UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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REV. DAVID LEWICKI, et al., )
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Plaintiffs, )
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v. ) Civil Action No. 24-2505 (ABJ)
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FEDERAL ELECTION )
COMMISSION, )
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Defendant. )
____________________________________)
MEMORANDUM OPINION
Plaintiffs Reverend David Lewicki and Vladimir Shklovsky, two voters in Georgia,
brought this action against the Federal Election Commission (“FEC” or “Commission”)
challenging the agency’s dismissal of “their administrative complaint identifying a scheme to
launder approximately $5 million through dark money entities to influence the 2020 federal Senate
elections in Georgia.” Compl. [Dkt. # 1] ¶ 1. The FEC’s Office of General Counsel reviewed the
complaint and recommended that the Commission investigate the allegations. Compl. ¶ 44. But
after a three-to-three deadlocked vote, the Commission dismissed the matter. Compl. ¶ 7. The
Statement of Reasons for the decision, written by the three commissioners who voted to dismiss
the complaint, concluded that the complaint did not give rise to a “reason to believe” a violation
may have occurred. Compl. ¶ 7. Plaintiffs now bring four claims under the Administrative
Procedure Act, 5 U.S.C. § 706, alleging that the agency’s dismissal was arbitrary, capricious, an
abuse of discretion, and contrary to law. Compl. ¶¶ 52–72. Plaintiffs seek declaratory and
injunctive relief pursuant to 52 U.S.C. § 30109(a)(8)(C).
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Pending before the Court is defendant’s partial motion to dismiss for failure to state a claim,
and the matter is fully briefed. Def’s. Mot. to Dismiss [Dkt. # 5] (“Def.’s Mot.”); Pls.’ Opp. to
Defs.’ Mot. to Dismiss [Dkt. # 10] (“Pls.’ Opp.”); Defs.’ Reply to Opp. to Mot. to Dismiss [Dkt.
# 12] (“Def.’s Reply”).
For the reasons stated below, defendant’s partial motion to dismiss and motion for
summary judgment will be DENIED. The parties have fully briefed their cross-motions for
summary judgment,1 and they will be addressed in a separate opinion.
BACKGROUND
I. Statutory Background
The Federal Election Campaign Act (“FECA”) was passed in 1971 in an effort to “remedy
any actual or perceived corruption of the political process.” FEC v. Akins, 524 U.S. 11, 14 (1998).
To that end, the Act imposes, among other things, extensive recordkeeping and disclosure
requirements upon groups that fall within the definition of a “political committee.” Id.; see 52
U.S.C. §§ 30101(4), 30102, 30103.
Section 30101(4)(A) defines “political committee” to include “any committee, club,
association, or other group of persons which receives contributions . . . or . . . makes expenditures
aggregating in excess of $1,000 during a calendar year,” 52 U.S.C. § 30101(4)(A). The Supreme
Court has explained that an entity must also have the “major purpose” of nominating or electing
candidates in order to qualify as a political committee. Buckley v. Valeo, 424 U.S. 1, 79 (1976).
1 Pls.’ Partial Mot. for Summ. J. [Dkt. # 17] (“Pls.’ MSJ”); Def.’s Cross-Mot. for Partial Summ. J. & Opp. to Pls.’ Mot. for Summ. J. [Dkt. ## 18, 19] (“Def.’s Cross-Mot.”); Pls.’ Combined Reply in Supp. of Mot. for Partial Summ. J. & Opp. to Def.’s Mot. for Partial Summ. J. [Dkt. ## 20, 21] (“Pls.’ MSJ Opp. and Reply”); Def.’s Reply in Supp. of Partial Mot. for Summ. J. [Dkt. # 22] (“Def.’s MSJ Reply”); Admin. R. [Dkt. # 23-1] (“A.R.”).
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A group has such a “major purpose” when it spends “extensive[ly]” to influence elections, FEC.
v. Mass. Citizens for Life, Inc., 479 U.S. 238, 262 (1986), and a group spends “extensive[ly]” when
it devotes at least a majority of its annual expenditures to influence elections. See 72 Fed. Reg.
