Giffords v. Federal Election Commission

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

GIFFORDS,

Plaintiff,
Vv. ; Civ. Action No, 19-1192 (BGS)
FEDERAL ELECTION COMMISSION, ERTORMAPESH

Defendant.

MEMORANDUM OPINION

Plaintiff Giffords—a nonpartisan, nonprofit S01 (c) (4)
organization headquartered in Washington, 0.C.-brings this
lawsuit against Defendant the Federal Election Commission (“FEC”
or the “Commission”) alleging that the Commission has failed to
act upon four administrative complaints filed with the agency
under the Federal Election Campaign Act (“FECA”), 52 U.S.C. §
30109(a) (8) (A). See Compl., ECF No. 1 49% 1-5, 8.1! Pending before
the Court are FEC’s motion to dismiss, or in the alternative,
for summary judgment, see Mem. Supp. Def. FEC's Mot. Dismiss,
Alternative, Summ. J. (“Def.’s Mot.”), ECF No. 41-1; and
Giffords’ cross-motion for summary judgment, see Mem. Supp.

Cross-Mot. Sum. J. & Opp’n (“Pl.‘’s Cross-Mot.”), ECF No. 48.

1 When citing electronic filings throughout this Memorandum
Opinion, the Court cites ta the ECF page number, not the page
number of the filed document,
Upon consideration of the motions, the responses, the replies
thereto, the applicable law, and the entire record, the Court
DENIES FEC’s motion and GRANTS Giffords’ motion.
I. Background
A. Statutory and Regulatory Background
1. FECA Enforcement

The FEC an independent agency with six Commissioners—is
responsible for enforcing FECA. See 52 U.S.C. § 30106(b) (1).
Congress enacted FECA to prevent money from corrupting or
appearing to corrupt the positions taken by candidates for
federal office and those candidates’ actions while in office.
See Citizens United v. FEC, 558 U.S. 310, 344 (2010). FECA
provides the Commission with broad investigatory powers in
service of that mission. See 52 U.S.C. § 30107.

Any person or entity may file a complaint alleging a
violation of FECA with the Commission. Id. § 30109(a) (1). When a
complaint is filed, the FEC notifies the respondents named in
the administrative complaint within 5 days, and the respondents
are then given an opportunity to respond to the allegations
within 15 days. Id. § 30109(a)(1)-(2). After the response period
has elapsed, taking into account any granted extensions of time
to file, the FEC’s Office of General Counsel evaluates the
submissions and determines whether the matter should be referred
to the agency’s Alternative Dispute Resolution Office,

2
Administrative Fine Program, or Enforcement Division, or if it
should be recommended for dismissal. Def.’s Mot., ECF No. 41-1
at 14. If a matter has been assigned to the Enforcement
Division, the assigned staff attorneys prepare and send a report
to the Commission recommending whether it should find that there
is “reason to believe” that the FECA has been violated or
whether it should dismiss the matter. 11 C.F.R. § 111.7. The
FEC’s Commissioners then vote on whether the complaint provides
“reason to believe” a violation of the FECA has occurred. 52
U.S.C. § 30109(a)(1)-(2). If the Commission finds no reason to
believe or otherwise terminates its proceedings, the
Commissioners who voted against taking that action should issue
a statement explaining their votes. Common Cause v. FEC, 842
F.2d 436, 449 (D.C. Cir. 1988). But if four or more
Commissioners find reason to believe that FECA was or will soon
be violated, then the Commission proceeds to investigate the
alleged violation described in the administrative complaint. Id.
§ 30109(a) (2). The Commission is authorized to request answers
to written questions, subpoena documents, and take depositions ©
during its investigation. Id. § 30107(a) (1)-(5).

