UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

LOUISVILLE DIVISION

)

CONWAY FOR SENATE, )

)

Plaintiff, ) Civ. No. 3:12-244 (CRS-JDM)

)

v. )

) REPLY

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

)

DEFENDANT FEDERAL ELECTION COMMISSION’S MEMORANDUM OF LAW IN 

REPLY TO PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT 

Anthony Herman 

General Counsel

Lisa J. Stevenson 

Deputy General Counsel – Law

Kevin Deeley 

Acting Associate General Counsel

Erin Chlopak

Acting Assistant General Counsel 

Benjamin A. Streeter III

Attorney

FOR DEFENDANT

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, D.C. 20463

(202) 694-1650

April 12, 2013

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The Federal Election Commission acted reasonably when it assessed the Conway 

for Senate campaign with an administrative fine for its failure to file a mandatory 

campaign-finance disclosure report in January 2011. Plaintiff Conway for Senate 

(“Conway”) challenges the fine on the grounds that one of its staff members sent the 

report by FedEx before the statutory deadline. But Conway’s Opposition (“Conway 

Opp’n,” Docket No. 18) to the Commission’s summary judgment motion (Docket No. 

16) fails to refute the Commission’s determination, based on the administrative record,

that the required report was not included in a FedEx package containing a number of 

other reports sent by Conway’s agents, and thus not timely filed. 

Rather, Conway’s Opposition eschews the proper legal standard for judicial 

review of the Commission’s administrative decision and substitutes sharp rhetoric and 

groundless speculation about possible errors by others for legal analysis of the actual 

administrative record in this case. Conway’s concession that the alternative conclusion it 

urges is merely “just as plausible as the FEC’s conclusion that the Conway campaign 

failed to file” its report (Conway Opp’n at 6) means that its challenge fails under the 

applicable legal standard. 

To be upheld under the Administrative Procedure Act, an agency’s administrative 

action need only be supported by a reasonable basis, and Conway has not refuted the 

Commission’s demonstration that its administrative action was reasonable and supported 

by the administrative record. Nor has Conway identified any clear error in the 

Commission’s judgment. Its attempt to belatedly rely on an inapplicable defense, which 

it never invoked during the administrative process, is equally unavailing. 

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The administrative record in this case plainly supports the Commission’s 

decision, and the Court should therefore deny Conway’s motion for summary judgment 

and enter summary judgment on behalf of the Commission.

A. The Commission’s Administrative Action Was Not Arbitrary or 

Capricious

Conway acknowledges that “agency decisions are given deference by reviewing 

courts” and may only be reversed if they are “‘arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with the law.” (Conway Opp’n at 5.) This 

“highly deferential” standard of review requires that courts “presume[] the validity of 

agency action,” Nat’l Ass’n of Clean Air Agencies v. EPA, 489 F.3d 1221, 1228 (D.C. 

Cir. 2007), but the ruling Conway advocates here would neither defer to the 

Commission’s decision nor presume that the Commission’s action was reasonable. 

Conway’s Opposition, however, inadvertently confirms the reasonability of the 

Commission’s action here. Conway’s central argument for challenging the 

Commission’s determination that Conway failed to file its year-end report is its 

alternative theory that it is “possib[le] that agents of the U.S. Senate may have 

erroneously processed the contents of the envelope received from Conway for Senate.” 

(Conway Opp’n at 6 (emphases added).) Although Conway describes this “possibility” 

as “the very crux of this dispute” (id.), it does not cite anything in the administrative 

record to support its hypothesis. Instead, Conway declares that the Senate is “not 

infallible” (Conway Opp’n at 6), and asks, “Is it not possible in that two-day period, as 

the envelope traveled from the Senate Sergeant at Arms to the Senate Office of Public 

Records, a portion of contents may have been removed from the envelope in error and 

never replaced?” (Id. at 7.) Conway argues that its unsupported theory that the Senate 

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misplaced its report is “just as plausible” as the Commission’s determination that 

Conway failed to file it. (Conway Opp’n at 6.) Conway’s argument fails to refute the 

reasonability of the Commission’s action for at least two reasons. 