5595, 5605 (Feb. 7, 2007) (“The organizations’ budget also evidenced its major purpose of
campaign activity because 50–75% of the political budget for the organizations was intended for
the Presidential election.”).
When an entity meets the requirements for political committee status, it must file a
statement of organization within ten days, 52 U.S.C. § 30103(a), and the committee’s treasurer
must begin filing periodic reports of receipts and disbursements. Id. § 30104. Relevant here, the
reports must identify each:
(A) person (other than a political committee) who makes a contribution to
the reporting committee . . . whose contribution or contributions have an
aggregate amount or value in excess of $200 within the calendar year (or
election cycle, in the case of an authorized committee of a candidate for
Federal office) . . . .;
(B) political committee which makes a contribution to the reporting
committee during the reporting period, together with the date and amount
of any such contribution;
(C) authorized committee which makes a transfer to the reporting
committee;
(D) affiliated committee which makes a transfer to the reporting committee
during the reporting period and, where the reporting committee is a political
party committee, each transfer of funds to the reporting committee from
another political party committee, regardless of whether such committees
are affiliated, together with the date and amount of such transfer; . . . .
Id. § 30104(b)(3)(A)–(D).
The Act also prohibits so-called “conduit contributions”:
No person shall make a contribution in the name of another person or
knowingly permit his name to be used to effect such a contribution, and no
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person shall knowingly accept a contribution made by one person in the
name of another person.
Id. § 30122.
Finally, the Act sets out a scheme to enforce its requirements: “[a]ny person who believes
a violation of [FECA] . . . has occurred[ ] may file a complaint with the Commission.” Id.
§ 30109(a)(1).2 If four of the Commission’s six members vote that there is “reason to believe”
that respondent violated FECA, the Commission will initiate an investigation into the violation.
Id. § 30109(a)(2).
When the Commission deadlocks – that is, fails to garner four votes to proceed with
enforcement – and then dismisses a complaint, the commissioners who voted against proceeding
must issue a statement explaining their votes “[t]o facilitate judicial review.” Campaign Legal
Ctr. v. FEC (“CLC I”), 106 F.4th 1175, 1182–83 (D.C. Cir. 2024). A complainant may challenge
the decision by filing a petition in this district within 60 days after the date of dismissal. 52 U.S.C.
§ 30109(a)(8)(B). The court may “declare that the dismissal of the complaint or failure to act is
contrary to law.” Id. § 30109(a)(8)(C).
II. Factual Background
A. Plaintiffs’ Complaint to the FEC
Plaintiffs initially filed a complaint with the FEC on February 2, 2023, and filed an
amended complaint on November 9, 2023. Compl. ¶ 37. The Commission numbered the matter
as MUR 8110. Compl. ¶ 37. The complaint alleged a complex scheme by respondents to route
“$4.9 million . . . through dark money groups to influence [the election] using a structured
2 Once a complaint is filed against a respondent, the FEC’s Office of General Counsel “may recommend to the Commission whether or not it should find reason to believe” the respondent committed a violation of the Act. 11 C.F.R. § 111.7(a).
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transaction designed to conceal the source of funds.” See Ex. 1, MUR 8110 Amended Complaint
[Dkt. #1-1] (“Am. FEC Compl.”) ¶ 3.
According to the amended administrative complaint, in 2020, American Coalition for
Conservative Policies (“ACCP”), a nonprofit organization, accepted $5 million from a single
unidentified source. Am. FEC Compl. ¶ 4. Aside from a $60,000 contribution, that single source
was “the only source of funding for ACCP that year.” Am. FEC Compl. ¶ 4. Over the course of
2020, plaintiffs allege, ACCP transferred nearly all those funds to two more nonprofits: $3.1
million to Policy, Solutions, and Action for America (“PSAA”), and $1.8 million to RightOn
Issues, Inc. (“RightOn Issues”). Am. FEC Compl. ¶ 4.
