Campaign Legal Center and Democracy 21 may proceed with FECA claim, may not proceed with APA claim (20-0730)

On February 19, 2021, the U.S. District Court for the District of Columbia (the court) ruled that the Campaign Legal Center and Democracy 21 (plaintiffs) had standing to sue the Commission and Right to Rise (defendants) for an informational injury under the Federal Election Campaign Act (FECA), but their Administrative Procedure Act (APA) claim was foreclosed by the availability of judicial review under FECA.

Background

On March 13, 2020, plaintiffs filed suit against the FEC. According to the court complaint, in March 2015, plaintiffs filed an administrative complaint with the Commission, alleging that former Florida Governor Jeb Bush had failed to abide by “testing the waters” disclosure rules, contribution limits, and registration requirements. A further administrative complaint, filed in May 2015, alleged that Bush had violated 52 U.S.C. § 30125(e) by establishing, financing, maintaining or controlling the Right to Rise Super PAC, which raised and spent funds outside the limitations and prohibitions of the Act. Plaintiffs claimed that the Commission's failure to act on their complaints within 120 days was contrary to law under FECA, and that this alleged inaction violated the APA. After the FEC did not register an appearance in this case, Right to Rise intervened as a defendant in June 2020.

Analysis

Plaintiffs allege that FECA requires further disclosure of Bush's spending when he was engaged in activities with Right to Rise, which they allege was - at least - testing the waters for his future Presidential bid. At this stage in the litigation, the court said it must proceed “on the claimants' reading” of the FECA, and so despite Right to Rise's assertion otherwise, the court must accept that the plaintiffs asserted deprivation of information would constitute an informational injury under the FECA.

Right to Rise argues that the plaintiffs’ APA claim must be dismissed as precluded by the FECA. According to the court, the plaintiffs did not refute this argument, and so the court must treat the argument as conceded. In any event, the court concluded that the FECA precludes review of the plaintiffs’ claim under the APA.

As a result, the court denied Right to Rise’s motion to dismiss the FECA claim, but granted its motion to dismiss the APA claim.

Resources

• Campaign Legal Center, et al. v. FEC (20-0730) litigation page