IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

PUBLIC CITIZEN, INC., ) 

1600 20th Street, NW, ) 

Washington, DC 20009, ) 

 ) 

CRAIG HOLMAN, ) 

309 Maryland Avenue, NE #3, ) 

Washington, DC 20002, ) 

 ) 

 and ) 

 ) 

TAYLOR LINCOLN, ) 

207 Randolph Place, NE, ) No. 1:09-cv-00762-RWR 

Washington, DC 20002, ) 

 ) 

 Plaintiffs, ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

999 E Street, NW, ) 

Washington, DC 20463, ) 

 ) 

 Defendant. ) 

 ) 

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 

Introduction

1. This complaint is a petition for review under 2 U.S.C. § 437g(a)(8) of an order of 

the Federal Election Commission (the FEC or the Commission) dismissing an administrative 

complaint filed with the Commission by plaintiff Public Citizen, Inc., as well as individual 

plaintiffs Craig Holman and Taylor Lincoln. Public Citizen’s administrative complaint sought 

action by the Commission against another organization, Americans for Job Security (AJS), on 

the ground that AJS had unlawfully failed to register with the FEC as a political committee and 

had violated other legal requirements of the Federal Election Campaign Act (FECA) applicable 
to political committees. The Commission divided equally over whether there was reason to 

believe that AJS had violated the law, and as a result dismissed Public Citizen’s complaint. The 

Commissioners supplied statements of reasons for their votes only after the filing of the initial 

complaint in this action, and after the time for filing an action challenging their decision would 

have expired had the complaint not already been filed. The FEC’s action was contrary to law, 

arbitrary and capricious, and an abuse of discretion because the allegations of Public Citizen’s 

complaint provided reason to believe that AJS had violated the law, and the views of the three 

Commissioners who opposed proceeding with the complaint reflected erroneous interpretations 

of FECA and of Supreme Court precedents concerning the constitutional limitations on the 

FEC’s authority. 

Jurisdiction

2. The Commission voted to dismiss Public Citizen’s complaint on February 25, 

2009. This action was filed within 60 days of the Commission’s vote, as required by 2 U.S.C. 

§ 437g(a)(8)(B). See Jordan v. FEC, 68 F.3d 518 (D.C. Cir. 1995). This Court has jurisdiction 

over this action seeking review of the FEC’s dismissal of Public Citizen’s complaint under 

2 U.S.C. § 437g(a)(8)(A) and 28 U.S.C. § 1331. 

Parties

3. Plaintiff Public Citizen, Inc., is a nonprofit membership organization 

headquartered in Washington, DC. Public Citizen advocates the interests of consumers and 

members of the public before Congress, administrative agencies and the courts on a wide range 

of issues. Prominent among Public Citizen’s concerns has been combating the corruption of our 

political system, and as a result Public Citizen has long supported campaign finance legislation 

and advocated its enforcement. In connection with those activities, Public Citizen studies and 

- 2 - 
reports on the role of money in elections, and has an interest in access to information on the 

amounts of contributions and expenditures of organizations that seek to influence electoral 

outcomes. In addition, many of Public Citizen’s members are registered voters, who similarly 

have an interest in access to information about who is contributing and expending money in 

connection with elections in which they vote. 

4. Plaintiff Craig Holman is employed by Congress Watch, a division of Public 

Citizen, as its Legislative Representative for Campaign Finance Reform. He has a Ph.D. in 

Political Science and has studied the impact of money on politics for many years, both before 

and after joining Public Citizen. Dr. Holman’s duties, as well as his independent research 

interests, involve the study of contributions to and expenditures by political organizations of 

various types, including political committees that report contributions and expenditures to the 

FEC. 

5. Plaintiff Taylor Lincoln is employed as Director of Research at Public Citizen’s 

Congress Watch. In that role, he has devoted substantial time and effort to the study of the 

political activities of nonprofit organizations and has a strong interest in acquiring information 

about their contributions and political expenditures. 

