CAMPAIGN LEGAL CENTER et al v. FEDERAL ELECTION COMMISSION
Filing
98
MEMORANDUM OPINION re 97 Order on Motion for Order. Signed by Chief Judge James E. Boasberg on January 28, 2025. (lcjeb3)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CAMPAIGN LEGAL CENTER, et al.,
Plaintiffs,
v.
FEDERAL ELECTION COMMISSION,
Civil Action No. 19-2336 (JEB)
Defendant,
and
HILLARY FOR AMERICA, et al.,
Defendant-Intervenors.
MEMORANDUM OPINION
This long-running dispute began in 2016, when Plaintiff Campaign Legal Center filed
with the Federal Election Commission an administrative complaint alleging that Super PAC
Correct the Record (CTR) and Hillary Clinton’s campaign, officially called Hillary for America
(HFA), failed to report millions of dollars’ worth of in-kind contributions in connection with her
2016 presidential run. After the FEC declined to investigate those allegations and dismissed the
complaint in 2019, CLC and one of its directors, Catherine Hinckley Kelley, brought this lawsuit
against the agency to challenge that dismissal. This Court eventually held in December 2022
that the FEC’s dismissal was contrary to law. The D.C. Circuit affirmed that holding, and the
matter was remanded to the Commission. On remand, the FEC once again dismissed the
complaint, albeit on different grounds. Plaintiffs have now filed a Motion seeking a declaration
that the Commission has not conformed with the Circuit decision and that any possible
1
conformance was untimely. Finding that the agency did timely conform, the Court will deny the
Motion.
I.
Background
The legal, factual, and procedural background of this case has by now been covered
numerous times by this Court and twice by the D.C. Circuit. Campaign Legal Ctr. v. FEC (CLC
I), 334 F.R.D. 1, 3–4 (D.D.C. 2019); Campaign Legal Ctr. v. FEC (CLC II), 466 F. Supp. 3d
141, 146–50 (D.D.C. 2020); Campaign Legal Ctr. v. FEC (CLC III), 507 F. Supp. 3d 79, 81–83
(D.D.C. 2020); Campaign Legal Ctr. v. FEC (CLC IV), 31 F.4th 781, 784–88 (D.C. Cir. 2022);
Campaign Legal Ctr. v. FEC (CLC V), 646 F. Supp. 3d 57, 59–63 (D.D.C. 2022); Campaign
Legal Ctr. v. FEC (CLC VI), 106 F.4th 1175, 1179–88 (D.C. Cir. 2024). Brief summaries of the
legal framework and dispute will therefore suffice here.
A. Legal Framework
Congress passed the Federal Election Campaign Act in 1971 to “remedy any actual or
perceived corruption of the political process.” FEC v. Akins, 524 U.S. 11, 14 (1998). As
relevant here, the Act places various restrictions — amount limitations, disclosure requirements,
and the like — on contributions to candidates and sets out an enforcement scheme. Under the
statute, any person who believes that a violation has occurred may file a complaint with the FEC.
See 52 U.S.C. § 30109(a)(1). The FEC’s Office of General Counsel reviews each complaint and
recommends to the Commission whether the complaint provides “reason to believe” a violation
has occurred. Id. § 30109(a)(2)–(3). The FEC Commissioners (six when at full complement)
then vote on whether there is “reason to believe” the Act was violated. Id. §§ 30106(a)(1),
30109(a)(2). If at least four Commissioners vote yes, the FEC will investigate and potentially
2
pursue an enforcement action; otherwise, the complaint may not go forward. Id. §§ 30106(c),
30109(a)(2).
“Any party aggrieved” by the dismissal of a complaint may then sue the Commission,
seeking a court “declaration” that the dismissal is “contrary to law.” See id. § 30109(a)(8)(A)–
(C). For the agency to appear in court to defend itself, the affirmative votes of four
Commissioners are required. Id., §§ 30106(c), 30107(a)(6). Courts have held that if the FEC
does not find reason to believe a violation has occurred, the “declining-to-go-ahead”
Commissioners — or the “controlling Commissioners,” in FECA parlance — must issue a
Statement of Reasons. See CLC VI, 106 F.4th at 1183. Those Statements are “intended to
explain why those commissioners saw no reason to believe a violation occurred, and thereby aid
the reviewing court to ‘intelligently determine whether the Commission is acting contrary to
law.’” Id. (quoting Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131, 1132 (D.C. Cir.
