Campaign Legal Ctr. v. Fed. Election Comm'n, Civil Action No. 19-2336 (JEB)

• Decision Date: 02 December 2020
• Docket Number: Civil Action No. 19-2336 (JEB)
• Citation: 507 F.Supp.3d 79
• Parties: CAMPAIGN LEGAL CENTER, et al., Plaintiffs, v. FEDERAL ELECTION COMMISSION, Defendant, and Hillary for America, et al., Defendant-Intervenors.
• Court: U.S. District Court — District of Columbia

507 F.Supp.3d 79

CAMPAIGN LEGAL CENTER, et al., Plaintiffs,

v.FEDERAL ELECTION COMMISSION, Defendant,andHillary for America, et al., Defendant-Intervenors.

Civil Action No. 19-2336 (JEB)

United States District Court, District of Columbia.

Signed December 2, 2020

Megan P. McAllen, Paul March Smith, Tara Malloy, Campaign Legal Center, Washington, DC, for Plaintiffs.

Aria C. Branch, Marc Erik Elias, Perkins Coie LLP, Washington, DC, for Defendant-Intervenors.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

This case concerns a presidential election — just not the most recent one. Instead, this campaign-finance dispute arises out of the 2016 contest. Back in October of that year, Plaintiffs Campaign Legal Center, a watchdog group, and Catherine Hinckley Kelley, a registered voter, filed an administrative complaint with the Federal Election Commission alleging that Hillary Clinton's presidential campaign, Hillary for America (HFA), and a super PAC known as Correct the Record (CTR) violated the Federal Election Campaign Act by unlawfully coordinating on over $6 million of CTR's expenditures. The Commission dismissed the complaint, and Plaintiffs filed this suit challenging that decision and asserting causes of action under both the FECA and the Administrative Procedure Act. After the FEC fell one vote short of the four required to authorize its defense of this lawsuit, the Court permitted HFA and CTR to intervene as Defendants. They then moved to dismiss, arguing, among other things, that Plaintiffs lacked standing to sue. The Court denied that Motion, and the parties have now filed Cross-Motions for Summary Judgment.

Undaunted by this Court's initial ruling, HFA and CTR spend much of their Cross-Motion renewing their contention that Plaintiffs have no standing to challenge the FEC's dismissal of their administrative complaint. Mindful of its ongoing obligation to police its jurisdiction and heeding Alexander Pope's dictum that admitting error simply means that one is wiser today than one was yesterday, the Court has reconsidered the standing issue. It now concludes that HFA and CTR urge the better reading of the law and that Plaintiffs do not have standing to press their FECA count here. The Court is thus without jurisdiction as to that claim and must dismiss it. The answer may be different as to Plaintiffs’ APA claim, and the Court will order further briefing on that issue.

I. Background

The Court assumes familiarity with its prior two Opinions in this case, Campaign Legal Ctr. v. FEC, 334 F.R.D. 1, 3 (D.D.C. 2019) ( CLC I ); Campaign Legal Ctr. v. FEC, 466 F. Supp. 3d 141, 146 (D.D.C. 2020) ( CLC II ), but it will nonetheless relay the facts necessary to understand the parties’ standing arguments.

A. Legal Background

In an attempt to close a loophole that would enable easy evasion of its mandates, campaign-finance law treats as "contributions" not only direct donations to a political candidate, but also most expenditures "made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of" that candidate. See 52 U.S.C. § 30116(a)(7)(B)(i) ; see also FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 438, 121 S.Ct. 2351, 150 L.Ed.2d 461 (2001) ("Expenditures coordinated with a candidate ... are contributions under the Act."); Buckley v. Valeo, 424 U.S. 1, 47, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (this approach "prevent[s] attempts to circumvent the Act through ... disguised contributions"). By definition, these so-called "coordinated expenditures" are in-kind — viz. , not actual cash — contributions to the candidate. See CLC II, 466 F. Supp. 3d at 146.

The Act's treatment of coordinated expenditures as contributions carries two important regulatory consequences relevant here. First, there are disclosure obligations. A political-action committee like CTR must disclose the same information about an expenditure it coordinated with a campaign as it would disclose for a typical in-kind contribution to that campaign (e.g. , the provision of services), and a campaign must reveal the same information about an expenditure on which it coordinated as it would for a typical in-kind contribution it receives. On both sides, that information comprises the name of the donor/recipient, the date, and the amount of the coordinated expenditure. See 52 U.S.C. § 30104(b)(6)(B)(i) (PAC) ; id. § 30104(b)(3)(B) (campaign). Further, both the expenditure maker and the campaign must also separately disclose the coordinated expenditure just as they would any other expenditure they made. Id. §§ 30104(b)(5)(C), (b)(6)(B)(iii)–(v) (PAC); 11 C.F.R. §§ 104.13(a)(2), 109.20(b) (campaign). Note that the law treats the campaign itself as constructively making the expenditure, even though it did not actually do so, because it coordinated the expenditure with the actual spender. Each side's expenditure disclosure must include, in addition to the date and amount, the purpose of the expenditure. See 11 C.F.R. §§ 104.3(a)(4)(ii), (b)(3)(i), (vii)–(ix) (PAC) ; id. §§ 104.3(b)(4)(i), (vi) (campaign).

