Campaign Legal Center v. FEC ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 15, 2021 Decided April 19, 2022
No. 21-5081
CAMPAIGN LEGAL CENTER AND CATHERINE HINCKLEY
KELLEY,
APPELLANTS
v.
FEDERAL ELECTION COMMISSION, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-02336)
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.
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EDWARDS, Senior Circuit Judge: This case involves an
action by Appellants Campaign Legal Center and Catherine
Hinckley Kelley against the Federal Election Commission
(“Commission” or “FEC”). They contend that the
Commission’s decision to dismiss their complaint alleging
violations of the Federal Election Campaign Act (“Act” or
“FECA”) during the 2016 presidential election cycle by
political committee Correct the Record and Hillary Clinton’s
campaign committee, Hillary for America, was contrary to law.
Correct the Record and Hillary for America (together,
“Intervenors”) have intervened as defendants in this suit.
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
3
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)). Were Appellants to
succeed on the merits of their claim, Correct the Record and
Hillary for America would be obligated to disclose FECA-
required factual information about the amounts of the contested
coordinated, in-kind contributions. That “information would
help [Appellants] (and others to whom they would
communicate it) to evaluate candidates for public office, . . .
and to evaluate the role that [Correct the Record’s] financial
assistance might play in a specific election.” FEC v. Akins, 524
U.S. 11, 21 (1998).
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 Clinton 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 52 U.S.C.
§ 30104(b); 11 C.F.R. §§ 104.13(a), (b), 109.20(b), 109.21(b).
Accordingly, Appellants have demonstrated a
quintessential informational 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
4
of their inability to obtain information—[including] campaign-
related contributions and expenditures—that, on [Appellants’]
view of the law, the statute requires that [Correct the Record
and Hillary for America] make public.” 524 U.S. at 21. This
being so, Appellants also easily satisfy the causation and
redressability requirements of Article III standing. See id. at 25.
Accordingly, we reverse the District Court’s dismissal for lack
of standing and remand for further proceedings.
I. BACKGROUND
A. Legal Framework
Congress passed the Federal Election Campaign Act in
1971 with the aim of “remedy[ing] any actual or perceived
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. 52 U.S.C.
§ 30116(a)(1)(A). A “contribution” under the Act includes any
“gift . . . of money or anything of value made by any person for
the purpose of influencing any election for Federal office.” Id.§ 30101(8)(A)(i). Contributions include not only payments
made directly to a candidate, but also “coordinated”
expenditures, which are those “made in cooperation,
consultation[,] or concert with, or at the request or suggestion
of, a candidate, a candidate’s authorized committee, or a
political party committee.” 11 C.F.R. § 109.20. Coordinated
expenditures are necessarily in-kind contributions, rather than
direct monetary payments. Accordingly, utilizing political
committee staff time, office space, or other resources in
cooperation with a candidate counts as a contribution. See id.;
52 U.S.C. § 30101(8)(A)(i), (ii). This structure is designed to
“prevent attempts to circumvent the Act through prearranged
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or coordinated expenditures amounting to disguised
contributions.” Buckley v. Valeo, 424 U.S. 1, 47 (1976) (per
curiam). In the 2016 election cycle, political committee
contributions to candidates were capped at $2,700. Am. Compl.
¶ 38, J.A. 41.
Second, the Act restricts political committees from using
money sourced from unions or corporations to make
contributions to candidates. 52 U.S.C. § 30118(a), (b)(2). This
ensures that unions and corporations cannot avoid direct
contribution limits by funneling money to candidates through
political committees. See McConnell v. FEC, 540 U.S. 93, 145-
48 (2003).
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 52 U.S.C. § 30104(b)(5)(A); 11 C.F.R.
§ 104.3(b)(3)-(4). In addition, they must report contributions –
in-kind, coordinated, or otherwise – made to any candidate. See
id. § 30104(b)(4)(H)(i), (6)(B)(i), (iii). A candidate’s
“authorized committee,” like Hillary for America, must
disclose all in-kind, coordinated contributions it receives as
both contributions and expenditures, because these donations
function as resources spent by the campaign in furtherance of
the election of the candidate. Id. §§ 30101(6), 30104(b); 11
C.F.R. §§ 104.13(a), 109.20(b), 109.21(b). Disclosures are
made regularly in itemized reports to the FEC, and must
include details like the dates, amounts, and purposes of the
contributions and expenditures, as well as the name and address
of a recipient candidate. See 52 U.S.C. § 30104(b); 11 C.F.R.
§§ 104.13(a), 109.20(b), 109.21(b).
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Of relevance here, certain communications made by
political committees in concert with a candidate are considered
in-kind contributions to the campaign. See 11 C.F.R.
