Campaign Legal Center v. Iowa Values

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CAMPAIGN LEGAL CENTER,
Plaintiff,

V. Case No. 21-cv-389-RCL

IOWA VALUES,

Defendant.

MEMORANDUM OPINION

The Federal Election Commission (“FEC”) performs crucial work to preserve the integrity
of our electoral system. Among other things, it works to “minimize[] the potential for abuse of the
campaign finance system” by requiring disclosure to “arm[] the voting public with information.”
McCutcheon v. Fed. Election Comm’n, 572 U.S. 185, 223-24 (2014). But Congress foresaw the
possibility that the FEC could abdicate its responsibilities to serve as an electoral watchdog.
Refusing to abandon its citizens to one agency’s whims, Congress carefully constructed the
Federal Election Campaign Act (“FECA”) to provide for citizen suits, where an aggrieved party
can directly sue a potential FECA violator in federal court.

This is one of those citizen suits. Plaintiff Campaign Legal Center sued defendant Iowa
Values, alleging that defendant has unlawfully concealed its election activities. Defendant moved
to dismiss, arguing that the Court-lacks subject matter jurisdiction and that plaintiff failed to state
a claim. ECF No. 13. In the alternate, defendant moved to strike certain portions of the complaint.
Id. Plaintiff opposed defendant’s motion. ECF No. 19. Upon consideration of the record, the
parties’ briefs, and defendant’s reply, ECF No. 20, the Court will DENY defendant’s motion to

dismiss and to strike.
I. BACKGROUND
A. Factual History

Plaintiff alleges that in the summer of 2019, defendant launched “a comprehensive
campaign to support the reelection of U.S. Senator Joni Emst.” ECF No. 1 at 1. Through this
campaign, defendant expended over $30,000 on digital advertisements for Ernst on Facebook and
Google. Id. § 28-29. These advertisements featured pictures of Ernst campaigning and focused on
Ernst’s characteristics as a “leader.” Jd. | 30. Iowa voters were targeted with messages declaring
that “Joni Ernst is fighting for us” and “We Deserve Leaders Who Share Our Values Like Joni
Emst.” Id. § 27. Other advertisements recruited canvassers and featured Ernst smiling broadly at
a crowd or posing in front of a bus. Jd. § 28.

That same summer, Claire Holloway Avella, a registered fundraiser for Ernst’s campaign,
sent an email to a potential donor requesting $50,000 “on behalf of lowa Values.” Jd. 4] 32. The
email, which attached a strategy memorandum, noted that the organization planned to “target
communications supportive of Senator Emst to Iowa voters.” Jd. Plaintiff alleges defendant
received donations in response to this solicitation email, which it used in part to fund its campaign
“blitz.” Id. 435.

Because defendant is not an organization registered as a federal political committee,
plaintiff argues that these actions are in violation of FECA. Jd. at 1. Political committees that
receive contributions or make expenditures of over $1,000 annually are required to register with
the FEC and “file periodic reports disclosing [their] contributions, expenditures, and debts.” Jd;
see 52 U.S.C. §§ 30102-04. Plaintiff alleges that by flouting these rules while accepting

contributions and running campaign advertisements for Joni Ernst, defendant broke the law.
B. Procedural History

Armed with allegations, plaintiff filed an administrative complaint with thé FEC on
December 19, 2019, pursuant to 52 U.S.C. § 30109(a)(1). ECF No. 1 § 4. The administrative
complaint alleged that defendant failed to register as a political committee and report as required.
ECF No. 1 94. And then, plaintiff waited. But the FEC did not take any action on the complaint—
in fact, the FEC never gave any indication it has acted on the matter. Jd. |

If the FEC either dismisses an administrative complaint or fails to act on the complaint in
the 120-day period after it is filed, the party who filed the complaint may file a petition in this
district. 52 U.S.C. § 30109(a)(8)(A). Then, if a court finds that the FEC’s action or inaction was
“contrary: to law,” it may “direct the [FEC] to conform with some declaration within 30 days,
failing which the complainant may bring, in the name of such complainant, a civil action to remedy
the violation involved in the original complaint.” 52 U.S.C. § 30109(a)(8)(C). Notably, if the FEC
determines in its prosecutorial discretion to decline enforcement and dismiss a complaint, that
action cannot be held contrary to law. Citizens for Resp. & Ethics in Washington (“CREW”) v.
Fed. Election Comm’n, 892 F.3d 434, 441 (D.C. Cir. 2018).