1987)). If a court finds that the agency’s dismissal of a complaint is contrary to law, it “may
declare” as much and “direct the Commission to conform with [that] declaration within 30 days.”
Id. at 1182; see 52 U.S.C. § 30109(a)(8)(C). If the FEC does not so conform, the original
complainant can bring “a civil action” — known as a citizen suit — against the subject of the
complaint “to remedy the violation” alleged “in the original complaint.” 52 U.S.C.
§ 30109(a)(8)(C). There are thus two preconditions to a citizen suit: (1) a court must declare that
the FEC actions regarding a complaint are contrary to law and must order the agency to conform
with that declaration; and (2) the Commission must fail to timely conform with that order.
B. Factual Background
CLC is a nonprofit campaign-finance watchdog group that filed an administrative
complaint with the FEC in October 2016. CLC V, 646 F. Supp. 3d at 61. It alleged that Super
3
PAC CTR had improperly coordinated expenditures with the Hillary Clinton campaign, HFA,
without disclosing them as in-kind contributions and in gross violation of FECA’s contribution
limits. Id. CTR rejoined that this spending was appropriate because it fell under the so-called
“internet exemption,” which excludes certain expenses related to unpaid internet
communications from the definition of in-kind contributions. Id. Although the FEC’s Office of
General Counsel investigated the allegations and recommended finding reason to believe that
several violations had occurred, the agency itself rejected the OGC’s recommendation and
dismissed the administrative complaint without further action by a 2-2 deadlocked vote. Id. The
two controlling Commissioners, in a Statement of Reasons, agreed with CTR that its
expenditures fell under FECA’s internet exemption and therefore did not need to be reported as
in-kind contributions. Id. at 61–62.
In August 2019, Plaintiffs filed suit challenging the FEC’s dismissal order under 52
U.S.C. § 30109(a)(8). See ECF No. 1 (Compl.) at 22–23; see also ECF No. 15 (Am. Compl.).
The agency, however, did not garner the majority required by 52 U.S.C. §§ 30106(c) and
30107(a)(6) to defend this civil suit and thus defaulted. CLC I, 334 F.R.D. at 3–4.
Notwithstanding the Commission’s default, this Court permitted HFA and CTR to intervene as
Defendants in November 2019 over Plaintiffs’ objection. Id. at 5–7. After an initial dismissal
for lack of standing and subsequent reversal by the D.C. Circuit, see CLC III, 507 F. Supp. 3d
79, rev’d, CLC IV, 31 F.4th 781, this Court held that the controlling Commissioners’ Statement
of Reasons rested on a flawed and overly broad interpretation of the internet exemption. CLC V,
646 F. Supp. 3d at 64–66. The Court did not, however, delineate the precise scope of that
exemption and, instead, left the Commission to further define its limits. Id. at 66.
4
The D.C. Circuit affirmed this Court’s decision in July 2024. See CLC VI, 106 F.4th
1175. Agreeing that the FEC’s “analysis of non-internet-related expenditures was arbitrary and
capricious and thus contrary to law,” the panel “direct[ed] remand to the expert Commission to
‘sketch the bounds of the internet exemption and . . . more fully analyze the facts before it.’” Id.
at 1194–95 (omission in original) (quoting CLC V, 646 F. Supp. 3d at 69). After the Circuit’s
mandate issued in September, this Court ordered that the matter be remanded to the FEC on
September 20 “in accordance with the opinion of the D.C. Circuit.” Minute Order of Sept. 12,
2024.
In response to the remand, the FEC held a series of votes on the allegations in the
complaint on October 10, 2024. In each of those votes, the agency failed by a vote of 2-4 to find
reason to believe that CTR and HFA had violated FECA. See ECF No. 86 (Oct. 11 Notice) at 1–
3. The Commission ultimately decided by a vote of 5-1 to dismiss the complaint and close the
file 30 days after the vote’s certification. Id. at 3. The next day, the FEC filed a notice with this
Court informing it of these developments. Id. That notice, which listed the subjects of the votes
and their tallies, did not contain any information about the Commissioners’ reasoning.
