UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CAMPAIGN LEGAL CENTER, et al.,

Plaintiffs, 

v. 

FEDERAL ELECTION 

COMMISSION,

Defendant,

F8, LLC, et al.,

IntervenorDefendants. 

Case No. 1:16-cv-00752 (TNM)

MEMORANDUM OPINION

Plaintiffs Campaign Legal Center and Democracy 21 claim that it was unlawful for the 

Federal Election Commission to decline to investigate three complaints that corporate entities 

committed “straw donor” violations of the Federal Election Campaign Act’s prohibition on

making “a contribution in the name of another person or knowingly permit[ting] [one’s] name to 

be used to effect such a contribution.” 52 U.S.C. § 30122; Compl. ¶¶ 1-2. Three of the alleged 

violators intervened as Defendants, and all parties have filed cross motions for summary 

judgment. Finding that there was a rational basis for the Commission’s exercise of its 

prosecutorial discretion, the Court will grant summary judgment for all Defendants.

I. BACKGROUND

A. The Federal Election Commission’s Enforcement Authority

The Federal Election Commission is an agency that “administer[s], seek[s] to obtain 

compliance with, and formulate[s] policy with respect to” the Federal Election Campaign Act
2

(the Act), and has “exclusive jurisdiction with respect to the civil enforcement of such 

provisions.” 52 U.S.C. § 30106(b)(1). The Commission comprises “6 members appointed by 

the President, by and with the advice and consent of the Senate.” Id. § 30106(a)(1). “No more 

than 3 members of the Commission . . . may be affiliated with the same political party.” Id. “All 

decisions of the Commission with respect to the exercise of its duties and powers . . . shall be 

made by a majority vote of the members of the Commission.” Id. § 30106(c). “The voting and 

membership requirements mean that, unlike other agencies—where deadlocks are rather 

atypical—[the Commission] will regularly deadlock as part of its modus operandi.” Pub. 

Citizen, Inc. v. Fed. Energy Regulatory Comm’n, 839 F.3d 1165, 1171 (D.C. Cir. 2016).

“Any person” may file an administrative complaint with the Commission alleging a 

violation of Act. 52 U.S.C. § 30109(a)(1). “If the Commission . . . determines, by an affirmative 

vote of 4 of its members, that it has reason to believe that a person has committed, or is about to 

commit, a violation,” then the Commission “notif[ies] the person of the alleged violation,” and 

begins “an investigation . . . which may include a field investigation or audit.” Id. § 30109(a)(2). 

The Commission then votes on whether there is “probable cause” to believe that the person “has 

committed, or is about to commit, a violation of [the] Act.” Id. § 30109(a)(4)(A)(i). If the 

Commission finds probable cause, it must attempt to remedy the violation informally, with a 

conciliation agreement ratified by four Commissioners. Id. If a conciliation agreement cannot 

be reached, then the Commission (again with the vote of four Commissioners) may institute a 

civil enforcement action in federal district court. Id. § 30109(a)(6)(A). If at any point the 

Commission dismisses an administrative complaint, the party who filed the complaint may file 

suit in this District, asserting that “the dismissal of the complaint . . . is contrary to law.” Id. § 

30109(a)(8).
3

Here, the Plaintiffs asked the Commission to enforce the Act’s requirement that “political 

committees” must file publicly available reports detailing receipts and expenditures, 52 U.S.C. § 

30104(a)–(b), and its straw donor prohibition: “No person shall make a contribution in the name 

of another person or knowingly permit his name to be used to effect such a contribution, and no 

person shall knowingly accept a contribution made by one person in the name of another 

person.” Id. § 30122. The Act defines “person” to include a “corporation.” 52 U.S.C. § 

30101(11).

B. The Commission Dismisses Plaintiffs’ Complaints

This case involves three administrative complaints filed by the Plaintiffs in 2011-2013. 

Two of the complaints focused on $1 million donations made in March 2011 by limited liability 

companies (LLCs) Eli Publishing L.C. and F8 LLC, respectively, to a registered independentexpenditure-only political action committee (or super PAC) called Restore Our Future, Inc. R. at 

78.1 The Plaintiffs filed two complaints alleging that Steven Lund (who founded Eli Publishing) 

and others (who operated F8 LLC) were the true sources of the contributions. R. at 32. The 

complaints also asserted that the LLCs were “political committees” subject to reporting 

requirements under 52 U.S.C. § 30104. Id. Mr. Lund told news media that he made the 

donations through a corporation for “accounting advantages,” and was not trying to hide them.

R. at 78. The Commission’s Office of General Counsel recommended finding reason to believe 

that Mr. Lund, both companies, and the unknown operators of F8 violated the straw donor 

prohibitions of 52 U.S.C. § 30122, but counseled taking no action on the political committee 

allegations. R. at 80.