6. The Federal Election Commission is an independent regulatory agency of the 

government of the United States. It is responsible for the administration and enforcement of 

FECA, 2 U.S.C. §§ 431-457, which governs the financing of federal elections. The duties of the 

FEC are to disclose campaign finance information, to enforce the provisions of the law such as 

the limits and prohibitions on contributions, and to oversee the public funding of Presidential 

elections. The FEC is headed by six Commissioners, no more than three of whom can be 

members of any one political party, and it cannot take official action without the votes of at least 

- 3 - 
four Commissioners. Currently three of the Commissioners are Republicans and three are 

Democrats. 

The Americans for Job Security Complaint

7. On April 11, 2007, Dr. Holman and Mr. Lincoln, together with Laura MacCleery, 

who was then Director of Public Citizen’s Congress Watch, submitted a complaint to the FEC on 

behalf of Public Citizen against an organization called Americans for Job Security. 

8. According to its website, www.savejobs.org, AJS “put[s] forth a pro-growth, projobs message to the American people.” AJS claims tax exemption under section 501(c)(6) of the 

Internal Revenue Code, which applies to “business leagues.” Under IRS regulations, intervening 

in political campaigns may not be the primary activity of a 501(c)(6) tax-exempt organization. 

9. FECA and implementing FEC regulations require organizations whose “major 

purpose” is to support or oppose the election of candidates to federal office and who receive 

political contributions or make political expenditures (as defined under FECA) exceeding $1000 

to register as political committees. Political committees are required to report contributions and 

expenditures to the FEC. Independent political committees (that is, those that are neither 

campaign committees of a candidate nor committees of a political party) are subject to a 

statutory $5000 limit (adjusted for inflation) on the amount of contributions they may receive 

annually from any individual, and may not receive contributions from corporations or labor 

unions. 

10. AJS is not, and has never been, registered with the FEC as a political committee, 

nor has it reported contributions and expenditures to the FEC under the rules applicable to 

political committees. On information and belief, AJS has accepted contributions from 

- 4 - 
individuals that exceed the annual limits applicable to political committees and has received 

contributions from corporations. 

11. Public Citizen’s complaint asked the FEC to take action against AJS for failing to 

register as a political committee, failing to report contributions and expenditures, accepting 

contributions in excess of $5000 from individuals, and accepting contributions from 

corporations. The complaint was supported by an extensive analysis of AJS’s political 

advertisements during the 2000, 2002, and 2004 election cycles. That analysis showed that 

advertising made up the majority of AJS’s budget, and that AJS’s advertising was 

overwhelmingly aimed at supporting or opposing candidates for federal office. The complaint 

thus documented that AJS’s “major purpose” was supporting or opposing candidates for political 

office, and it further demonstrated that AJS had engaged in substantial expenditures within the 

meaning of FECA and the FEC’s implementing regulations, thus subjecting it to the 

requirements applicable to political committees. 

The FEC’s Action

12. Under 2 U.S.C. § 437g(a), any person who believes a violation of FECA has 

occurred may file a complaint with the FEC and may bring an action for review in this Court if 

the Commission fails to act on the complaint within 120 days. The FEC did not act on Public 

Citizen’s complaint within 120 days, but Public Citizen chose to allow the FEC to complete its 

review and take action on the complaint rather than bringing an action based on the agency’s 

delay. 

13. During the many months in which Public Citizen’s complaint was pending, the 

composition of the Commission changed with the advent of four new Commissioners, including 

three Republicans. 

- 5 - 
14. Since the new Commissioners took office, there have been a number of 

enforcement matters in which the Commission has deadlocked three-to-three on whether to 

proceed with enforcement actions, with the three new Republican Commissioners voting not to 

proceed. As a result, those matters have been dismissed by the Commission. In at least some of 

those instances, the Commission’s action was contrary to the advice of its own General Counsel. 