On October 30, Plaintiffs filed this Motion seeking a declaration that the FEC had not
conformed with the Court’s Order remanding this matter in accordance with the Circuit’s
opinion. See ECF No. 89 (Mot.). The same day, the agency filed another notice informing the
Court that it had voted on October 23 to direct its General Counsel to “draft a Notice of Proposed
Rulemaking to consider whether to revise the Commission’s regulation [governing the internet
exemption] to delineate the scope of that regulation with respect to input costs.” ECF No. 88
(Oct. 30 Notice) (quotation marks omitted).
5
On November 5, 2024, three of the four Commissioners who had voted against finding
reason to believe, joined by the Commissioner who would have found reason to believe but
nevertheless voted to dismiss, issued a Statement of Reasons. See ECF No. 94-1 (Majority
SOR). Those Commissioners, comprising a majority of the FEC, wrote that they had “voted to
dismiss this matter in an exercise of our prosecutorial discretion.” Majority SOR at 5.
Specifically, the majority Commissioners explained that CTR and HFA had long since
terminated, and, as a result, “records needed to determine the extent of any expenditures or
contributions, assuming they were properly maintained, may be difficult to obtain.” Id. The
majority Commissioners further stated that “the statute of limitations has expired, rendering any
further enforcement a drain on the agency’s already limited resources,” noting “the need to
conserve resources for meritorious matters arising from more recent election cycles, including
the current one.” Id.
“[M]indful” that they had not followed the Circuit’s instruction to “sketch the bounds of
the internet exemption,” the majority Commissioners further declared that they intended to do so
by “prepar[ing] the documents required for a rulemaking addressing unanswered questions
concerning allocation of expenses under the internet exemption.” Id. The majority
Commissioners explained that they “believe[d] any such clarifications should be made with input
from the public and the protections of the Administrative Procedure Act, and that they should
apply broadly, not merely to one entity that finds itself the subject of a complaint.” Id. They
added that they “[did] not believe it would be appropriate for the Commission to develop a
binding interpretation of the internet exemption in the context of this enforcement matter under
the gun of a thirty-day remand.” Id.
6
The fourth no-voting Commissioner, Sean J. Cooksey, issued a separate Statement of
Reasons on November 6. See ECF No. 94-2 (Cooksey SOR). He expressed his substantive
views on the proper scope of the internet exemption but agreed with the majority Commissioners
that dismissal was appropriate given the expiration of the statute of limitations and termination of
CTR and HFA, echoing that enforcement “would necessitate disproportionate use of the
agency’s time and resources due to the age of the allegations and the likely difficulty of
obtaining any relevant evidence at this point.” Id. at 2, 9–12.
The FEC and Intervenors filed their Oppositions to CLC’s Motion at the end of
November, see ECF Nos. 94 (FEC Opp.), 95 (Intervenors Opp.). While the contrary-to-law
appeal was pending before the D.C. Circuit, CLC nevertheless initiated a private action against
CTR and HFA under FECA’s provision allowing citizen suits to enforce the federal election
laws. See CLC v. Correct the Record, No. 23-75 (D.D.C.). This Court, which also presides over
that citizen suit, stayed that action pending the D.C. Circuit’s resolution of the contrary-to-law
case. See id., ECF No. 16 (Stay Order). The same day it filed its Motion in this case, CLC filed
a Motion to Lift the Stay there. See id., ECF No. 23 (Stay Mot.). Having reviewed the filings in
both this action and the citizen suit, the Court is now prepared to rule on both Motions.
II.
Analysis
Plaintiffs offer two distinct arguments: first, the FEC failed to conform with this Court’s
and the D.C. Circuit’s contrary-to-law declarations; and second, even if the Commission’s
actions technically conformed, they were untimely. The Court addresses each in turn.
