plaintiffs 

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have the factual information they seek regarding the funds alleged to have been contributed. Id. 

See infra pp. 16-17. 

The question whether plaintiffs have adequately alleged a legally cognizable injury is a 

legal determination, and “the tenet that a court must accept as true all of the allegations contained 

in a complaint is inapplicable to legal conclusions,” Iqbal, 556 U.S. at 678.1 Jurisdiction is not 

presumed to lie in the plaintiffs’ favor; plaintiffs are required to demonstrate a concrete and 

particularized informational injury. See FEC Mem. at 11-12; Spokeo, Inc. v. Robins, 136 S. Ct. 

1540, 1549 (2016) (clarifying that a plaintiff does not “automatically satisf[y] the injury-in-fact 

requirement whenever a statute grants a person a statutory right and purports to authorize that 

person to sue to vindicate that right” and emphasizing that “Article III standing requires a 

concrete injury even in the context of a statutory violation”); CREW, 799 F. Supp. 2d at 85-91

(holding that plaintiffs in section 30109(a)(8) challenge lacked standing and granting 

Commission’s motion to dismiss); Vroom v. FEC, 951 F. Supp. 2d 175 (D.D.C. 2013) (same).

II. PLAINTIFFS HAVE FAILED TO IDENTIFY A LEGALLY COGNIZABLE 

INJURY

As previously explained (FEC Mem. at 10-11), where a plaintiff seeking judicial review 

under FECA claims an informational injury, that party must allege that the challenged dismissal 

decision deprived the party of information that was required to be disclosed under FECA and 

“the nature of the information allegedly withheld is critical to the [court’s] standing analysis.” 

Common Cause v FEC, 108 F.3d 413, 417 (D.C. Cir. 1997) (per curiam); CREW v FEC, 401 F. 

Supp. 2d 115, 120 (D.D.C. 2005). Specifically, the information of which a plaintiff claims to 

have been deprived must be “directly related to voting” to constitute a legally cognizable injury. 

 1 When courts reach the merits in the context of judicial review of an agency decision, the 

ordinary summary judgment standard of construing facts in the light most favorable to the 

nonmovant is of course inapplicable. See, e.g., Marshall Cty. Health Care Auth. v. Shalala, 

988 F.2d 1221, 1225-26 (D.C. Cir. 1993).

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FEC v. Akins, 524 U.S. 11, 24-25 (1998). Courts in this District have explained that the soughtafter information must “have a concrete effect on plaintiffs’ voting,” i.e., 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); Kean for Congress Comm. v. FEC, 398 F. Supp. 2d 26, 

38 (D.D.C. 2005) (explaining that the relevant group that may have standing to bring an action 

under section 30109(a)(8) include “political committees, candidates, and candidate 

committees”).

The D.C. Circuit has further explained, in the specific context of judicial review under 

section 30109(a)(8), that where an organizational plaintiff brings suit on its own behalf, it must 

establish that the challenged dismissal decision caused a “‘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 ar 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.”). 

Plaintiffs’ opposition confirms that they cannot satisfy these threshold jurisdictional 

requirements. Plaintiffs still do not identify how the specific information they could potentially 

obtain as a result of this action has a concrete and particularized effect on plaintiffs’ electoral 

voting, or the voting of any of their members since they have none. Instead, plaintiffs devote

much of their opposition to describing generalized concerns about the adequacy and accuracy of 

reporting of donors to super PACs and such PACs’ compliance generally with other FECA 

provisions (e.g., Pls.’ Opp’n at 18, 21, 25-26), as well as to speculating about various 

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hypothetical consequences plaintiffs believe may result from the Commission’s alleged creation 

of “a roadmap” for future violations of these provisions (e.g., Pls.’ Opp’n at 20, 22-24, 26, 28

(speculating about future instances of alleged quid pro corruption, constitutional litigation, 

administrative rulemakings, and efforts to “follow the money”)). As the Commission detailed in 

its opening brief and explains further below, plaintiffs’ concerns about the Commission’s 

enforcement of FECA, in the underlying MURs or in the future, are insufficient to confer 

standing to pursue this judicial review action.