Accordingly, on June 30, 2020, 194 days after plaintiff filed its complaint with the FEC
without a response or a dismissal, it brought a civil action against the FEC in this Court. ECF No.
145. There, too, the FEC failed to respond or enter an appearance, and so on October 14, 2020,
this Court granted plaintiff's motion for default judgment against the FEC. Order, ECF No. 14,
Campaign Legal Center v. Fed. Election Comm’n, No. 20-cv-1778 (RCL) (D.D.C. Oct. 14, 2020).
The Court found that the FEC’s failure to act on the administrative complaint was “contrary to
Jaw” and ordered the FEC to act upon plaintiff's complaint within 90 days. Jd. But 90 days came

and went, and the FEC took no further action. On February 11, 2021, this Court found that the
FEC failed to conform to its Order and held that the plaintiff could proceed with a civil action
directly against defendant. Order, ECF No. 24, Campaign Legal Center v. Fed. Election Comm’n,
No. 20-cv-1778 (RCL) (Feb. 11, 2021).

-The next day, plaintiff filed this action against defendant Iowa Values. ECF No. 1.
Defendant moved to dismiss for lack of jurisdiction, for failure to state a claim, and, in the
alternate, to strike a portion of the complaint. ECF No. 13. This motion is now ripe.

Il. LEGAL STANDARDS
A. Standing

To maintain any claim in federal court, a plaintiff must show that it suffers an “injury in
fact” that is “fairly traceable” to defendant’s challenged actions and that the injury would be
“redressed” by a favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). The
injury must be particularized—in other words, the injury must “affect the plaintiff in a personal
and individual way.” Jd. at 560 n.1. If, in contrast, the plaintiff only alleges a “generalized
grievance” such as “a common concern for the obedience to law,” the plaintiff has no standing.
Fed. Election Comm’n vy. Akins, 524 U.S. 11, 23 (1998).

B. Motion To Dismiss For Lack Of Subject Matter Jurisdiction

Before a court may “proceed at all in any cause” it must ensure that it possesses subject
matter jurisdiction over a case. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)
(quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)). While a court “must accept the
factual allegations in the complaint as true” when considering whether there is subject matter
jurisdiction, Info. Handling Servs., Inc. v. Def. Automated Printing Servs., 338 F.3d 1024, 1029
(D.C. Cir. 2003), the plaintiff bears the burden to establish jurisdiction. Lujan, 504 U.S. at 561.

“For this reason, ‘the [p]laintiff’s factual allegations in the complaint . . . will bear closer scrutiny
in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure to state a claim.”
Grand Lodge of Fraternal Ord. of Police v. Ashcroft, 185 F. Supp. 2d 9, 13-14 (D.D.C. 2001)
(alterations in original). And the Court is not limited to the pleadings—it may consider “‘such
materials outside the pleadings as it deems appropriate” to determine whether it has jurisdiction.
Scolaro v. District of Columbia Bd. of Election & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000).
C. Motion To Dismiss For Failure To State A Claim

To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must contain
sufficient factual matter which, if accepted as true, “‘state[s] 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)); see Fed. R. Civ. P. 12(b)(6). Put another way, the factual content included in the
complaint must “allow[] the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Jgbal, 556 U.S. at 678. In evaluating the complaint, a court must accept
as true all allegations within the complaint and “construe[] reasonable inferences from those
allegations in the plaintiffs favor.” Sissel v. Dep’t Health & Human Servs., 760 F.3d 1, 4 (D.C.
Cir. 2014). Here, again, a court is not limited to just the facts in the complaint—it can also consider
“documents attached as exhibits or incorporated by reference in the complaint’ or ‘documents
upon which the plaintiff's complaint necessarily relies even if the parties do not produce the
document.’” Tefera v. OneWest Bank, FSB, 19 F. Supp. 3d 215, 220 (D.D.C. 2014) (quoting Busby
v. Capital One, N.A., 932 F. Supp. 2d 114, 133-34 (D.D.C. 2013)) (cleaned up).

D. Motion To Strike

Rule 12(f) permits a court to “strike from a pleading an insufficient defense or any

redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). But motions to

strike are particularly “disfavored” by the federal courts. Wiggins v. Philip Morris, Inc., 853 F.
Supp. 457, 457 (D.D.C. 1994). Only if the allegations in a complaint are both irrelevant and
prejudicial to defendant will a motion to strike be granted. Jd.

