CAMPAIGN LEGAL CENTER AND CATHERINE HINCKLEY KELLEY v. FEDERAL ELECTION COMMISSION, ET AL.
No. 21-5081
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 15, 2021 Decided April 19, 2022
Opinion for the Court filed by Senior Circuit Judge EDWARDS.
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.
Opinion for the Court filed by Senior Circuit Judge EDWARDS.
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
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 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
Accordingly, Appellants have demonstrated a quintessential informationаl 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
I. BACKGROUND
A. Legal Framework
Congress passed the Federal Election Campaign Act in 1971 with the aim of “remedy[ing] any actual or рerceived 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.
Second, the Act restricts political committees from using money sourced from unions or corporations to make contributions to candidates.
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
The Act provides that any person who believes a violation of the Act has occurred may file a complaint with the Commission.
Campaign Legal Center is a non-profit watchdog group dedicated to “improving democracy and promoting representative, responsive, and accountable government for all citizens.” Am. Compl. ¶ 15, J.A. 36. Catherine Hinckley Kelley is a registered voter and a director at Campaign Legal Center. Together, these Appellants filed an administrative complaint with the Commission in October 2016. They alleged that, during the run-up to the 2016 prеsidential election, political committee Correct the Record made, and Hillary Clinton‘s campaign committee Hillary for America accepted, millions of dollars in coordinated contributions in violation of the Act. Those payments were not disclosed as coordinated in-kind contributions by either group. The amount of these alleged contributions greatly exceeds the contribution limits in the Act, and the payments allegedly violated source restrictions as well.
The dispute here concerns whether these allegedly coordinated expenditures were exempt from disclosure. In the leadup to the election, Correct the Rеcord was open about its coordination with the Clinton campaign in the media, but claimed that its spending was exempt from statutes and regulations governing coordination pursuant to the unpaid internet exception. Am. Compl. ¶¶ 63-66, J.A. 47-48; see also, e.g., Matea Gold, How a Super PAC Plans to Coordinate Directly with Hillary Clinton‘s Campaign, Wash. Post (May 12, 2015), https://www.washingtonpost.com/news/post-politics/wp/2015/05/12/how-a-super-pac-plans-to-coordinate-directly-with-hillary-clintons-campaign/. Under Correct the Record‘s interpretation of the exemption, input costs associated with unpaid internet communications – such as the staff time, filming, computers, office space, and travel involved in producing unpaid internet communications are exempt from disclosure. See Intervenor-Appellees’ Principal and Resp. Br.
In their administrative complaint to the Commission, Appellants challenged Intervenors’ interpretation of the law, сontending that expenditures by Correct the Record on items like “opposition research, message development, surrogate training and booking, professional video production, and press outreach for the benefit of the Clinton campaign” were not exempt under the unpaid internet communications exception. FEC Compl. ¶ 5, J.A. 117. Rather, they contended that these expenditures should have been reported as coordinated in-kind contributions and subject to the spending limitation restrictions in the Act.
The General Counsel of the FEC agreed with Appellants, finding that “[Correct the Record] raised and spent approximately $9 million on a wide аrray of activities, most of which are not fairly characterized as ‘communications.‘” First General Counsel‘s Report, In re: Correct the Record, MUR 6940 et al., p. 5 (FEC, Oct. 16, 2018), reprinted in J.A. 188. The General Counsel found that:
the bulk of [Correct the Record]‘s reported disbursements are for purposes that are not communication-specific, including payroll, salary, travel, lodging, meals, rent, fundraising consulting, computers, digital software, domain services, email services, equipment, event tickets, hardware,
insurance, office supplies, parking, and shipping in addition to payments for explicitly mixed purposes such as ‘video consulting and travel’ and ‘communication consulting and travel.’
Id. at 9-10, J.A. 192-93.
The General Counsel concluded that both the external and internal communications of Correct the Record and the Clinton campaign evidenced coordination between the two entities on these activities. She rejected the argument that the expenditures were for unpaid internet communications and therefore exempt, reasoning that “[t]he fact that [activities] were subsequently transmitted over the internet does not retroactively render the costs of [those activities] a ‘communication’ cost.” Id. at 20, J.A. 203. Accordingly, the General Counsel recommended to the Commission that there was “reason to believe” that Correct the Record and Hillary for America violated FECA by making coordinated cоntributions in excess of the prescribed limits, with funds from impermissible sources, and by failing to disclose those transactions as coordinated contributions.