 

1

 The relevant portions of the administrative record were filed as a Joint Appendix. ECF No. 42.
4

The third complaint concerns a series of donations totaling over $12 million from 

Specialty Investment Group Inc., and its subsidiary Kingston Pike Development LLC to 

FreedomWorks for America, another super PAC. R. at 79. William Rose was Specialty Group’s 

CEO, president, and board chairman, and the sole manager of Kingston Pike, id., and the 

Plaintiffs alleged that FreedomWorks board member Richard Stephenson made the contributions 

through Mr. Rose’s companies, with assistance from Adam Brandon, a FreedomWorks’ 

executive vice president. R. at 323. The Commission’s General Counsel recommended finding 

reason to believe that Mr. Stephenson, Mr. Rose, both companies, FreedomWorks, and Mr. 

Brandon had violated the straw donor prohibition, but recommended against investigating the 

political committee allegations. R. at 80.2

 

2

 The Commission dismissed five administrative complaints in a single vote, so the Plaintiffs 

originally included all five in this suit. Judge John D. Bates ruled that the Plaintiffs lacked 

standing on two complaints, and dismissed that portion of the case. Campaign Legal Ctr. v. Fed. 

Election Comm’n, 245 F. Supp. 3d 119, 125 (D.D.C. 2017). But because the facts underlying all 

five complaints informed the Commission’s decision, I will summarize the other two briefly.

One complaint focused on Edward Conard, who wanted to make a large contribution to Restore 

Our Future, a super PAC supporting Mitt Romney’s candidacy for President. R. at 77. 

Concerned that publicity might endanger his family, Mr. Conard retained a global law firm to 

ask “whether he could create an entity for the sole purpose of making a [contribution] . . . [that] 

would not require full public disclosure of his name.” Id. (alteration original) (citations and 

internal quotation marks omitted); Gov’t. Mot. Summ. J. 26. Advised that he could accomplish 

this goal through a corporate LLC, Mr. Conard created W Spann LLC in March 2011. W Spann 

gave $1 million to Restore Our Future and almost immediately dissolved. R. at 77. In August 

2011, after the contribution attracted significant news coverage, Mr. Conard made his role public 

and “asked . . . Restore Our Future to amend its reports to identify him as the contributor.” R. at 

78. The Commission’s General Counsel recommended finding reason to believe a violation 

occurred in Mr. Conard’s case.

The other complaint focused on contributions from Prazrakrel Michel, who created SPM 

Holdings, LLC to own his assets and receive his income. R. at 79. Mr. Michel “used the last of 

his personal funds not held by SPM” to donate $350,000 to a political committee called Black 

Men Vote, and then directed SPM to give $875,000 more. R. at 80. Black Men Vote disclosed 

the $875,000 only as an SPM contribution. Id. Mr. Michel later “acknowledged that he directed 
5

In February 2016, the Commission deadlocked—three votes to three—on whether to find 

reason to believe that any violation had occurred and to proceed with an investigation. R. at 67-

68, 543-44. As a result, the Commission voted unanimously to close the files and “[s]end the 

appropriate letters.” Id. The letters informed the Plaintiffs of their right “to seek judicial review 

of the Commission’s dismissal.” R. at 70-71, 73-74, 546-47, 550-51. The Commissioners who 

voted against an investigation released a Statement of Reasons in April 2016, R. at 75-89, which

“necessarily states the agency’s reasons for acting as it did” because it comes from the 

Commission’s “controlling group.” Fed. Election Comm’n v. Nat’l Republican Senatorial 

Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992). The dissenting Commissioners also provided a 

Statement of Reasons. R. at 90-94.

The Commission stated that it declined to find reason to believe a violation occurred as 

“an exercise of the Commission’s prosecutorial discretion,” id. at 77, because the Supreme 

Court’s decision in Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010) created a sea 

change in campaign finance law, overturning the ban on corporate political speech and making it 

necessary to examine as “an issue of first impression” how Section 30122’s straw donor ban

applied to corporate contributions. R. at 75-76. The Commission also “kept . . . in mind” (1) 

that the Commission had previously applied the straw donor ban “almost exclusively” in 

situations involving “excessive and/or prohibited contributions,” while the matters under review 

involved donations to super PACs not subject to such limitations, (2) that “Commission 

precedent has treated funds deposited into a corporate account and then used for contributions as 

the funds of that corporation,” (3) that the Commission had “rejected an attribution rule that 

 

. . . the contributions,” and that they “were in some respects his contributions.” Id. The General 

Counsel did not recommend finding reason to believe a violation occurred in this case. Id.
6

would deem the individual owners of corporate LLCs as the makers of those LLC’s 

contributions,”3and (4) that “the speech rights recognized in Citizens United would be hollow if 

closely held corporations and corporate LLCs were presumed to be straw donors—thus, 

triggering investigations and potential punishment—each time they made contributions.” R. at 

76. 

