Campaign Legal Ctr. v. Fed. Election Comm'n, 21-5081

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
PartiesCampaign Legal Center and Catherine Hinckley Kelley, Appellants v. Federal Election Commission, et al., Appellees
Docket Number21-5081
Decision Date19 April 2022

Campaign Legal Center and Catherine Hinckley Kelley, Appellants

Federal Election Commission, et al., Appellees

No. 21-5081

United States Court of Appeals, District of Columbia Circuit

April 19, 2022

Argued November 15, 2021

Appeal from the United States District Court for the District of Columbia (No. 1:19-cv-02336)

Tara Malloy argued the cause for appellants. With her on the briefs was Megan P. McAllen.

Aria C. Branch argued the cause for appellees. With her on the brief was Marc Erik Elias.

Before: Rogers and Walker, Circuit Judges, and Edwards, Senior Circuit Judge.




This case involves an action by Appellants Campaign Legal Center and Catherine Hinckley Kelley against the Federal Election Commission ("Commission" or "FEC"). They contend that the Commission's decision to dismiss their complaint alleging violations of the Federal Election Campaign Act ("Act" or "FECA") during the 2016 presidential election cycle by political committee Correct the Record and Hillary Clinton's campaign committee, Hillary for America, was contrary to law. Correct the Record and Hillary for America (together, "Intervenors") have intervened as defendants in this suit.

The matter giving rise to this case is Appellants' disagreement with the Commission's determination that expenditures by Correct the Record, made in coordination with the Clinton campaign, were exempt from disclosure as coordinated contributions to the campaign under an exception for unpaid internet communications. Appellants filed an administrative complaint with the FEC charging, inter alia, that Correct the Record and Hillary for America violated the Act by failing to disclose any of the in-kind contributions Correct the Record made to Hillary for America. Joint Appendix ("J.A.") 162-63. The Commission split 2-2 on whether there was reason to believe the joint undertaking gave rise to any "unreported[, ] excessive[, ] and prohibited in-kind contributions" from Correct the Record to the Clinton campaign and dismissed Appellants' complaint. J.A. 208, 252-55. Appellants then filed a complaint in the District Court to challenge the FEC's dismissal as contrary to law. The District Court dismissed Appellants' FECA claim for lack of standing.

The sole issue before this court is whether Appellants have standing to sue. We hold that they do. "The law is settled that a denial of access to information qualifies as an injury in fact where a statute (on the claimants' reading) requires that the


information be publicly disclosed and there is no reason to doubt their claim that the information would help them." Campaign Legal Ctr. & Democracy 21 v. FEC, 952 F.3d 352, 356 (D.C. Cir. 2020) (per curiam) (quoting Env't Def. Fund v. EPA, 922 F.3d 446, 452 (D.C. Cir. 2019)). Were Appellants to succeed on the merits of their claim, Correct the Record and Hillary for America would be obligated to disclose FECA-required factual information about the amounts of the contested coordinated, in-kind contributions. That "information would help [Appellants] (and others to whom they would communicate it) to evaluate candidates for public office, . . . and to evaluate the role that [Correct the Record's] financial assistance might play in a specific election." FEC v. Akins, 524 U.S. 11, 21 (1998).

Contrary to the findings of the District Court, the information Appellants seek is not currently known and it cannot be gleaned from the disclosures that have already been made by Correct the Record and Hillary for America. Correct the Record has disclosed its aggregated expenditures publicly, but it has not broken down its expenditures to show which were coordinated contributions to the Clinton campaign. There is no doubt that disaggregation of the existing disclosures would reveal the amounts of any coordinated contributions. It is also clear that the amounts that Correct the Record contributed to the Clinton campaign constitute factual information that is subject to disclosure under the statute. See 52 U.S.C. § 30104(b); 11 C.F.R. §§ 104.13(a), (b), 109.20(b), 109.21(b).

Accordingly, Appellants have demonstrated a quintessential informational injury directly related to their "interest in knowing how much money a candidate spent in an election." Common Cause v. FEC, 108 F.3d 413, 418 (D.C. Cir. 1997) (per curiam). As the Supreme Court made clear in Akins, "[t]he 'injury in fact' that [Appellants] have suffered consists


of their inability to obtain information-[including] campaign-related contributions and expenditures-that, on [Appellants'] view of the law, the statute requires that [Correct the Record and Hillary for America] make public." 524 U.S. at 21. This being so, Appellants also easily satisfy the causation and redressability requirements of Article III standing. See id. at 25. Accordingly, we reverse the District Court's dismissal for lack of standing and remand for further proceedings.