Plaintiffs’ opposition also confirms the lack of any legal authority supporting their 

attempt to satisfy standing based on derivative harms resulting from their alleged inability to help 

others obtain information that those individuals may use in voting. And plaintiffs’ recognition 

that they merely seek information “corroborating” what they affirmatively allege in their 

complaint further confirms their lack of any legally cognizable informational injury here.

A. Plaintiffs Do Not Claim a Concrete and Particularized Informational Injury 

Resulting From the Challenged Dismissal Decisions

Throughout their opposition, plaintiffs repeatedly emphasize the importance of FECA’s 

disclosure provisions and the provision prohibiting contributions in the name of another. (See, 

e.g., Pls.’ Opp’n at 1 (“[S]traw donor[s] violate[] the fundamental purposes of the federal 

campaign finance laws”); id. at 3 (“Super PACs are the only committees . . . whose artificial 

forms can easily be manipulated for the purpose of concealing or facilitating campaign-related 

contributions and expenditures); id. at 14-15 (“FECA’s prohibition on making contributions ‘in 

the name of another’ maintains the integrity and effectiveness of the donor information that 

political committees . . . are required to report to the FEC ...); id. at 18 (“‘disclosure 

requirements deter actual corruption and avoid the appearance of corruption’”). But the

importance of those provisions is neither in dispute nor relevant to determining whether the 

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plaintiff organizations have suffered a concrete and particularized informational injury as a result 

of the specific FEC dismissal decisions they challenge. 

Plaintiffs’ general concerns about violations of FECA’s disclosure requirements and the 

Act’s prohibition on contributions in the name of another are likewise insufficient to demonstrate 

a concrete and particularized informational injury here. Plaintiffs’ speculation that the dismissal 

decisions they seek to challenge could “create[] a roadmap for other donors to evade applicable 

disclosure laws” in the future (Pls.’ Opp’n at 24) is entirely hypothetical and does not 

demonstrate any actual, concrete injury particularized to plaintiffs resulting from the specific 

dismissal decisions plaintiffs challenge here. Similarly, plaintiff’s allegations (Pls.’ Opp’n at 24-

25) that they have filed other administrative complaints against other entities for other alleged 

violations also does not demonstrate any informational injury to plaintiffs resulting from the 

Commission’s actions in the enforcement matters at issue here. Nor do plaintiffs demonstrate a 

cognizable informational injury by alleging concerns about “verify[ing] that super PACs are 

complying with the applicable source prohibitions” (Pls.’ Opp’n at 25); “ensur[ing] accurate 

reporting under FECA of the donors funding independent expenditures” (Pls.’ Opp’n at 27); or a 

general desire for “a clear understanding of the financing of federal elections” (id. at 26). 

Likewise insufficient are plaintiffs’ assertions (Pls.’ Opp’n at 24) that their administrative 

agency practice has been supposedly harmed by the Commission’s “failure to investigate, as well 

as [the Commission’s] general failure to ensure accurate donor disclosure.” Not only do such 

claims fail to identify any concrete or particularized informational injury, but they reveal that the 

essence of this lawsuit is plaintiffs’ deficient argument that the Commission has failed to “get the 

bad guys.” Common Cause, 108 F.3d at 418; see Pls.’ Opp’n at 2 (complaining, erroneously, 

that the FEC’s dismissal of specific administrative complaints “effectively sanctioned” violations 

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of FECA). But “[i]t is axiomatic that standing cannot rest on a plaintiff’s alleged interest in 

having the law enforced . . . because such an injury is too generalized and ideological.” CREW, 

401 F. Supp. 2d at 22 (citation omitted). Indeed, the vast majority of plaintiffs’ allegations 

involve two layers of efforts to have the law enforced. (See, e.g., Pls.’ Opp’n at 24 (referencing 

CLC’s efforts to “ensure that the agency is properly . . . enforcing federal election laws and file[] 

complaints . . . against individuals or organizations that violate the law”) (quoting Compl. ¶ 10).) 