§ 109.21(b). In particular, the Commission has promulgated
rules designating political committees’ paid communications –
e.g., paid online advertising – as coordinated campaign
contributions subject to the aforementioned source, amount,
and disclosure requirements. In contrast, unpaid internet
communications – i.e., those communications not placed for a
fee – are exempt from those requirements. Internet
Communications, 71 Fed. Reg. 18589, 18593-95 (Apr. 12,
2006); see also 11 C.F.R. §§ 100.94(a), 100.155(a)(1)
(providing that uncompensated internet activity does not
constitute a contribution or an expenditure).
The Act provides that any person who believes a violation
of the Act has occurred may file a complaint with the
Commission. 52 U.S.C. § 30109(a)(1). The Office of General
Counsel reviews the complaint and any response and
recommends to the Commission whether there is “reason to
believe” a violation has occurred. Id. § 30109(a)(2), (3). The
FEC Commissioners – six total, half from each of the two
major political parties – then vote on whether there is “reason
to believe” the Act was violated. Id. §§ 30106(a)(1),
30109(a)(2). If at least four Commissioners vote yes, the
Commission will investigate; otherwise, the complaint is
dismissed. See id. §§ 30106(c), 30109(a)(2). In the event of a
deadlock, the “declining-to-go-ahead” Commissioners must
issue a Statement of Reasons to serve as the basis for judicial
review. Common Cause v. FEC, 842 F.2d 436, 449 (D.C. Cir.
1988). “Any party aggrieved” by the dismissal of a complaint
may then seek judicial review. 52 U.S.C. § 30109(a)(8)(A).
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B. Factual Background
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 presidential 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 Record 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.
8
12-13. In line with its interpretation, Correct the Record
disclosed $9,617,828.28 in total expenditures to the FEC as
required, but did not designate any of that spending as in-kind
coordinated contributions to the Clinton campaign. See FEC,
Correct the Record Financial Summary, 2015-2016,
https://www.fec.gov/data/committee/C00578997/?cycle
=2016. Likewise, the Clinton campaign did not declare any of
that spending as contributions or expenditures of its own.
In their administrative complaint to the Commission,
Appellants challenged Intervenors’ interpretation of the law,
contending 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 array 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,
9
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 contributions
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
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Commissioner Caroline C. Hunter, In re: Correct the Record,
MUR 6940 et al. (FEC, Aug. 21, 2019), reprinted in J.A. 256-
73. They agreed with Correct the Record and Hillary for
America that all “input costs” associated with unpaid internet
communications are exempt from regulation under the Act.
The Commission therefore dismissed the administrative
complaint.
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 garner the four affirmative votes necessary to defend the
agency in this action, see 52 U.S.C. §§ 30106(c), 30107(a)(6),
so the FEC did not enter an appearance in this case. However,
the District Court, over Appellants’ objection, permitted
Correct the Record and Hillary for America to intervene as
defendants.
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
11
exception was contrary to law and “unduly compromise[d] the
Act’s purposes.” Id. at 157 (quoting Orloski v. FEC, 795 F.2d
156, 164 (D.C. Cir. 1986)). The trial judge noted that, because
the controlling Commissioners had decided that all
expenditures for computer equipment, office space, software,
web hosting, video equipment, placing a poll online, salaries,
and the like were exempt from regulation as unpaid internet
expenditures, the FEC determination would mean that “any
expenditure could be exempted from regulation if it ultimately
resulted in an unpaid internet communication.” Id. at 149. The
trial judge said that such an interpretation “creates a loophole
that effectively vitiates the plain language of FECA.” Id. at
158. The trial judge further found that the Commission’s
interpretation was “contrary to law” “because it ignored clear
evidence of coordinated expenditures between [the Clinton
campaign] and [Correct the Record] even apart from those
claimed to be exempt under the internet-communications
regulation.” Id. at 159.
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
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coordination” and therefore did not support informational
standing. Id. at 88. The District Court dismissed the FECA
claim for lack of standing. Id. at 91. In a separate opinion, the
District Court dismissed Appellants’ Administrative Procedure
Act claim as precluded by FECA. Campaign Legal Ctr. v. FEC,
Civ. Action No. 19-2336, 2021 U.S. Dist. LEXIS 27082, at *3-
10 (D.D.C. Feb. 12, 2021), reprinted in J.A. 310-17.
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
13
made during the 2016 election in some form, Appellants would
not obtain any new factual information if they prevailed on the
merits. Appellants claim, however, that they still lack access to
FECA-required information about the amounts, dates,
recipients, and purposes of any coordinated expenditures and
contributions Correct the Record made to Hillary for America.
Appellants argue that if they succeed in this litigation, Correct
the Record would be required to disaggregate its already-
reported expenditures to show which portions of those
expenditures were coordinated contributions and which were
not. This would provide Appellants with new, pertinent
information about the amounts Correct the Record contributed
to the Clinton campaign, information that is currently
unknown. We agree and therefore find that Appellants have
established a cognizable informational injury.
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
14
Affairs Committee (“AIPAC”) was not a “political committee”
under the definition provided in FECA. 524 U.S. at 15-18.