Within three days of receiving the money, PSAA allegedly used $1 million of the funds
from ACCP to contribute to Georgia United Victory (“GUV”), a so-called Super PAC that reported
expenditures in the 2020 Georgia Senate elections, and it made another contribution to GUV
totaling $475,000 “shortly thereafter.” Am. FEC Compl. ¶ 5. Combined, those contributions
constituted “47.6% of the funds PSAA received.” Am. FEC Compl. ¶ 5. In the second half of
2020, PSAA transferred $1.5 million from ACCP to RightOn Issues. Am. FEC Compl. ¶ 6.
As for RightOn Issues, over the course of three days in September 2020, it allegedly made
contributions to three Super PACs that made expenditures in the 2020 Georgia Senate election: (1)
$1 million to GUV, (2) $200,000 to Georgia Action Fund (“GAF”), and $120,000 to RightOn
Time. Am. FEC Compl. ¶ 6. Plaintiffs alleged that RightOn Issues also spent “$2 million in 2020
on its own likely electioneering, just about the remainder of the amount received from ACCP.”
Am. FEC Compl. ¶ 6. After the scheme was complete, the nonprofits “fell out of use”:
ACCP reported no revenue in 2021, and only $49,697 in expenditures, most
of which constituted salary for its board members. PSAA reported no
revenue in 2021, $62,203 in overhead expenditures, and filed for dissolution
in 2022. RightOn Issues reported no revenue in 2021 and reported it
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‘discontinued program services for nonpartisan advocacy for consumer
choice in health care,’ and filed for dissolution in 2022.
Am. FEC Compl. ¶ 7. In total, plaintiffs alleged that $2.795 million, or 55.9 percent, of the $5
million ACCP accepted was used to influence the Georgia Senate races. Am. FEC Compl. ¶ 8.
The complaint filed with the FEC included a chart depicting the money flow:
Am. FEC Compl. ¶ 9.
The complaint named twelve individuals and entities as respondents: (1) ACCP; (2) John
Fogarty, Jr., President of ACCP; (3) PSAA; (4) Christopher Marston, Treasurer of ACCP and
PSAA; (5) Moses Ayala, Vice President and Secretary of PSAA; (6) RightOn Issues, Inc.; (7)
Caleb Crosby, Treasurer of RightOn Issues, Inc.; (8) GUV; (9) RightOn Time; (10) Paul Kilgore,
Treasurer of GUV and RightOn Time; (11) GAF; and (12) Kayla Glaze, Treasurer of GAF. See
Am. FEC Compl. ¶¶ 38–49. Plaintiffs sued the individuals in their official and personal capacities,
and they brought the action against other “Unknown Respondents” as well. Am. FEC Compl.
¶ 50.
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In their complaint, plaintiffs alleged that there was “reason to believe” that respondents
violated federal law in four ways. Am. FEC Compl. ¶¶ 11–24. Count One contended that the
Unknown Respondents used ACCP, PSAA, and RightOn Issues as “conduits” to direct $2.795
million in contributions to three Super PACs to influence the Senate election in order to avoid
disclosure under FECA, in violation of 52 U.S.C. § 30122. Am. FEC Compl. ¶¶ 11, 87–105. And,
by accepting the contributions, each of the named entities and individuals also allegedly violated
the conduit contribution prohibition. Am. FEC Compl. ¶¶ 87–105.
Count Two alleged in the alternative that ACCP used PSAA and RightOn Issues as
conduits to direct the $2.795 million in contributions to three Super PACs so ACCP could avoid
registering as a political committee and disclosing its donors, in violation of 52 U.S.C. § 30122.
Am. FEC Compl. ¶¶ 106–28. By accepting the contributions, PSAA, RightOn Issues, the three
Super PACs, and the individually named respondents also allegedly violated the statute. Am. FEC
Compl. ¶¶ 106–28.
Count Three asserted in the alternative that PSAA either (1) used RightOn Issues as a
conduit for $1.32 million in contributions to the three super PACs, and therefore PSAA, RightOn
Issues, the three Super PACs, and their treasurers violated 52 U.S.C. § 30122, or (2) that PSAA’s
transfer to RightOn was not so unrelated to influencing elections as to excuse PSAA from reporting
as a political committee, and its failure to do so violated 52 U.S.C. §§ 30102–30104. Am. FEC
Compl. ¶¶ 129–55.