Plaintiffs’ claim that they will be injured absent findings regarding the FECA violations alleged 

here because of an impact on their efforts to establish other FECA violations poses a double 

“get-the-bad-guy” problem.

Plaintiffs’ opposition thus reveals their inability to satisfy their burden to demonstrate a 

legally cognizable informational injury resulting from the specific dismissal decisions they 

challenge. Plaintiffs instead attempt to diminish their burden by misconstruing two recent 

decisions as permitting them to demonstrate standing merely by alleging a violation of a 

procedural right. Plaintiffs misinterpret those decisions. 

First, contrary to plaintiffs’ suggestion (Pls.’ Opp’n at 4, 13-14), Spokeo, Inc. v. Robins, 

136 S. Ct. 1540 (2016), does not stand for the proposition that plaintiffs’ mere allegation of a 

“violation of a procedural right granted by statute” is sufficient to demonstrate their standing. In

Spokeo, the Supreme Court vacated a Ninth Circuit decision finding that an allegation that the 

defendant had violated the plaintiff’s statutory rights under the Fair Credit Reporting Act 

(“FCRA”), 15 U.S.C. § 1681 et seq., was sufficient to confer Article III standing. The Supreme 

Court held that the court of appeals had failed to consider whether the alleged procedural 

violation — the defendant’s alleged failure to comply with FCRA’s requirements concerning the 

creation and use of consumer reports — caused the plaintiff an injury that was both 

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particularized and concrete. See Spokeo, Inc., 136 S. Ct. at 1550 (“Because the Ninth Circuit 

failed to fully appreciate the distinction between concreteness and particularization, its standing 

analysis was incomplete. It did not address the question . . . whether the particular procedural 

violations alleged in this case entail a degree of risk sufficient to meet the concreteness 

requirement.”) Particularly relevant here, and contrary to plaintiffs’ description of the Court’s 

holding, Spokeo emphasized that “Congress’ role in identifying and elevating intangible harms 

does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a 

statute grants a person a statutory right and purports to authorize that person to sue to vindicate 

that right.” Id. at 1549 (emphasis added). The Court echoed the well settled principle that 

“Article III standing requires a concrete injury even in the context of a statutory violation,” and 

explained that a plaintiff thus “could not, for example, allege a bare procedural violation, 

divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III.” Id. 

Plaintiffs cite (Pls.’ Opp’n at 14) the Spokeo Court’s observation, referencing FEC v. 

Akins, 524 U.S. 11, 20-25 (1998), that “in some circumstances” a plaintiff’s “inability to obtain 

information that Congress ha[s] decided to make public” under FECA may constitute injury-infact. 136 S. Ct. at 1549. But as the Akins Court itself explained, those circumstances involve 

alleged injuries suffered by voters. 524 U.S. at 22 (distinguishing taxpayer standing from “voter 

standing”). Indeed, as the Spokeo Court explained, Akins “confirm[ed] that a group of voters’

‘inability to obtain information’ that Congress had decided to make public is a sufficient injury 

in fact to satisfy Article III.” 136 S. Ct. at 1549 (emphasis added). But plaintiffs are not voters 

and do not have any voting members. See infra pp. 14-16; (FEC Mem. at 17-19).

Second, and for similar reasons, the D.C. Circuit’s recent decision in Friends of Animals 

v. Jewell (“FOA II”), No. 15-5223, 2016 WL 3854010 (D.C. Cir. July 15, 2016) (cited at Pls.’ 