Under plaintiffs’ view of the law, AIPAC was a “political
committee” and thus required under the Act to disclose the
sources of its contributions and its spending. Id. at 15-16. The
Supreme Court was clear in holding that because plaintiffs
“fail[ed] to obtain information which must be publicly
disclosed pursuant to a statute” under their view of the law,
they “suffer[ed] an ‘injury in fact.’” Id. at 21 (citing Pub.
Citizen v. U.S. Dep’t of Just., 491 U.S. 440, 449 (1989)).
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,
“[t]he 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.
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Of course, not every demand for information from the FEC
is sufficient to establish Article III standing. We have
recognized that “the nature of the information allegedly
withheld is critical to the standing analysis.” Common Cause v.
FEC, 108 F.3d 413, 417 (D.C. Cir. 1997) (per curiam). The
information sought must be that for which there is a statutory
right and which “is related to [the plaintiff’s] informed
participation in the political process.” Nader v. FEC, 725 F.3d
226, 230 (D.C. Cir. 2013). “If an organization has simply been
‘deprived of the knowledge as to whether a violation of the law
has occurred,’ that ‘injury’ is no more than a generalized
‘interest in enforcement of the law,’ and does not support
standing.” Jud. Watch, Inc. v. FEC, 180 F.3d 277, 278 (D.C.
Cir. 1999) (per curiam) (quoting Common Cause, 108 F.3d at
418). Thus, plaintiffs seeking information solely “to ‘get the
bad guys,’ rather than disclose information,” lack the sort of
injury that sustains standing. Common Cause, 108 F.3d at 418.
In addition, plaintiffs must lack access to 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).
16
2. Applying the Law to the Facts of this Case
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. 52 U.S.C. §§ 30104(b),
30116(a)(7). And there is no serious dispute that, on
Appellants’ view of the law, many of Correct the Record and
Hillary for America’s coordinated expenses that the
Commission found exempt from disclosure as “unpaid
internet” expenses should be disclosed as in-kind
contributions. If Appellants win on the merits, Correct the
Record would be required to disaggregate its reporting to show
the actual amounts of various expenditures that were in-kind
contributions. Appellants would therefore gain access to
FECA-required information about coordinated contributions
from Correct the Record to the Clinton campaign. Finally, it is
clear, as in Akins, “that the information would help
[Appellants] . . . evaluate candidates for public office.” 524
U.S. at 21. Accordingly, Appellants claim an injury in fact no
different than that in Akins.
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
17
the Clinton campaign. This argument mischaracterizes the
claims and information at stake.
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 payroll,
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
18
two-week period was spent on coordinated activities, his salary
payment would need to be disclosed as one non-coordinated
salary expenditure of $2,260.78 and one in-kind contribution
of $2,260.78. 507 F. Supp. 3d at 88. But the District Court then
characterized this disclosure as “nothing more than the ‘fact’
of ‘coordination,’ which under Wertheimer is not a fact at all
but rather a legal conclusion.” Id. (internal quotation omitted).
We disagree.
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
19
Wertheimer argued that coordinated expenditures by political
parties were contributions to candidates (which was not yet
established law) and sought disclosure of coordinated
expenditures by presidential campaigns. Id. at 1071, 1074. But,
the precise transactions that the plaintiffs sought in Wertheimer
had already been reported by political parties as coordinated
expenditures. Id. at 1075 (Garland, J., concurring) (“[P]olitical
party committees are already required to report and to identify
such coordinated expenditures . . . in their FECA filings.”). In
other words, the information sought by the plaintiffs in
Wertheimer had already been “disaggregated” and marked as
coordinated in the reports of political parties, so the plaintiffs
had access to all the information they were seeking. If the
plaintiffs in Wertheimer had won, they would have obtained
“the same information from a different source.” Id. at 1075.
Therefore, Wertheimer would support Intervenors’ position
only if Correct the Record had disclosed its coordinated
contributions to the Clinton campaign and designated them as
such, and Appellants were simply seeking reciprocal disclosure
from Clinton’s campaign of those same transactions. See id.But the information at issue in this case has not been
disaggregated, nor have the allegedly coordinated
contributions been disclosed.
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
20
none of Correct the Record’s expenditures were exempt from
disclosure under the internet exception. Therefore, Intervenors’
contention that Appellants have attempted to manufacture
standing by “revamp[ing]” their argument to claim that only
some portion of Intervenors’ activities were coordinated is
baseless. Intervenor-Appellees’ Principal and Resp. Br. 33.
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
21
covered by FECA so long as the information was included as a
part of some undifferentiated lump sum. There is nothing in the
law to support this position. Thus, in this case, Appellants have
no way of knowing what portion of Intervenors’ lump sum
disclosures consist of coordinated expenses. Such information
is only known by parties (like Intervenors) who are responsible
for making disaggregated disclosures under statute.
Disaggregated FECA-required information cannot be deduced
from aggregate, lump-sum disclosures of this kind.
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 decision 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.
22
III. CONCLUSION
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.