First, Conway’s argument fails as a matter of law. Even if it were true that the 

administrative record supported two equally plausible conclusions — which, as discussed 

below, it is not — Conway’s preference for its own “alternative explanation does not 

negate the reasonableness of” the Commission’s administrative determination. Bangura 

v. Hansen, 434 F.3d 487, 503 (6th Cir. 2006). 

Indeed, Conway’s assertion that “the FEC’s conclusion that the Conway 

campaign failed to file” its year-end report is “just as plausible” as Conway’s alternative 

supposition about the “possibility” that the U.S. Senate “may have” lost the report 

undermines Conway’s claim that the Commission’s determination was unreasonable. 

Conway’s argument about two equally plausible conclusions amounts to a concession by 

Conway that the Commission’s action must have been reasonable and certainly not 

arbitrary or capricious. 

Second, Conway’s argument is factually groundless; in fact, its alternative 

explanation is not equally plausible. The Commission’s determination that Conway 

failed to timely file its 2010 year-end report was amply supported by the administrative 

record. That record reflects the Secretary of the Senate’s contemporaneous, meticulously 

documented receipt of a FedEx envelope from Conway containing five different 

documents, not including Conway’s year-end report. (AR086-103.)1

 The record further 

 1 The administrative record contains actual copies of the five reports included in the 

FedEx package Conway sent to the Senate in January 2011. (AR086-103.) The FEC’s 

Reviewing Officer communicated with the Superintendent of the Senate Office of Public 

Records to ascertain what the Senate had received, (AR050-AR103), and called a staff 

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reflects shifting and inconsistent post hoc explanations by Conway personnel about the 

supposed mailing of that report, including a March 10, 2011, statement by a Conway 

employee that she had a “certified-mail receipt confirming delivery” of the report 

(AR081); an April 20 statement by Conway’s treasurer that the year-end report had been 

“sent separately” by FedEx from the other documents received by the Senate on the same 

day (id.); and finally a statement in the May 5 affidavit of Conway’s receptionist that she 

“was given” the year-end report and three other documents, and those four documents 

“were packaged in a Federal Express envelope” for shipping to the Senate (AR064).

2

 

In contrast, Conway’s alternative explanation for its missing campaign-finance 

report — “the possibility that agents of the U.S. Senate may have erroneously processed 

the contents of the envelope received from Conway for Senate,” (Conway Opp’n at 6 

(emphases added)) — is entirely hypothetical and lacks any factual basis. Indeed, 

Conway identifies no evidence from the administrative record (or anywhere else) to 

answer its own question about whether it is “possible” that when its FedEx package was 

 

member of that office to confirm that, “as is their process, all of the documents included 

in the [Conway for Senate’s] envelope were forwarded to the Senate Office of Public

Records.” (AR 124.) 

2 Conway criticizes the Commission for “plac[ing] great weight on” these 

inconsistent statements regarding the mailing of its year-end report, but it neither disputes 

nor explains the discrepancies. (Conway Opp’n at 4 (describing factual record as 

“contradictory and muddled”).) Conway’s subjective disagreement with the 

Commission’s analysis of the administrative record (Conway Opp’n at 8-9), is an 

insufficient basis for the Court to reverse the Commission’s determination. Conway does 

not assert that the Commission “fail[ed] to examine relevant evidence or articulate a 

satisfactory explanation,” and its alternative characterization of that evidence “does not 

negate the reasonableness of” the Commission’s administrative determination. Bangura, 

434 F.3d at 502-03.

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received by the Senate “a portion of contents may have been removed from the envelope 

in error and never replaced.” (Id. at 7.)3

 

Conway’s characterization of the administrative record as “split right down the 

middle in a proverbial he-said, he-said” (Conway Opp’n at 5) is thus not only a legally 

insufficient assertion, it is also factually wrong. Conway’s contradictory accounts of 

mailing its year-end report to the Commission and hypothetical theories about possible 

“erroneous[] process[ing]” of its FedEx envelope by the Senate (id. at 6) are not “just as 

plausible” as the Commission’s conclusion that the report simply was never sent by 

Conway. 

