Campaign Legal Ctr. v. Fed. Election Comm'n

1

CAMPAIGN LEGAL CENTER, et al., Plaintiffs, v. FEDERAL ELECTION COMMISSION, Defendant.

No. 22-cv-3319 (CRC)

United States District Court, District of Columbia

September 23, 2024

MEMORANDUM OPINION

CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE

In early 2015, former Florida Governor Jeb Bush was the presumptive favorite to become the next Republican nominee for president. Six months before Governor Bush officially declared his candidacy, a political action group (“PAC”) called Right to Rise had raised north of $100 million to support his campaign. Flush with cash Governor Bush appeared well on his way to securing the nomination and potentially becoming the third member of his family to sit behind the Resolute Desk. One year later though, after disappointing showings in Iowa and New Hampshire, Governor Bush called it quits and suspended his campaign.

The same cannot be said of Plaintiffs Campaign Legal Center and Democracy 21, who continue to pursue a longstanding dispute about Governor Bush's unsuccessful presidential bid despite several stumbles in gaining a foothold in federal court. During the early stages of the campaign, Plaintiffs filed two administrative complaints with the Federal Election Commission (“FEC” or “Commission”) claiming that Governor Bush and Right to Rise violated the Federal Election Campaign Act (“FECA”), see 52 U.S.C. § 30101 et seq. Plaintiffs alleged that Governor Bush and Right to Rise had coordinated their efforts, thereby violating the applicable contribution limits and disclosure requirements, and failed to report “testing the waters” expenditures before Bush officially launched his candidacy. After the complaints sat dormant before the Commission for nearly five years, Plaintiffs filed suit in this Court, contending that the lengthy delay was contrary to law. The Court did not reach the merits of this charge, finding instead that Plaintiffs lacked standing to pursue their claims because they had not established an informational injury or any other constitutionally sufficient basis to sue.

After the Commission ended the administrative limbo by closing the file on these complaints, Plaintiffs returned to this Court with a new suit challenging the dismissal. The Commission objected, arguing that this Court's judgment that Plaintiffs lacked standing to pursue their prior case precludes them from bringing another action based on the same underlying facts. In a September 2023 Memorandum Opinion, the Court agreed that the doctrine of issue preclusion bars Plaintiffs from a second crack at alleging informational injury. At the same time, although expressing serious doubts about Plaintiffs' alternative invocation of “organizational standing” to pursue this action the Court determined that the parties had not adequately addressed that argument. The Court accordingly invited the Commission to renew its jurisdictional challenge in a subsequent motion to dismiss if Plaintiffs decided to soldier forward with that basis for standing. Refusing to throw in the towel, Plaintiffs stood by their assertion of organizational standing, and the Commission filed a fresh motion to dismiss.

Having reviewed the parties' new round of briefs, the Court now finds that Plaintiffs lack organizational standing to pursue this action. The Court will therefore dismiss this action and (perhaps) finally put to rest this protracted dispute that has lived through three presidential election cycles.

I. Background

The Court recounted the lengthy procedural and legal background in its prior opinion, so it provides only a summary of the relevant details here. See Mem. Op. & Order, Campaign Legal Ctr. v. FEC (“RTR IV”), No. 22-cv-3319 (CRC) (Sept. 15, 2023), ECF No. 23.

In 2015, Plaintiffs filed an administrative complaint with the FEC alleging that former Florida Governor Jeb Bush violated the FECA through his extensive interactions with the Right to Rise Super PAC during his then-ongoing presidential bid. Specifically, Plaintiffs asserted that Governor Bush had unlawfully delayed registering as a candidate in the presidential race, failed to disclose “testing the waters” expenditures, and illegally funded his unofficial candidacy with “soft money” contributions from Right to Rise that evaded FECA limitations. See Compl. ¶ 3. Several months later, Plaintiffs supplemented their administrative complaint by adding charges that Bush had violated 52 U.S.C. § 30125(e) when he “establish[ed]” and “controll[ed]” Right to Rise as a ruse to raise millions of dollars for his campaign without regard for the FECA's contribution limits or source prohibitions. See id. ¶ 4.