Finally, Count Four alleged in the alternative that ACCP qualified as a political committee
due to its transfers to PSAA and RightOn Issues; all three organizations, according to plaintiffs,
devoted a majority of their spending to influencing federal elections and had a major purpose to
influence elections, but failed to register and report as political committees in violation of 52
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U.S.C. §§ 30102–30104. Am. FEC Compl. ¶¶ 156–94. Count Four also submitted that RightOn
Issues failed to report two independent expenditures in violation of 52 U.S.C. § 30104(c). Am.
FEC Compl. ¶¶ 156–94.
B. The Office of General Counsel’s Report
On May 3, 2024, the FEC Office of General Counsel issued a report on plaintiffs’
complaint. See First General Counsel’s Report (“FGCR”), MUR 8110 (Am. Coal for Conservative
Policies) (May 3, 2024), available at https://perma.cc/8JGD-DH4L. The Report explained that
the “reason to believe” finding is appropriate when a complaint “credibly alleges that a significant
violation may have occurred, but further investigation is required to determine whether a violation
in fact occurred and, if so, the exact scope. Accordingly, ‘reason to believe’ represents a ‘very
low evidentiary bar.’” Id. at 19, citing Campaign Legal Center v. FEC, 646 F. Supp. 3d 57, 67
(D.D.C. Dec. 8, 2022).
The Report found that Count One of the complaint met the “reason to believe” threshold:
Because the record indicate[d] that ACCP, PSAA, and RightOn Issues may
have been conduits through which Unknown Respondent(s) contributed
2.795 million to the three super PACs, [OGC] recommends that the
Commission find reason to believe that Unknown Respondent(s) made, and
that PSAA and RightOn Issues knowingly permitted their names to be used
to effect, contributions in the name of another person in violation of 52
U.S.C. § 30122 and 11 C.F.R. § 110.4(b).
Id. at 4–5. In making the recommendation, OGC noted that, at the reason to believe stage, the
Commission has typically considered the presence of certain information as indicative of a possible
conduit contribution scheme, such as:
(1) a short timespan between an entity’s formation and the contribution(s)
in question; (2) a short timespan between an entity’s receipt of funds and
the contribution(s) in question; (3) lack of activity preceding the
contribution in question; (4) the size of the contribution(s) in question
relative to other spending; (5) the degree of overlap between the amount of
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funds received versus the amount subsequently contributed; and (6) an
entity’s lack of online presence.
Id. at 20–22 (citations omitted).
The Report noted that PSAA’s receipt of funds from ACCP and subsequent contributions
to GUV reflected “numerous circumstances analogous to those the Commission has previously
recognized as indicating a possible conduit contribution scheme.” Id. at 22. It also observed that
the “structure of [PSAA’s] transactions at issue appear[ed] to avoid the Act’s disclosure
requirements,” and had it directly contributed all the funds to GUV rather than routing it through
RightOn Issues, “the proportion of PSAA’s spending on federal campaign activity would have
constituted a majority of its spending, increasing the chances of being deemed a political
committee under the Act.” Id. at 24 (citation omitted). Moreover, according to the Office of
General Counsel, PSAA’s “lack of activity after its contributions to [GUV] and RightOn Issues,
and its dissolution in 2022, suggests it may have been” a conduit. Id. (emphasis in original)
(citation omitted). Finally, PSAA filled out IRS Form 1024-A, which asks applicants whether they
have spent or plan to spend money attempting to influence elections, and PSAA “did not disclose
that it had already received $3.1 million from ACCP and had already contributed at least $1.475
million to [GUV] more than a month before” it filed the form. Id. at 25 (citation omitted).
The OGC Report also listed the indicia it relied upon in finding reason to believe that
RightOn Issues was part of a conduit contribution scheme, id. at 27, and it detailed why it found
reason to believe ACCP was also a conduit in the alleged scheme. Id. at 30.
