Campaign Legal Center and Catherine Hinckley Kelley v. Federal Election Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 16, 2023 Decided July 9, 2024
No. 22-5336
C AMPAIGN LEGAL C ENTER AND C ATHERINE H INCKLEY
KELLEY,
APPELLEES
v.
FEDERAL ELECTION C OMMISSION,
APPELLANT
HILLARY FOR A MERICA AND C ORRECT THE R ECORD,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-02336)
Greg J. Mueller, Attorney, Federal Election Commission,
argued the cause for appellant. With him on the briefs was
Kevin A. Deeley, Associate General Counsel.
Michael A. Columbo was on the brief for amicus curiae
Lee E. Goodman, Former FEC Chair and Commissioner, in
support of appellant.

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Tara Malloy argued the cause for appellees Campaign
Legal Center and Catherine Hinckley Kelley. With her on the
brief were Megan P. McAllen and Alexandra Copper.
Before: P ILLARD and C HILDS , Circuit Judges, and
EDWARDS , Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge P ILLARD.
P ILLARD, Circuit Judge: Congress enacted the Federal
Election Campaign Act to remedy actual and perceived
corruption in the electoral process. The Act improves electoral
accountability by publicizing candidates’ financial backers and
capping amounts they can give. To those ends, it requires
individuals and organizations to limit and disclose the amounts
they spend for “anything of value” with the purpose of
influencing a federal election in cooperation with or at the
suggestion of a political candidate or campaign. 52 U.S.C.
§ 30101(8)(A). The Act and its implementing regulations
provide that coordinated expenditures for electoral advocacy
communications—via radio, television, or newspaper
advertisements, for example—are subject to the Act’s dollar
limits and disclosure requirements. Id. § 30116(7)(B)(i); 11
C.F.R. §§ 109.20(b), 109.21. So is the estimated “usual and
normal value” of any coordinated gift to the same effect, even
if, for example, it was given by a media owner who did not
have to shell out money to provide it. 11 C.F.R. §§ 104.13(a),
100.52(d)(1).
The same restrictions apply to paid advertising or
placement on the internet—“communications placed or
promoted for a fee on another person’s website.” Id. § 100.26.
But, unlike advertising in traditional media, promoting a
candidate’s election on widely viewed internet platforms like
blogs and social media sites is often free of charge. The Federal

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Election Commission accounted for that in a 2006 rule known
as the “internet exception.” The Commission does not require
an individual or political committee to estimate and report the
marginal costs of blogging or social media posting in
coordination with a campaign, but instead exempts unpaid
“communications over the Internet” from the contribution
limitations and disclosure requirements that otherwise apply to
coordinated political advocacy. Id.
Leaning heavily on that internet exemption, political
action committee Correct the Record set out to engage in a wide
range of coordinated activities to support Hillary Clinton’s
2016 presidential campaign. In an administrative complaint
filed with the Federal Election Commission, nonprofit
watchdog Campaign Legal Center alleges that Correct the
Record spent close to $6 million in coordination with the
Clinton campaign during the lead-up to the 2016 election,
including to conduct polls, hire teams of round-the-clock fact-
checkers, and connect Clinton media surrogates with radio and
television news outlets. Correct the Record publicized that it
was coordinating all these activities with the Clinton campaign.
But it characterized all of the committee’s myriad
expenditures—from staff salaries and travel expenses to the
cost of commissioning polls and renting offices—as “inputs”
to unpaid communications over the internet. For that reason,
neither Correct the Record nor the Clinton campaign
designated any of Correct the Record’s expenditures as
contributions to the campaign.
This appeal concerns whether the Federal Election
Commission dismissed Campaign Legal Center’s
administrative complaint based on an indefensibly broad
interpretation of the internet exemption. It also asks whether
the Commission arbitrarily ignored plausible allegations,
including Correct the Record’s own public pronouncements,

