IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CAMPAIGN LEGAL CENTER,

 Plaintiff,

v.

FEDERAL ELECTION COMMISSION,

 Defendant.

Civil Action No. 20-cv-0809-ABJ

PLAINTIFF CAMPAIGN LEGAL CENTER’S OPPOSITION TO 

45COMMITTEE, INC.’S MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

Plaintiff Campaign Legal Center (“CLC”) opposes the motion of 45Committee, Inc., the 

respondent in the administrative matter at issue in this case, for leave to file an amicus curiae brief 

in support of Defendant Federal Election Commission (“FEC”). The motion should be denied 

because 45Committee’s proposed brief fails to satisfy the requirements of Local Civil Rule 7(o)(2)

that an amicus curiae brief be (1) “relevant to the disposition of the case” and (2) “desirable.” 

First, the information provided in 45Committee’s proposed brief is irrelevant to the 

disposition of this case. The brief merely confirms that the FEC has failed to conform to the Court’s 

Default Judgment Order and does not support movant’s claim that the FEC has mooted this case 

by dismissing the underlying enforcement action. The very fact that 45Committee had to resort to 

a Freedom of Information Act (“FOIA”) request to obtain information about the underlying 

enforcement action shows that the FEC has not dismissed the matter, since otherwise such 

information would be publicly available, as required by law. And the FEC’s response to that FOIA 

request shows not a dismissal, but only that the FEC decided not to appear in this litigation and 

defend its ongoing delay 19 months ago. 

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Second, 45Committee’s brief is undesirable. It belatedly submits a meritless argument

which 45Committee could have asserted at any time from the start of this lawsuit nearly two years 

ago, which has already been made by a previous amici, and which this Court has already declined 

to credit. Not only that, but the brief proposes needlessly delaying this case for an indefinite period

pending 45Committee’s irrelevant FOIA appeal and possible litigation. Meanwhile, granting the 

motion would prejudice Plaintiff by delaying its private right of action against 45Committee and 

further extending the informational injuries Plaintiff is suffering because of the FEC’s delay and 

45Committee’s campaign finance violations. It would also prejudice the public by continuing the 

ongoing harm to the public’s confidence in the electoral process caused by the FEC’s inaction. 

For each of these reasons, 45Committee’s motion should be denied, and the Court should 

grant Plaintiff’s pending motion for an order declaring the FEC failed to conform with this Court’s 

November 8, 2021 default judgment order, see ECF 26, 26-1.

LEGAL BACKGROUND

Any person may file a complaint with the Commission alleging a violation of the Federal 

Election Campaign Act (“FECA” or “the Act”). 52 U.S.C. § 30109(a)(1). If, at any stage of the 

FEC’s enforcement process, fewer than four Commissioners vote to proceed, Commissioners may 

vote to dismiss the complaint. See, e.g., Common Cause v. FEC, 842 F.2d 436, 449 (D.C. Cir. 

1988). “Any party aggrieved” by dismissal of its complaint or “by a failure of the Commission to 

act on such complaint” may seek review in this Court. 52 U.S.C. § 30109(a)(8). For the FEC to 

defend such a lawsuit, at least four Commissioners must vote to authorize the defense. See id. 

§§ 30106(c), 30107(a)(6). In a suit challenging FEC delay, a plaintiff is entitled to relief where the 

undisputed facts show that the FEC has acted “contrary to law” by unreasonably delaying action 

on the underlying complaints. Id. § 30109(a)(8)(C). “Where the issue before the Court is whether 

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the agency’s failure to act is contrary to law, the Court must determine whether the Commission 

has acted ‘expeditiously.’” Common Cause v. FEC, 489 F. Supp. 738, 744 (D.D.C. 1980). 

In matters where the FEC has “ma[de] a finding of no reason to believe or no probable 

cause to believe or otherwise terminates it proceedings,” the agency must “make public such action 

and the basis therefor no later than thirty (30) days” after the FEC notifies the complainant and 

respondent. 11 C.F.R. § 111.20(a). 