I. Background

A. Legal Framework

Congress passed the Federal Election Campaign Act in 1971 with the aim of "remedy[ing] any actual or perceived corruption of the political process." Akins, 524 U.S. at 13-14. To further this goal, the Act uses three primary mechanisms: contribution limits, source restrictions, and disclosure requirements. First, it limits the amount a political committee can contribute to a candidate for federal office. 52 U.S.C. § 30116(a)(1)(A). A "contribution" under the Act includes any "gift . . . of money or anything of value made by any person for the purpose of influencing any election for Federal office." Id. § 30101(8)(A)(i). Contributions include not only payments made directly to a candidate, but also "coordinated" expenditures, which are those "made in cooperation, consultation[, ] or concert with, or at the request or suggestion of, a candidate, a candidate's authorized committee, or a political party committee." 11 C.F.R. § 109.20. Coordinated expenditures are necessarily in-kind contributions, rather than direct monetary payments. Accordingly, utilizing political committee staff time, office space, or other resources in cooperation with a candidate counts as a contribution. See id.; 52 U.S.C. § 30101(8)(A)(i), (ii). This structure is designed to "prevent attempts to circumvent the Act through prearranged


or coordinated expenditures amounting to disguised contributions." Buckley v. Valeo, 424 U.S. 1, 47 (1976) (per curiam). In the 2016 election cycle, political committee contributions to candidates were capped at $2, 700. Am. Compl. ¶ 38, J.A. 41.

Second, the Act restricts political committees from using money sourced from unions or corporations to make contributions to candidates. 52 U.S.C. § 30118(a), (b)(2). This ensures that unions and corporations cannot avoid direct contribution limits by funneling money to candidates through political committees. See McConnell v. FEC, 540 U.S. 93, 145-48 (2003).

Third, in an effort to "expos[e] large contributions and expenditures to the light of publicity," Buckley, 424 U.S. at 67, and ensure that voters "know exactly how a candidate's campaign is financed," S. Rep. No. 92-229, at 122 (1971), the Act imposes comprehensive disclosure requirements. Political committees are required to publicly report all expenditures over $200. See 52 U.S.C. § 30104(b)(5)(A); 11 C.F.R. § 104.3(b)(3)-(4). In addition, they must report contributions - in-kind, coordinated, or otherwise - made to any candidate. See id. § 30104(b)(4)(H)(i), (6)(B)(i), (iii). A candidate's "authorized committee," like Hillary for America, must disclose all in-kind, coordinated contributions it receives as both contributions and expenditures, because these donations function as resources spent by the campaign in furtherance of the election of the candidate. Id. §§ 30101(6), 30104(b); 11 C.F.R. §§ 104.13(a), 109.20(b), 109.21(b). Disclosures are made regularly in itemized reports to the FEC, and must include details like the dates, amounts, and purposes of the contributions and expenditures, as well as the name and address of a recipient candidate. See 52 U.S.C. § 30104(b); 11 C.F.R. §§ 104.13(a), 109.20(b), 109.21(b).


Of relevance here, certain communications made by political committees in concert with a candidate are considered in-kind contributions to the campaign. See 11 C.F.R. § 109.21(b). In particular, the Commission has promulgated rules designating political committees' paid communications - e.g., paid online advertising - as coordinated campaign contributions subject to the aforementioned source, amount, and disclosure requirements. In contrast, unpaid internet communications - i.e., those communications not placed for a fee - are exempt from those requirements. Internet Communications, 71 Fed.Reg. 18589, 18593-95 (Apr. 12, 2006); see also 11 C.F.R. §§ 100.94(a), 100.155(a)(1) (providing that uncompensated internet activity does not constitute a contribution or an expenditure).

The Act provides that any person who believes a violation of the Act has occurred may file a complaint with the Commission. 52 U.S.C. § 30109(a)(1). The Office of General Counsel reviews the complaint and any response and recommends to the Commission whether there is "reason to believe" a violation has occurred. Id. § 30109(a)(2), (3). The FEC Commissioners - six total, half from each of the two major political parties - 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 Commission will investigate; otherwise, the complaint is dismissed. See id. §§ 30106(c), 30109(a)(2). In the event of a deadlock, the "declining-to-go-ahead" Commissioners must issue a Statement of Reasons to serve as the basis for judicial review. Common Cause v. FEC, 842 F.2d 436, 449 (D.C. Cir. 1988). "Any party aggrieved" by the dismissal of a complaint may then seek judicial review. 52 U.S.C....

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