End Citizens United PAC v. Fed. Election Comm'n, CIVIL 21-2128 (RJL)

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtRICHARD J. LEON, United States District Judge
Docket NumberCIVIL 21-2128 (RJL)
Decision Date16 September 2022



NEW REPUBLICAN PAC, Defendant-Intervenor.

CIVIL No. 21-2128 (RJL)

United States District Court, District of Columbia

September 16, 2022


SEPTEMBER 16TH, 2022 [DKTS. ## 14, 22, 23, 27]

RICHARD J. LEON, United States District Judge

In 2018, plaintiff End Citizens United (“ECU”) filed two administrative complaints with the Federal Election Commission (“FEC” or “Commission”) alleging federal campaign finance violations by New Republican PAC (“NRP”) and Senator Rick Scott of Florida. An equally divided FEC dismissed those complaints, and ECU sued to vacate that decision. After the FEC failed to appear in this case, I granted NRP leave to intervene to defend the Commission's action. Now pending are NRP's motion to dismiss, ECU's motion for default judgment or summary judgment, and NRP's cross-motion for summary judgment. NRP is entitled to summary judgment because the FEC's dismissal of ECU's first complaint was an unreviewable exercise of prosecutorial discretion and its dismissal


of ECU's second complaint was reasonable. Therefore, I will GRANT NRP's crossmotion for summary judgment [Dkt. # 27], DENY ECU's motion for default or summary judgment [Dkt. # 23], and DENY AS MOOT NRP's motion to dismiss [Dkts. # 14, 22].


I. Regulatory scheme

Congress enacted the Federal Election Campaign Act of 1971 (“FECA” or the “Act”) “to limit spending in federal election campaigns and to eliminate the actual or perceived pernicious influence over candidates for elective office that wealthy individuals or corporations could achieve by financing the ‘political warchests' of those candidates.” Orloski v. FEC, 795 F.2d 156, 163 (D.C. Cir. 1986) (quotations and citations omitted). The Act also created the FEC, which exercises jurisdiction over FECA and its implementing regulations. 52 U.S.C. § 30106.

To accomplish those goals, FECA imposes requirements on candidates for federal office. As an initial matter, and as relevant in this case, the question of whether a specific individual is a “candidate for federal office” can be difficult and fact-intensive to resolve. While an individual becomes subject to the Act's registration and reporting requirements upon raising or expending $5,000 in pursuit of federal office, there is no bright-line rule to determine whether a person who has not met either condition has actually “become” a candidate for federal office. Instead, the FEC has promulgated a non-exhaustive list of “activities that indicate that an individual has decided to become a candidate.” 11 C.F.R. § 100.72(b). These activities include activities like “us[ing] general public political


advertising to publicize his or her intention to campaign for Federal office,” id. § 100.72(b)(1), “rais[ing] funds in excess of what could reasonably be expected to be used for exploratory activities or undertak[ing] activities designed to amass campaign funds that would be spent after he or she becomes a candidate,” id. § 100.72(b)(2), and “conduct[ing] activities in close proximity to the election or over a protracted period of time,” id. § 100.72(b)(5).

A person who either declares or qualifies as a candidate incurs a series of obligations under FECA. First, the Act requires each candidate for political office to register a political committee supporting the candidate with the FEC within 15 days of becoming a candidate. 52 U.S.C. § 30102(e)(1). That political committee, in turn, must file a Statement of Organization with the FEC within ten days of its organization, id. § 30103(a), and file regular financial disclosures with the Commission disclosing donations to and expenditures incurred by the campaign, id. § 30104(a). Further, each federal officer or candidate, as well as those acting on their behalf, is prohibited from “solicit[ing], receiv[ing], direct[ing], transfer[ing], or spend[ing] funds in connection with an election for Federal office, . . . unless the funds are subject to the limitations, prohibitions, and reporting requirements of [the] Act.” Id. § 30125(e)(1)(A).

Independent, expenditure-only political committees, or “super PACs,” are subject to a complementary regulatory regime. While super PACs are not subject to the same caps limiting the total amount of money they can raise from any individual contributor, they must be “independent”; that is, super PACs are barred from contributing to candidates or their political committees. Id. §§ 30116(a)(1); 30118(a). Nor may a candidate, political


committee, or those acting on their behalf accept a “contribution” from a super PAC. Id. §§ 30116(f); 30118(a). One such prohibited contribution is a “coordinated expenditure,” defined as an expenditure made “in cooperation, consultation, or concert, with, or at the request or suggestion of' a candidate, political candidate, or their agents. Id. § 30116(a)(7)(B)(i); see also 11 C.F.R. § 109.21(b).

