646 F.Supp.3d 57
D.D.C.2022Background
- In 2006 the FEC adopted an "internet exemption" excluding unpaid online communications (not placed for a fee on another's site) from the definitions of ‘‘contribution’’ and ‘‘expenditure.’’ The rule noted, however, that certain offline inputs (e.g., computers, polling, salaries) could still be regulated if coordinated with a campaign.
- Correct the Record (CTR), a pro‑Clinton super PAC, ran extensive online and offline activity in 2016 (polling, staff, war room, surrogate training, press outreach) and publicly stated it would coordinate with the campaign because much activity would be unpaid online content.
- Campaign Legal Center (CLC) filed an FEC complaint alleging CTR’s offline expenditures were coordinated in‑kind contributions and should have been reported; the Office of General Counsel recommended a "reason to believe."
- The FEC deadlocked 2–2 and the controlling Commissioners dismissed the complaint, adopting a purportedly "bright‑line" rule that any input to an unpaid internet communication is exempt and finding insufficient evidence of coordination for many offline activities.
- The district court (following D.C. Circuit guidance on standing) held the FEC’s dismissal was contrary to law and arbitrary and capricious: it invalidated the controlling Commissioners’ expansive reading of the internet exemption and found their coordination analysis ignored substantial evidence; the court granted CLC summary judgment and remanded to the FEC.
Issues and Key Cases Cited
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of the 2006 internet exemption — whether "inputs" to unpaid online content (polling, staff, equipment) are categorically exempt from being in‑kind coordinated contributions | CLC: The exemption covers only unpaid online communications themselves; offline inputs that are coordinated are reportable contributions/expenditures | CTR/FEC: Inputs to unpaid internet communications fall within the exemption (bright‑line rule); narrow prior decisions support this approach and it protects speech | Court: FEC’s bright‑line expansion is contrary to FECA and FEC precedent; exemption must be meaningfully bounded and cannot swallow the statute; interpretation invalid |
| Whether the FEC’s dismissal was arbitrary and capricious given record evidence of coordination | CLC: OGC documented substantial public and internal evidence (press statements, internal emails, CTR admissions) showing systematic coordination — low "reason to believe" standard met | CTR/FEC: Record lacks transaction‑specific proof; OGC relied on selective or indirect sources; dismissal reasonable | Court: Controlling Commissioners ignored and mis‑weighed substantial evidence; their transaction‑by‑transaction approach was arbitrary given CTR’s stated purpose; dismissal arbitrary and capricious |
| Standing / redressability and mootness (ability to obtain relief now) | CLC: Plaintiffs have informational injury and D.C. Circuit held they have standing; relief (remand, disclosure) remains feasible | CTR: Relief is effectively impossible now due to §2462 limitations and lost or decayed evidence | Court: D.C. Circuit precedent controls — standing exists; CTR failed to show mootness or that §2462 or evidence loss precludes equitable relief or an effective investigation |
| Remedy | CLC: Remand to FEC to reassess under proper legal bounds and investigate | CTR: Opposed (argued dismissal should stand) | Court: Grants CLC summary judgment, denies CTR’s; remands to FEC to conform with decision within 30 days |
Key Cases Cited
- FEC v. Akins, 524 U.S. 11 (1998) (informational‑injury standing principles)
- Buckley v. Valeo, 424 U.S. 1 (1976) (coordination/expenditure limits prevent circumvention of contribution rules)
- FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431 (2001) (coordinated expenditures treated as contributions)
- Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) (definition and treatment of coordinated communications)
- Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) (standard for when FEC dismissal is "contrary to law")
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (1983) (arbitrary and capricious review standards)
- SEC v. Chenery Corp., 332 U.S. 194 (1947) (agency action must be upheld on the grounds the agency invoked)
- Campaign Legal Ctr. v. FEC, 31 F.4th 781 (D.C. Cir. 2022) (appellate holding that CLC has standing to seek factual disclosure of proportion of coordinated spending)
- Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001) (distinguishing facts from legal conclusions for informational standing)
- Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) (Statement of Reasons and judicial review of FEC dismissals)