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Opp’n at 14), also does not support plaintiffs’ claim to have informational standing here. In FOA 

II, the Court of Appeals affirmed the district court’s dismissal of a complaint filed by an 

organization that claimed informational standing to challenge the Secretary of Interior’s alleged 

failure to act in accordance with a deadline in the Endangered Species Act, 16 U.S.C. § 1531 et 

seq. Id. at *1. The court in FOA II emphasized that for a plaintiff to establish an informational 

injury that is both concrete and particularized, he “may need to allege that nondisclosure has 

caused it to suffer the kind of harm from which Congress, in mandating disclosure, sought to 

protect individuals or organizations like it.” 2016 WL 3854010, at *3. In support, the court 

cited and contrasted three cases involving standing under FECA, none of which support the 

organizational plaintiffs’ standing here: Akins involved voter standing, 524 U.S. at 21-23, and 

Shays v. FEC, 528 F.3d 914, 923 (D.C. Cir. 2008), concerned the standing of members of 

Congress engaged in campaigns for office. And in Nader, the court explained that the plaintiff, a 

voter and former presidential candidate, had not suffered informational injury because he sought, 

as plaintiffs do here, merely for the Commission “get the bad guys.” Nader v. FEC, 725 F.3d 

226, 230 (D.C. Cir. 2013). 

Spokeo and FOA II thus make clear that plaintiffs’ bare allegations here of informational 

“injury in and of itself” (Pls.’ Opp’n at 13) are not enough and their failure to identify a concrete 

and particularized injury that is actual or imminent, and not conjectural or hypothetical, requires 

the dismissal of this case. 

B. Plaintiffs Have Not Identified Any Programmatic Concerns That Are 

Directly and Adversely Affected by the Challenged Dismissal Decisions 

As previously explained (FEC Mem. at 12), where, as here, 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 —

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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., 68 F.3d at 1433). “The 

organization must allege that discrete programmatic concerns are being directly and adversely 

affected by the challenged action.” Id. (emphasis added). In CREW, 401 F. Supp. 2d 115, the 

district court thus determined that the plaintiff organization had not adequately alleged 

impairment to its programmatic activities because it had failed to identify specific plans for the 

information it was purportedly denied. The court explained that the D.C. Circuit’s opinion in 

Common Cause required CREW to “identify exactly how its alleged lack of access to the 

[information it claimed to seek] has impeded its programmatic activities.” Id. at 122. The court 

concluded that CREW failed to do so because it “never specified any programmatic concerns 

that have been concretely and directly impacted adversely by the FEC’s actions,” i.e., it had 

failed to identify any “particular plan . . . for the use of the information.” Id. 

The same is true of plaintiffs here. Neither their complaint nor their opposition to the 

FEC’s motion to dismiss identifies any “particular plan” for using any information they could 

potentially obtain if they were to prevail in this action. Indeed, although plaintiffs have devoted 

over ten pages of their opposition to providing additional details about their use of campaignfinance-related information in their various activities and programs generally (Pls.’ Opp’n at 17-

28), conspicuously absent from those pages is any explanation of how the lack of the 

“corroborating” information plaintiffs hope to obtain through this lawsuit specifically has 

harmed those activities and programs. Plaintiffs’ generalized interest in the Commission’s 

investigation and enforcement of alleged campaign finance violations (see, e.g., Pls.’ Opp’n at 3, 

5, 17-28), allegations about a “general failure to ensure accurate donor disclosure” (id. at 24), 

and speculation that the Commission has “created a roadmap” for future violations of FECA (id.) 

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do not demonstrate how the dismissal decisions at issue here have concretely and directly 

harmed plaintiffs’ programs. And their claim that without “accurate donor information,” they 

must divert resources into assisting “reporters and other media representatives” (Pls.’ Opp’n at 

20), and filing additional complaints that with the Commission (id. at 24-25) does not 

demonstrate that the dismissal decisions at issue here have harmed plaintiffs’ programmatic 

activities.2 

Moreover, as the Commission previously noted (FEC Mem. at 21), plaintiffs have yet to 

identify any plan to use the information they already possess, whether obtained through FECA 

disclosures or otherwise. In their opposition, for example, plaintiffs acknowledge (Pls.’ Opp’n at 

40) that Edward Conard has “been disclosed pursuant to FECA’s reporting provisions” as the 

source of the contributions at issue in MUR 6485, but plaintiffs have not identified any activity 

or program for which they intend to use such information. And, as explained above, plaintiffs 

plainly lack standing to obtain “information” concluding that the transaction at issue in that 

MUR violated FECA.3

Plaintiffs purport to rely on PETA v. Department of Agriculture, 797 F.3d 1087 (D.C. Cir. 