A. Conformance
Plaintiffs contend that the FEC did not conform with the Court’s Order remanding the
case “in accordance with the opinion of the D.C. Circuit.” Minute Order of Sept. 12, 2024. This
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Court and the D.C. Circuit instructed the Commission to “sketch the bounds of the internet
exemption and . . . more fully analyze the facts before it.” CLC VI, 106 F.4th at 1194 (omission
in original) (quoting CLC V, 646 F. Supp. 3d at 69). Plaintiffs contend that the agency ignored
that directive when it declined to substantively discuss the internet exemption and instead
dismissed the complaint on prosecutorial-discretion grounds.
Plaintiffs’ theory, while not without intuitive appeal, relies on a too-blinkered view of
what constitutes conformance. In any remand situation, the initial body is not shackled to the
reasoning of the reviewing court; rather, it is free to resolve the case on alternative grounds. For
instance, say a court of appeals reverses a district court on the merits of a legal issue and
remands to the lower court for further proceedings consistent with that opinion. If the district
court discovers on remand that the plaintiff in fact lacks standing to sue, it could — and indeed,
must — dismiss the case on that basis. See, e.g., Role Models Am., Inc. v. Harvey, 459 F. Supp.
2d 28, 33–34 (D.D.C. 2006) (taking this approach). It makes no difference that the appellate
tribunal expected a ruling on the merits, as long as the lower court’s resolution does not repeat
the previously identified shortcomings. Similarly, the D.C. Circuit has long held that a remand
to the Federal Energy Regulatory Commission “restores jurisdiction to the Commission and
‘discretion to reconsider the whole of its original decision.’” Canadian Ass’n of Petroleum
Prods. v. FERC, 254 F.3d 289, 298 (D.C. Cir. 2001) (quoting Se. Mich. Gas Co. v. FERC, 133
F.3d 34, 38 (D.C. Cir. 1998)). That is true even when the remanding opinion “prescribed
affirmatively what the Commission was required to do.” Id. It is clear, then, that “[a]s a general
proposition, an administrative tribunal is free on remand to reach the same result” or a different
one “on different grounds.” City of Charlottesville v. FERC, 774 F.2d 1205, 1212 (D.C. Cir.
1985) (cleaned up).
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The same principle must apply to judicial remands to the FEC: regardless of the basis of
the remand, the Commission regains jurisdiction and is free to reach its result through any
pathway that is permissible in light of that remand. Indeed, both the Supreme Court and our
Circuit have recognized in FEC cases that “[i]f a reviewing court agrees that the agency
misinterpreted the law, it will set aside the agency’s action and remand the case — even though
the agency (like a new jury after a mistrial) might later, in the exercise of its lawful discretion,
reach the same result for a different reason.” Akins, 524 U.S. at 25; see End Citizens United
PAC v. FEC (ECU), 69 F.4th 916 (D.C. Cir. 2023). Here, then, the Commission was not barred
from reaching the same result as it initially had (i.e., dismissing the complaint) based on grounds
anticipated by neither reviewing court.
The question now becomes whether, bearing those principles in mind, the FEC’s actions
in this case in fact conformed with the Circuit’s contrary-to-law declaration. As the Court of
Appeals has crystallized, “What constitutes conformance . . . necessarily turns on the kind of
Commission action the contrary-to-law plaintiff was entitled to compel by bringing her contraryto-law suit. And what the plaintiff can compel is the action whose nonperformance by the
Commission ‘aggrieved’ her.” Campaign Legal Ctr. v. 45Committee, Inc., 118 F.4th 378, 390
(D.C. Cir. 2024). In the case of a contrary-to-law suit based on a mistaken statutory
construction, that action must constitute reengagement with the allegations in the complaint —
through a reason-to-believe vote — that does not rely on the erroneous construction. It follows
that if the FEC, having been defeated in the contrary-to-law suit, again opts not to bring an
enforcement action but this time for reasons other than the legal rationale deemed defective by
the court, it has conformed with the contrary-to-law declaration. That is because CLC’s original
reason for “aggrieve[ment],” 52 U.S.C. § 30109(a)(8), was not the Commission’s failure to
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affirmatively find reason to believe, but rather to do so in reliance on a misinterpretation of the
law (here, the internet exemption). In short, in requiring conformance on remand, FECA entitles
successful contrary-to-law plaintiffs like CLC to compel the FEC to reengage with their
complaints without applying already-identified legal mistakes, but “it does not entitle [them] to a
particular vote outcome.” 45Committee, 118 F.4th at 392.