III. DISCUSSION

A. This Court Has Subject Matter Jurisdiction Under 52 U.S.C. § 30109(a)(8)(C)
Because The FEC’s Inaction On Plaintiff’s Administrative Complaint Was Contrary
To Law

This Court has federal question jurisdiction based on 52 U.S.C. § 30109(a)(8)(C), which
provides for citizen suits by private complainants against potential FECA violators in limited
circumstances. Complainants must clear multiple procedural hurdles before maintaining such a
suit. The complainant must file (1) a complaint with the FEC, (2) wait for the complaint’s dismissal
or 120 days of inaction, (3) file a petition in the United States District Court for the District of
Columbia, (4) convince the court to find that the FEC’s dismissal or failure to act was contrary to
law, and (5) give the FEC at least 30 days to conform with the court’s decision. 52 U.S.C.
§ 30109(a)(8). Only then can a court have jurisdiction over a suit filed by a private complainant
against a potential violator. Plaintiff has overcome each of these hurdles. This Court, in a related
case, found that the FEC’s failure to act was contrary to law, Order, ECF No. 14, Campaign Legal
Center v. F.E.C., 1:20-cv-1778 (RCL) (Oct. 14, 2020), and that FEC failed to conform with this
Court’s decision, Order, ECF No. 24, Campaign Legal Center, 1:20-cv-1778 (RCL) (Feb. 11,
2021).

Despite plaintiff's completion of these procedural prerequisites, defendant argues that this
Court lacks subject matter jurisdiction because the FEC’s failure to act on plaintiff's complaint
was not “contrary to law” and because the FEC did not fail to conform with this Court’s order.
ECF No. 13-1 at 11. In other words, defendant seeks to relitigate the merits of this Court’s
decisions in Campaign Legal Center v. Federal Election Commission, 1:20-cv-1778 (RCL).

Defendant puts forth no intervening precedential case law to support its notion that this Court’s

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decisions were wrong. However, because a court “cannot proceed at all” without subject matter
jurisdiction, Steel Co., 523 U.S. at 94, the Court will address defendant’s argument that the
necessary prerequisites for federal question jurisdiction have not been met.

When evaluating whether the FEC’s inaction on a complaint is “contrary to law,” the Court
must determine whether the FEC acted “expeditiously” considering factors such as “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.” Common Cause v. Fed.
Election Comm’n, 489 F. Supp. 738, 744 (D.D.C. 1980). The Circuit has also instructed courts to
consider six other factors regarding unreasonable delay:

(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 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.’”
Telecommunications Research and Action Center (“TRAC”) v. Fed. Commc’n Comm’n, 750 F.2d
70, 80 (D.C. Cir. 1984) (internal citations omitted); see Giffords v. Fed. Election Comm’n, 19-CV-
1192 (EGS), 2021 WL 4805478, at *3 (D.D.C. Oct. 14, 2021) (applying the Common Cause and
TRAC factors in a suit against the FEC alleging its inaction was contrary to law). Together, these
nonexhaustive factors inform a court’s decision.

.Turning first to the Common Cause factors, the FEC has failed to act on a supported,

credible complaint that alleges a violation of federal election law and, ultimately, a threat to the

integrity of the electoral system. Both parties in this case acknowledge that the complaint is

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“routine” and hardly raises a novel issue that would demand a substantial amount of the agency’s
resources. ECF No. 19 at 11; ECF No. 13-1 at 16. And because “[m]uch of the information in the
complaint could be verified by the FEC’s own records,” Citizens for Percy ‘84 v. Fed. Election
Comm’n, No, 84-CV-2653 (JHP), 1984 WL 6601, at *4 (D.D.C. Nov. 19, 1984), the FEC’s delay
cannot be excused for lack of information. So the Common Cause factors support finding that the
FEC’s actions were contrary to law.

The TRAC factors also support finding the FEC’s inaction and delay contrary to law. The
first two factors state that the agency’s timeline must be governed by the rule of reason and that a
statutory indication by Congress of a timetable may inform that rule of reason. TRAC, 750 F.2d at
80. Here, Congress provided a “timetable” to inform the rule of reason: when the FEC fails to “act
on such complaint during the 120-day period beginning on the date the complaint is filed,” citizens
are allowed to challenge that delay in federal court. 52 U.S.C. § 30109(a)(8)(A). The 120-day
timeline is a jurisdictional floor to filing suit and is not dispositive. Citizens for Percy ‘84, 1984
WL 6601, at *4. However, when considering the TRAC factors, this time frame informs the rule
of reason. Here, the FEC has failed to take action on plaintiff's complaint far beyond the 120 days
in the statute with no explanation. These two factors support a finding that the FEC’s inaction was
contrary to law.