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that Correct the Record planned to coordinate all its
expenditures with the Clinton campaign.
We hold that the Commission acted contrary to law in
dismissing the complaint. Because we conclude that the
internet exemption cannot be read to exempt from disclosure
those expenditures that are only tangentially related to an
eventual internet message or post, the Commission’s reading
of the internet exemption stretches it beyond lawful limits. As
to those expenditures that it deemed not to be covered by the
internet exemption, the Commission acted contrary to law in
dismissing the complaint for want of reason to believe the
relevant expenditures were coordinated with the campaign,
despite plausible allegations that Correct the Record
coordinated all its expenditures with Hillary for America—and
openly acknowledged doing so.
BACKGROUND
We described the statutory, regulatory, and procedural
background of this case in Campaign Legal Center v. Federal
Election Commission, 31 F.4th 781, 784-88 (D.C. Cir. 2022)
(CLC I). What follows is a summary of the context most
relevant at this posture, drawing in part on our description in
CLC I.
A
In service of “remedy[ing] any actual or perceived
corruption of the political process,” the Federal Election
Campaign Act (FECA or the Act) imposes contribution limits
and disclosure requirements on candidates, individual donors,

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and political committees. FEC v. Akins, 524 U.S. 11, 14
(1998); see CLC I, 31 F.4th at 784.
FECA’s contribution limits set a dollar-value cap—$2,700
during the 2016 election cycle—on the contributions a political
committee or individual can make to any one candidate or his
authorized campaign committee. 52 U.S.C. § 30116(a)(1)(A);
CLC I, 31 F.4th at 784. Contributions include gifts and money
given directly to a campaign, 52 U.S.C. § 30101(8)(A)(i), but
also coordinated expenditures—money spent by committees
and individuals “in cooperation, consultation, or concert, with,
or at the request or suggestion of, a candidate, his authorized
political committees, or their agents,” id. § 30116(a)(7)(B)(i);
see FEC v. Colo. Repub. Fed. Campaign Comm., 533 U.S. 431,
438 (2001). Any coordinated “purchase, payment, distribution,
loan, advance, deposit, or gift of money or anything of value
made by any person for the purpose of influencing any election
for Federal office” is accordingly regulated as if it were a cash
contribution. 52 U.S.C. § 30101(9)(A)(i).
That “functional, not formal, definition of ‘contribution,’”
Colo. Repub. Fed. Campaign Comm., 533 U.S. at 438, is
designed to “prevent attempts to circumvent the Act through
prearranged or coordinated expenditures amounting to
disguised contributions,” Buckley v. Valeo, 424 U.S. 1, 47
(1976) (per curiam). The Act recognizes that “expenditures
made after a ‘wink or nod’”—or with more explicit
coordination—“often will be ‘as useful to the candidate as
cash.’” McConnell v. FEC, 540 U.S. 93, 221 (2003) (quoting
Colo. Repub. Fed. Campaign Comm., 533 U.S. at 442, 446),
rev’d on other grounds, Citizens United v. FEC, 558 U.S. 310
(2010). For that reason, the money an individual (or
committee) spends creating a political advertisement in
consultation with the candidate and airing it on television is a
regulated campaign contribution, just like the money given

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directly to a candidate to enable her to produce and air the
advertisement herself.
In addition to per-donor, per-election cycle contribution
limits, FECA imposes comprehensive disclosure requirements.
Disclosure is essential “to expose large contributions and
expenditures to the light of publicity and ensure that voters
know exactly how a candidate’s campaign is financed.” CLC
I, 31 F.4th at 784 (formatting modified). Political committees,
commonly known as “PACs”—defined as any group of
persons that receives or spends more than $1,000 on electoral
advocacy during a calendar year, see 52 U.S.C.
§ 30101(4)(A)—must publicly report any expenditure of more
than $200, whether coordinated or not. See id.
§ 30104(b)(5)(A). They must also report all contributions of
any amount made to a candidate or his campaign. Id.
§ 30104(b)(4)(H)(i), (6)(B)(i).
The Act imposes a twin obligation on the candidate’s
authorized committee—the “principal campaign committee”
(or, for simplicity, “campaign”) authorized to make and receive
expenditures on behalf of the candidate. Id. § 30101(6). The
campaign must disclose as separate line items all contributions
from political committees and all expenditures “made to meet
candidate or committee operating expenses.” Id.
§ 30104(b)(4)(A); see id. § 30104(b)(2)(D). FEC regulations
provide, moreover, that a candidate must report as his own
expenditure what anyone else spends in coordination with him,
unless the expenditure is otherwise exempted. 11 C.F.R.
§ 109.20(b).
All these disclosures must be made regularly in itemized
public reports to the Federal Election Commission (FEC or
Commission), and must include details like the dates, amounts,
and purposes of the contributions and expenditures, as well as