15. On March 16, 2009, the FEC’s Assistant General Counsel Sidney Rocke sent a 

letter to plaintiffs Lincoln and Holman, as well as Ms. MacCleery, informing them that the 

Commission had considered the allegations of Public Citizen’s complaint (denominated by the 

Commission as “MUR 5910”) and was “equally divided” on whether to find reason to believe 

that AJS had violated various provisions of FECA. The letter further stated that, “[a]ccordingly, 

on February 25, 2009, the Commission voted 4-2 to take no further action,” and that, “[a]t the 

same time, the Commission closed the file in this matter.” The letter went on to advise that 

“[t]he Federal Election Campaign Act allows a complainant to seek judicial review of the 

dismissal of this action.” 

16. The FEC’s March 16, 2009, letter also stated that “[a] Statement of Reasons 

providing a basis for the Commission’s decision will follow,” and that “[d]ocuments related to 

the case will be placed on the public record within 30 days.” 

17. As of the filing of the initial complaint in this action on April 24, 2009, more than 

30 days had passed since the March 16, 2009, letter, and nearly 60 days since the FEC’s vote to 

dismiss the action. Because the 60th day after the vote to dismiss was Sunday, April 26, 2009, 

the time for filing a complaint seeking judicial review would have expired on Monday, April 27, 

2009. The Commission had not yet, however, provided a statement of reasons for its actions to 

the complainants or to the public. On April 23, 2009, the Commission placed certain documents 

- 6 - 
related to the case on the public record, but those documents consisted only of the administrative 

complaint, an appearance of counsel and request for extension of time to respond on behalf of 

AJS, an order granting AJS an extension of time, three responsive documents submitted by AJS, 

copies of the March 16, 2009, letters sent to Public Citizen and to AJS notifying them of the 

dismissal of the complaint, and a document certifying the Commission’s votes on February 25, 

2009. None of the materials placed in the public record as of the date of the filing of the initial 

complaint in this action (which materials could be found by accessing the “enforcement query 

system” page of the FEC’s website (http://eqs.nictusa.com/eqs/searcheqs) and searching for 

materials using the number assigned by the FEC to Public Citizen’s complaint, 5910) sets forth 

the Commission’s reasons for dismissing the complaint. 

18. The certification of the Commission’s February 25, 2009, vote that had been 

placed in the public record as of the date of the filing of the initial complaint in this action 

revealed that the Commission’s staff had prepared a “Factual and Legal Analysis” supporting 

proposed findings that there was reason to believe that AJS had violated numerous provisions of 

FECA by not registering as a political committee, not reporting contributions and expenditures, 

accepting contributions in excess of $5000 and prohibited corporate contributions, and making 

expenditures for express campaign advocacy. The certification also showed that the staff had 

recommended issuing compulsory process to AJS and witnesses to gather evidence concerning 

these suspected violations. As of April 24, 2009, the Commission had not made the staff’s 

analysis supporting the recommended actions available to the public. According to the 

certification, the three Democratic members of the Commission voted to make the proposed 

findings, approve the staff’s analysis, and issue compulsory process, while the three Republican 

members voted not to. Following the deadlock, the certification shows that one of the 

- 7 - 
Democratic Commissioners joined with the three Commissioners who had voted not to proceed 

in order to provide the needed fourth vote for a decision to take no further action, following 

which all six Commissioners voted to close the file. 

19. On April 28, 2009, the Commission made available to the public two statements 

of reasons explaining the positions of the three Commissioners who had voted not to proceed and 

the three who had voted to proceed with the AJS complaint. The signatures on the statement of 

reasons of the three Commissioners who voted not to proceed with the AJS matter were dated 

April 27, 2009, while the signatures on the statement of reasons of the three Commissioners who 

voted to proceed were dated April 23, 2009, but both statements were in fact made available to 

the public (and to the plaintiffs in this action) on the same day, April 28, 2009. 

20. The statement of reasons of the three Commissioners who voted to proceed 

attached a copy of the factual and legal analysis prepared by the FEC’s Office of General 

Counsel, which recommended that the FEC proceed with further investigation of AJS. The 

factual and legal analysis examined advertisements AJS had run in the 2004 and 2006 election 

cycles and concluded that there was reason to believe that they contained express candidate 

advocacy within the meaning of FECA and the FEC’s regulations, and thus that AJS had made 

expenditures exceeding $1000 in each of those years. The factual and legal analysis further 

concluded that there was reason to believe that AJS’s “major purpose” was to influence federal 

elections because most of its public communications appeared to focus on candidate advocacy. 