Turning next to factors three and five, the prejudicial effect and tolerability of the delay,
multiple courts in this district have recognized the “threats to the health of our electoral processes
also require timely attention.” Giffords, 2021 WL 4805478, at *6 (internal citations omitted). Here,
if plaintiff's allegations are right, the FEC’s inaction has prejudiced the plaintiff by failing to

enforce laws to compel the disclosure of information plaintiff is statutorily entitled to. And the
FEC’s inaction has further harmed the electoral system generally by allowing defendant to’ violate
FECA with impunity.

Evaluating the fourth TRAC factor, there is no evidence that expediting the FEC’s action
here would have affected other cases of competing priority or that its inaction indicates a careful
determination of prosecutorial priorities. ECF No. 19 at 11. Defendant argues that because the
FEC lacked its quorum for a portion of the time that plaintiff's complaint was pending (and thus
could not legally take any action), this factor and the “rule of reason” requirement support against
finding unreasonable delay. ECF No. 13-1 at 15. As defendant explains it, because there was a .
limited. amount of time the FEC had a quorum, it necessarily prioritized activities of higher
importance when it did have a quorum, and it was not reasonable to expect the FEC to act on
~ plaintiffs complaint. Jd.

But defendant does not dispute that the FEC had a quorum during the pendency of
plaintiffs complaint—it was “statutorily capable of acting on the complaint” from May 19, 2020
to July 3, 2020. Order at 1, ECF No. 14, Campaign Legal Center, 21-CV-389 (D.D.C. Oct. 14,
2020). And this Court was aware of the FEC’s quorum status when it entered default judgment
finding the FEC’s inaction was “contrary to law.” See id. at 1 n.1 (discussing FEC’s lack of a
quorum). Given that the FEC had a quorum during the pendency of plaintiff's complaint, it is
unclear how the fact that there were periods where the FEC could not act changes the Court’s
analysis. And “[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.” Giffords, 2021 WL 4805478, at *7 (quoting Democratic Senatorial Campaign Comm. v.
Fed. Election Comm’n, 95-CV-0349 (JHG), 1996 WL 34301203, at *5 (D.D.C. Apr. 17, 1996))

(alteration in original). Like other courts in this district, this Court will not excuse the FEC’s
inaction just because there were periods where it lacked a quorum. Giffords, 2021 WL 4805478,
at *7.

Defendant finally argues that dismissing plaintiff's claim to allow for more time for the
FEC to consider the complaint “does no harm to the plaintiff.” ECF No. 13-1 at 17. This argument
has no bearing on subject matter jurisdiction. A court has subject matter jurisdiction, or it does not.
Whether plaintiff would be harmed by dismissal does not alter this court’s Rule 12(b)(1) analysis.

Again, as it did previously, this Court finds that the TRAC and Common Cause factors
support finding that the FEC acted contrary to law. Because the FEC failed to conform its conduct
after the Court made its finding, plaintiff rightfully filed this citizen suit. The Court has subject
matter jurisdiction under 52 U.S.C. § 30109(a)(8).

B. Plaintiff Has Standing Because It Has Suffered An Informational Injury

Defendant next argues that the case should be dismissed for lack of standing. Though it
acknowledges that this Court determined that plaintiff had standing to bring an action against the
FEC, defendant argues that plaintiff somehow loses its standing when it brings a suit against a
private party. ECF No. 13-1 at 26. In support of this argument, defendant claims that there are no
“damages available” to plaintiff and seems to contest whether plaintiff suffered an injury in fact.
Id. at 27. This argument is inapposite.

A plaintiff suffers an “‘injury in fact’ when the plaintiff fails to obtain information which
must be publicly disclosed pursuant to a statute.” Akins, 524 US. at 21 (citing Pub. Citizen v. Dep’t
of Justice, 491 U.S. 440, 449 (1989)). Plaintiffhere has failed to obtain information which it alleges
defendant is required to publicly disclose under FECA. Defendant, if the allegations are true,
disregarded FECA and did not properly register or publicly disclose the required information. So

plaintiff here has suffered an injury. And if defendant intended for its argument about “damages

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available” to encompass redressability, plaintiff's alleged injury is clearly redressable by this
Court—52 U.S.C. § 30109(a)(8)(C) allows the court to “remedy” the violation ‘in plaintiffs
original complaint to the FEC, and those potential remedies include “permanent or temporary
injunction[s]” to correct or prevent a violation of FECA. Jd. at (a)(6)(A).