2015), and Action Alliance of Senior Citizens of Greater Philadelphia v. Heckler, 789 F.2d 931 

 2 Plaintiffs’ particular assertion (Pls.’ Opp’n at 24) that they “had to divert resources” to 

file “an additional four complaints” alleging “blatant violations” of FECA resulting from the 

supposed “roadmap” created by the dismissal decisions at issue in this case defies logic. The 

four complaints plaintiffs identify were filed in February and March 2016 (see id. at 24-25), i.e., 

before the April 1, 2016 Statements of Reasons explaining the dismissal decisions challenged 

here were issued. 

3 Plaintiffs’ generalized discussion (Pls.’ Opp’n at 21-23) of their “work in litigation” 

defending “challenges to the constitutionality of campaign finance laws, governmental ethics 

rules and various political disclosure laws, as well as affirmative cases” does not demonstrate 

how the information plaintiffs could potentially obtain in this lawsuit would advance those other 

litigation interests. Any allegation of injury to this kind of activity is inherently speculative and 

depends on which legal matters and issues may arise in the future.

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(D.C. Cir. 1986) (“Action Alliance”), but neither case supports plaintiffs’ overly generalized 

programmatic injury claims. In PETA, the D.C. Circuit concluded that “[b]ecause PETA has 

expended resources to counter [the USDA’s allegedly unlawful failure to apply the Animal 

Welfare Act’s (“AWA”) general animal welfare regulations to birds], it has established Article 

III organizational standing.” 797 F.3d at 1095. PETA is clearly distinguishable. First, PETA

does not involve informational injury under FECA or the programmatic injury requirement 

identified in Common Cause for organizations suing on their own behalf under the Act. So 

PETA cannot cast doubt on the FECA cases cited by the Commission that require injury to 

programmatic activity far less attenuated than those claimed by plaintiffs in this case. See supra

pp. 4-5. 

Second, unlike what plaintiffs have alleged here, the resources expended by PETA 

directly resulted from the challenged agency actions. The court of appeals found that as a result 

of the USDA’s unwillingness to bring birds within the federal AWA, PETA itself investigated 

allegations of bird mistreatment and was forced to file complaints with “pertinent local, state, 

and/or federal agencies.” Id. at 1095-96. Here, by contrast, plaintiffs take no comparable 

actions, particularly none related to the purported violations at issue here, and instead allege only 

harm to their “overarching organizational mission.” (See Pls.’ Opp’n at 17-28). 

For much the same reasons, the other case relied on by the plaintiffs to support their 

argument that they have suffered injury to their programmatic activities, Action Alliance, is no 

more helpful to them. Like PETA, Action Alliance does not involve standing under FECA, and 

the injury suffered by the plaintiffs in that case was far less speculative and attenuated than 

plaintiffs’ claimed injuries here. Specifically, the court concluded that the challenged agency 

actions — publishing certain regulations and failing to act on other proposed regulations —

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would directly hamper the ability of the plaintiff organizations to provide assistance to their 

members. Action Alliance, 789 F.2d at 937 (explaining that the plaintiffs had suffered an 

information injury because the information denied them “would enhance the capacity of 

[plaintiffs] to refer members to appropriate services and to counsel members when unlawful age 

discrimination may have figured in a benefit denial”). Here, by contrast, plaintiffs have no 

members, and the relation between the information purportedly denied them and the injury 

suffered is much more speculative and indeterminate. 