Plaintiffs themselves acknowledge that “the D.C. Circuit . . . did not require the FEC to
take any particular enforcement action.” Mot. at ECF p.4. They instead insist that, whenever a
court orders the FEC to reconsider certain legal questions, the Commission should be absolutely
forbidden from relying on discretionary considerations on remand. See ECF No. 96 (Reply) at 3,
13–14. Otherwise, Plaintiffs argue, the preconditions for a citizen suit will never be satisfied and
FECA’s private-enforcement scheme will be thwarted.
The FEC, however, has unlimited latitude to decline to bring an enforcement action. See
CREW v. FEC, 892 F.3d 434, 438 (D.C. Cir. 2018) (“[F]ederal administrative agencies in
general and the Federal Election Commission in particular have unreviewable prosecutorial
discretion to determine whether to bring an enforcement action.”); CREW v. FEC, 55 F.4th 918,
923 (D.C. Cir. 2022) (Millett, J., dissenting from denial of rehearing en banc) (“The
statute . . . never requires the agency to bring an enforcement action that it does not want to
bring.”). The basis for such declinations may be considerations of prosecutorial discretion,
which have been deemed virtually unreviewable, see End Citizens United PAC v. FEC, 90 F.4th
1172, 1178–79 (D.C. Cir. 2024) (“When the Commission’s dismissal rests even in part on
prosecutorial discretion, it is not subject to judicial review.”) — at least for now. See End
Citizens United PAC v. FEC, 2024 WL 4524248 (D.C. Cir. Oct. 15, 2024) (vacating 90 F.4th
1172 and granting rehearing en banc on this issue).
10
Regardless of the D.C. Circuit’s ultimate elucidation of the reviewability of FEC
decisions based on prosecutorial discretion, it remains clear that the agency is free to make
nonenforcement decisions based on prudential considerations that are “distinct from and lack a
clear nexus to any reviewable legal analysis.” Campaign Legal Ctr. v. FEC, 89 F.4th 936, 941
(D.C. Cir. 2024). Such “classic criteri[a] in the exercise of prosecutorial discretion” include “the
agency’s priorities and resource allocation.” Id. The Court will not carve out an exception to
that as-yet well-established principle by forbidding the FEC from relying on discretionary
concerns on remand — even for situations like this one, where the agency has apparently charted
a careful path to avoid investigating potential violations of the election laws despite strong
indications from its own General Counsel and two courts that the allegations were meritorious.
The Court appreciates Plaintiffs’ point that, if the FEC declines to bring an enforcement action
given concerns about limited resources, that should provide all the more reason for a private
plaintiff to “take up the mantle” using its own means. See Reply at 14–15. The Court, however,
is bound by the regulatory scheme Congress has constructed and the D.C. Circuit has interpreted.
In light of these principles, the Commission conformed. In order to assess the FEC’s
conformance, the Court need only determine that the agency’s rationale was free from the legal
reasoning deemed impermissible in CLC VI. It was. The majority Commissioners described the
potential difficulty of obtaining relevant records, the “drain on the agency’s already limited
resources,” and “the need to conserve resources for meritorious matters arising from more recent
election cycles.” Majority SOR at 5; accord Cooksey SOR at 10–11 (detailing “difficulties in
investigating the claims and gathering evidence at this time” and his concerns about “how to
allocate the agency’s limited enforcement resources and whether this matter warrants its
attention relative to other, more pressing priorities”). By declining enforcement, the FEC
11
reengaged with the allegations in the complaint. As the Statements of Reasons make clear, that
engagement was not based on any misapprehension of the internet exemption the D.C. Circuit
had previously rejected. The Court thus concludes that the Commission sidestepped on remand
the maladies diagnosed by this Court and the D.C. Circuit and thus conformed with the
declaration that its earlier action was contrary to law.