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the name and address of the recipient campaign. 52 U.S.C.
§ 30104(b).
FEC regulations set out special rules for one type of
coordinated expenditure relevant to this case: those “made for
a coordinated communication under 11 C.F.R. [§] 109.21.” 11
C.F.R. § 109.20(b). A communication is considered a
“coordinated communication,” and therefore reportable in-
kind donation, if, among other criteria, it is coordinated
political advocacy that is communicated “by means of any
broadcast, cable, or satellite communication, newspaper,
magazine, outdoor advertising facility, mass mailing, or
telephone bank to the general public, or any other form of
general public political advertising.” Id. § 100.26; see id.
§ 109.21(c).
Payments for coordinated communications “made for the
purpose of influencing a Federal election,” are, like other
coordinated expenditures, “contributions” to the candidate or
her campaign that must be publicly disclosed. Id. § 109.21(b).
They are also subject to the per-election-cycle ceiling on how
much a donor may contribute to a single candidate. Id. As
relevant here, that means that a candidate’s campaign
committee (like Hillary for America) must disclose the money
a political committee (like Correct the Record) spends on
airtime for a coordinated radio advertisement. The campaign
must disclose it both as a contribution it received and as an
expenditure it made. Id. §§ 104.13(a), 109.21(b). And the
political committee must disclose it as a contribution to the
campaign. Id. § 109.21(b). In other words, the law treats
money spent on a coordinated communication as equivalent to

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money given to a candidate that she then spends on her own
political advertising.
But an FEC rule affords different treatment to
communications over the internet that are not “placed or
promoted for a fee on another person’s website . . . or
advertising platform”—like blog or social media entries that
the poster does not have to pay to publish on the internet. Id.
§ 100.26. That rule, known as the “internet exemption,”
exempts unpaid political ad postings on the internet from the
scope of covered political-advocacy communications; such
posts are therefore not “coordinated communications” under
the regulations. Id. The upshot of this so-called “internet
exemption,” which lies at the heart of this case, is that such
unpaid internet communications are not themselves in-kind
contributions. The campaign does not need to assign a
monetary value to an unpaid blog entry or a post on a political
committee’s own website and disclose it as an in-kind
contribution on its reports to the FEC, even if the entry or post
is written in coordination with the campaign, and even if its
publication is valuable to the candidate.
Another portion of the regulations making up this “internet
exemption” provides that, “[w]hen an individual or group of
individuals, acting independently or in coordination with any
candidate, authorized committee, or political party committee,
engages in Internet activities [like messaging, blogging, or
maintaining a website] for the purpose of influencing a Federal
election,” neither the individual’s “uncompensated personal
services related to such Internet activities” nor her “use of
equipment or services for uncompensated Internet activities”
are an “expenditure” or “contribution” by that individual. Id.
§ 100.94 (contribution); id. § 100.155 (expenditure). A
member of the public who pays for WiFi at an internet café to
write and post a blog entry in coordination with a campaign

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need not disclose as a campaign contribution the money he
spent for the WiFi. See Internet Communications, 71 Fed. Reg.
18589, 18605 (Apr. 12, 2006). But, the Commission’s
rulemaking clarifies, “a political committee’s purchase of
computers for individuals to engage in Internet activities for the
purpose of influencing a Federal election remains an
‘expenditure’ by the political committee,” as does any salary
the committee pays such individuals. Id. at 18606.
When the Commission promulgated them, it described
those rules as “intended to ensure that political committees
properly finance and disclose their Internet communications,
without impeding individual citizens from using the Internet to
speak freely regarding candidates and elections.” Id. at 18589.
B
The six-member Federal Election Commission bears
primary responsibility to enforce the Federal Election
Campaign Act. 52 U.S.C. § 30106. The Act allows any person
to file a complaint with the Commission reporting a violation
of the statute, along with certain other federal election laws. Id.
§ 30109(a)(1). The FEC’s Office of General Counsel reviews
each complaint and any response from the alleged violator and
recommends to the Commission whether the complaint
provides “reason to believe” a violation has occurred. Id.
§ 30109(a)(2). The commissioners then vote on whether there
is such “reason to believe.” Id.
If at least four commissioners—i.e., a bipartisan majority
of the six-member body—vote in favor, the Commission will
investigate and, depending on the investigation’s results, vote
in favor of finding “probable cause to believe” that the accused
person or entity violated the law and attempt conciliation. Id.
§ 30109(a)(3)-(4). If conciliation fails, the Commission may,
on the affirmative vote of four members, file a civil action in