When the Commission received the General Counsel‘s recommendation, it had only four Commissioners in place instead of the six that Congress authorized under FECA. This was due to a lack of executive appointments. The four Commissioners deadlocked two-two along party lines on the vote to decide whether there was “reason to believe” that illegal coordination had occurred. As a result, the Commission failed to achieve the four votes necessary to proceed. The two Republican Commissioners voted against finding there was reason to believe a violation occurred and issued a Statement of Reasons explaining their controlling decision. See Statement of Reasons of Vice Chairman Matthew S. Petersen and
C. Procedural History
In August 2019, Appellants filed suit in District Court to challenge the Commission‘s decision as (1) contrary to FECA, and (2) arbitrary and capricious under the Administrative Procedure Act. Still short two members, the Commission failed to gаrner the four affirmative votes necessary to defend the agency in this action, see
At the start of the proceedings in District Court, the Intervenors filed a motion to dismiss. The District Court initially found that Appellants had standing to bring suit. Campaign Legal Ctr. v. FEC, 466 F. Supp. 3d 141, 150-54 (D.D.C. 2020). Analyzing whether an informational injury was present, the trial judge determined that Appellants “[had] no information as to the actual amount of money that, in [their] view, should have been considered a contribution or expenditure under the Act.” Id. at 151. He further concluded that organizational standing existed because Campaign Legal Center plausibly alleged it was forced to divert organizational resources to obtain the information it was due by law. Id. at 154. On the merits, the trial judge concluded that the Commission‘s interpretation of the internet-communications
At summary judgment, however, the District Court “reverse[d] field” and “[came] out the other way” on the issue of Appellants’ standing to pursue the FECA claim. Campaign Legal Ctr. v. FEC, 507 F. Supp. 3d 79, 82 (D.D.C. 2020). The court explained that it had “not sufficiently take[n] account of” the decision in Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001). 507 F. Supp. 3d at 85. It described Wertheimer as saying that a plaintiff lacks a cognizable informational injury where “the plaintiff ‘do[es] not really seek additional facts[,] but only the legal determination that’ the facts of which she is already aware amount to a legal violation.” Id. at 84 (alterations in original) (quoting Wertheimer, 268 F.3d at 1075). The District Court then concluded that the information Appellants seek, including what portions of the already-disclosed expenditures were coordinated, “would not actually entail the disclosure of any information other than legal determinations of
Appellants raised a timely appeal on standing for their FECA claim. They do not challenge the District Court‘s dismissal of their Administrative Procedure Act claim in this appeal.
II. ANALYSIS
A. Standard of Review
This court reviews a District Court decision on standing de novo. Friends of Animals v. Jewell, 824 F.3d 1033, 1040 (D.C. Cir. 2016). “The plaintiff bears the burden of invoking the court‘s subject matter jurisdiction, including establishing the elements of standing.” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)).
B. Standing to Redress Informational Injury
As noted above, the sole issue before the court is whether Appellants have an informational injury sufficient to support standing. To succeed, Appellants must show that the legal ruling they seek might lead to additional factual information that, on their view of the law, FECA requires the Intervenors to make public. Akins, 524 U.S. at 21. Intervenors Correct the Record and Hillary for America maintain that, because Correct the Record has already publicly disclosed all expenditures
1. The Applicable Law at Issue
To establish Article III standing, a plaintiff must show “the irreducible constitutional minimum” of “injury in fact,” causation, and redressability. Lujan, 504 U.S. at 560-61. An injury in fact must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical” to suffice. Id. at 560 (internal quotations omitted). In the FECA context, “[t]o carry its burden of demonstrating a ‘sufficiently concrete and particularized informational injury,‘” the plaintiff must show that, in being denied access to the information, “it suffers . . . the type of harm Congress sought to prevent by requiring disclosure.” Elec. Priv. Info. Ctr. v. Presidential Advisory Comm‘n on Election Integrity, 878 F.3d 371, 378 (D.C. Cir. 2017) (quoting Friends of Animals v. Jewell, 828 F.3d 989, 992 (D.C. Cir. 2016)).