At the conclusion of the investigation, the statute
authorizes the FEC’s General Counsel to recommend that the
Commission vote on whether there is “probable cause to believe”

that the FECA has been violated. Id. § 30109{(a) (3). The General
Counsel prepares a report to the Commission recommending what
action should be taken. 11 C.F.R. § 111.16. Based on the
evidence and additional submissions from the respondents, the
Commissioners then vote to determine whether there is “probable
cause to believe” that a violation occurred. 52 U.S.C. §
30109(a) (3)-(4). If four Commissioners find “probable cause to
believe” that a violation occurred, the General Counsel attempts
to arrive at an agreement with the party accused of committing a
violation. “This agreement typically involves an admission of
violations, a plan for remedial action to correct any
violations, and a provision for the payment of civil penalties.”
See Citizens for Responsibility & Ethics in Wash. v. FEC, 164 F.
Supp. 3d 113, 117 (D.D.C. 2015). If the General Counsel is
unable to obtain an agreement, the FEC has the option of filing
suit in federal district court to seek compliance and the
imposition of penaities. 52 U.S.C. § 30109(a) (6).

If the Commission determines that no violation occurred or
dismisses the administrative complaint for some other reason,
the complainant has an opportunity to seek judicial review of
that determination. Id. § 30109(a} (8) (A}. A complainant may also
seek judicial review should the Commission “fail to act” ona
complaint within 120 days. Id. If the court finds that the

Commission’s dismissal or failure to act was “contrary to law,”
the court can “direct the Commission to conform with [that]
declaration within 30 days.” Id. § 30109(a) (8) (C).
B. Factual Background

The basic facts of this case are not in dispute. In the
latter half of 2018, Giffords filed four administrative
complaints with the Commission alleging “millions of dollars of
illegal, unreported, and excessive political contributions. ”
Compl., ECF No. 1 9 1; Def.’s Mot., ECF No. 41-1 at 20-21; Pl.’s
Cross-Mot., ECF No. 48 at 9.

The Campaign Legal Center (“CLC”) filed the first of the
four administrative complaints with the FEC on July 16, 2018.
See Compl., ECF No. § 2. The administrative complaint was
amended on August 16, 2018, to include Giffords as a
complainant. See id. The FEC designated the first administrative
complaint as Matter Under Review (“MUR”) 7427. Id. 4 56.
Giffords and CLC filed a second administrative complaint,
designated at MUR 7497, on September 17, 2018, see id. QW 3; and
they filed a supplement to the complaint alleging additional
facts on February 8, 2019, see id. They also jointly filed a
third administrative complaint, designated as MUR 7524, on
October 22, 2018. Id. AW 60-61. Giffords and CLC filed the
fourth and final administrative complaint, designated as MUR

7553, on December 7, 2018. Id. If 62-63.
The administrative complaints each alleged that two
National Rifle Association of America (“NRA”) entities, the NRA
Political Victory Fund (“NRA-PVF”) and the NRA Institute for
Legislative Action (“NRA-ILA”), made unlawful contributions to
then-President Trump’s presidential campaign and to several
Senate campaigns.? See Def.’s Mot., ECF No. 41-1 at 20-21; Pl.’s
Cross-Mot., ECF No. 48 at 9. In particular, Giffords alleged
that “({sJince at least the 2014 election cycle, the NRA-PFV and
the NRA-ILA have coordinated with candidate campaigns to develop
advertisements through a common vendor, using a shell company
associated with political consulting firm OnMessage,” and
“[slince at least the 2016 election cycle, the NRA-PVF and the
NRA-ILA have coordinated with candidate campaigns to place
advertisements in complementary fashion, including on the same
stations and programs, using shell companies associated with
media strategy firm National Media.” Compl., ECF No. 1 J 32,
Plaintiff alleged that “[b]y coordinating their advertising
strategy in this manner, the NRA-PVF and the NRA-ILA have made
up to $35 million in contributions to candidate campaigns since
the 2014 election, in excess of the contribution limits, in

violation of the source restrictions, and without the disclosure

2 According to Giffords, the candidates for federal office
included Thom Tillis, Tom Cotton, and Cory Gardner in 2014; Ron
Johnson and Donald Trump in 2016; and Matt Rosendale and Josh
Hawley in 2018. See Compl., ECF No. 1 4 10.

6
required under federal law,” including “up to $25 million in
coordinated, illegal contributions to the Trump campaign in

2016.” Id. q 33.