The Commission therefore announced a new standard to evaluate straw donor allegations 

in this factual context, focused on “whether the funds used to make a contribution were 

intentionally funneled through a closely held corporation or corporate LLC for the purpose of 

making a contribution that evades the Act’s reporting requirements, making the individual . . . 

the true source.” Id. The Commission declined to proceed with investigations of Plaintiffs’ 

complaints, concluding that “because past Commission decisions . . . may be confusing in light 

of recent legal developments[;] principles of due process, fair notice, and First Amendment 

clarity counsel against applying a standard to persons and entities that were not on notice of the

governing norm.” Id.

The three dissenting Commissioners reasoned that “current law clearly prohibits 

contributors from using the names of LLCs to shield their identity from disclosure to the public,” 

and that the issue presented was “not [] difficult.” R. at 91-92. They acknowledged that “the 

ability of individuals and corporations to make unlimited contributions to super PACs is a postCitizens United . . . phenomenon,” but argued that “the longstanding prohibition against making 

contributions in the name of another remains unchanged and squarely applies in these cases.” R.

at 92. In a separate Statement, two dissenting Commissioners criticized the controlling 

 

3

 The term “corporate LLC” appears to refer to “[a]n LLC that elects to be treated as a 

corporation by the Internal Revenue Service.” 11 C.F.R. § 110.1(g)(3).
7

Commissioners for delaying their decision, and challenged the purpose-focused standard they 

had announced. R. at 95-97. The controlling Commissioners defended their conduct and the 

proposed standard in a Supplemental Statement. R. at 98-101. 

C. Plaintiffs Challenge the Commission’s Decision Not to Investigate

Plaintiffs filed this suit in April 2016, a few weeks after the Commission announced its 

reasoning. F8 LLC, Eli Publishing, and Steven Lund then intervened as defendants. Minute 

Order, June 30, 2016. The Commission moved to dismiss for lack of standing, Mot. Dismiss pg. 

i, ECF No. 13, and my colleague granted the motion in part, dismissing the Plaintiffs’ challenge 

on two complaints, but allowing the remainder of the case to proceed. Mem. Op. 7-9. All 

parties then moved for summary judgment.

II. LEGAL STANDARDS

To prevail on a motion for summary judgment, a movant must show that “there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 

law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); 

Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986). “[A] party seeking summary judgment 

always bears the initial responsibility of informing the district court of the basis for its motion, 

and identifying those portions of the [record] which it believes demonstrate the absence of a 

genuine issue of material fact.” Celotex, 477 U.S. at 323. Once this showing has been made, the 

non-moving party bears the burden of setting forth “specific facts showing that there is a genuine 

issue for trial.” Anderson, 477 U.S. at 250.

“The standard to be applied . . . in reviewing the [Commission’s] decision not to 

investigate [a] complaint is whether the [Commission] has acted ‘contrary to law.’” Orloski v. 

Fed. Election Comm’n, 795 F.2d 156, 161 (D.C. Cir. 1986); 52 U.S.C. § 30109(a)(5)(A). Under 
8

this standard, a court’s task is “not to interpret the statute as it [thinks] best[,] but rather the 

narrower inquiry into whether the Commission’s construction was ‘sufficiently reasonable’ to be 

accepted.” Fed. Election Comm’n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 39 

(1981) (citations omitted). “The [Commission’s] decision is ‘contrary to law’ if (1) the 

[Commission] dismissed the complaint as a result of an impermissible interpretation of the Act, 

or (2) if the [] dismissal of the complaint, under a permissible interpretation of the statute, was 

arbitrary or capricious, or an abuse of discretion.” Orloski, 795 F.2d at 161 (citations omitted). 

“This is an extremely deferential standard which requires affirmance if a rational basis for the 

agency’s decision is shown.” Id.

The parties agree that Orloski applies, Pl. Mot. Summ. J. 19; Interv-Def. Mot. Summ. J. 

9; Gov’t. Mot. Summ. J. 17, but disagree about the degree of deference that this case requires. 

The disagreement stems from the fact that “when a court’s review turns on an interpretation of 

[the Act’s] terms, the ‘contrary to law’ standard involves a straightforward application of the 

familiar two-step framework outlined in Chevron,” Citizens for Responsibility & Ethics in 

Washington v. Fed. Election Comm’n, 209 F. Supp. 3d 77, 86 (D.D.C. 2016), and an exercise of 

prosecutorial discretion also merits deference. La Botz v. Fed. Election Comm’n, 61 F. Supp. 3d 

21, 33 (D.D.C. 2014). But no deference is warranted when a court reviews the Commission’s 

interpretation of judicial precedent, “especially [] where . . the Supreme Court precedent, and 

subsequent interpretation, is based on constitutional concerns, an area of presumed judicial . . .

competence.” Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1341 (D.C. Cir. 2002) (citing Akins 

v. Fed. Election Comm’n, 101 F.3d 731, 740 (D.C. Cir. 1996) (en banc), vacated on other 

grounds, 524 U.S. 11 (1998)). 
9

The Plaintiffs argue that no Chevron deference is warranted because the Commission’s 

decision did not turn on its interpretation of the Act’s terms, but on Citizens United and legal 

issues of notice, due process, and First Amendment speech rights. Pls’ Mot. Summ. J. 21-25. In 

response, the Commission and the Intervenor-Defendants insist that deference is baked into the 

“contrary to law” standard itself. E.g., Gov’t. Mot. Summ. J. 18 (citing Democratic Senatorial 

Campaign Comm., 454 U.S. at 45 (“the Commission is precisely the type of agency to which 

deference should presumptively be afforded,” which is part of why “Congress wisely provided 

that the Commission’s dismissal of a complaint should be reversed only if ‘contrary to law.’”)). 