C. Informational Injury Under 52 U.S.C. § 30109(a)(8) Is Limited to Individuals 

and Organizations that Are Participants in Political Elections and 

Campaigns 

As the FEC previously explained (Mem. at 17-19), CLC and Democracy 21 lack standing 

for the separate and additional reason that they are not voters, do not claim to have any members 

who vote, and are not otherwise participants in political elections and campaigns. See, e.g., 

Common Cause, 108 F.3d at 418 (explaining that a particularized informational injury is 

sufficient to create standing where plaintiffs have alleged that “voter[s] [were] deprived of useful 

[political] information at the time” of voting) (citation omitted); Alliance I, 335 F. Supp. 2d at 48 

(explaining that plaintiffs had not suffered cognizable injury because they had “failed to show 

how information about the [sought after information] could have a concrete effect on plaintiffs’ 

voting in future elections involving different candidates”); CREW, 401 F. Supp. 2d at 120-21 

(holding that CREW lacked standing in part because the value of the information it claimed to 

have been deprived of could “[]not be useful to CREW in voting,” due to CREW’s status as a 

non-profit corporation that is not a “participant[] in the political election and campaign process”).

Cases in this circuit show that section 30109(a)(8) plaintiffs must be voters, have voting 

members, or at least be participants in political elections and campaigns, i.e., political 

committees, candidates, and candidate committees. None of the cases cited by plaintiffs (Pls.’ 

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Opp’n at 28-30) supersede those directly applicable holdings. As explained above, supra pp. 12-

14, neither PETA nor Action Alliance involves plaintiffs suing the Commission under FECA. 

Plaintiffs’ remaining cases fare no better.

Contrary to plaintiffs’ assertion (Pls.’ Opp’n at 30-31), the district court in Kean for 

Congress v. FEC, 398 F. Supp. 2d 26 (D.D.C. 2005), did not hold that non-political-committee 

organizations like CLC and Democracy 21 have standing under section 30109(a)(8). On the 

contrary, to the extent the court in Kean answered that question implicitly, it suggested that such 

entities do not have standing: “The relevant group intended to benefit from the FECA disclosure 

requirements stretches beyond voters to include political committees, candidates, and candidate 

committees,” id. at 38 (emphasis added), i.e., a group that does not include the plaintiff 

organizations. 

And CREW v. FEC, 401 F. Supp. 2d 115, which plaintiffs also argue supports their 

standing claims, actually undermines them. In CREW, the district court found that the plaintiff 

non-profit organization did not establish an informational injury. Plaintiffs try (Pls.’ Opp’n at 

31) to diminish the significance of the court’s conclusion that the plaintiff, “a 501(c)(3) nonprofit, tax-exempt organization that cannot vote and is legally foreclosed from contributing to or 

participating in the political process,” and which “does [not] have any members who participate 

in the political process,” was “simply the wrong party to seek redress for the injury that has 

allegedly been suffered.” Id. at 121. But it is not true, as plaintiffs argue (Pls.’ Opp’n at 31), that 

the court in CREW was less interested in CREW’s status as a non-voter than the character of the 

information of which it claimed to have been deprived. It was only after the court explained that 

CREW was “simply the wrong party to seek redress” that the court explained that “[m]oreover, 

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the Court is not convinced that the precise dollar value of the list is ‘useful in voting’ at all, even 

to the participants in the political process.” Id. (first emphasis added).

Plaintiffs’ discussion of CREW also disregards the D.C. Circuit’s opinion affirming the 

district court’s decision in that case and distinguishing it from the Supreme Court’s opinion in 

Akins. The Court of Appeals explained that unlike the voters in Akins, “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.” CREW v. FEC, 

475 F.3d 337, 339 (D.C. Cir. 2007). That holding forecloses plaintiffs’ standing arguments here.

D. Plaintiffs’ Interest in “Corroborating” the Information They Already Possess 

Does Not Show Cognizable Informational Injury 

As the Commission previously explained (FEC Mem. at 12-14), courts in this Circuit 

have repeatedly explained that where the information plaintiffs were purportedly deprived of is 

already available to them, they lack standing to bring their claims, regardless of when they

obtained the information they sought through their underlying administrative complaints. And 

because plaintiffs’ judicial complaint repeatedly identifies the individuals that plaintiffs allege 

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

administrative complaints, plaintiffs have not suffered an informational injury. (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).)4

 4 Plaintiffs wrongly claim (Pls.’ Opp’n at 33) that the Commission’s “entire jurisdictional 

argument principally rests” on this particular argument. In fact, plaintiffs’ possession of the 

information they purport to seek is only one of several independent reasons that plaintiffs lack 

standing. See supra pp. 6-16; FEC Mem. at 14-22. 