Last, even assuming arguendo that the FEC was further obligated to engage with the
merits of the internet exemption (which the Court doubts), its decision to initiate a rulemaking
about the exemption’s scope was sufficient to conform. Recall, the agency voted on October 23
to direct the General Counsel to “draft a Notice of Proposed Rulemaking to consider whether to
revise the Commission’s [regulation governing the internet exemption] to delineate the scope of
that regulation with respect to input costs.” Oct. 30 Notice. Because of the unusual procedural
posture in which we find ourselves, no caselaw exists to guide the Court in determining whether
a prospective rulemaking can constitute conformance with a contrary-to-law declaration.
Reasoning from first principles, however, the Court believes that when the FEC is
required on remand to reconsider a legal issue, initiating a rulemaking fulfills that duty. The
agency, as explained, has conformed with regard to this particular complaint by dismissing it
based on an analysis unencumbered by the legal deficiencies identified by this Court and the
D.C. Circuit. Any remaining obligation on the part of the FEC, then, could only be to explore
the general applicability of the internet exemption to entities writ large. By initiating a
rulemaking on the scope of that exemption, the agency has done so. While it could also have
met such an obligation by delineating the scope of the internet exemption in the remanded
matter, the Court finds reasonable the majority Commissioners’ explanation that they “[did] not
believe it would be appropriate for the Commission to develop a binding interpretation of the
12
internet exemption in the context of this enforcement matter under the gun of a thirty-day
remand” and that “such clarifications should be made with input from the public and the
protections of the Administrative Procedure Act.” Majority SOR at 5.
Plaintiffs raise several additional objections to the Court’s conclusion, none of which
carries the day. They first complain that the October 23 vote to draft an NPRM came 13 days
after the failed reason-to-believe votes in this matter and three days after the remand period
expired. See Reply at 17. The Commissioners, however, discussed ordering an NPRM at the
October 10 meeting, see Oct. 30 Notice, and the majority Commissioners’ Statement of Reasons
makes clear that the possibility of an upcoming rulemaking influenced their behavior on that day.
See Majority SOR at 5. Plaintiffs next protest that there is no guarantee that a new rule on the
internet exemption will actually be adopted or that it will be legally sound. See Reply at 17.
That assertion is undoubtedly true, as it is in any rulemaking situation. But the D.C. Circuit
directed the FEC only to revisit the contours of the internet exemption, choosing to leave the
details to the agency; the Circuit did not insist on any particular outcome. See CLC VI, 106
F.4th at 1192, 1195. Plaintiffs finally lament that allowing a rulemaking — or, rather, the mere
prospect of rulemaking — to qualify as conforming action would make it too easy for the FEC to
conform and consequently render FECA’s right to judicial review “a farce.” Reply at 18. The
Court emphasizes again the D.C. Circuit’s instruction that “what counts as conforming action
depends on the type of contrary-to-law determination with which the Commission must
conform.” 45Committee, 118 F.4th at 390. Given that directive and the relatively narrow range
of circumstances to which the Court’s holding today could apply, it believes that Plaintiffs’
rulemaking-related concern is overblown.
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The Court accordingly concludes that the FEC took conforming action. If Plaintiffs have
substantive complaints about the agency’s reasons for declining to bring an enforcement action,
the proper avenue for addressing those concerns is a new contrary-to-law claim.
B. Timeliness
Plaintiffs next contend that, even if the FEC’s actions and reasoning can be deemed to
have conformed with the contrary-to-law declaration, they were untimely.
A quick refresher on the tortuous timeline of this case: this Court remanded the matter to
the FEC on September 20, 2024. The agency was obligated to conform with the contrary-to-law
declaration by October 20 because FECA imposes a 30-day deadline for conformance. It held its
failed reason-to-believe votes and dismissed the administrative complaint on October 10, but
those votes became formally effective 30 days later (pursuant to newly established FEC
procedures). See FEC Opp. at 4–5 n.5 (describing closure procedures); Oct. 11 Notice at 3
(describing vote to close file after 30 days). Plaintiffs filed their Motion on October 30. The
majority Commissioners released their Statement of Reasons on November 5, and the fourth novoting Commissioner released his Statement on November 6.