After their administrative complaint languished for almost five years, Plaintiffs filed a petition in this Court in March 2020 arguing that the Commission's failure to act was contrary to law under 52 U.S.C. § 30109(a)(8)(A). See Campaign Legal Ctr. v. FEC (“RTR I”), 520 F.Supp.3d 38, 41-42 (D.D.C. 2021). In this “delay” case, Plaintiffs asserted two injuries that they claimed were sufficient to confer Article III standing. First, they alleged that the Commission's inaction had resulted in a cognizable informational injury because the FECA entitled them to know “the extent of coordination between Right to Rise and the Bush campaign” as well as “the extent of Bush's campaign spending both during the testing the waters phase of his campaign and after Bush had moved beyond testing the waters to become a candidate under the FECA.” Id. at 42 (cleaned up). Second, Plaintiffs claimed they had suffered organizational injuries due to the Commission's inaction because the failure to close the administrative file and release the Commission's underlying records forced them to divert resources and efforts away from other organizational needs. Id. After the Commission did not appear through counsel to defend itself, Right to Rise successfully intervened and moved to dismiss all claims for lack of standing. Id.

The Court initially issued a split decision on informational standing. It held that Plaintiffs had adequately alleged informational injury based on Bush's purported failure to report testing-the-waters activities but failed to do so when it came to the allegations of coordinated spending between the Bush campaign and Right to Rise. RTR I, 520 F.Supp.3d at 46-48. Relying on Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001), the Court held that Plaintiffs had no legally cognizable interest in a legal determination that some of Right to Rise's purportedly independent expenditures were actually “coordinated” in-kind contributions. Id. at 47-48. The Court was in good company in reaching this result. Other courts in this District faced with the same question had resolved that plaintiffs lack Article III standing to seek what amounts to a “legal conclusion that carries certain law enforcement consequences.” See Campaign Legal Ctr. v. FEC (“Clinton II”), 507 F.Supp.3d 79, 85-86 (D.D.C. 2020) (quoting Wertheimer, 268 F.3d at 1075). Nonetheless, the case was set to proceed because the Court found that Plaintiffs had alleged a valid informational injury related to purportedly unreported testing-the-waters activities between January and June of 2015. RTR I, 520 F.Supp.3d at 45. Taking this allegation as true, it appeared Plaintiffs had been deprived of “five months of information that is statutorily required to be disclosed” and that would aid them in their missions to safeguard elections-a textbook informational injury. Id. at 46.

That changed when Right to Rise filed a motion for reconsideration belatedly arguing that all expenditures during this five-month period already had been disclosed in some form either in Governor Bush's first campaign finance report or in Right to Rise's disclosure reports. Campaign Legal Ctr. v. FEC (“RTR II”), 578 F.Supp.3d 1, 5-6 (D.D.C. 2021). Plaintiffs had identified five public appearances for which they maintained Bush had not reported travel and lodging expenses, Id. at 5. An additional round of briefing and a hearing, however, revealed that these expenditures were already in the public record. Id. at 6-7. Before granting the motion for reconsideration and dismissing the case, the Court noted that whether this pattern of spending violated the FECA's soft-money prohibition did not change the standing analysis because the Court already had decided that “plaintiffs are not entitled to a legal conclusion that carries certain law enforcement consequences.” Id. at 6 n.4 (cleaned up).

Plaintiffs then filed their own motion for reconsideration, asking the Court to clarify its ruling on their organizational standing based on the FEC's delay in acting on their administrative complaints and the Commission's failure to release its Matter Under Review (“MUR”) file detailing its internal deliberations and findings. While that motion was pending, Plaintiffs also filed a notice of supplemental authority alerting the Court to the D.C. Circuit's decision in Campaign Legal Center v. FEC (“Clinton III”), 31 F.4th 781 (D.C. Cir. 2022). Clinton III reversed Clinton II, holding that the plaintiffs had suffered an informational injury based on the nondisclosure of whether certain super PAC expenditures were “coordinated” with the Clinton campaign. Id. at 792-93. Plaintiffs contended that this supplemental authority “controverts the Court's holding that plaintiffs did not suffer informational injury” based on the Bush campaign's and Right to Rise's method of reporting Bush's testing-the-water activity. Pls.' Notice of Suppl. Auth., Campaign Legal Ctr. v. FEC, No. 20-cv-730 (CRC), ECF No. 37, at 4-5.

The Court denied this second request for reconsideration. On the claimed organizational injury, the Court held that this alternative basis for standing failed...