Any person may file a complaint with the FEC alleging a violation of the Act. 52 U.S.C. § 30109(a)(1). The Commission reviews a complaint and any response provided by the respondent before voting whether to find “reason to believe” a violation has occurred and authorize an investigation. Id. § 30109(a)(2). The FEC's general counsel may recommend whether, in the opinion of the staff, an investigation is warranted, id. § 30109 (a)(3), but the Commission can only act if at least four of the six commissioners vote to take that step, id. §§ 30109(a)(2), 30109(a)(5)(C), 30109(a)(6)(A). The FEC does not proceed on a deadlocked, 3-3 vote. In those cases, the Commissioners who voted against enforcement are required to file a Statement of Reasons explaining the basis for their, and by extension the FEC's, decision. DCCC v. FEC, 831 F.2d 1131, 1134 n.3 (D.C. Cir. 1988). This Statement of Reasons is the basis on which a reviewing court assesses the FEC's dismissal of the complaint. Common Cause v. FEC, 842 F.2d 436, 449 (D.C. Cir. 1988).

II. Procedural background

ECU is a Democratic political action committee (“PAC”), Compl. [Dkt. # 1] ¶ 15, and NRP is a Republican super PAC, FEC First General Counsel's Report (“First OGC Rep.”), Joint Appendix [Dkt. # 33] (“J.A.”) at 97. Both are active in federal elections in


Florida. Compl. ¶¶ 16-18. Then-Governor Rick Scott chaired NRP from May 2017 until approximately February 2018, prior to announcing his ultimately-successful 2018 Senate candidacy. First OGC Rep., J.A. at 98-101. ECU filed an administrative complaint-a Matter Under Review (“M.U.R.”) in FEC terminology-in April 2018 alleging violations of FECA, M.U.R 7370, J.A. at 3, followed by a second M.U.R. that September, M.U.R. 7496, id. at 60.

The first complaint, M.U.R. 7370, made three broad allegations, all of which are derived from the alleged failure of Governor Scott to timely file as a federal candidate. First, ECU alleged that Governor Scott became a candidate in May 2017 but failed to register until April 2018, violating his obligation to register as a candidate. M.U.R. 7370, J.A. at 6. Second, ECU alleged that the fact that the Scott Campaign begin reporting financial data to the FEC in May 2017 violated the Scott campaign's independent obligations to file financial disclosures between May 2017 and April 2018. Id. at 6-7. Third, ECU alleged that NRP violated the provisions of the FEC prohibiting the solicitation, directing, or spending of funds outside the limitations of the Act by soliciting and expending funds in support of Scott's Senate campaign beginning in May 2017 when Scott became Chair and before he had announced his Senate bid. Id. at 6-7.

ECU filed a second complaint with the FEC in September 2018. M.U.R. 7496, J.A. at 60. That complaint, M.U.R. 7496, alleged that NRP made illegal, in-kind contributions to the Scott Campaign in the form of paid television advertisements that aired in May and June 2018. Id. at 63-64. According to ECU, these constituted impermissible “coordinated communications” prohibited under 52 U.S.C. § 30116(a). Id. at 63.


The FEC Office of the General Counsel (“OGC”) investigated ECU's allegations. The OGC issued a recommendation to the FEC stating that there was “reason to believe” that Scott had failed to timely register as a candidate and recommended further investigation into that issue and related violations. First OGC Rep., J.A. at 106. The OGC also assessed ECU's allegations of impermissibly coordinated communications but found “no information available suggesting that Scott was specifically involved in or requested” the television advertisements. Id. at 117. Instead, the OGC found that ECU relied on the “mere temporal relationship between when Scott left his position as Chair of New Republican and when New Republican aired the advertisements” to establish an inference that Scott's had caused NRP to act. Id. Relying on a sworn affidavit by NRP's executive director disavowing any involvement by Scott or his campaign in NRP's decision to air the advertisements, OGC found insufficient evidence to support that allegation and recommended the FEC take no action. Id. at 115-18.

After reviewing the OGC's recommendations, the FEC voted whether to investigate ECU's allegations. The Commission deadlocked 3-3, which, per FEC regulations, resulted in the FEC taking no action. Certification, J.A. at 155, 157. As required under our Circuit Court's precedents, the three Commissioners who voted against an enforcement action issued a Statement of Reasons explaining the Commission's decision not to act. Statement of Reasons of Vice Chair Allen Dickerson and Commissioners Sean J. Cooksey and James E. “Trey” Trainor III (“Statement of Reasons”), J.A. at 166. The Statement expressly relied on the FEC's prosecutorial discretion to decline to pursue the three allegations related to Scott's alleged failure to timely file as a candidate. Id. at 175...

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