The General Counsel did recommend, though, that the Commission take “no action” on
several of plaintiffs’ claims:
The [OGC] recommend[s] that the Commission take no action at this time
with respect to ACCP because, while it appears to have been a conduit
through which Unknown Respondent(s) made a contribution in the name of
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another, it did not itself make or permit its name to be used to effect a
contribution in the name of another. Because there is insufficient
information in the record at this time as to the knowledge of the three super
PACs, we recommend that the Commission take no action at this time with
respect to the allegation that [GUV] and Paul Kilgore in his official capacity
as treasurer, [GAF] and Kayla Glaze in her official capacity as treasurer,
and RightOn Time and Paul Kilgore in his official capacity as treasurer
violated [FECA] by knowingly accepting a contribution in the name of
another person and failing to report the contribution’s true source. We also
recommend that the Commission take no action with respect to the
allegations that the super PAC treasurers, Paul Kilgore and Kayla Glaze,
violated [FECA] in their personal capacities in connection with the super
PAC’s acceptance of contributions from PSAA and RightOn Issues.
Because a ‘person’ can either be the true source of a contribution or a
conduit that transmits the funds of another — but not both — we
recommend that the Commission take no action at this time with respect to
the Complaint’s allegations that ACCP, PSAA, and RightOn Issues failed
to register and report as political committees in violation of [FECA]. For
the same reason, we recommend that the Commission take no action at this
time against Fogarty, Crosby, Marston, and Ayala with respect to the
alleged failure of ACCP, PSAA, and RightOn Issues to register and report
as political committees.
Id. at 5. Finally, the Report recommended that the Commission dismiss the allegation that RightOn
Issues failed to file an independent expenditure report because the alleged conduct failed to meet
the definition of an “independent expenditure” and did not trigger reporting requirements. Id. at
5–6.
The OGC Report closed by acknowledging the “prudential considerations” involved in
whether to investigate the complaint. Id. at 41. It noted that “there are compelling reasons not to
dismiss this matter,” and that “[v]iolations of [FECA’s] prohibition on [conduit contributions] are
among the most serious within the Commission’s jurisdiction.” Id. at 42 (emphasis in original).
C. The FEC’s Decision and Statement of Reasons
On June 25, 2024, the Commission divided three-to-three on the OGC’s recommendations
and failed to reach the four-vote threshold necessary to accept the recommendations or dismiss the
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complaint. See Certification, MUR 8110 (Am. Coal. For Conservative Policies) (July 2, 2024),
available at https://perma.cc/ZJ2U-NEC7. On July 1, 2024, FEC Chairman Sean Cooksey then
moved for the Commission to close the file 30 days after the certified vote, which the Commission
approved unanimously on July 3, 2024. Certification, MUR 8110 (Am. Coal. for Conservative
Policies) (July 3, 2024), available at https://perma.cc/9AR3-8DVY.
On July 29, 2024, the three commissioners who voted against proceeding with an
enforcement action – Commissioners Cooksey, Dickerson, and Trainor – issued a Statement of
Reasons to explain the FEC’s decision to dismiss the complaint. See Statement of Reasons of
Chairman Sean J. Cooksey and Commissioners Allen J. Dickerson and James E. “Trey” Trainor,
III, MUR 8110 (Am. Coal. for Conservative Policies) (July 29, 2024) (“SOR”), available at
https://perma.cc/5DCZ-TDRG. Among other things, the Statement of Reasons took issue with
OGC’s articulation of the reason to believe standard:
The Commission will find reason-to-believe when a complaint (1) fairly
invokes its jurisdiction, (2) is credible, and not merely a bare accusation of
wrongdoing, (3) the response has not sufficiently answered the complaint,
and (4) it determines that enforcement is a judicious use of the
Commission’s scarce resources. This is not a loose standard, and ‘[w]e are
forbidden’ from merely providing a ‘rubber stamp’ to a complaint’s
allegations, or ‘proceed[ing] on an ‘RTB-of-the-gaps’ approach to law
enforcement.’
In urging us to find RTB, however, the Office of General Counsel (‘OGC’)
did not apply that standard of review. Rather, OGC posited that reason-tobelieve is a ‘very low evidentiary bar’ which may be cleared by mere
speculation. OGC is mistaken.