PROCEDURAL BACKGROUND

Three-and-a-half years ago, on August 23, 2018, CLC filed an administrative complaint 

with the FEC alleging that 45Committee, a tax-exempt 501(c)(4) corporation, had violated FECA 

by failing to register as a political committee and file reports disclosing its contributors, 

expenditures, and debts. ECF No. 1. Almost two years ago, on March 24, 2020, CLC filed this 

lawsuit against the FEC due to the agency’s failure to take action on its administrative complaint. 

Id. ¶¶ 3, 32. To date, the FEC has failed to answer or otherwise defend itself in this action.

CLC moved for default judgment against the FEC on June 1, 2020, ECF No. 11, and filed 

a renewed motion for default judgment on May 5, 2021, ECF No. 18. On November 8, 2021, the

Court granted CLC default judgment. ECF No. 25. The Court found that the FEC’s delay was 

contrary to law, and ordered the agency to “act on the complaint within thirty days [i.e., by 

December 8, 2021] pursuant to 52 U.S.C. § 30109(a)(8)(C).” Id. The FEC failed to conform by 

December 8, 2021 (or by any other date). Accordingly, on December 9, 2021, CLC filed a pending 

motion requesting an order declaring that the FEC has failed to conform to the Court’s Order and 

authorizing CLC to bring a civil action against 45Committee to remedy the violation described in 

CLC’s administrative complaint. See ECF No. 26.

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Nearly a month later, on January 7, 2022, 45Committee moved for leave to file an amicus 

curiae brief presenting information it received in response to a FOIA request it submitted to the 

FEC on November 19, 2021, eleven days after the Court’s Default Judgment Order. See ECF No. 

28-1 at 4. The proposed brief requests that the Court find that this case is moot, or, in the 

alternative, hold the case in abeyance pending 45Committee’s intention “to exhaust its 

administrative remedies under FOIA, and if necessary, pursue [FOIA] litigation in this Court”

against the FEC. ECF No. 28-1 at 5. 

LEGAL STANDARD

An amicus curiae brief must be, among other things, “relevant to the disposition of the 

case” and “desirable.” LCvR 7(o)(2). This Court has “wide discretion” to dictate the participation 

of an amicus curiae, Matter of Search of Info. Associated with [redacted]@mac.com that is Stored 

at Premises Controlled by Apple, Inc., 13 F. Supp. 3d 157, 167 (D.D.C. 2014), and “should be 

assiduous to bar the gates to amicus curiae briefs that” compound the “delays and expense of 

litigation,” see United States v. Microsoft Corp., No. 98-cv-1232-CKK, 2002 WL 319366, at *2 

(D.D.C. Feb. 28, 2002) (citation omitted); see e.g., Wilderness Soc’y v. Trump, No. 17-cv-02587-

TSC, 2019 WL 11556601, at *2 (D.D.C. Mar. 20, 2019) (denying leave for amicus brief that

“present[ed] arguments . . . not relevant to the stage of the litigation”); United States v. Microsoft 

Corp., No. 98-cv-1232-CKK, 2002 WL 649383, at *1 (D.D.C. Mar. 25, 2002) (denying leave 

because “further participation by movants as amici curiae will serve only to delay proceedings,” 

while “echo[ing] arguments that have been briefed already for the Court by other entities”). 

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ARGUMENT

I. THE PROPOSED BRIEF IS IRRELEVANT TO THE DISPOSTION OF THE CASE

The Court should deny 45Commitee’s motion because the matters asserted in the proposed 

amicus brief are not “relevant to the disposition of the case,” as required by LCvR 7(o)(2). 

A. The Proposed Brief Confirms that the FEC Has Failed to Conform to the 

Court’s November 8, 2021 Default Judgment Order

45Committee’s proposed filing is irrelevant to the disposition of this case because it only 

further confirms what CLC has already demonstrated in its pending motion (ECF No. 26) for an 

order declaring CLC’s right to file a civil action against 45Committee: the FEC’s delay has not 

ceased, the FEC’s continuing delay remains contrary to law, and the FEC has not conformed with 

the Court’s November 8, 2021 Default Judgment Order. 