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federal court to enforce the violation, id. § 30109(a)(6)(A); at
that stage, lack of majority support to sue will typically result
in administrative dismissal. A majority of commissioners can
also vote to dismiss a complaint at any time. Id. § 30109(a)(1);
see also id. § 30106(c).
As relevant here, “[a]ny party aggrieved” by the
Commission’s dismissal of a complaint for want of reason to
believe can seek review in federal court. Id. § 30109(a)(8)(A).
If the court concludes that the naysayers on the Commission
held the complaint inadequate on grounds that were contrary to
law or arbitrary and capricious, the court may “declare that the
dismissal of the complaint . . . is contrary to law, and may
direct the Commission to conform with such declaration within
30 days.” Id. § 30109(a)(8)(C); see Orloski v. FEC, 795 F.2d
156, 161 (D.C. Cir. 1986). If the Commission remains
unwilling to move forward on the complaint, no court will
require it to do so. Rather, if the Commission fails to act on the
court’s order within 30 days, FECA allows the private
complainant to initiate, in its own name, a civil action against
the relevant committee or individual to seek to remedy the
violation involved in the original complaint. 52 U.S.C.
§ 30109(a)(8)(C).
To facilitate judicial review under section 30109(a)(8)(A),
we have held that, where the Commission deadlocks—that is,
fails to garner four votes to proceed with enforcement—and
thereafter dismisses a complaint, the commissioners who voted
against proceeding must issue a statement explaining their
votes. Common Cause v. FEC, 842 F.2d 436, 449 (D.C. Cir.
1988) (citing Democratic Cong. Campaign Comm. v. FEC, 831
F.2d 1131, 1132 (D.C. Cir. 1987)). We refer to a non-majority
of commissioners who vote against proceeding as the
“controlling” or “blocking” commissioners. Their statement of
reasons is intended to explain why those commissioners saw

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no reason to believe a violation occurred, and thereby aid the
reviewing court to “intelligently determine whether the
Commission is acting ‘contrary to law.’” Democratic Cong.
Campaign Comm., 831 F.2d at 1132 (citation omitted).
C
1
Campaign Legal Center is a nonpartisan watchdog group
with a mission of “improving democracy and promoting
representative, responsive, and accountable government for all
citizens.” Am. Compl. ¶ 15 (Joint Appendix (J.A.) 41). In
October 2016, Campaign Legal Center and its director,
Catherine Hinckley Kelley (hereinafter referred to collectively
as Campaign Legal Center or plaintiff) filed an administrative
complaint with the FEC against political action committee
Correct the Record and Hillary Clinton’s principal campaign
committee, Hillary for America. Campaign Legal Center
alleged that, in the lead-up to the 2016 presidential election,
Correct the Record made, and the campaign accepted, up to
$5.95 million in coordinated expenditures without disclosing
them.
The key dispute is whether those expenditures were
coordinated, and, if so, whether they were exempted from
FECA’s requirements by the Commission’s “internet
exemption.”
When Correct the Record split from its parent political
action committee in 2015, it declared that, because it would
“not be engaged in paid media” like radio or television
advertisements, none of its activities would be subject to the
disclosure requirements or contribution limits that typically
apply to coordinated expenditures. Campaign Legal Center
Complaint to the FEC (FEC Compl.) ¶ 12 (J.A. 117) (quoting