Based on these conclusions, the factual and legal analysis recommended that the FEC proceed 

with its investigation of AJS because there was reason to believe that AJS had violated FECA by 

failing to register as a political committee and/or by making prohibited expenditures using 

corporate contributions and without including disclaimers required by FECA. 

- 8 - 
21. The statement of reasons of the three Commissioners who voted to proceed 

endorsed the Office of General Counsel’s factual and legal analysis and stated that on that basis 

those Commissioners found it reasonable to believe that AJS may have violated the law. 

22. The statement of reasons of the three Commissioners who voted not to proceed 

rejected the Office of General Counsel’s recommendations. These Commissioners concluded 

that there was no reason to believe that AJS had violated the law because, as a matter of law, 

none of its challenged advertisements contained express advocacy within the meaning of FECA 

and its implementing regulations. This conclusion reflected the three Commissioners’ 

interpretation of Supreme Court decisions defining the First Amendment limitations on the 

Commission’s power to regulate express advocacy and its equivalents. In addition, these three 

Commissioners stated that even if AJS had engaged in some express advocacy, it was not a 

political committee because its “major purpose” was not campaign advocacy, a conclusion based 

in part on the Commissioners’ view that AJS had engaged in some advertising that was not 

related to candidates for office. 

Claim for Relief — 2 U.S.C. § 437g(a)(8)(C) — Dismissal Contrary to Law

23. Under 2 U.S.C. § 437g(a)(8)(A), any party aggrieved by the Commission’s 

dismissal of a complaint may petition this Court for review, and the Court shall grant the petition 

upon a showing that the dismissal of the complaint is “contrary to law.” 2 U.S.C. 

§ 437g(a)(8)(C). Dismissal of a complaint is “contrary to law” if it rests on an impermissible 

interpretation of FECA or its implementing regulations or if it is otherwise arbitrary and 

capricious or an abuse of discretion. See Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986). 

24. Plaintiffs Public Citizen, Holman, and Lincoln are aggrieved by the FEC’s 

dismissal of the complaint. 

- 9 - 
25. The FEC’s dismissal of the AJS complaint rests on the legally erroneous views of 

three Commissioners that, as a matter of law, AJS has not engaged in express advocacy and does 

not have a major purpose of influencing elections. The FEC’s action is contrary to law, arbitrary 

and capricious, and an abuse of discretion because the allegations of the complaint, and the 

information provided to the FEC in support of it, are sufficient to provide reason to believe that 

AJS is a political committee and therefore has violated FECA by not registering as such, not 

complying with its obligations to report contributions and expenditures, and not complying with 

FECA’s limits on amounts and sources of contributions. 

Relief Requested

Wherefore, the plaintiffs pray for the following relief as authorized by 2 U.S.C. 

§ 437g(a)(8)(C): 

i. an order declaring that the dismissal of Public Citizen’s complaint is contrary to 

law; 

ii. an order directing the FEC to conform to the Court’s declaration within 30 days; 

and 

iii. all other proper relief. 

Respectfully submitted, 

 /s/ 

Adina H. Rosenbaum, DC Bar No. 490928 

Scott L. Nelson, DC Bar No. 413548 

Public Citizen Litigation Group 

1600 20th Street, N.W. 

Washington, DC 20009 

(202) 588-1000 

Attorneys for Plaintiffs

June 22, 2009 

- 10 - 
- 11 - 

CERTIFICATE OF SERVICE

I hereby certify that the foregoing First Amended Complaint for Declaratory and 

Injunctive Relief has been served by certified mail this 22d day of June, 2009, on: 

Attorney General of the United States 

950 Pennsylvania Avenue, NW 

Washington, DC 20530-0001 

Federal Election Commission 

999 E Street, NW 

Washington, DC 20463 

Civil Process Clerk 

Office of the United States Attorney 

for the District of Columbia 

555 Fourth Street, N.W. 

Washington, D.C. 20001 

 /s/ 

 Scott L. Nelson