 Conway’s unfounded accusations of negligence by officials at the U.S. Senate 

(Conway Opp’n at 6) call into question the reliability of public officers. But it is 

especially clear that the Commission’s analysis of the record was supported by evidence 

here, where the Senate’s careful docketing of Conway’s FedEx package is entitled to the 

presumption of regularity accorded to official acts of public officers. Dept. of State v. 

Ray, 502 U.S. 164, 179 (1991). Under that presumption, “in the absence of clear 

evidence to the contrary, the court will presume that public officers have properly 

 3 Conway cites Greenwood for Congress, Inc. v. FEC, Civ. No. 03-307, 2003 WL 

22096125 (E.D. Pa. Aug. 15, 2003), as purported support for its assertion that “the Senate 

. . . is not infallible.” (Conway Opp’n at 6.) But Greenwood concerned the filing of a 

report by the principal campaign committee of a candidate for the U.S. House of 

Representatives, which the committee filed directly with the Commission. Greenwood, 

2003 WL 22096125, at *1. The case thus has nothing to do with the Senate or its alleged

propensity to make mistakes. Moreover, as the Commission has explained (Docket No. 

16-1 at 12-13), in Greenwood, unlike here, the reporting committee provided actual 

evidence, based on the registered weight of the package it mailed, that the package must 

have contained more material than the Commission had acknowledged receiving. Id. at 

*2. In this case, however, Conway’s theory that because the Senate “is not infallible” it

“may have” lost Conway’s year-end report is premised entirely on baseless speculation. 

(Conway Opp’n at 6.)

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discharged their official duties. The doctrine allows courts to presume that what appears 

regular is regular, the burden shifting to the attacker to show the contrary.” Sickels v. 

Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011) (internal quotation marks omitted); see 

Latif v. Obama, 677 F.3d 1175, 1178 (D.C. Cir. 2012), cert. denied, 132 S. Ct. 2741 

(2012) (“The presumption of regularity supports the official acts of public officers and, in 

the absence of clear evidence to the contrary, courts presume that they have properly 

discharged their official duties.” (internal quotation marks omitted); NLRB v Ohio New 

and Rebuilt Parts, Inc. 760 F.2d 1443, 1451 (6th Cir. 1985) (“There is a strong and firm 

presumption that governmental officials . . . perform their functions without bias.”); 

Goldberg v. Truck Drivers Local Union No. 299, 293 F.2d 807, 812 (6th Cir. 1961) (“In 

the absence of proof to the contrary, there is a presumption of regularity in the 

proceedings of a public officer. The burden is upon the party complaining to show 

otherwise.”). Conway’s assertion that the Senate is “not infallible” (Conway Opp’n at 6), 

and its bald speculation that “agents of the U.S. Senate may have erroneously processed 

the contents of the envelope received from Conway for Senate” (id. (emphasis added)), 

fail to rebut the presumption of regularity here. 

In sum, the Commission’s conclusion that Conway failed to file its year-end 

report not only was reasonable, it was the most reasonable conclusion to be drawn from 

the administrative record here.4

 4 Conway is thus incorrect in claiming (Conway Opp’n at 5) that the Commission’s 

administrative determination was “not supported by substantial evidence.” As detailed 

supra p. 3 and in the Commission’s summary judgment brief (Docket No. 16-1 at 6-8), 

the administrative record clearly and substantially supports the Commission’s conclusion 

that Conway failed to file its year-end report. 

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B. The Commission’s Administrative Process Complied with the Law

Conway’s criticisms of the Commission’s administrative process are misplaced 

and appear to be premised on a fundamental misunderstanding of the statutorily 

mandated procedures applicable here. Conway objects to the fact that the Commission 

made its reason-to-believe finding about Conway’s failure to file its report “before 

undertaking any administrative inquiry or investigation with the Secretary of the Senate.” 