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4

However,
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8
(Ca ama ec tees uiep acme ahaa erat pri aren >|

= commission lost the
required quorum necessary to vote on the matters. Id.; see also
52 U.S.C. § 30109{a) (2). Excepting a short period of time that
lasted from June 5, 2020 to July 3, 2020, the PEC did not regain
its quorum until December 2020. See Pl.’s Notice Regarding FEC
Quorum, ECF No. 65 at 1-2.

Once it regained quorum, iia | lo oe
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C. Procedural History

Plaintiff Giffords filed this lawsuit on April 24, 2019.
See Compl., ECF No. 1. Giffords seeks declaratory and injunctive
relief against the FEC for the alleged failure to timely act on
four administrative complaints Giffords initiated in 2018. Id.
(i 55-63. Giffords requests that the Court declare that the
FEC’s purported failure to act on its administrative complaints
within 120 days was contrary to law under 52 U.S.C. §
30109(a) (8) (A). Id. ¥ 66. Giffords also seeks a court order
compelling the FEC to conferm with the declaration within thirty
days after the entry of the Court's declaration. Id. at 20 9 2.

Qn December 6, 2019, FEC filed a motion to dismiss, or in
the alternative, for summary judgment. See Def.’s Mot., ECF No.
41. Giffords filed an opposition and cross-motion for summary
judgment on December 23, 2019, see Pl.’s Cross-Mot., ECF No. 48;

and FEC filed its reply and opposition on January 13, 2020, see

10
Def.’s Reply, ECF No. 55. Giffords filed its reply on January
21, 2020. Pl.’s Reply, ECF No. 60. On June 1, 2021, the Court
granted Giffords’ motion to expedite consideration of the
parties’ cross-motions for summary judgment. See Min. Order
(June 1, 2021). The motions are ripe for adjudication.
Ir. Legal Standard

“Because no material facts are in dispute, it is
appropriate to resolve this matter on summary judgment.”
Democratic Senatorial Campaign Comm. v. FEC (DSCC), No. 95-0349,
1996 WL 34301203, at *3 (D.D.C. Apr. 17, 1996). Pursuant to
Federal Rule of Civil Procedure 56, summary judgment should be
granted if the moving party has shown that there are no genuine
issues of material fact and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp
v. Catrett, 477 U.S. 317, 325 (1986). In determining whether a
genuine issue of material fact exists, a court must view all
facts in the light most favorable to the non-moving party. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
S87 (1986). In ruling on cross-motions for summary judgment, a
court shall grant summary judgment only if one of the moving
parties is entitled to judgment as a matter of law upon material
facts that are not genuinely disputed. Shays v. FEC, 424 F.

Supp. 2d 100, 109 (D.D.C. 2006); Winston & Strawn LLP v.

il
F.D.I.C., No. 061120, 2007 WL 2059769, at *3 (D.D.C. July 13,
2007).
III. Analysis
In the context of ruling upon cross-motions for summary

judgment regarding a “failure to act” claim under Section
30109{a)} (8), the Court must determine whether the Commission
acted “contrary to law” in handling the administrative matters.
52 U.S.C. § 30109(a) (8). The standard for determining whether an
agency’s failure to act is contrary to law is whether its
failure to take action is arbitrary and capricious. Common
Cause, 489 F. Supp. at 744. “Factors the Court may consider in
making its determination include the credibility of the
allegation, the nature of the threat posed, the resources
available to the agency, and the information available to it, as
well as the novelty of the issues involved.” Id.; see also In re
Nat’i Cong. Club, Nos. 84-5701, 84-5719, 1984 WL 148396, at *1
(D.C. Cir. Oct. 24, 1984) (per curiam). In addition, it is
appropriate for the Court to consider the guidelines the United
States Court of Appeals for the District of Columbia Circuit
(“D.C. Circuit”) outlined in Telecommunications Research &
Action Center v. FCC (TRAC), 750 F.2d 70 (D.C. Cir. 1984):

{1) the time agencies take to make decisions

must be governed by a rule of reason;

(2) where Congress has provided a timetable or

other indication of the speed with which it
expects the agency to proceed in the enabling

12
Statute, that statutory scheme may supply
content for this rule of reason;

(3) delays that might be reasonable in the
sphere of economic regulation are less
tolerable when human health and welfare are at
stake;

(4) the court should consider the effect of
expediting delayed action on agency activities
of a higher or competing priority;

(5) the court should also take into account
the nature and extent of the interests
prejudiced by delay; and

(6) the court need not find any impropriety
lurking behind agency lassitude in order to
hold that agency action is unreasonably
delayed.