Defendant argues if plaintiff “has standing to sue Iowa Values directly [it] would mean that
anyone who wants information from Iowa Values . . . could file an FEC complaint and prosecute
the case directly in the event of FEC inaction.” ECF No. 13-1 at 27. But the mere fact that the
asserted injury is one which is “shared in substantially equal measure by all or a large class of
citizens” does not mean the harm cannot be particularized to one plaintiff. Akins, 524 U.S. at 23.
Plaintiff is not merely suing to force defendant to follow the law because of a general interest in
the “common concern for obedience to law.” Jd. at 23. Instead, plaintiff is allegedly uniquely
injured by a lack of information it is legally entitled to and by defendant’s allegedly unlawful
withholding of that information.

Accordingly, the Court sees no reason to depart from the Supreme Court’s conclusion that
“the informational injury at issue here, directly related to voting, the most basic of political rights,
is sufficiently concrete and specific such that the fact that it is widely shared does not deprive
Congress of constitutional power to authorize its vindication in the federal courts.” Jd. at 24-25.
Defendant’s identity does not alter this analysis. Plaintiff has Article III standing.

C. 52 U.S.C. § 30109(a)(8)(C) Is Constitutional

Defendant raises both facial and as-applied constitutional challenges to FECA’s nearly
half-century old citizen suit statute, arguing that § 30109(a)(8)(C) is void for vagueness, violates
the Take Care Clause, and violates the First Amendment. ECF No. 13-1 at 18. A facial challenge

can succeed only if a defendant can “establish that no set of circurhstances exist under which the

1]
Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). There is a special type
of facial challenge in the First Amendment context, however, where a law may be invalidated as
overbroad if a “substantial number of its application are unconstitutional, judged in relation to the
statute’s plainly legitimate sweep.” Wash. State Grange v. Wash. State Republican Party, 552 US.
442, 450 n.6 (2008). Defendant did not attempt either. Accordingly, this Court will only evaluate
defendant’s First Amendment challenge as applied.
i. 52US.C. § 30109(a)(8)(C) Is Not Void For Vagueness

This Court agrees with plaintiff that defendant’s void-for-vagueness argument “misapplies
vagueness doctrine.” ECF No. 19 at 17. A law is unconstitutionally vague when it “fails to give
ordinary people fair notice of the conduct it punishes or [is] so standardless that it invites arbitrary
enforcement.” United States v. Bronstein, 849 F.3d 1101, 1106 (D.C. Cir. 2017) (quoting Johnson
v. United States, 576 U.S. 591, 595 (2015)). The law must “give sufficient warning that men may
conduct themselves so as to avoid that which is forbidden.” Rose v. Locke, 423 U.S. 48, 50 (1975).

Defendant does not argue that 52 U.S.C. § 30109(a)(8)(C) does not sufficiently warn
people how to conduct themselves under FECA. Instead, it appears to argue that § 30109(a)(8)(C)
does not sufficiently explain the exact procedure that the district court must follow. ECF No. 13-
1 at 20. But the Federal Rules of Evidence and Procedure provide the answers to the questions
defendant asks. Indeed, defendant identifies no instance where courts have ever held a statute void
for vagueness because the procedure was not clearly delineated. Accordingly, § 30109(a)(8)(C) is
not void for vagueness.

ii, 52 U.S.C. § 30109(a)(8)(C) Does Not Violate The Take Care Clause
Defendant also argues that § 30109(a)(8)(C) is unconstitutional because it violates the Take

Care Clause. ECF No. 13-1 at 20. The Take Care Clause requires the President to “take Care that

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the Laws be faithfully executed.” U.S. Const. art. 2 § 3. The Supreme Court has held that though
the Take Care Clause means that the “executive power” belongs to the President alone, lesser
officers must assist the President in discharging his duties. See Seila Law LLC v. Consumer Fin.
Prot. Bureau, 104 S. Ct. 2183, 2197 (2020). Only these lesser “Officers of the United States,”
however, may vindicate public rights in the courts. Buckley v. Valeo, 424 U.S. 1, 140 (1976).

Defendant argues that a statute which allows a plaintiff to vindicate public rights violates
the Take Care Clause. But as explained above in Part II.B, plaintiff is not vindicating a public
right in the courts. Instead, plaintiff is vindicating its own unique and particularized informational
injury. Section 30109(a)(8)(C) accordingly does not violate the Take Care Clause.