In the seminal case FEC v. Akins, voters contested the Commission‘s determination that the American Israel Public
Akins also established that FECA grants voters a cognizable interest in information used “to evaluate candidates for public office,” including information which reveals “the role that [a political committee]‘s financial assistance might play in a specific election.” Id. For that reason, in Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008), we recognized that an informational injury “no differen[t]” than “the injury deemed sufficient to create standing in Akins” is present when a voter is denied FECA-required disclosures about coordinated in-kind expenditures they believe must be reported as contributions to a candidate. Id. at 923 (“Here, as in Akins, Shays‘s injury in fact is the denial of information he believes the law entitles him to.”).
Voter-related informational injuries of this sort are not generalized grievances because, “though widely shared, . . . [they are] sufficiently concrete and specific” to each voter to constitute an injury in fact. Akins, 524 U.S. at 24-25. Thus, “[the] fact that other citizens or groups of citizens might make the same complaint . . . does not lessen [claimants‘] asserted injury” where, as in Akins or Shays, the harm is concrete. Id. (quoting Pub. Citizen, 491 U.S. at 449-50); see also Shays, 528 F.3d at 923.
In addition, plaintiffs must lack access tо the information sought; a plaintiff cannot establish injury based on information that is already available “from a different source,” disclosure of which would only result in “duplicative reporting.” Wertheimer v. FEC, 268 F.3d 1070, 1075 (D.C. Cir. 2001). Similarly, if the information sought “would add only a trifle to the store of information about the transaction already publicly available,” a plaintiff lacks standing. Citizens for Resp. & Ethics in Wash. v. FEC, 475 F.3d 337, 340 (D.C. Cir. 2007).
Turning to the case at hand, FECA clearly gives Appellants a statutory right to information about the amounts, dates, recipients, and purposes of any coordinated expenditures and contributions made by a political committee and received by a candidate‘s authorized committee.
Intervenors’ principal argument, with which the District Court agreed, is that no “additional factual information” would be disclosed if Appellants prevailed on the merits. Intervenor-Appellees’ Principal and Resp. Br. 24. Rather, they argue, “‘only the legal determination that’ the facts [Appellants] already possess[] amount to a legal violation” would result. Id. at 30 (quoting Wertheimer, 268 F.3d at 1075). Intervenors contend that if Appellants prevail on the merits, Correct the Record‘s existing entries of expenditures would simply be moved from one line to another on the FEC reporting form, labeled as in-kind contributions, and described as benefiting
Appellants’ claim is that some not insignificant portion of Correct the Record‘s expenditures were coordinated in-kind contributions to the Clinton campaign. Appellants do not know the amounts, however, because Intervenors have not disclosed them. If Appellants won and certain expenditures were found not to be exempt as unpaid internet communication expenses, Correct the Record would be required under FECA to disaggregate the “lump sum” disbursements it has already reported for various overhead expenses (such as рayroll, salaries, travel, lodging, rent, or fundraising) to reveal which portion of each expenditure funded coordinated activities. See Appellants’ Reply Br. 10. This disaggregation would result in disclosure of the numerical amounts of any coordinated expenditures that were contributions to the Clinton campaign. Those amounts, currently unknown, constitute factual information core to Appellants’ established interests in knowing “who is funding presidential candidates’ campaigns,” Shays, 528 F.3d at 923, and “how much money a candidate spent in an election,” Common Cause, 108 F.3d at 418.