Id. at 80 (citations and internal quotation marks omitted) -
Although the FEC’s decision whether or not to investigate “is
entitled to considerable deference, the failure to act in making
such a determination is not.” DSCC, 1996 WL 34301203, at *4,

Upon consideration of the Common Cause and TRAC factors,
discussed below, the Court finds that the FEC has unreasonably
delayed its consideration of Plaintiff’s administrative
complaints.?

A. Credibility of the Allegations

The Court finds that the allegations in the administrative

complaints are credible. First, [ay

+ The Court shall not address Plaintiff’s arguments that the
Commission's delay gives rise to the appearance of impropriety
because the D.C. Circuit has explained that courts “need

not find any impropriety lurking behind agency lassitude in
order to hold that agency action is unreasonably delayed.” TRAC,
750 F.2d at 80 (internal quotation marks omitted).

13
a «SS «B Second, the administrative complaints
contain “specific documentation of the amounts spent and the
purposes of the spending, along with specific evidence” as to
the violations alleged, Citizens for Percy ‘84 v. FEC, No. 84-
2653, 1984 WL 6601, at *3 (D.D.C. Nov. 19, 1984); see Ex, 1 to
Pl.’s Cross-Mot., ECF No. 50-4; Ex. 2 to Pl.’s Cross~-Mot., ECF
No. 50-5; Ex. 3 to Pl.’s Cross-Mot., ECF No. 50-6; Ex. 4 to
Pl.’s Cross-Mot., ECF No. 50-7; Ex. 5 to Pl.‘’s Cross-Mot., ECF
No. 50-8; Ex. 6 to Pl.’s Cross-Mot., ECF No. 50-9. Notably, the

administrative complaints rely extensively on the FEC’s own

14
records of the expenditures made by the NRA and its affiliates
through the common vendor shell companies in support of the
political candidates. See Citizens for Percy '84, 1984 WL 6601,
at *4 (finding delay unreasonable where “(mJuch of the
information in the complaint could be verified from the FEC‘s
own records”). The administrative complaints also include
“publicly available information demonstrating the links between
the shell companies used in the common vendor scheme, including
records held by the states in which those companies are
incorporated and do business”; Federal Communications Commission
records linking ad placements made by the common vendor shell
companies on behalf of the NRA entities and the political
candidates; and “public statements by candidates and
representatives of the common vendor.” Pls.’ Cross-Mot., ECF No.
48 at 15 (citing Ex. 1 to Pl.’s Cross-Mot., ECF No. 50-4; Ex. 2
to Pl.’s Cross-Mot., ECF No. 50-5; Ex. 3 to Pl.’s Cross-Mot.,
ECF No. 50-6; Ex. 4 to Pl.’s Cross-Mot., ECF No. 50-7; Ex. 5 to
Pl.’s Cross-Mot., ECF No. 50-8; Ex. 6 to Pl.’s Cross-Mot., ECF
No. 50-9). The administrative complaints appear to provide
sufficient evidence that would allow for the FEC to proceed

4

expeditiously with its enforcement process, and

irr Citizens for Percy ’84, 1984 WL 6601, at *3, The

15
FEC also does not dispute that the allegations within the
administrative complaints are credible. See Def.’s Mot., ECF No,
41-1 at 28 (assuming that Plaintiff’s claims are credible); see
also DSCC, 1996 WL 34301203, at *5 (noting that “[a]t no time
has the FEC contended that the allegations in MUR 3774 lacked
credibility”); Citizens for Percy ‘84, 1984 WL 6601, at *3
(finding allegations credible where, among other things, “(t]he
FEC makes no claim that the allegations were not believable”).
B. Nature of the Threat Posed by the Alleged Conduct