Another court inthis district has considered a similar argument before. Citizens for Resp.
and Ethics in Washington (“CREW”) v. Am. Action Network, 410 F. Supp. 3d 1 (D.D.C.), motion
to certify appeal denied, 415 F. Supp. 3d 143 (D.D.C. 2019). In CREW, the court found that
§ 30109(a)(8)(C) citizen suits do not violate the Take Care Clause for a different reason: because
these suits do not implicate the Executive Branch’s prosecutorial discretion. Jd. at 26. If the FEC
determines in its prosecutorial discretion to decline enforcement and dismiss a complaint, that
action cannot be held contrary to law and cannot trigger § 30109(a)(8)(C). CREW, 892 F.3d at
441. So § 30109(a)(8)(C) cannot violate the Take Care Clause by infringing upon prosecutorial
discretion either.

iii, 52 U.S.C. § 30109(a)(8)(C) Does Not Violate The First Amendment Right To
Freely Associate

Finally, defendant argues that § 30109(a)(8)(c) violates its First Amendment rights by
providing complainants with an “unprecedented opportunity to learn immense amounts of
information about people’s constitutionally protected private associational interests.” ECF No. 13-

1 at 24. In particular, it alleges that plaintiffs may be able to obtain information via discovery that

13
invades defendant’s private associational interests in violation of the standards set forth in
N.A.A.C.P v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958).

Defendant vaguely gestures towards N.A.A.C.P. to support its argument that
§ 30109(a)(8)(C) unconstitutionally encroaches on private associational rights. But defendant fails
to ground its argument regarding constitutionality in any case law or precedent. Instead, defendant
does little more than describe the FEC’s procedure to evaluate complaints, noting that it “may be
a long and cumbersome process, but it is the process that Congress created—and the Supreme
Court has approved.” ECF No. 13-1 at 24. Defendant fails to reckon with the fact that the
§ 30109(a)(8)(C) citizen suit is a part of the “long and cumbersome process” Congress created. A
citizen suit is not a bypass of the process. These § 30109(a)(8)(C) suits may only be initiated after
an equally burdensome undertaking—an initiation of a complaint with the FEC, a set waiting
period, a suit against the FEC, a court’s finding that the FEC acted “contrary to law,” another
waiting period for the FEC to conform, and a court’s finding that the FEC failed to conform with
its order. See 52 U.S.C. § 30109(a)(8)(C). And even once the citizen suit may be maintained
against the alleged violator, a complainant cannot maintain a frivolous suit, because Rule 12(b)(6)
guards against unwarranted invasions of private associational interests. Fed. R. Civ. P. 12(b)(6). It
is inaccurate to characterize a citizen suit as an evasion of proper process for the purpose of a
fishing expedition.

Defendant’s private associational rights are important and defendant is right that these
rights cannot be needlessly invaded. That is why a citizen suit can only be initiated after the FEC
acts contrary to law and after it fails to subsequently conform to a court’s order. While defendant
paints the FEC’s regulatory breakdown as the unforeseeable and unintended result of FECA’s

citizen suit provision, ECF No. 13-1 at 24—25, it would be more accurate to say that the citizen suit

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provision was created in anticipation of FEC’s regulatory breakdown or inaction. If there was no
citizen suit provision, the FEC’s inaction would hinder public access to information necessary to
“make informed choices in the political marketplace” and would allow organizations to run
election-related advertisements “while hiding behind dubious and misleading names.” Citizens
United v. Fed. Election Comm’n, 558 U.S. 310, 367 (2010) (internal quotation marks omitted).
Congress foresaw potential issues with the FEC’s process and added a safeguard to protect the
First Amendment rights of complainants.
D. Plaintiff Adequately Stated A Claim For Which Relief Can Be Granted

Defendant next argues that plaintiff's complaint should be dismissed for failure to state a
claim. See Fed. R. Civ. P. 12(b)(6). To survive this motion to dismiss, plaintiff must have pleaded
enough facts for its complaint to be “plausible on its face.” Ashcroft, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 570). A court assumes “the truth of all well-pleaded factual allegations in
the complaint and construes reasonable inferences from those allegations in the plaintiff's favor”
in resolving a motion under Rule 12(b)(6). Sissel, 760 F.3d at 4. And construing all reasonable
inferences in plaintiffs favor, plaintiff has succeeded in stating a claim plausible on its face.