Because the Commissioners released their Statements of Reasons more than 30 days after
the remand, Plaintiffs maintain that those Statements cannot be considered when assessing
whether the FEC conformed with the contrary-to-law declaration. According to Plaintiffs,
without the Statements and the rationale they set forth, the Court is left to review only the
agency’s barebones description of the votes in the notice it filed with the Court on October 11.
See Mot. at ECF p. 4 & n.1; Reply at 9–11. The FEC, along with Intervenors, rejoin that the
Statements of Reasons were contemporaneous with the formal closure of the matter, which
14
occurred thirty days after the actual vote and can thus properly be considered. See FEC Opp. at
9 n.6; Intervenors Opp. at 10–11.
Plaintiffs, urging the Court to disregard the Statements of Reasons as untimely, rely on
our Circuit’s decision in ECU. See Reply at 10–12 (citing 69 F.4th 916). There, the panel held
that a Statement of Reasons issued “[t]wo months after the dismissal of the administrative
complaint and four days after ECU filed its lawsuit,” ECU, 69 F.4th at 919, was an
impermissible post hoc rationalization that the district court should have ignored. Id. at 919–
24. Emphasizing the importance of agency accountability and meaningful judicial review, the
court held that the controlling Commissioners “were obligated to issue a contemporaneous
statement explaining their votes.” Id. at 921 (emphasis added) (quotation marks omitted).
Debating the FEC’s compliance with ECU, the parties invite this Court to weigh in on the
propriety of the agency’s new internal closure procedures, which Plaintiffs contend allow the
Commission to manufacture contemporaneity by artificially delaying the closure of a case. See
Reply at 11. The Court declines to do so, although such procedures admittedly invite mischief,
instead resolving this dispute based on its reading of ECU and the agency’s conduct in this
matter.
Before doing so, it notes that Statements of Reasons are meant to enable a reviewing
court to “intelligently determine whether the Commission is acting contrary to law.” Democratic
Cong. Campaign Comm., 831 F.2d at 1132 (emphasis added). That is, their purpose is to
facilitate contrary-to-law, rather than conformance, review. In fact, the Court cannot find a
single instance in which a court was asked — as this Court is — to review a Statement of
Reasons for the purpose of assessing whether the FEC conformed with a contrary-to-law
declaration, as opposed to whether such a declaration would be appropriate in the first place.
15
The two modes of review differ in meaningful ways, as Plaintiffs acknowledge. See Reply at 13
(“The analysis whether the FEC conformed on remand is . . . distinct from a review of whether
its dismissal is ‘contrary to law.’”). For example, while contrary-to-law review requires the
court to engage in a substantive evaluation of the agency’s reasoning, conformance review seeks
to answer a narrower question. A court assessing conformance must, to be sure, determine “the
kind of Commission action the contrary-to-law plaintiff was entitled to compel.” 45Committee,
118 F.4th at 390. But the conformance court is not asked to perform the kind of top-to-bottom
merits-based appraisal that the Statement of Reasons is designed to enable. The Statement, then,
is an awkward fit for evaluating conformance, and the caselaw setting out the standards with
which Statements of Reasons must comply does not translate neatly to the conformance context.
Accord Mot. at ECF p. 5 (“Because, to plaintiffs’ knowledge, the posture of this case is unique,
there is no judicial authority setting forth a specific procedural route for declaring the FEC in
non-conformance and resuming the existing private action.”).
That being said, the Court can glean some important lessons from ECU’s treatment of the
Statement of Reasons at issue in that case. The ECU court was motivated chiefly by a concern
that the FEC’s stated reasons were “‘simply convenient litigating positions’ . . . to withhold the
basis of its decision unless and until a lawsuit is filed and thereafter invoke prosecutorial
discretion when its silence is challenged.” 69 F.4th at 923 (quoting DHS v. Regents of the Univ.
of Calif., 591 U.S. 1, 23 (2020)). The Circuit repeatedly noted the fact that “the presumptive
subject of judicial review emerged only after ECU filed this lawsuit,” evidently finding it
meaningful that the controlling Commissioners waited to release their Statement of Reasons until
litigation was pending. See id. at 923; see, e.g., id. at 921 (“The Commission cannot sua
16
sponte update the administrative record when an action is pending in court.”) (quotation marks
omitted).