First, the FEC’s delay continues: The very fact that 45Committee sought information 

regarding the agency’s handling of the complaint at issue (designated Matter Under Review 

(“MUR”) 7486 by the FEC) via a FOIA request confirms that the FEC has yet to “terminate[] its 

proceedings,” since otherwise such information would be publicly available, as required by 11 

C.F.R. § 111.20(a). See also Doe v. FEC, 920 F.3d 866, 874 (D.C. Cir. 2019) (describing how 

“[i]n closing [an enforcement matter], the Commission plans to make public its investigative files” 

in accord with 11 C.F.R. § 111.20(a)); Disclosure of Certain Documents in Enforcement and Other 

Matters, 81 Fed. Reg. 50702 (Aug. 2, 2016) (identifying 21 “categories of documents integral to 

[the FEC’s] decisionmaking process that will be disclosed upon termination of an enforcement 

matter”). Indeed, a search for “MUR 7486” on the FEC’s enforcement query system continues to 

yield no documents as of this filing. See FEC, Enforcement Query System, https://eqs.fec.gov/eqs/

searcheqs. And 45Committee does not claim the FEC has sent it any notification that MUR 7486 

has been dismissed, as would be required by 11 C.F.R. § 111.20(a).

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Second, the FEC’s continued delay remains contrary to law: On November 8, 2021, the 

Court concluded that the FEC’s delay is contrary to law, in part, due to “the fully constituted 

agency’s utter failure to step up and offer any explanation in its own defense after it was given an 

extended period in which to do so.” ECF No. 24 at 15. The FEC vote certification that 

45Committee proposes to submit with its amicus brief demonstrates that, in June 2020, the agency 

made a deliberate choice not to defend this lawsuit, ECF 28-3 at 5, and the agency has stuck to 

that decision for the last 19 months.

Finally, the FEC has not conformed with the Court’s November 8, 2021 Default Judgment 

Order: 45Committee’s FOIA request sought “[a]ny” FEC vote certifications for MUR 7486, and 

the FEC produced a lone certification reflecting a vote on June 23, 2020. ECF No. 28-3. The 

production therefore confirms that the FEC has not voted on the administrative complaint for the 

last 19 months, including during the 30 days (from Nov. 8 to Dec. 8, 2021) in which the FEC was 

ordered to conform with the Court’s judgment finding its delay contrary to law. See ECF No. 25. 

The FEC has not informed the Court of any action either. 

Accordingly, the proposed brief is irrelevant to the disposition of this case because it would 

serve only to confirm that the FEC has not taken any action that could possibly have ended its 

more-than-three-year delay or rendered that delay reasonable. 

B. The Proposed Brief Contains No Evidence that This Case Is Moot

None of the information proffered in 45Committee’s proposed filings even suggests that 

this case is moot, as 45Committee claims. The movant’s assertion of mootness hinges on its 

incorrect claim that the FEC’s response to its FOIA request shows that the FEC dismissed CLC’s

administrative complaint in June 2020. See ECF No. 28 at 1, 3; ECF No. 28-1 at 4. But the agency’s 

FOIA response shows nothing of the sort. By 45Committee’s own admission, the FEC’s FOIA 

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response consists of five fully withheld pages and one “heavily redacted” vote certification that 

discloses a single Commission vote. ECF No. 28-1 at 4-5. That vote, 45Committee further admits, 

“is not even responsive to 45Committee’s FOIA request” because it reflects an FEC vote on this 

litigation, not CLC’s administrative complaint. Id. at 4.

Because the June 2020 vote certification does not actually reveal any Commission votes 

on MUR 7486, 45Committee speculates that the redacted votes “likely reflect a dismissal.” ECF 

No. 28-1 at 4 (emphasis added); see also ECF No. 28 at 1, 3. But this speculation is both baseless

and manifestly wrong. 45Committee’s FOIA request sought “[a]ny vote certifications reflecting 

votes” on MUR 7486, not just votes to dismiss the MUR. ECF No. 28-2 at 2 (emphasis added). 

