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),

, 3–4 (D.D.C. 2019); Campaign Legal Ctr. v. FEC (CLC II),

, 146–50 (D.D.C. 2020); Campaign Legal Ctr. v. FEC (CLC III),

, 81–83

(D.D.C. 2020); Campaign Legal Ctr. v. FEC (CLC IV),

, 784–88 (D.C. Cir. 2022);

Campaign Legal Ctr. v. FEC (CLC V),

, 59–63 (D.D.C. 2022); Campaign

Legal Ctr. v. FEC (CLC VI),

, 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,

(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

(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.

§ 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,

. 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.’”

(quoting Democratic Cong. Campaign Comm. v. FEC,

(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.”

; see

(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.”

(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

(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

(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.

at 5–7. After an initial dismissal

for lack of standing and subsequent reversal by the D.C. Circuit, see CLC III,

, rev’d, CLC IV,

, 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,

. 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.’”

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

7 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,

(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,

, 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,

(D.C. Cir. 2001) (quoting Se. Mich. Gas Co. v. FERC,

(D.C. Cir. 1998)). That is true even when the remanding opinion “prescribed

affirmatively what the Commission was required to do.”

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,

(D.C. Cir.

1985) (cleaned up).

8 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,

; see End Citizens United

PAC v. FEC (ECU),

(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 contrary-

to-law suit. And what the plaintiff can compel is the action whose nonperformance by the

Commission ‘aggrieved’ her.” Campaign Legal Ctr. v. 45Committee, Inc.,

(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],”

(a)(8), was not the Commission’s failure to

9 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,

.

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,

(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,

(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,

, 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,

(D.C. Cir. Oct. 15, 2024) (vacating

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,

(D.C. Cir. 2024). Such “classic criteri[a] in the exercise of prosecutorial discretion” include “the

agency’s priorities and resource allocation.”

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,

. 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,

. 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.

13 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 no-

voting 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

). 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,

, was an

impermissible post hoc rationalization that the district court should have ignored.

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.”

(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.,

(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,

. 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.”

(quoting DHS v. Regents of the Univ.

of Calif.,

, 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,

, 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

18 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,

(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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