And the Defendants argue that “[t]he case for deference is even more appropriate where, as here, 

the agency’s decision not to proceed . . . is an exercise of its prosecutorial discretion.” Gov’t.

Mot. Summ. J. 18. The Plaintiffs respond that the Commission did not exercise “the kind of 

[discretion] to which this Court owes deference,” because “[t]he controlling Commissioners did 

not cite agency resources or likelihood of success as [their] rationale.” Pl.’s Reply at 5, ECF No. 

36; see La Botz, 61 F. Supp. 3d at 33–34 (“An agency decision not to pursue a potential violation 

involves a complicated balancing of factors which are appropriately within its expertise, 

including whether agency resources are better spent elsewhere, whether its action would result in 

success, and whether there are sufficient resources to undertake the action at all.”).

Here, applicable case law requires that I give deference to the Commission’s decision. 

First, the “contrary to law” standard is itself deferential. Democratic Senatorial Campaign 

Comm., 454 U.S. at 45. A court cannot overturn the Commission’s decision simply because it 

does not comport with the “best” interpretation of the statute, id. at 39, but only “if (1) the 

[Commission] dismissed the complaint as a result of an impermissible interpretation of the Act, 
10

or (2) if the [] dismissal of the complaint, under a permissible interpretation of the statute, was 

arbitrary or capricious, or an abuse of discretion.” Orloski, 795 F.2d at 161 (citations omitted).

Second, this decision was not a direct “result” of the Commission’s “interpretation of the 

Act,” see id., but an exercise of the Commission’s “considerable prosecutorial discretion.” 

Nader v. Fed. Election Comm’n, 823 F. Supp. 2d 53, 65 (D.D.C. 2011). The Commission 

recognized that the conduct at issue “could potentially violate section 30122,” Admin Rec. 85, 

but concluded that the “[r]espondents did not have prior notice of the [Commission’s] legal 

interpretation,” and that due process and First Amendment principles counseled against 

investigation. Id. at 87-88. Even though the Commission did not explicitly rely on “agency 

resource[]” constraints or likelihood of success to support its decision, cf. La Botz, 61 F. Supp. 

3d at 33–34, this decision still involved “a complicated balancing of a number of factors which 

are peculiarly within [the Commission’s] expertise,” including “whether the particular 

enforcement action requested best fits the agency’s overall policies,” and the fact that “[a]n 

agency generally cannot act against each technical violation of the statute it is charged with 

enforcing.” Heckler, 470 U.S. at 831. Moreover, the Commission’s fair notice and due process 

concerns implicitly raise questions about the likelihood of success in a legal challenge involving 

these complaints. Although I will not defer to the Commission’s interpretation of case law or the 

Constitution, “area[s] of presumed judicial, rather than administrative, competence,” Univ. of 

Great Falls, 278 F.3d at 1341, the ultimate inquiry is whether “the [Commission] acted contrary 

to law by abusing its discretion.” Citizens for Responsibility & Ethics in Washington v. Fed. 

Election Comm’n, 236 F. Supp. 3d 378, 390 (D.D.C. 2017) (citations omitted). Abuse of 

discretion is “an extremely deferential standard which requires affirmance if a rational basis for 
11

the agency’s decision is shown.” Orloski, 795 F.2d at 167 (citation omitted). “We are not here 

to run the agencies.” Fed. Election Comm’n v. Rose, 806 F.2d 1081, 1091 (D.C. Cir. 1986). 

In sum, the Commission acted “contrary to law” only if it failed to show a rational basis 

for dismissing these complaints. Orloski, 795 F.2d at 167.4

III. ANALYSIS

A. The Commission’s Decision Was Not Contrary to Law

With the applicable standard established, I am satisfied that the Commission provided a 

rational basis for its decision not to investigate, and the dismissals were therefore not contrary to 

law. The Plaintiffs rely heavily on the argument that “[a]pplication of section 30122 to corporate 

straw donors is . . . mandated by the plain language of the statute,” and “necessary to effectuate 

Congress’ interest in preventing the laundering of campaign money [to obscure] the true source[] 

of [] funds.” Pls.’ Mot. Summ. J. 25. But the Commission did not say otherwise. In fact, the 

Commission agreed that the plain language of Section 30122 applies to corporations, declaring 

that “[u]nder certain circumstances, closely held corporations and corporate LLCS may be 

considered straw donors under section 30122.” R. at 86. And the Commission did not dismiss 

the complaints because it decided that the announced standard did not apply, but reasoned that 