An example used by the District Court to suggest that no additional factual information would be disclosed if Appellants prevail actually illustrates that the opposite is true. In its expenditures, Correct the Record has disclosed that its founder and chairman David Brock was paid a biweekly salary of $4,521.56 in June 2016, described simply as “salary.” Pls.’ Opp‘n to Correct the Record‘s and Hillary for America‘s Am. Mot. Dismiss Ex. D, ECF No. 27-4. Appellants maintain that “there is reason to believe that some portion of [Brock‘s] paycheck functioned as a disguised contribution to the campaign.” Id. at 18. The District Court recognized that if the Commission concluded that fifty percent of Brock‘s time in a
The District Court‘s analysis ignores that disaggregation of Brock‘s salary to show which portion was coordinated would in fact reveal the numerical amount of Correct the Record‘s coordinated contribution to the Clinton campaign, information political committees are required by statute to make public. Appellants do not now know that numerical amount, nor did the District Court; the “suppose[d]” fifty percent or $2,260.78 that might have been contributed in the court‘s example is made up; it is but a guess. See id. If Appellants prevail, the actual amount of Brock‘s salary that was a contribution to the Clinton campaign would have to be disclosed, along with disaggregated amounts for a myriad of other lump sum expenditures Appellants believe involved coordinated contributions. There is no doubt that those numerical amounts constitute factual information and that FECA requires them to be disclosed.
Intervenors argue that this court‘s decision in Wertheimer supports their position. They are mistaken because that case is not on point. Indeed, the facts in Wertheimer are markedly different from the facts in this case.
The principal holding in Wertheimer is that a plaintiff cannot establish injury based on information that is already available “from a different source” and that would only result in “duplicative reporting.” 268 F.3d at 1075. The plaintiffs in
Finally, we reject Intervenors’ argument that Appellants’ view of the law would not require disaggregation of existing disclosures because Appellants believe “that all of Correct the Record‘s spending was coordinated.” Intervenor-Appellees’ Principal and Resp. Br. 35. This claim is belied by the record. Appellants have argued from the start that Correct the Record “coordinated many of its activities with the Clinton campaign,” noting that “the total amount of [coordinated expenditures] is unknown.” Am. Compl. ¶¶ 68-70, J.A. 48-50 (emphasis added). They have at no point argued that all of Correct the Record‘s expenditures were coordinated under the law, or that
The related concern expressed by the District Court that, if Appellants have standing here, a plaintiff “could seemingly manufacture standing in nearly every conceivable case” by “trimming its sails” and claiming to seek information about some proportion of already-disclosed expenditures, instead of whether those expenditures as a whole were coordinated, is equally misplaced. 507 F. Supp. 3d at 87-88. As discussed above, the inquiry from Wertheimer starts and stops with examining whether a plaintiff “only seek[s] the same information from a different source” such that no “additional facts” will result. 268 F.3d at 1074-75. Where, as here, a plaintiff demonstrates on the record that additional, statutorily-required information would be exposed under plaintiff‘s theory of the law that would serve an interest Congress sought to protect through disclosure, the plaintiff has undoubtedly established an informational injury under Akins and Shays. This is not an “end-run around Wertheimer,” 507 F. Supp. 3d at 87, but a properly pled informational injury.
Moreover, the District Court failed to consider that mischief could easily occur with the approach that it endorsed. Were standing denied to those seeking disaggregated information that FECA plainly requires be disclosed whenever aggregate information is available, then political committees and campaigns could simply report information in increasingly broad, undifferentiated lump sums. Under the District Court‘s holding, even if a plaintiff‘s view of the law had merit, a plaintiff would have no right to seek non-trivial information
Denying standing in circumstances of the sort raised by this case would permit easy workarounds for parties who seek to block the standing of persons who may raise legitimate requests for information covered by FECA. Moreover, the Intervenors’ approach runs contrary to settled law 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)).
In sum, Appellants have established an informational injury in fact. Having done so, Appellants easily satisfy the remaining two constitutional standing requirements of causation and redressability. As in Akins, Appellants’ injury is fairly traceable to the Commission‘s decisiоn to dismiss their complaint. See 524 U.S. at 25. Should a reviewing court find that the Commission‘s determinations are contrary to law, the agency‘s action would be set aside and the case would likely redress Appellants’ injury in fact. See id.; see also Shays, 528 F.3d at 923.
For the reasons given above, we hold that Appellants have standing to challenge the Commission‘s dismissal of their complaint. Appellants have established that, because of this dismissal, they lack access to FECA-required information concerning money spent by the Clinton campaign. If their challenge succeeds, they will likely gain access to that information, which will no doubt “help them . . . evaluate candidates for public office.” Akins, 524 U.S. at 21. Accordingly, the decision of the District Court is reversed and the case is remanded for further proceedings consistent with this opinion.