The nature of the threat posed by the alleged violations is
significant due to the size of the alleged illegal contributions
and the “threat” that the illegal activity will continue if
unchecked. See Citizens for Percy ’84, 1984 WL 6601, at *3 (“The
significance of the threat posed by this violation comes not
only from the size of the alleged illegal contributions, but
also from the possibility of recurrence in the subsequent
general election.”); DSCC, 1996 WL 34301203, at *5 (“The threat
to the electoral system is highlighted not only by the amounts
of money involved and the impact upon close elections, but by
the serious threat of recurrence.”), Plaintiff alleges in its
administrative complaints that, since 2014, the NRA-PVF and the
NRA-ILA “have made millions of dollars in excessive, corporate,
and unreported contributions to candidates for federal office,

including Thom Tillis, Tom Cotton, and Cory Gardner in 2014, Ron

16
Johnson and Donald Trump in 2016, and Matt Rosendale and Josh
Hawley in 2018.” Compl., ECF No. 1 f 10. According to Plaintiff,
by coordinating with candidate campaigns to develop
advertisements through a common vendor using shell companies
associated with OnMessage and National Media, the NRA entities
“have made up to $35 million in contributions to candidate
campaigns since the 2014 election, in excess of the contribution
limits, in violation of the source restrictions, and without the
disclosure required under federal law.” Id. 4 33. Included
within that amount is “up to $25 million in coordinated, illegal
contributions to the Trump campaign in 2016.” Id. If Plaintiff's
allegations are true, the threat to the integrity of the

7

electoral process is “obvious.” Citizens for Percy ’84, 1984 WL
6601, at *3. Moreover, Plaintiff’s series of complaints also
demonstrated to the FEC a threat of recurrence. For example, one

of Plaintiff’‘s subsequent administrative complaints documented

allegations of coordinated expenditures by the NRA entities and

Matt Rosendale for Montana iii
CU. See 2's Cross-Mot., ECF

No. 48 at 18-19. Other than pointing out that the complaints
concern “economic and political issues” and not “the health or
welfare of plaintiff or any other person,” the FEC does not
seriously contest Plaintiff's characterization of the nature of

the threat posed by the alleged conduct. But as discussed

17
further in Part LII, Section F, “threats to the heaith af our
electoral processes also require timely attention.” DSCC, 1996
WL 34301203, at *8. The Court thus finds that this factor weighs
in Plaintiff’s favor.
C. Availability of Information

As discussed above in Part III, Section A, Plaintiff
provided sufficient evidence to the FEC to establish the
credibility of its administrative complaints, and the FEC does
not contend that the availability of information has in any way
hampered a | “({I]nformation in the
complaint[s] could be verified from the FEC’s own records, “
Citizens for Percy ‘84, 1984 WL 6601, at *4; and other
information concerning the link between shell companies us@éd in

the common vendor scheme was also in the public domain and

simtlarly accessib 1c, aaa

ary | = Thus, there is nothing in the record to

18
suggest that the availability of information has contributed to
any delay in the Commission’s ability to expeditiously progress
the matters.
D. Complexity of the Case or Novelty of the Issues

Plaintiff's administrative complaints involve allegations
concerning “millions of dollars in excessive, prohibited
corporate, and unlawfully unreported contributions to federal
candidates by coordinating political ad spending through the use
of common vendors operating through a network of corporate
shells.” Def.’s Mot., ECF No. 41-1 at 20 (citing Compl., ECF No.
1 @ 10). Such allegations are not “novel”: according to the FEC,
the administrative complaints raise “issues common to many FEC
matters.” Id. at 29; see also Pl.’s Cross-Mot., ECF No. 48 at 25
(listing matters raising the same legal issues on the FEC’s
enforcement docket). Moreover, the regulations underlying
Plaintiff’s claim date back to the late 1970s. See Citizens for
Percy ’84, 1984 WL 6601, at *4 (finding, in 1984, that claims of
coordinated spending were not novel because “(t]he regulations
governing this activity were proposed and relied upon prior to
the 1976 elections, and were formally promulgated in April,
1977”).