“[r]espondents were not provided adequate notice that their conduct could potentially violation 

section 30122.” Id. at 85. I therefore turn to the reasons on which the Commission did rely—

 

4

 This standard may not be phrased in the terms that the Plaintiffs request, but it seems to be 

nearly equivalent to the test that Plaintiffs apply in practice (despite their suggestion that a de 

novo standard might be appropriate). Compare Pls.’ Mot. Summ. J. 31-32 (“the Court must 

determine whether the [Commission] has ‘articulate[d] a satisfactory explanation for its action 

including a rational connection between the facts and the choice made.’”) (citing Motor Vehicle 

Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (alteration 

original) with Orloski, 795 F.2d at 167 (citation omitted) (“[t]his . . . standard [] requires 

affirmance if a rational basis for the agency’s decision is shown.”). 
12

intertwined concerns of fair notice and due process in a post-Citizens United context, confusing 

Commission precedent, and the obligation to protect First Amendment speech—and conclude 

that the Commission supplied a rational basis for its decision.

The question of “whether, or under what circumstances, a closely held corporation or 

corporate LLC may be considered a straw donor” was an issue of first impression for the 

Commission. R. at 81, 75-76. The Supreme Court’s decision in Citizens United held that “the 

Government may not suppress political speech on the basis of the speaker’s corporate identity,” 

and struck down the Act’s ban on certain corporate speech, including corporate contributions. 

558 U.S. at 337, 365 (describing and striking down 2 U.S.C. § 441b, a provision since moved to 

52 U.S.C. § 30118).5 Corporations’ ability to make federal campaign contributions cast the 

Act’s straw donor prohibition in a new light. The Act still said that “[n]o person shall make a 

contribution in the name of another person or knowingly permit his name to be used to effect 

such a contribution,” and defined “person” to include a “corporation,” 52 U.S.C. §§ 30122, 

30101(11), as both the controlling and dissenting Commissioners acknowledged. R. at 81, 92. 

But because corporations could now legally be donors, the Commission had to consider for the 

first time how and when a corporation might still break the law as a straw donor. R. at 81. 

In the post-Citizens United context, the Commission’s existing regulations and precedent 

were less than helpful. In the only regulation governing LLCs, the Commission required (and

still requires) “partnership LLCs [and LLCs “with a single natural person member that does not 

elect to be treated as a corporation”] to attribute their contributions to their individual members[,] 

 

5 The reasoning in Citizens United led the D.C. Circuit to invalidate the Act’s contribution limits 

as applied to individuals’ contributions to political committees that only made independent 

expenditures, SpeechNow.org v. Fed. Election Comm’n, 599 F.3d 686, 689 (D.C. Cir. 2010), and 

SpeechNow in turn compelled the Commission to allow corporations and labor organizations to 

make similar contributions without limit, R. at 75 n.1.
13

but provide[d] no similar instruction to corporate LLCs.” R. at 85; 11 C.F.R. § 110.1(g). The 

Commission in fact “rejected [in 1998] a proposal to deem contributions by closely held 

corporate LLCs as contributions from their individual owners.” R. at 85. And when

investigating allegations of illegal corporate giving, the Commission had “treat[ed] funds 

deposited in a corporate account as the corporation’s funds, even if the corporation’s owner 

could legally convert them into his or her own funds.” R. at 83. In a case the Commission 

decided in 1995, an individual “created a corporation to run a television ad and deposited his 

personal funds into the corporations account for the purpose of funding the ad,” facts strikingly 

similar to some of the complaints at issue today. R. at 84-85. The Commission’s General 

Counsel reasoned that the funds were corporate rather than personal, based on “well established 

principle[s] of corporate law.” Id. (alteration in original). In sum, corporate LLCs were left with 

little guidance in determining when they might be considered straw donors. As the Commission 

explained, “it would be reasonable for Respondents to conclude that contributions made by their 

closely held corporations and corporate LLCs were lawful and not contributions in the name of 

another.” Id. at 85. 

In fact, even sophisticated lawyers were confused. Tasked by Mr. Conard with the 

question of “whether he could create an entity for the sole purpose of making a [contribution] . . . 

[that] would not require full public disclosure of his name,” a law firm told Mr. Conard that he 

could legally do so through a corporate LLC. R. at 77 (alteration original) (citations and internal 

quotation marks omitted); Gov’t. Mot. Summ. J. 26; see also supra n.2. And the Commission’s 

General Counsel shifted its standard over the course of the five complaints, originally focusing 

on who exercised “dominion or control” over a corporation’s contribution, and later deciding that 

the Commission must take a holistic view “of the transaction itself and the arrangement between 
14

the parties to determine who in fact ‘made’ a given contribution.” R. at 82 (citations omitted). 