***
In short . . . the Commission will only find RTB when the complaint
credibly alleges a violation, and that the Commission is forbidden from
finding RTB on the basis of assertion, insinuation, speculation, or
conjecture.
Id. at 2–3 (internal citations and quotation marks omitted).
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The problem with the complaint, according to the three Commissioners who voted against
it, was that it was unknown when ACCP or PSAA made their contributions totaling $3.3 million
to RightOn Issues; therefore, they reasoned, there was no evidence indicating that RightOn Issues
received the funds before it made its contributions to the three Super PACs, since RightOn Issues
raised $5.6 million in total in 2020. Id. at 6.
The Statement of Reasons also noted that RightOn Issues “received more than two million
dollars in completely unrelated contributions from third parties” and “devote[d] $2.127 million,
more than 40% of the total, to ‘amorphous likely engineering,’ which suggested that it was not
being used as a conduit. Id. at 6–7. Moreover, it pointed out that RightOn Issues was also the
only source of contributions to GAF and RightOn Time. It questioned why “an unknown ‘true
contributor’” would make the contributions “through a clearly-independent entity (RightOn
Issues).” Id. at 7. Finally, the Statement of Reasons credited the Respondents’ denials, “which
are categorical, albeit imprecise.” Id. Plaintiffs filed a timely challenge to the Commission’s
dismissal. See Compl.
STANDARD OF REVIEW
“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Iqbal,
the Supreme Court reiterated the two principles underlying its decision in Twombly: “First, the
tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable
to legal conclusions,” and “[s]econd, only a complaint that states a plausible claim for relief
survives a motion to dismiss.” Id. at 678–79, citing Twombly, 550 U.S. at 555–56.
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A claim is facially plausible when the pleaded factual content “allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678, citing
Twombly, 550 U.S. at 556. “The plausibility standard is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id., quoting
Twombly, 550 U.S. at 556. A pleading must offer more than “labels and conclusions” or a
“formulaic recitation of the elements of a cause of action,” id., quoting Twombly, 550 U.S. at 555,
and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id., citing Twombly, 550 U.S. at 555.
When considering a motion to dismiss under Rule 12(b)(6), the Court is bound to construe
a complaint liberally in the plaintiff’s favor, and it should grant the plaintiff “the benefit of all
inferences that can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d
1271, 1276 (D.C. Cir. 1994), citing Schuler, 617 F.2d at 608. Nevertheless, the Court need not
accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the
complaint, nor must the Court accept plaintiff’s legal conclusions. See id.; see also Browning v.
Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In ruling upon a motion to dismiss for failure to state
a claim, a court may ordinarily consider only “the facts alleged in the complaint, documents
attached as exhibits or incorporated by reference in the complaint, and matters about which the
Court may take judicial notice.” Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C.
2002), citing EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624–25 (D.C. Cir. 1997).
Here, both the OGC recommendation and the Statement of Reasons were incorporated by
reference in the complaint. See Compl. ¶¶ 8, 44.
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ANALYSIS
The motion to dismiss is directed only at Count II, which alleges that the Commission’s
dismissal was contrary to law because the Statement of Reasons relied on an impermissible
interpretation of the reason to believe standard when it imposed a “heightened evidentiary bar that
conflicts with controlling precedent.” Compl. ¶¶ 59. The FEC contends that this count fails to
state a claim because “the controlling Commissioners’ assessment of the reason to believe standard
is inseparable from their analysis of the underlying facts and substantive law at issue.” Def.’s Mot.
at 1. The application of a legal standard to the facts, defendant argues, is the “sole basis on which
the Court may determine whether the Commissioners acted ‘contrary to law.’” Id. But defendant
offers no case law to support that proposition. Instead, the FEC points to the language of 52 U.S.C.
§ 30109(a)(8)(C) as support for its contention that the “government’s articulation of an abstract
legal standard should not be the basis for a finding that the government acted contrary to law[.]”
Def.’s Mot. at 11; see also Def.’s Reply at 4.