The concern that the FEC will strategically adopt post hoc rationalizations that prejudice
litigants — while in general an eminently reasonable one when dealing with this agency — does
not apply with the same force here. This litigation was filed more than five years ago and has
made numerous trips up and down the federal judiciary on a slew of legal issues. To the extent
the Commission is inclined to adopt convenient litigating positions in response to opposing
counsel’s filings in this matter, it has had the ability to do so for half a decade. Although the
agency did not release its Statement of Reasons until after the instant Motion was filed, it was no
more on notice of Plaintiffs’ likely legal arguments at that point than it would have been the day
it held the reason-to-believe votes: everyone knew the legal issue would be whether the agency
had conformed. The Court therefore determines that it would not advance the “important values
of administrative law,” id. at 923 (quotation marks omitted), to disregard the Statements of
Reasons. Because the FEC would presumably have taken the same positions more immediately
after the reason-to-believe votes, and because Plaintiffs have had ample opportunity to comment
on the full administrative record in their Reply, the Court concludes that it is capable of
performing “meaningful judicial review.” Id.
True, a Statement of Reasons likely could be issued so long after the reason-to-believe
vote that it could no longer qualify as demonstrative of the FEC’s contemporaneous reasoning,
even in a situation like this one where the Court does not suspect the agency of bait-and-switch
tactics. The ECU court, after all, “did not explain just how ‘contemporaneous’ a
‘contemporaneous’ statement must be” to be considered timely. See CREW v. FEC, 2023 WL
6141887, at *12 (D.D.C. Sept. 20, 2023). Regardless of where that line falls, however, the Court
17
is satisfied that the Statements of Reasons here reflect the Commissioners’ real-time thinking
about why they found no reason to believe a violation had occurred. Even assuming, as CLC
urges, that the relevant date is October 10 (the day of the failed reason-to-believe votes), the
majority Statement of Reasons was issued 26 days later — within the realm of reason, in this
context, to qualify as a contemporaneous rationale. And if the Court accepts the agency’s
contention that the 30-day period between the vote and the vote’s formal effective date allows
“the Commission to come to consensus (or at least a majority) after an initial split, reverse course
entirely, or correct errors,” FEC Opp. at 9 n.6, the Statements of Reasons are indeed
contemporaneous with the no-reason-to-believe decision. The Court therefore concludes that the
FEC’s conformance with the contrary-to-law declaration was timely.
C. Citizen Suit
A citizen suit can proceed only if the FEC has failed to timely conform with a court’s
declaration that the agency’s actions regarding a complaint are contrary to law. As explained,
that precondition has not been satisfied here. CLC’s citizen suit against CTR and HFA therefore
cannot go forward. The Court will deny the motion to lift the stay in that case.
*
*
*
The Court is under no illusions that the FEC has behaved admirably throughout this
winding saga or that today’s outcome advances the ideals of FECA’s drafters. In particular, it
notes the agency’s recalcitrance early in this litigation, its tendency to employ procedural
gamesmanship, and its eagerness to invoke prosecutorial discretion to avoid engaging with the
merits of a complaint. The Court, moreover, acknowledges Plaintiffs’ concerns that the
Commission could in future cases offer cursory and delayed incantations of prosecutorial
discretion and, in so doing, not only inoculate itself against contrary-to-law judicial review but
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also effectively foreclose FECA’s private-enforcement option. The FEC seemingly has now
armed itself with an arsenal of “judicial-review kill switch[es].” CREW v. FEC, 55 F.4th at 922
(Millett, J., dissenting from denial of rehearing en banc). That being said, constrained by the
regime that FECA, the FEC, and the D.C. Circuit have fashioned, the Court must conclude that
the FEC has timely conformed with the contrary-to-law declaration and consequently that the
citizen suit cannot proceed.
III.
Conclusion
For the foregoing reasons, the Court will deny Plaintiffs’ Motion. A separate Order so
stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: January 28, 2025
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