Plaintiff alleges that defendant is a political committee but has failed to register accordingly
or complete statutorily required disclosure. ECF No. 1 at 1. There are two requirements for an
entity to be classified as a political committee. Citizens for Resp. & Ethics in Washington
(“CREW”) y. Fed. Election Comm’n, 209 F. Supp. 3d 77, 82 (D.D.C. 2016). The first requirement
is statutory. A political committee is a group which “receives contributions aggregating in excess
of $1,000 during a calendar year or which makes expenditures aggregating in excess of $1,000
during a calendar year.” 52 U.S.C. § 30101(4)(A). The second requirement comes from the

Supreme Court. A political committee must be an organization either “under the control of a

15
candidate or the major purpose of which is the nomination or election of a candidate.” Buckley,
424 U.S. at 79 (emphasis added).

i. Plaintiff Pleaded Sufficient Facts To Establish A Plausible Claim That Defendant
Received Contributions In Excess Of $1,000 During A Calendar Year

FECA defines a contribution as “any gift, subscription, loan, advance, or deposit of money
or anything of value made by any person for the purpose of influencing any election for [f]ederal
office.” 52 U.S.C. § 30101(8)(a)@). Plaintiff sufficiently states a claim that defendant received at
least $1,000 in contributions during 2019.!

Plaintiffs complaint describes a comprehensive “election-long effort” that defendant
undertook to “support the reelection of Senator Joni Emst.” ECF No. 1 925. Defendant announced
a six-month advertising “blitz,” starting late June 2019 to “highlight” Ernst’s work. Jd. { 26. In the
latter half of 2019, defendant spent at least $30,300 on advertisements on Google and at least
$3,000 on advertisements on Facebook to further this blitz. ECF No. 1 § 27-28. And in July 2019,
towards the beginning of this campaign, Avella, a fundraiser for the Ernst campaign, solicited a
$50,000 donation via email “to help continue [its] efforts over the summer months.” ECF No. 1
q 38.

Defendant argues that the “fact that a not-for-profit entity merely solicited funds and also
published advertisements” is insufficient to establish that any funds were donated. ECF No. 20.
This grossly understates the allegations in the complaint. The solicitation email requested a
donation for a specific purpose—to help “continue [defendant’s] efforts over the summer months”

to highlight Ernst. ECF No. 1 934. Defendant then continued its $33,000 digital advertisement

' The parties argue extensively over whether the Google and Facebook advertisements constitute issue
advocacy or advocacy for the purpose of influencing any election, and thus whether the money spent on
that advertising qualifies as “expenditures.” See ECF No. 13 at 33-34; ECF No. 19 at 34-35. Because this
Court finds that plaintiff has successfully alleged that defendant received at least $1,000 in contributions
for the purposes of influencing a federal election, it need not discuss that issue here.

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blitz during the summer. Jd. § 38. Drawing all reasonable inferences in plaintiffs favor, as this
Court is required to do, plaintiffhas taised sufficient facts to plausibly claim at least $1,000 of that
$33,000 came from solicited funds. Defendant’s argument that plaintiff has failed to identify a
specific individual donation to Iowa Values is unavailing, given that the injury in question is
defendant’s alleged illegal withholding of its donors’ identities. ECF No. 120 at 7. -

The solicitation email and attached memorandum also raise a “reasonable inference” that
any contributions made in response to this email were “for the purpose of influencing any election
for [f]ederal office,” 52 U.S.C. § 30101(8)(a)(i)—-specifically, Ernst’s election for federal office
in 2020. The documents included repeated references to Ernst’s election and election strategy,
including targeting suburban women voters who represent the ““‘firewall’ between winning and
losing in 2020 for Senator Ernst.” ECF No. 1 § 33. The strategy memorandum discusses the exact |
number of votes Ernst won by in 2014 and which of those voters are “vulnerable” to being “peeled
off in 2020” from “Ernst’s winning coalition.” Jd. { 35. In particular, the memorandum planned to
communicate with members of the Iowa electorate that “will be determinant in winning or losing
in 2020.” Id. Defendant argues that this email solicited contributions only for the purposes of issue
advocacy. ECF No. 13-1 at 34-35. But while the email pays lip service to policy issues, the only
real issue discussed in either document is the issue of Ernst’s election. Plaintiffhas pleaded a claim
plausible on its face that in 2019, defendant received $1,000 in contributions for the purpose of
influencing the 2020 Senate election in Iowa.

ii. Plaintiff Pleaded Sufficient Facts To Establish A Plausible Claim That
Defendant’s “Major Purpose” Is Ernst’s Election

Establishing $1,000 in qualifying contributions is not enough—plaintiff must plausibly
claim that defendant’s “major purpose” is the “nomination or election of a candidate.” Buckley,

424 U.S. at 79. This judicially created prong of the political committee test is crucial to protecting

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the First Amendment rights of “issue-oriented groups, lobbying organizations, religious bodies,
and communal associations of all sorts” from the potential overbreadth of FECA. Fed. Election
Comm'n v. Machinists Non-Partisan Pol. League, 655 F.2d 380, 391 (D.C. Cir. 1981).