As the Commission pointed out, this is “presumably because ‘direction or control’[are] 

necessarily present in all closely held corporations.” Id. The fact that these attorneys found the 

law difficult to apply supports the conclusion that the public lacked notice.

The Plaintiffs make several unavailing arguments in support of the proposition that it 

would be “illogical, irreconcilable with the [Act’s] plain text, and unsupported by any precedent” 

for any of the complaint respondents to conclude that they could legally make anonymous 

contributions using closely held corporations or corporate LLCs. Pls.’ Mot. Summ. J. 32. First, 

the Plaintiffs argue that corporations had contributed under the Act before Citizens United in the 

“soft money” era preceding the Bipartisan Campaign Reform Act of 2002, Pls.’ Mot. Summ. J. 

30, when “federal law permitted corporations and unions . . . to contribute ‘nonfederal money’—

also known as ‘soft money’—to political parties for activities intended to influence state or local 

elections.” McConnell v. Fed. Election Comm’n, 540 U.S. 93, 123 (2003), overruled in part by 

Citizens United, 558 U.S. 310. But McConnell itself explained that soft money is “nonfederal 

money,” the opposite of a “contribution[]” under the Federal Elections Campaign Act, which 

(unsurprisingly) only applies to federal elections. Id. at 123-124; 52 U.S.C. § 30101(8). Even 

though the “soft money” issue may have made Congress aware of similar issues with “corporate 

political giving,” Pls.’ Reply at 13, the fact remains that corporations could not contribute under 

the Act before Citizens United struck down 52 U.S.C. § 30118. 

The Plaintiffs also argue that the issue was not new since the Commission had previously 

faulted political committees for violating the straw donor prohibition. Id. 32-33. But as the 

Commission points out, political committees could make contributions before Citizens United, 

and indeed could be formed for that exact purpose. Gov’t. Mot. Summ. J. 27-28 (citing 52 
15

U.S.C. § 30116(a)(1)-(2)). Enforcement against political committees, therefore, does not present 

the same legal issue as enforcement against a closely held corporation or corporate LLC. 

The Plaintiffs next argue that “the question of whether particular funds are ‘corporate’” is 

different from “whether the corporation is the true source of those funds” for purposes of the 

straw donor prohibition. Pls.’ Mot. Summ. J. 36. Fair enough. But the Commission’s point was 

not that prior regulations and precedent established the point in favor of the alleged violators, but 

that they might have reasonably been confused. R. at 85. And though the Plaintiffs argue that 

any alleged confusion is inconsistent with the regulation’s “text and purpose,” the only relevant 

Commission regulation—detailing the requirements for “[c]ontributions by limited liability 

companies”—does not tell corporate LLCs that they are fair targets for straw donor 

investigations. 11 C.F.R. § 110.1(g). Instead, in the context of closely-held LLCs reporting

contributions from the source partner or member, the regulation states that “[a]n LLC that elects 

to be treated as a corporation by the Internal Revenue Service . . . or an LLC with publicly-traded 

shares, shall be considered a corporation.” Id. After Citizens United, corporations may make 

unlimited contributions to super PACs, and the regulation, combined with Commission 

precedent, suggested that corporate LLCs might be considered the true source of any 

contributions. This does not establish that “section 30122 would not prohibit corporate straw 

donors.” Pls.’ Mot. Summ. J. 36. But it could create confusion, and that confusion supplies a 

rational basis for non-enforcement, especially when the Commission is proposing a governing 

enforcement standard for the first time.6

 

6

 Applying Section 30122 to closely held corporations and corporate LLCs is more complicated 

and difficult than applying the provision to individuals or larger companies and organizations. 

By their nature, these small corporations blur the lines between the individual and corporation, 

and thus blur the line between a “true” donor and a “straw” donor. The Plaintiffs, by arguing 

that the complaint respondents “had precisely the same notice of the law as did an ‘individual, 
16

With this analysis under its belt, the Commission concluded that the “Respondents were 

not provided adequate notice that their conduct could potentially violate section 30122,” R. at 85, 

a conclusion that finds good support in case law. “A fundamental principle in our legal system is 

that laws which regulate persons or entities must give fair notice of conduct that is forbidden or 

required.” F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012) (citation omitted). 

“This requirement of clarity in regulation is essential to the protections provided by the Due 

Process Clause of the Fifth Amendment,” and a “punishment fails to comply with due process if 

the statute or regulation under which it is obtained ‘fails to provide a person of ordinary 

intelligence fair notice of what is prohibited.’” Id. (citations omitted). A rule fails this test not 

when it “may . . . be difficult to prove an incriminating fact but . . . [when] it is unclear as to 

what fact must be proved.” Id.

 

partnership, committee, association . . . [or] labor organization,’” Pl.’s Mot. Summ. J. 30 (citing 

52 U.S.C. 30101(11)), ignore this crucial point, and the Commission’s prior wrestling with the 

issue embodied in 11 C.F.R. § 110.1(g). 