Though not disputing that the issues presented are not
novel, the FEC does contend, however, that the allegations

“describe numerous complicated campaign finance law matters.”
Pp

19
Def.'s Mot., ECE No. 41-1 at 28-29.

GE EE eis conceces

that “the underlying complaints involve lengthy and detailed
factual allegations.” Pl.’s Cross-Mot., ECF No. 48 at 24. But

Plaintiff argues that the Commission has all of the information

it ccc

eS, Sa eee
Cc. et 2s.

Here, the allegations presented in Plaintiff’s four
administrative complaints are undoubtedly factually complex,
theugh not legally novel. See Citizens for Percy ’84, 1984 WL
6601, at *4 (recognizing that coordinated contribution claims
involve “analysis of a number of factors”). Any consideration of

the allegations would also involve review of numerous lengthy

and detailed documents (iy
ee DE Ee ll lhe
ee ee ||
a) GE:

20
A

806 F.2d 1081, 1091 (D.C. Cir. 1986). On the other hand,

however, the matters were not so complex Bit ain Sak res

a a ea
the Court does not find that the complexity of the issues has
been a significant factor aS ess ie) a
(SN: 5 ae, el Se gr E Ra i ee SAT
(i ee -
E. Prejudicial Effect and Propriety of the Delay

Defendant argues that “although Giffords makes claims
encompassing many actors over three federal election cycles,
these claims all raise economic (and political) issues common to
many FEC matters, not human safety or welfare issues.” Def.’s
Mot., ECF No. 41-1 at 29. Defendant therefore contends that this
factor does not weigh in favor of a finding of unreasonable
delay. Assuming for present purposes that political issues do

not concern human safety or welfare issues, the Court agrees

21
that the D.C. Circuit has instructed that “agency delay is least
tolerable” in cases “in which human health and welfare are at
stake.” Rose, 806 F.2d at 1092 n.17?. But it does not follow, as
Defendant suggests, that Plaintiff's interests and the public’s
interests are only prejudiced if there is an imminent threat to
health and safety. Rather, courts in this District have
recognized that “threats to the health of our electoral
processes also require timely attention.” DSCC, 1996 WL
34301203, at *8. Here, the administrative complaints include
allegations of “millions of dollars of illegal, unreported, and
excessive in-kind contributions,” in violation of the FECA.
Compl., ECF No. 1 at 1. In view of the significant amount of
money at isspe and the potential harms that could result if
Plaintiff’s allegations are proven true, the FEC’s failure to
C22 then three years
after the first administrative complaint was filed is
prejudicial.

Moreover, as Plaintiff points out, “the window in which the
FEC can act on [certain] violations is rapidly drawing to a
close.” Pl.‘s Mot. Expedite, ECF No. 69 at 2-3, “FECA itself
contains no explicit limitations period,” and, “(als a result,
courts have applied the catch-all five-year limitations period
set forth in 28 U.S.C § 2462 to FECA enforcement actions brought

by the Commission.” Citizens for Responsibility & Ethics in

22
Wash. v. Am. Action Network, 410 F. Supp. 3d 1, 23 (D.D.C.
2019). Here, “[t]o the extent the violations alleged in
Plaintiff’s complaints are considered individually, rather than
as @ pattern of illegal conduct by the NRA, the five-year
limitations period for FEC enforcement may have elapsed for the
violations committed during the 2014 cycle, and may be rapidly
approaching for those committed during the 2016 cycle.” Pl.’s

Mot. Expedite, ECF No. 69 at 2-3. The FEC’s delay in Se

ME 2s 2150 potentially prejudices

Plaintiff if the FEC’s delay ultimately contributes to a
decision to dismiss Plaintiff’s administrative complaints
because the statute of limitations had expired or is about to
expire. See Citizens for Responsibility & Ethics in Wash. v.
FEC, 892 F.3d 434, 438 (D.C. Cir. 2018).