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Press Release, Correct the Record, Correct the Record
Launches as New Pro-Clinton SuperPAC (May 12, 2015)).
The FEC complaint also pointed to the Washington Post’s
reporting that “Correct the Record believes it can avoid
[FECA’s] coordination ban by relying on a 2006 Federal
Election Commission regulation that declared that content
posted online for free, such as blogs, is off limits from
regulation.” Id. ¶ 9 (J.A. 116) (quoting Matea Gold, How a
Super PAC Plans to Coordinate Directly with Hillary Clinton’s
Campaign, Wash. Post. (May 12, 2015),
https://perma.cc/XA6Z-XFRX).
In its complaint to the Commission, Campaign Legal
Center alleged that Correct the Record claimed all its spending
came within the internet exemption, and that Correct the
Record accordingly spent close to $6 million in coordination
with Hillary Clinton’s campaign without designating any of
that spending as a contribution to the Clinton campaign.
Campaign Legal Center alleged that Correct the Record
undertook various substantial projects with that $6 million,
including the following:
Benghazi Hearing War Room: Correct the Record
staffed a 30-person “war room” to publicly defend
Hillary Clinton in real time during her testimony in
late October 2015 before the House Select
Committee on Benghazi. FEC Compl. ¶ 28 (J.A.
123). Those paid staffers “put out 18 news releases”
about Clinton’s testimony during the morning hours,
“flood[ing] the emails of Washington reporters with
a running, blow-by-blow critique” of the Committee.
Id. ¶ 29 (J.A. 124).
Real-Time Debate Polling Team: The next month,
Correct the Record commissioned a polling firm to

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conduct a poll during the November 2015
Democratic debate between Hillary Clinton and
Bernie Sanders; the poll was later posted on the
firm’s website and distributed to media. Id. ¶ 31
(J.A. 126).
Online Defense Team: Later, as the primary
campaign was heating up in April 2016, Correct the
Record announced its intention to invest more than
$1 million into the “Barrier Breakers 2016 digital
task force,” hiring “former reporters, bloggers,
public affairs specialists, [and] designers” to “go
after Clinton critics” online. Id. ¶ 40 (J.A. 130-31).
Paid Surrogates Program: Correct the Record hired
QRS Newsmedia, a media consulting firm, “to help
oversee an aggressive surrogate booking program,
connecting regional and national [campaign]
surrogates”—popular public figures aligned with the
candidate—“with radio and television news outlets
across the country in support of Hillary Clinton.” Id.
¶ 51 (J.A. 135).
Fact Checker Team: Correct the Record’s paid
“researchers, communications experts and digital
gurus monitor[ed]” myriad television news feeds,
newspapers, and social media sites for “disparaging
or misleading remarks about Clinton” and fought
back with “point-by-point fact-checks quickly
disseminated to the news media.” Id. ¶ 61 (J.A. 140).
By the end of the campaign, Correct the Record had allegedly
created near-daily “lengthy research memos, professionally

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produced videos, press releases, and other materials” praising
Clinton and attacking her opponents. Id. ¶ 67 (J.A. 142).
In disclosure reports it filed with the FEC, Correct the
Record represented that it spent close to $10 million during the
2016 election cycle. CLC I, 31 F.4th at 786. But it did not
specifically detail or designate any of that spending as a
contribution to the Clinton campaign. Id. Nor did the Clinton
campaign itself declare any of Correct the Record’s
expenditures as made on Clinton’s behalf, as is generally
required for campaign contributions. Id.
In Campaign Legal Center’s view, that non-disclosure
violated FECA and Commission regulations. Correct the
Record claimed the mantle of the internet exception, but
Campaign Legal Center asserts that most of Correct the
Record’s coordinated activities “did not take place on the
Internet at all.” FEC Compl. ¶ 93 (J.A. 153).
2
The Commission’s General Counsel recommended the
Commission find reason to believe that Correct the Record and
Hillary for America violated FECA because Correct the
Record’s activities were “systematically coordinated” with
Hillary for America, and most of them could not “fairly be
described as [spending] for ‘communications.’” General
Counsel Report at 16, 20-21 (J.A. 196, 200-01). The bulk of
the reported disbursements, the General Counsel explained,
were for non-communication-specific purposes. Some of the
expenditures went toward salaries, travel, lodging, meals, rent,
and computers; others were “for explicitly mixed purposes
such as ‘video consulting and travel’ and ‘communication
consulting and travel.’” Id. at 9-10 (J.A. 189-90). None of