Section 30109(a)(8)(C) provides that courts in this district “may declare that [a] dismissal
of [a] complaint or the failure to act is contrary to law.” And the D.C. Circuit has explained that
the Commission’s determination is “contrary to law” if the Commission “relied on ‘an
impermissible interpretation of the Act,’ or if the dismissal was otherwise ‘arbitrary or capricious,
or an abuse of discretion.’” Campaign Legal Ctr. v. FEC (“CLC II”), 89 F.4th 936, 938 (D.C. Cir.
2024) (emphasis added), citing Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). In Count II,
plaintiffs specifically allege that the Statement of Reasons falls within the first category. See
Compl. ¶ 62 (“Because the dismissal, as justified by the [Statement of Reasons], rests on an
‘impermissible interpretation of law,’ the dismissal was contrary to law.”), citing Orloski, 795 F.2d
at 161.
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The term “reason to believe” comes directly from the text of FECA, 52 U.S.C.
§ 30109(a)(2), and the Statement of Reasons clearly articulates how the Commission thought that
term should be interpreted. See SOR at 2 (“[Reason to believe is] not a loose standard, and we are
forbidden from merely providing a rubber stamp to a complaint’s allegations, or proceeding on an
RTB-of-the-gaps approach to law enforcement.”) (internal quotation marks omitted). Since Count
II challenges that interpretation, the Court is compelled by binding Circuit authority to find that
Count II states a plausible claim that the Statement of Reasons was contrary to law. That claim
does not merge with the counts alleging that the decision described in the Statement of Reasons
was arbitrary and capricious in applying the reason to believe standard; it alleges that the standard
applied was incorrect as a matter of law.
Other Courts have previously pointed to legal propositions advanced in a Statement of
Reasons to conclude that the FEC’s explanation for a dismissal was contrary to law. In CLC I, for
instance, the Court of Appeals held that a “bright-line rule” in a Statement of Reasons that
exempted all money spent to produce an internet communication was contrary to FECA’s
expansive definition of “expenditures” under 52 U.S.C. § 30101(9)(A)(i). 106 F.4th at 1191. And
in Citizens for Responsibility and Ethics in Washington v. Federal Election Commission, 209 F.
Supp. 3d 77, 92 (D.D.C. 2016), the district court held that the Commission’s dismissal was
contrary to law when its reasoning was contrary to “the weight of the [] precedent.” So too can
the Court evaluate the Commission’s articulation of the reason to believe standard – which
comprises four of the SOR’s eight pages – and determine whether it is more stringent than the
statute requires, or whether it contravenes existing precedent.
Contrary to defendant’s assertions, a court’s finding that the Commission applied an
impermissible interpretation of a standard would not lead to “absurd results” such that courts could
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second-guess the Commission’s enforcement actions “despite a faultless analysis of the campaign
finance law purportedly violated and the application of law to the facts.” Def.’s Mot. at 12. First,
the Court does not agree that an application of law to the facts would be “faultless” if it is grounded
upon an incorrect interpretation of the “reason to believe” standard or any other statutory term.
Second, even if the matter is ultimately remanded to the Commission and, upon application of the
appropriate standard, defendant reaches the same conclusion, such a result would not be “absurd.”
The purpose of explanations for agency action is to “promote ‘agency accountability’ by ensuring
that parties and the public can respond fully and in a timely manner to an agency’s exercise of
authority.” End Citizens United Pac v. Fed. Election Comm’n, 69 F.4th 916, 922 (D.C. Cir. 2023),
quoting Dep’t of Homeland Sec. v. Regents of the Univ. of California, 591 U.S. 1, 22 (2020). The
public’s ability to respond fully to an agency’s decision is better served when those decisions do
not rest on impermissible interpretations of the law.
CONCLUSION
To be clear, nothing in this opinion should be construed as a determination of whether the
Commission’s articulation of the reason to believe standard was contrary to law. The motion only
challenges the Court’s authority to evaluate the standard at all. Since Orloski and its progeny are
clear that the Court may review the Commission’s explanation and determine whether it relies on
an “impermissible interpretation” of FECA, 795 F.2d at 161, the Court finds that Count II falls
squarely within that authority. For those reasons, defendant’s partial motion to dismiss Count II
is DENIED.
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AMY BERMAN JACKSON
United States District Judge
DATE: September 30, 2026
17