F. Resources Available to the FEC and the Effect on
Competing Priorities

The FEC contends that these factors weigh in its favor
because it is “clearly entitled to deference in the allocation
of its resources to meet its statutory obligations,” Def,’s
Mot., ECF No. 41-1 at 29 (quoting DSCC, 1996 WL 34301203, at
*“5); and it has “experienced a heavy workload and staffing
pressures during the short period that [P]laintiff’s matters
have been pending,” id. at 30. According to Defendant, the

workload and pressures were even further exacerbated by the

Nm
Ld
partial government shutdown and by the FEC losing its quorum for
over a year. Id. at 30-32; Def.’s Reply, ECF No. 55 at 25-27.
Plaintiff acknowledges that the FEC is entitled to deference,
but disputes that the government shutdown excuses the ageres’s
delay. Pl.’s Cross-Mot., ECF No. 48 at 22-23. Plaintiff also
argues that FEC’s “citation to its generally heavy workload as a
justification for delay is belied by the evidence.” Id. at 23,
For example, Plaintiff points to public statements by FEC Chair
Ellen L. Weintraub that “[bJefore losing the quorum on September
1, the Commission was making progress to reduce its significant
enforcement backlog (even despite the government shutdown that
disabled the FEC for most of January).” Id.

The Court agrees that “{t]he FEC is clearly entitled to
deference in the allocation of its resources to meet its
statutory obligations, particularly in this era of shrinking
resources.” DSCC, 1996 WL 34301203, at *5. “It is not for the
judiciary to ride roughshod over agency procedures or sit as a
board of superintendence directing where limited agency
resources will be devoted.” Rose, 806 F.2d at 1091; see also In
re Barr Labs., Inc., 930 F.2d 72, 74 (D.C. Cir. 1991)

(“[R]espect for the autonomy and comparative institutional
advantage of the executive branch has traditionally made courts
slow to assume command over an agency’s choice of priorities.”).

This is especially so when the Court views the present

24
litigation in the context of the circumstances the FEC has faced
since Plaintiff filed its administrative complaints.

iE Gaaenep emia aie Ebi TIOe was first disrupted, even if
minimally so, by the partial government shutdown that ran from
December 2018 to January 2019. Def.’s Mot., ECF No. 41-1 at 30.
In addition, the FEC lacked a quorum for approximately 16 months
(ee ee a a re ee |
GS. eendering the agency unable to act on the issues
during that time. See Notice Regarding FEC’s Quorum, ECF No. 65.
As a result, when the FEC regained its quorum in December 2020,
it faced a considerable backlog of old and new administrative
enforcement matters. See FEC's Notice Subsequent Developments,
ECE No. 66 at 1 (noting that, as of September 30, 2020, there
were 388 pending matters and a backlog of 200 reports pending
with Commissioners). The Court thus does not doubt that the
Commissioners have “experienced a heavy workload and staffing
pressures” during the time since Plaintiff filed its
administrative complaints with the agency. Def.’s Mot., ECE No.
41-1 at 30.

However, it is also true that “(w)hatever deference an
agency is due in resource allocation decisions, it is entitled
to substantially less deference when it fails to take any
meaningful action within a reasonable time period.” DSCC, 1996

WL 34301203, at *5; see also id. (“While the Court is mindful of

25
the discretion due the FEC and all agencies in allacating
resources, such discretion is not a shield from judicial review
of whether the agency has fulfill@@ its etabeboryoy ition 4... +7 mMy
obligations. ”) - [Iii

«After 211, despite the unique

circumstances the FEC has faced since late 2018, a

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Re GE ichough the Court

acknowledges that the FEC has “more than one case on its docket”
to consider during its executive sessions, Rose, 806 F.2d at