Case 1:16-cv-00752-JDB Document 19 Filed 08/26/16 Page 16 of 19
17

 Plaintiffs’ opposition fails to refute that, according to the facts alleged in the complaint,

they already possess the information they seek. Plaintiffs’ judicial complaint identifies Edward 

Conard as having “authorized W Spann to make the $1 million contribution” to Restore Our 

Future (Compl. ¶ 32; see id ¶ 31, 34); Steven J. Lund as “the source of the two $1 million 

contributions” to Restore Our Future in March 2011 (id. ¶ 36; see id. ¶ 37); Richard Stephenson 

as having “made twenty contributions totaling over $12 million” to the super PAC 

FreedomWorks for America through the SIG and KPD (id. ¶ 41); and Pras Michel as having 

“provided $1.225 million in total to Black Men Vote,” including $875,000 contributed through 

SPM Holdings LLC (id. ¶ 49). With respect to the purported straw entities, for the ones for 

which plaintiffs seek disclosure reports, plaintiffs allege that those entities engaged in no activity 

other than the political contributions at issue. (Pls.’ Opp’n at 41.) Plaintiffs thus seek no 

information beyond the contributions they have already alleged. Plaintiffs do not dispute that 

they have made such allegations and emphasize that what they seek is not the facts themselves 

but “corroborat[ion]” of the information they already have. (Pls.’ Opp’n at 3, 32.) Plaintiffs thus 

focus on form over content and explain that what they seek through this lawsuit is to obtain the 

information they already have “in the particular manner, form and time prescribed by statute.” 

(Pls.’ Opp’n at 34.) But an informational injury is not sustained by the absence of 

“corroboration” of information plaintiffs already possess. 

In Judicial Watch v. FEC, 293 F. Supp. 2d 41, 47 & n.9 (D.D.C. 2003), for example, the 

court held in part that the plaintiff lacked a cognizable informational injury where he was already 

“aware of the facts” concerning certain allegedly unreported contributions. Although it is true 

that the contributions at issue in Judicial Watch were the plaintiff’s own, it is also true that if the 

only information that is relevant to determining informational injury is that which is “in the 

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18

particular manner, form and time prescribed by statute,” what plaintiff knew about his own 

contributions would have been irrelevant since the Commission itself “never confirmed” that 

information. (See Pls.’ Opp’n at 34-35.) Indeed, plaintiffs lack any support for their arguments 

that the only information relevant to determining if a plaintiff has suffered informational injury is 

matters about which he has “personal knowledge,” or which has been “confirmed by the 

Commission.”

In any event, even if plaintiffs could both demonstrate an injury based on their desire for 

“corroborating” information and satisfy the other requirements for standing under section 

30109(a)(8), see supra pp. 6-16, plaintiffs’ opposition still confirms that plaintiffs lack standing 

to challenge the dismissal of their administrative complaint in MUR 6485 (W Spann). As 

plaintiffs note (Pls.’ Opp’n at 40 n.21), both Restore Our Future PAC and Edward Conard have 

publicly confirmed that Conard was the source of the money contributed to Restore Our Future 

at issue in that matter, i.e., plaintiffs affirmatively admit that they already have “corroborating” 

information regarding that contribution, including “pursuant to FECA’s reporting provisions.” 

(Pls.’ Opp’n at 40.) 

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CONCLUSION

For all the foregoing reasons, as well as those set forth in the Commission’s motion to 

dismiss, the Commission asks this Court to 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

Associate General Counsel Steve Hajjar

kdeeley@fec.gov Attorney

 shajjar@fec.gov

August 26, 2016 FOR THE DEFENDANT

FEDERAL ELECTION COMMISSION

999 E Street NW

Washington, DC 20463

(202) 694-1650

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