The Plaintiffs also argue that this lack-of-notice conclusion is “not credible,” and that “there is 

reason to suspect that the agency’s interpretation does not reflect the agency’s fair and 

considered judgment on the matter in question.” Pls.’ Mot. Summ. J. 39 (quoting Christopher v. 

SmithKline Beecham Corp., 567 U.S. 142, 155 (2012)) (other citation omitted). They argue that 

“[s]ince 2008, a three-Commissioner bloc has increasingly voted in lockstep to thwart 

enforcement of campaign finance law,” id. at 40, which amounts to “an abdication of [the 

Commissioners’] statutory responsibilities,” id. at 41 (citation omitted). To the extent that the 

Plaintiffs challenge the Commissions’ dispositions of other complaints, I lack jurisdiction under 

52 U.S.C. § 30109(a)(6)(A). And even if their factual claims are true, and part of the 

administrative record before the Commission when it reached its decision, see Hill 

Dermaceuticals, Inc. v. Food & Drug Admin., 709 F.3d 44, 47 (D.C. Cir. 2013), none of it

undermines the Commission’s reasoning. “An administrative official is presumed to be 

objective . . . [and] mere proof that she has taken a public position, or has expressed strong 

views, or holds an underlying philosophy with respect to an issue in dispute cannot overcome 

that presumption.” United Steelworkers of Am., AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 

1208 (D.C. Cir. 1980). Because of its bipartisan design, the Commission “will regularly 

deadlock as part of its modus operandi.” Pub. Citizen, Inc., 839 F.3d at 1171. The fact that 

these deadlocks occur is evidence of the Congressional scheme working, not malfunctioning.
17

“Unique among federal administrative agencies, the Federal Election Commission has as 

its sole purpose the regulation of core constitutionally protected activity—‘the behavior of 

individuals and groups only insofar as they act, speak and associate for political purposes.’” 

AFL-CIO v. Fed. Election Comm’n, 333 F.3d 168, 170 (D.C. Cir. 2003) (citation omitted). In 

this context, vagueness and notice concerns carry special weight, since courts must be especially 

vigilant to prevent the chilling of First Amendment speech. Buckley v. Valeo, 424 U.S. 1, 41 

n.48 (1976) (“vague laws may not only trap the innocent by not providing fair warning or foster 

arbitrary and discriminatory application but also operate to inhibit protected expression by 

inducing citizens to steer far wider of the unlawful zone . . . than if the boundaries of the 

forbidden areas were clearly marked.”) (citations and internal quotation marks omitted); Citizens 

United, 558 U.S. at 324 (“Prolix laws chill speech for the same reason that vague laws chill 

speech: People ‘of common intelligence must necessarily guess at [the law’s] meaning and differ 

as to its application.’) (citation omitted); Fox Television Stations, 567 U.S. at 253–54 (2012) 

(“regulated parties should know what is required of them so they may act accordingly . . . [and] 

precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or 

discriminatory way. When speech is involved, rigorous adherence to those requirements is 

necessary to ensure that ambiguity does not chill protected speech.”) (citation omitted). 

Citing this case law, the Commission concluded that “applying section 30122 to 

Respondents . . . would not only create due process concerns but would risk chilling vitally 

important political speech that is strictly protected by the First Amendment.” R. at 87-88. The 

Plaintiffs counter by arguing that “the dismissals . . . were contrary to both the well-recognized 

disclosure objectives of [the Act] and the First Amendment interests this disclosure is meant to 

advance: ‘providing the electorate with information, deterring actual corruption and avoiding any 
18

appearance thereof, and gathering the data necessary to enforce more substantive electioneering 

restrictions.’” Pls’. Reply 16-17 (quoting McConnell, 540 U.S. at 196). But the Commission 

was well-aware of this First Amendment interest too. R. at 87 n.70 (“less than three weeks after 

the initial report was filed, five months before the first presidential primary was held, and over a 

year before the 2012 general election, Conard’s identity and status as a contributor were 

disclosed to the public. Accordingly, little to no information harm was suffered by the public.”). 

And disclosure’s important role was just one of the competing First Amendment issues that the 

Commission had to consider.7 Not only was it proper for the Commission to consider the 

importance of notice in the First Amendment context, it was also proper for the Commission to 

honor the core holding in Citizens United that “the Government may not suppress political 

speech on the basis of the speaker’s corporate identity.” See 558 U.S. at 365.

8

The Commission has “unique prerogative to safeguard the First Amendment when 

implementing its congressional directives,” Van Hollen, Jr. v. Fed. Election Comm’n, 811 F.3d 

486, 501 (D.C. Cir. 2016), and I conclude that its decision here was rational, and indeed “an able 

attempt to balance the competing values that lie at the heart of campaign finance law.” Id. This 

 

7

 And disclosure has its First Amendment drawbacks. Buckley, 424 U.S. at 64 (“we have 

repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy of 

association and belief guaranteed by the First Amendment”); AFL-CIO v. Fed. Election Comm’n, 

333 F.3d 168, 175 (D.C. Cir. 2003) (“The Supreme Court has long recognized that compelled 

disclosure of political affiliations and activities can impose just as substantial a burden on First 

Amendment rights as can direct regulation”) (citations omitted); Van Hollen, Jr. v. Fed. Election 

Comm’n, 811 F.3d 486, 488 (D.C. Cir. 2016) (“these two values exist in unmistakable tension. 