There are several different motions upon which the Commissioners could have voted. See FEC 

Statement of Policy Regarding Commission Action in Matters at the Initial Stage in the 

Enforcement Process, 72 Fed. Reg. 12545-01, 12545-46 (Mar. 16, 2007). The fact that “there has 

been no further enforcement” by the FEC against 45Committee since June 2020 (or at any other 

time), is not evidence of a dismissal, as 45Committee claims, ECF No. 28 at 3, but rather of the 

unreasonable delay that this Court has already declared contrary to law, see ECF No. 24 at 18 

(explaining how the “languishing of plaintiff’s complaint” is a “disturbing sign[]” that the agency 

is “broken”). 

In fact, the one thing that is certain about the redacted June 2020 votes is that they could 

not have resulted in a dismissal of the MUR. See ECF No. 28-1 at 7. As noted above, had the FEC 

dismissed the administrative complaint, it would have been required, under 11 C.F.R. 

§ 111.20(a), to notify the complainant and respondent of the dismissal, and to make the MUR file 

public. And yet CLC has received no such notification, and 45Committee does not claim that it 

has received any such notification or that the FEC has made the MUR file public in the 19 months 

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since June 2020. 45Committee instead suggests that had the FEC “merely entered an appearance 

and disclosed its voting record” in this litigation, the alleged dismissal would have been revealed. 

ECF No. 28 at 1. But the Commission’s power to appear to defend this lawsuit, see 52 U.S.C. 

§§ 30106(c), 30107(a)(6), which it declined to exercise, ECF No. 28-3 at 5, is distinct from the 

requirement that, when the FEC “terminates its proceedings, it shall make public such action,” 11 

C.F.R. § 111.20(a). Because the FEC has not notified the administrative parties of any dismissal 

or made MUR 7486’s record public, there has been no dismissal, and this case is not moot.1

 

C. 45Committee’s Request for Further Delay Is Unwarranted 

The Court should also decline to allow 45Committee’s irrelevant FOIA appeal and the 

subsequent FOIA litigation it intends to pursue to delay this case. Absent any evidence of an actual 

dismissal, 45Committee speculates that the redacted June 2020 certification may reflect a split 

vote by the Commission on whether to proceed with enforcement. ECF No. 28-1 at 2.

45Committee asserts that such a “split vote,” if it occurred, would constitute “a dismissal,” id. at 

4, and thus the Court should hold this case in abeyance while it seeks to obtain the vote record via 

FOIA. As discussed above, however, if the Commission had dismissed CLC’s administrative 

complaint, that information would already be public, and 45Committee’s FOIA request (and any 

appeal) would be unnecessary. 

Further, this Court has already heard and implicitly rejected 45Committee’s argument that 

a split vote constitutes dismissal. During the Court’s consideration of Plaintiff’s Renewed Motion 

1 In contrast, in a similar recent suit, CLC challenged the FEC’s delay in a different 

enforcement matter, and because the FEC failed to defend the suit, the Clerk entered default against 

the agency. FEC Resp. to Ord. to Show Cause at 1-2, Campaign Legal Ctr. v. FEC, No. 20-cv588-BAH (July 20, 2020), ECF No. 19. Several weeks later, however, the agency “voted four-tozero to dismiss CLC’s administrative complaint” and—even though the agency still had not 

appeared in the litigation—it posted the MUR file on its website and “CLC received notification 

of the Commission’s dismissal decision.” Id. at 3. CLC then voluntarily dismissed its case. Id.