The FEC has not adopted a clear rule to guide courts when making major purpose
determinations, instead preferring to make “case-by-case” determinations for the past forty-five
years. Shays v. Fed. Election Comm’n, 424 F. Supp. 2d 100, 106 (D.D.C. 2006). The Supreme
Court has explained that one way an organization can satisfy the “major purpose” requirement is
through sufficiently extensive campaign activity spending. Fed. Election Comm’nv Mass. Citizens
for Life, Inc., 479 U.S. 238, 262 (1986). But is just one of many ways to prove an organization’s
major purpose. Whether an organization has a major purpose of electing a candidate involves a
“fact-intensive analysis of a group’s campaign activities compared to its activities unrelated to its
campaigns.” Fed. Election Comm/’n, Supplemental Explanation & Justification Regarding
Political Committee Status, 72 Fed. Reg. 5,595, 5,601 (Feb. 7, 2007). This analysis can include
the evaluation of both “public statements” and private conduct, statements, and spending. Id.

As plaintiff notes, given the fact-heavy analysis required to determine an organization’s
major purpose, such a determination is particularly ill-suited for the motion to dismiss stage. ECF
No. 19 at 29. Luckily, the Court is not required to make that determination. All that is required is
to determine whether plaintiff has pleaded sufficient allegations to raise a plausible claim that Iowa
Values’ major purpose was to elect Ernst. And plaintiff has. Plaintiff has alleged that defendant’s
circulated strategy memorandum identifies just one goal: to shore up support for Ernst in the 2020
election. ECF No. 1 4 34-38. It has highlighted advertisements by defendant that represent blatant
support for Ernst with little or no discussion of other issues. /d. | 25. Plaintiff has asserted that

defendant publicly announced an expensive advertising blitz to start the “election-long effort by

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Iowa Values to highlight the work of Sen. Joni Ernst.” Jd. § 26. Plaintiff has alleged more than
enough to state a plausible claim that Iowa Values’ major purpose was to elect Emst in 2020.

E. The Court Will Not Strike The Allegations From 2020 Or The Request For Attorney’s
Fees From The Complaint

Finally, defendant moves to strike two portions of the complaint: first, paragraphs 40 and
41, which describe conduct that occurred after plaintiff filed its initial complaint with the FEC;
and ‘second, plaintiff's request for attorney’s fees. ECF No. 13-1 at 28-29. For the reasons
explained below, the Court will not strike either portion of the complaint.

While a court may strike from a pleading any “redundant, immaterial, impertinent, or
scandalous matter,” Fed. R. Civ. P. 12(f), such motions are typically disfavored. Wiggins, 853 F.
Supp. at 457. Allegations, for example, must be both irrelevant and prejudicial to warrant being
struck from the complaint. Jd. And while it is true that the Court cannot consider claims that
occurred after plaintiffs original administrative complaint to determine the merits of this case, if
this Court finds that defendant has been acting as a political committee, these paragraphs may be
relevant to the question of remedy. See CREW, 410 F. Supp. at 21-22 (“While the Court agrees
that it may not consider facts concerning time periods that have not been administratively
exhausted to determine liability, it doubts it is so constrained in fashioning a remedy.”).
Accordingly, the Court will not strike paragraphs 40 and 41 as irrelevant.

This Court will also follow other courts in this district in denying defendant’s motion to
strike plaintiffs prayer for attorney’s fees. “Defendant’s motion to strike plaintiffs claim
for attorney’s fees may very well be correct,” if there are no statutory provisions authorize
attorney’s fees. Fleming v. AT&T Info. Sys., Inc., No. 87-CV-1329, 1987 WL 17600, at *2 (D.D.C.

Sept. 16, 1987). But the Court “declines to strike [defendant’s] request at this juncture because the

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issue of fees is not ripe (and may never be) and the parties have not briefed other potential sources
of fee-shifting authority.” CREW, 410 F. Supp. 3d at 30 n.11.
IV. CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss for lack of subject matter

jurisdiction, to dismiss for failure to state a claim, and to strike will be DENIED by separate Order.

Date: November /4_, 2021 Rie G Aete

Hon. Royce C. Lamberth
United States District Judge

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