Disclosure chills speech. Speech without disclosure risks corruption. And the Supreme Court’s 

track record of expanding who may speak while simultaneously blessing robust disclosure rules 

has set these two values on an ineluctable collision course.”)

8

 Plaintiffs also dispute the Commission’s notice concerns as to the intervenors whose conduct 

post-dated the public outcry over W Spann’s political contribution. Pls.’ Reply 21. But the 

relevant notice date stems from some official statement by the Commission clarifying the rule—

here, the Commission’s Statement of Reasons—not mere negative publicity over a contribution.
19

was an issue of first impression, in a campaign finance environment remade by Citizens United, 

where existing Commission regulations and precedent offered few helpful clues about how the 

straw donor prohibition applied in real life to closely held corporations and corporate LLCs. 

Because the Commission furnished a rational basis for its decision, I conclude that it was not 

“contrary to law,” and that the Defendants are entitled to summary judgment. See Orloski, 795 

F.2d at 167.9

B. The Challenge to the Commission’s Announced Standard is Not Ripe

The Plaintiffs also claim that “[t]he controlling Commissioners’ standard for ‘similar 

future cases,’ which they refused to apply here, is arbitrary, capricious, and contrary to law.” 

Pls.’ Mot. Summ. J. 37 (citation omitted). But as the Plaintiffs admit, that interpretation has yet 

to be applied in practice, and the challenge is therefore not ripe. “Determining whether 

administrative action is ripe for judicial review requires [courts] to evaluate (1) the fitness of the 

issues for judicial decision and (2) the hardship to the parties of withholding court 

consideration.” Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003). By 

applying the ripeness doctrine, courts avoid “entangling themselves in abstract disagreements 

over administrative policies, and also to protect the agencies from judicial interference until an 

administrative decision has been formalized and its effects felt in a concrete way by the 

challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 148–49 (1967), abrogated in part

by Califano v. Sanders, 430 U.S. 99, 105 (1977). 

 

9

 All six of the Commissioners viewed this case as a straw donor case, not a political committee 

case. R. at 80 n.36, 90-94. In fact, the General Counsel explained that “an entity can be a 

conduit or a political committee, but not both.” R. at 44. The Plaintiffs argue only in passing 

that the political committee registration requirements applied. Pls.’ Mot. Summ. J. 29. I 

conclude that the Commission’s reliance on the General Counsel’s recommendation, and 

analysis in R. 80 n.36 constitute a rational basis for its decision not to investigate the political 

committee claims.
20

 This challenge is not even close to being ripe. Not only has the challenged legal 

interpretation not been applied, but the Commission has yet to formally adopt it. The reasoning 

of the three Commissioners who voted against investigation constitutes the agency’s reasoning 

for this case, Nat’l Republican Senatorial Comm., 966 F.2d at 1476, but “not [] binding legal 

precedent or authority for future cases.” Common Cause v. Fed. Election Comm’n, 842 F.2d 

436, 449 n.32 (D.C. Cir. 1988) (“The statute clearly requires that for any official Commission 

decision there must be at least a 4–2 majority vote.”). Although the Commission may apply the 

standard in the future, it may also choose to alter it. Id. at 449.

Even the Plaintiffs’ own arguments make it obvious how unfit this standard is for judicial 

review. The Commission decided that “in similar future matters, the proper focus will be on 

whether funds were intentionally funneled through a closely held corporation or corporate LLC 

for the purpose of making a contribution that evades the Act’s reporting requirements,” and that 

corporate contributions “shall be presumed lawful unless specific evidence demonstrates 

otherwise.” R. at 86. The Plaintiffs argue that “[a]lthough the parameters of the . . . standard 

have not yet been tested, it appears to be unduly narrow and absolute,” Pls.’ Mot. Summ. J. 38, 

and “virtually impossible to prove.” Id. (quoting R. at 96 (Statement of Commissioners Ravel 

and Weintraub, dissenting)). Predictive arguments present “the classic institutional reason to 

postpone review,” because “we need to wait for a rule to be applied [to see] what its effect will 

be” in the fact-rich context of an actual enforcement or non-enforcement case, where the 

Commission directly applied the challenged interpretation. See Atl. States Legal Found. v. EPA, 

325 F.3d 281, 285 (D.C. Cir. 2003) (citations and internal quotation marks omitted). I conclude 

that this challenge is unfit for judicial decision, because the Plaintiffs have not felt the “effects” 

of the Commission’s interpretation “in a concrete way,” Abbott Labs., 387 U.S. at 148–49, and