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for Default Judgment, the Institute for Free Speech (“IFS”) filed a brief as amicus curiae. See ECF 

No. 23. In that brief, IFS conceded that “[n]either FECA nor the Commission’s regulations specify 

that a matter terminates when commissioners tie 3-3 on whether reason exists to believe the 

respondent violated the Act.” ECF No. 23 at 4. IFS further admitted that until four Commissioners 

vote to close the MUR file, “the case is not officially closed,” and thus could be reconsidered by 

the Commission after attempts to build consensus. ECF No. 23 at 7, 9-10. Nevertheless, IFS also 

incorrectly claimed, as 45Committee does here, that “a tie vote . . . ends the complaint’s 

adjudication” as “a practical matter.” Id. at 4 (emphasis added); cf. ECF No. 28-1 at 2 (claiming 

that “a split vote . . . in practical terms . . . terminat[es] the complaint”) (emphasis added). To 

determine if there had in fact been a tie vote in this MUR, IFS argued that “the Court should order 

the FEC to produce its administrative record in this case before even considering a default 

judgment.” ECF No. 23 at 13. Yet, after considering IFS’s brief, ECF No. 24 at 2 n.1, the Court

entered default judgment against the FEC without ordering the agency to disclose any votes. See 

ECF Nos. 24-25.

Finally, to the extent the FEC’s FOIA response indicates that the agency might have taken 

some action short of a dismissal on CLC’s administrative complaint 19 months ago, such action 

does not moot this case. Contra ECF No. 28-1 at 6. As this Court has recognized, “[w]here the 

issue before the Court is whether the agency’s failure to act is contrary to law, the Court must 

determine” not whether the FEC acted at all, but “whether the [FEC] has acted ‘expeditiously.’” 

ECF No. 24 at 14 (quoting Common Cause, 489 F. Supp. at 744). Courts have therefore found 

FEC delays to be both justiciable and contrary to law “even when the agency took some action.” 

Id. (citing cases). This is true even where the “some action” was a split vote on whether to find 

reason to believe. See, e.g., id. (citing Giffords v. FEC, No. CV 19-1192-EGS (D.D.C.)).

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For example, in Giffords v. FEC, a court in this District recently held that the FEC’s threeyear delay in adjudicating the plaintiff’s administrative complaints was contrary to law (and thus, 

justiciable), even though the unredacted record revealed four split Commission votes on whether 

to find reason to believe. See Unredacted Mem. Op. at 9-10, 31, Giffords v. FEC, No. 19-cv-1192-

EGS (D.D.C. Oct. 14, 2021), ECF No. 88. In addition to these failed votes, the FEC had also 

“rejected a motion to close the enforcement matters, and thereby dismiss Plaintiff’s administrative 

complaints.” Id. at 10; see also id. 30 (same). Accordingly, the district court found that the FEC’s 

“failure to take any action on the matters during the past 7 months” was contrary to law, retained 

jurisdiction until the FEC “takes final agency action with respect to Plaintiff’s administrative 

complaints,” and ordered the FEC to conform with its judgment within 30 days. Id. at 30-31 

(emphasis added). The FEC failed to do so, and the court then issued an order confirming the 

plaintiff’s right to sue the administrative respondents pursuant to 52 U.S.C. § 30109(a)(8)(C), see

Order, Giffords v. FEC, No. 19-cv-1192-EGS (D.D.C. Nov. 1, 2021), ECF No. 75. Here, even 

assuming the Commission held a split vote in June 2020, the response to 45Committee’s FOIA 

request demonstrates that it has taken no additional action since. Far from being moot, this case, 

like Giffords, is ripe for an order declaring CLC’s right to sue 45Committee.

In sum, 45Committee’s proposed amicus brief is irrelevant because it merely confirms 

what CLC has already demonstrated: that the FEC has failed to conform to the Court’s Default 

Judgment Order, and that CLC is entitled to a private right of action under 52 U.S.C. 

§ 30109(a)(8)(C). The matters asserted therein do not show that this case is moot, as movant 

claims, nor do they justify any further delay. 

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II. THE PROPOSED BRIEF IS UNDESIRABLE BECAUSE ITS BELATED TIMING

PREJUDICES CLC AND THE PUBLIC WITH FURTHER DELAY

45Committee’s motion fails to satisfy LCvR 7(o)(2) for the independent reason that it is 

not “desirable.” If granted, 45Committee’s belated requests to file an amicus brief (which rehashes 

failed arguments made by previous amici), and for this case to be held in abeyance pending an 

irrelevant FOIA appeal and FOIA litigation, would prejudice CLC and the public through 

unnecessary delay. See, e.g., Microsoft Corp., 2002 WL 649383, at *1 (denying leave because 

“further participation by movants as amici curiae will serve only to delay proceedings,” while 

“echo[ing] arguments that have been briefed already for the Court by other entities”). 