(Conway Opp’n at 2.) But the law requires no such investigation. Under the Act’s 

streamlined provisions for the administrative fines program, the Commission is only 

required to give persons “written notice and an opportunity to be heard” after finding 

“reason to believe” a report has not been timely filed. 2 U.S.C. § 437g(a)(4)(C)(i)-(ii); 

see also 11 C.F.R. § 111.36.5

 No exhaustive investigation is required before or after the 

Commission finds “reason to believe” a violation has occurred. As the Commission 

explained (Docket No. 16-1 at 3-8), the Commission and its staff followed the prescribed

administrative fine procedures at each stage of the proceedings below.

C. Conway’s Belated “Best Efforts” Arguments Lack Merit

Conway does not dispute that it failed to actually assert a “best efforts” defense to 

the Commission during the administrative process under review. See Wilson Air Ctr., 

LLC v. FAA, 372 F.3d 807, 813 (6th Cir. 2004) (“[I]t is inappropriate for courts reviewing 

agency decisions to consider arguments not raised before the administrative agency 

involved”); LeBlanc v. EPA, 310 Fed. App’x 770, 776 (6th Cir. 2009) (“A reviewing 

court may not consider arguments that were not previously raised before an 

administrative agency . . . .”). 

 5 Even under the Act’s procedures for other violations, no investigation is required until 

after the Commission has made a “reason to believe” finding. 2 U.S.C. § 437g(a)(2); 11 

C.F.R. § 111.10(a).

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Instead, Conway advances, with no legal support, its novel argument that it 

“constructively” asserted a best efforts defense simply by protesting the Commission’s 

finding that Conway had failed to file its year-end report. (Conway Opp’n at 10.) 

Indeed, Conway’s invocation of the best efforts defense is at odds with its contention that 

its report was delivered to the Senate. An element of the defense is that the person at 

issue “was prevented from filing in a timely manner.” 11 C.F.R. § 111.35(b)(3)(i) 

(emphasis added). Conway thus could not have both timely filed and fit within the best 

efforts defense. Its only argument at the time to the Commission was that the former was 

true. 

Moreover, Conway’s speculation about possible “Senate negligence” also does 

not remotely present enough evidence to demonstrate that the best efforts safe harbor 

would have applied had it not been waived. (Conway Opp’n at 5.) To successfully rely 

on that safe harbor, Conway would have had to show that it “used best efforts to file in a 

timely manner” but was prevented from doing so “by reasonably unforeseen 

circumstances” beyond the respondent’s control. 11 C.F.R. § 111.35(b)(3). Conway 

points to nothing in the administrative record supporting its speculation; thus, Conway 

cannot establish here that the Commission “fail[ed] to examine relevant evidence” 

regarding the Senate losing Conway’s report. Bangura, 434 F.3d at 502 (citation 

omitted). 

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CONCLUSION

For the foregoing reasons, the Commission’s administrative fine was reasonable 

and fully supported by the administrative record. The Commission’s motion for 

summary judgment should be granted, and plaintiffs’ motion for summary judgment 

should be denied.

Respectfully submitted,

Anthony Herman 

General Counsel

Lisa J. Stevenson 

Deputy General Counsel – Law

Kevin Deeley

Acting Associate General Counsel

Erin Chlopak

Acting Assistant General Counsel

s/ Benjamin A. Streeter III

Benjamin A. Streeter III 

Attorney

FOR DEFENDANT

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, D.C. 20463

April 12, 2013 (202) 694-1650 

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UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

LOUISVILLE DIVISION

)

CONWAY FOR SENATE, )

)

Plaintiff, ) Civ. No. 3:12-244 (CRS-JDM)

)

v. )

) CERTIFICATE OF SERVICE

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

)

CERTIFICATE OF SERVICE

Benjamin A. Streeter III hereby certifies that on April 12, 2013, he caused 

Defendant Federal Election Commission’s Memorandum of Law in Reply to Plaintiff’s 

Opposition to Motion for Summary Judgment to be filed with the Clerk of the United 

States District Court for the Western District of Kentucky via the Clerk’s electronic filing

system and that a copy of this filing was delivered by the electronic filing system on that 

date to the following counsel of record:

Glenn D. Denton, Esq.

DENTON & KEULER, LLP

P.O. Box 929

Paducah, KY 42002-0929

gdenton@dklaw.com

s/ Benjamin A. Streeter III

Benjamin A. Streeter III

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