Second, by virtue of qualifying as "contributions," coordinated expenditures are also subject to FECA's $2,700 contribution limit for PACs or individuals, as well as the Act's prohibition on using union or corporate funds for contributions to candidates. See 52 U.S.C. § 30116(a)(1) ; id. §§ 30118(a), (b)(2). In other words, a PAC such as CTR can make no more than an aggregate of $2,700 in direct contributions and coordinated expenditures to a candidate, and it cannot use moneys raised from unions or corporations to fund any coordinated expenditure.

B. This Case

In late October 2016, Plaintiffs brought an administrative complaint before the FEC alleging that CTR had made, and HFA had accepted, millions of dollars in coordinated expenditures, in gross violation of the applicable contribution limits and without properly disclosing those expenditures as in-kind contributions. See ECF No. 15-1 (Administrative Complaint), ¶¶ 1–2. The Commission eventually dismissed that complaint after splitting 2–2 on whether to find "reason to believe," 52 U.S.C. § 30109(a)(2), that any FECA violation had occurred. See CLC II, 466 F. Supp. 3d at 149. In August 2019, Plaintiffs brought this action challenging the dismissal as "contrary to law" under both FECA, 52 U.S.C. § 30109(a)(8), and the APA, 5 U.S.C. § 706(2). See ECF No. 15 (Amended Complaint), ¶¶ 107, 113.

CTR and HFA do not dispute here, and did not dispute before the FEC, that CTR made millions in campaign-related expenditures. Indeed, CTR has already disclosed the date, amount, purpose, and recipient of every single one of its expenditures, as it was required to do under FECA as a PAC. See FEC, Correct the Record Spending, https://www.fec.gov/data/committee/C00578997/?tab=spending (last visited December 1, 2020); 11 C.F.R. §§ 104.3(b)(3)(i), (vii)–(ix). Defendants instead contend that the FEC was correct to dismiss the complaint against them because none of CTR's expenditures qualifies as "coordinated" with HFA under applicable FEC rules. See ECF No. 38-1 (Def. MSJ) at 27, 36.

The parties’ disagreements on the issue of coordination fall into two buckets. The first relates to quantum of proof: for certain of CTR's expenditures, Plaintiffs and Defendants dispute whether there was enough evidence before the Commission to compel it to find "reason to believe" that those expenditures were coordinated — Plaintiffs say yes, Defendants say no. See ECF No. 35 (Pl. MSJ) at 29–40; Def. MSJ at 36–42. The second bucket involves a purely legal dispute: as to many of CTR's other expenditures, Defendants do not contest that they were made in concert with HFA, but nonetheless insist that they fall within an applicable regulatory exemption known as the internet exemption, and are therefore not legally "coordinated." See 11 C.F.R. § 109.21 ; CLC II, 466 F. Supp. 3d at 146.

Both parties advance these arguments in their latest Cross-Motions for Summary Judgment, and the legal questions are undeniably intriguing. Before tucking into them, however, the Court must heed the "requirement that [its] jurisdiction be established as a threshold matter" and consider, to that end, whether the "inflexible" requirements of Article III standing are met here. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ("[T]he first and fundamental question is that of jurisdiction .... This question the court is bound to ask and answer ....") (quoting Great Southern Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453, 20 S.Ct. 690, 44 L.Ed. 842 (1900) ). Defendants strenuously contend that the answer is no — that Plaintiffs lack a sufficient "informational injury" under D.C. Circuit law because the details of CTR's expenditures are already public record, and Plaintiffs have no cognizable interest in a further "legal determination" from the FEC that such expenditures were coordinated with HFA. See Def. MSJ at 7–8; ECF No. 44 (Def. MSJ Reply) at 2. After previously coming out the other way, the Court now reverses field, at least as to Plaintiffs’ FECA claim. As to their APA claim, it requires further briefing before resolving the matter.

II. Analysis

A. Injury-in-Fact

Standing is "a doctrine rooted in the traditional understanding of a case or controversy" in Article III of the Constitution. Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). It requires, at a minimum, that a plaintiff show that she "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Id. The "injury in fact" must be both "(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). An injury is ...