45Committee’s proposed amicus brief is a delayed response to issues that have been ripe 

since the outset of this case. Under 45Committee’s (incorrect) theory of mootness, this case would 

have been mooted by any vote held by the FEC during the three-and-a-half years since CLC first 

filed its administrative complaint, regardless of the outcome, and in fact became moot “19 months 

ago” at the same time that the FEC declined to defend this lawsuit. ECF No. 28 at 1. At that time, 

in June 2020, CLC had a pending motion for default judgment, ECF No. 11, which 45Committee 

did not attempt to oppose. After being denied without prejudice in March 2021, ECF No. 17, CLC 

renewed its default judgment motion in May 2021, ECF No. 18, and 45Committee also did not 

attempt to oppose that motion. Instead, 45Committee waited until 11 days after the Court granted 

default judgment against the Commission on November 8, 2021, ECF No. 24, to finally file the 

FOIA request that spurred its filing of the instant amicus motion. 45Committee offers no 

explanation for this egregious delay. 

While 45Committee offers no justification for its delay, its belated motion and requested 

abeyance (which could run years pending movant’s planned FOIA litigation), if granted, would 

prejudice CLC and the public in at least four ways. First, this Court has already determined that 

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the FEC’s three-year delay in acting on CLC’s complaint is contrary to law. But placing this case 

in abeyance would not only allow the FEC to continue to delay in acting on CLC’s administrative 

complaint, it would also incentivize 45Committee to drag out the FOIA litigation indefinitely to 

preclude CLC from exercising its private right of action. 

Second, further delay would only compound the harm to the public caused by the FEC’s 

existing delay. As the Court has explained, one of the reasons why the FEC’s delay is contrary to 

law is that “public confidence in our electoral system can also be undermined when alleged 

violations of law remain unaddressed” particularly where “problems alleged in connection with 

one Presidential election were not looked into before the next.” ECF No. 24 at 17.

Third, 45Committee’s requests would further extend the informational injuries CLC is 

suffering because of the FEC’s delay and 45Committee’s refusal to comply with federal

registration and reporting requirements for political committees. See ECF No. 24 at 6-9.

Finally, allowing 45Committee to delay CLC’s private right of action indefinitely would 

damage CLC’s ability to successfully prosecute the civil action it is statutorily entitled to bring 

against 45Committee to enforce campaign finance laws, given the risk that, with the passage of 

yet more time, evidence will spoil and witness recollections will fade. See Gull Airborne 

Instruments, Inc. v. Weinberger, 694 F.2d 838, 844 (D.C. Cir. 1982) (explaining that “delay in 

filing suit may have resulted in a loss of evidence or witnesses”).

For these reasons, the proposed brief is undesirable under LCvR 7(o)(2), and the motion 

for leave to submit that brief should be denied on this ground alone.

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CONCLUSION

For the foregoing reasons, the Court should deny 45Committee’s motion for leave, and 

grant Plaintiff’s motion for an order declaring the FEC failed to conform, see ECF 26, 26-1.

Dated: January 21, 2022 Respectfully submitted, 

/s/ Kevin P. Hancock

Adav Noti (DC Bar No. 490714)

Mark P. Gaber (DC Bar No. 988077)

Kevin P. Hancock*

Molly E. Danahy (DC Bar No. 1643411)

CAMPAIGN LEGAL CENTER

1101 14th Street NW, Ste. 400

Washington, DC 20005

(202) 736-2200

anoti@campaignlegalcenter.org

mgaber@campaignlegalcenter.org

khancock@campaignlegalcenter.org

mdanahy@campaignlegalcenter.org

* Admitted pro hac vice. Barred in the State of 

New York. Not admitted to the D.C. Bar. 

Practicing under the supervision of Adav Noti, 

member of the D.C. Bar.

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