1081; the FEC cannot ignore its statutory obligations by

26
allowing a matter to languish [iy
GS © Accordingly, the Court finds that this factor

weighs in favor of Plaintiff.
G. Statutory Time Constraints
“Congress did not intend to create a presumption that delay

in excess of 120 days was unreasonable, per se, or that 120 days
was a deadline for final action on complaints.” Citizens for
Percy '84, 1984 WL 6601, at *4. The D.C. Circuit has also
explained that the FEC is not required to complete final action
on an investigation within a two-year election cycle. See Rose,
806 F.2d at 1092 n.17 (stating two-year delay in completing an
administrative complaint was not “contrary to law”); In re
National Cong. Club, 1984 WL 148396, at *1 (explaining no
presumption that a two-year delay was “contrary to law”).
However, although “Congress did not impose specific time
constraints upon the Commission to complete final action,
it did expect that the Commission would fulfill its statutory
obligations so that the Act would not become a dead letter.”
DSCC, 1996 WL 34301203, at *7?. As the court in DSCC explained:

(WJhile there are no specific deadlines to

prod the FEC to forward administrative

complaints to the Commissioners for “reason to

believe” determinations, it 1s clear that the

agency must nevertheless act reasonably,

determination of which includes consideration

of the underlying statutory purposes. The

absence of a specific requirement in the Act
that the Commissioners make their finding

27
within a certain time period is not the
equivalent of unfettered FEC discretion to
determine its own time line. Public confidence
in our democratic electoral system, which the
Act seeks to protect, turns on investigations
that are conducted within a reasonable time
and on effective enforcement. The deterrent
value of the Act’s enforcement provisions are
substantially undermined, if not completely
eviscerated, by the FEC’s failure to process
administrative complaints in a meaningful time
frame.

Id. at *8. Thus, although there is no statutory time limit

placed on Defendant to complete its review of Plaintiff’s

matter, its actions cannot be unreasonable.

H. “Rule of Reason”

Finally, Defendant argues that the “months during which the
administrative complaints are alleged to have been pending are
plainly not unreasonable periods.” Def.'s Mot., ECF No. 41-2 at
27, Defendant notes that the agency’s “goal” to complete most
enforcement matters is “within 15 months” of receipt, with the

expectation that some matters could take longer. Id. Defendant

further argues that the Court must judge the Commission’s

28
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(is a i a ae iid 1S
che as ae) RS) (eine ee
(a a are a ie ae
ee =.=", se
26.

In determining whether agency inaction is arbitrary and
Capricious, a rule of reason applies. See DSCC, 1996 WL
34301203, at +9. i ii
(a a a 6 oy |
le a
a rE ees | SR pales I a
aL | TT
ie [aa Oper le ce i ae: ee 5
2S, ee Pee
| a ta SRP SS oil --iam )
(SS) (aR Se SRP eS a a a ee!
(a aay Mea, 9. a a eerie = ens |
i er aii a ea
a es ee) ol

GN. ex statute, the Commission was incapable of
addressing Plaintiff’s complaints while it was without a quorum
for approximately 16 months. See id. at 24. Once it regained

quorum in December 2020, [iS

29
a =
has the FEC assured the Court “that it is moving expeditiously”
to address the claims. TRAC, 750 F.2d at 90. xy

30
at stake~the Court cannot find that the FEC’s failure is)
reasonable. “Such dilatory conduct is not explained and cannot
be condoned if the statute is to have any meaning.” Citizens for
Percy ’84, 1984 WL 6601, at *4.

Iv. Conclusion

For the foregoing reasons, the Court GRANTS Plaintiff’ s
motion and DENIES Defendant’s motion. Pursuant to 52 U.S.C. §
30109{a) (8) (C), Defendant is hereby ordered to conform to the
Court’s Order within 30 days of the entry of the Order by making
the reason-to-believe determination set forth in 52 U.S.C. §
30109(a) (2). The Court shall retain jurisdiction over this
matter until Defendant takes final agency action with respect to
Plaintiff's administrative complaints. See Cobell v. Norton, 249
F.3d 1081, 1109 (D.C. Cir. 2001); Alegent v. Health-Immanuel
Med. Ctr. v. Sebelius, 917 F. Supp, 2d 1, 3 (D.D.C. 2012). An
appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
September 30, 2021

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