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those expenditures, in the General Counsel’s view, fell within
the internet exception.
The General Counsel identified as illustrative Correct the
Record’s commissioning of a poll during the November 2015
Democratic debate. The General Counsel explained that the
fact that the results of the poll were “subsequently transmitted
over the internet” did not “retroactively render the costs of the
polling” an exempt expenditure made for a coordinated
communication. Id. at 20 (J.A. 200). The General Counsel saw
the costs of commissioning that poll, like most of Correct the
Record’s expenditures, as a reportable in-kind contribution.
Accordingly, the General Counsel recommended that there was
“reason to believe” that Correct the Record made—and Hillary
for America accepted—“unreported excessive and prohibited
in-kind contributions.” Id. at 25 (J.A. 205).
When the Commission reviewed the General Counsel’s
recommendation, it had only four commissioners in place; the
departures of several commissioners before their terms expired
and the failure to promptly replace them meant that two of the
six seats were vacant. See CLC I, 31 F.4th at 787. Those four
commissioners deadlocked two to two along party lines on the
“reason to believe” vote, leaving the FEC short of the four
votes needed to authorize an investigation. Id. As required by
our decision in Democratic Congressional Campaign
Committee v. FEC, 831 F.2d 1131 (D.C. Cir. 1987), the two
commissioners who voted against finding a “reason to believe”
issued a statement of reasons explaining their reasoning.
In their statement, the blocking commissioners
acknowledged that “expenditures made by any person in
cooperation, consultation, or concert with, or at the request or
suggestion of, a candidate . . . shall be considered . . . a
contribution to such candidate.” Statement of Reasons at 9

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(J.A. 275) (quoting 52 U.S.C. § 30116(a)(7)(B)(i)). They
nevertheless asserted that the FEC’s “internet exemption”
dictates that money Correct the Record spent for its unpaid
“online communications” is exempt from the Act’s
contribution limits and disclosure requirements. Id. at 11 (J.A.
277). In the controlling commissioners’ view, the internet
exemption mandates that the “input costs”—money spent on
activities one result of which is an internet communication—
“are treated as in-kind contributions only when the [resulting]
internet communication itself is an in-kind contribution”—i.e.,
only when there is a fee charged for the online posting itself.
Id. at 12 (J.A. 278). So they concluded that all “input costs” to
unpaid internet messages or posts are exempt.
In other words, although the costs of commissioning a poll
plainly would not be exempt if Correct the Record bought
space to advertise the poll’s results on the New York Times
website or in the newspaper’s print edition, the blocking
commissioners insisted Correct the Record’s expenditures
were exempt from disclosure because the polling firm later
posted the poll without charge on its website. So, too, in their
view, does the internet exemption apply to the salary of a
blogger who “go[es] after Clinton critics” on social media, see,
e.g., FEC Compl. ¶ 40 (J.A. 130-31), even though the salary of
a staffer who communicates only with news reporters for
earned news coverage is not. Moreover, to the extent certain
money—like staff salaries or office rent—went to both internet
communications and other activities, the commissioners
declined to fault Correct the Record’s failure to apportion such
expenses and “exempt[] [from disclosure and contribution
limits] only those component fees deemed essential for the
internet communication’s placement.” Statement of Reasons
at 13 (J.A. 279). Because they thought such accounting would
“eviscerate the internet exemption and the deliberate policy

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decisions behind it,” id. (J.A. 279), they treated all those shared
overhead expenditures as fully exempt.
Notwithstanding their capacious construction of the
internet exemption, the controlling commissioners rejected
Correct the Record’s representation that, because it would not
“be engaged in paid media,” all of its activities were exempt
from campaign finance laws. See FEC Compl. ¶ 12 (J.A. 117)
(quoting Press Release, supra). The commissioners recognized
that some of Correct the Record’s activities were unrelated to
internet communications—including Correct the Record’s
training of media surrogates, its opposition research activities,
and the resources expended contacting reporters. The
controlling commissioners concluded that Correct the Record
did not have to report those expenditures for a different reason:
They viewed as insufficient the allegations and supporting
information that Correct the Record coordinated those non-
internet-related activities with Hillary for America.
In the face of Correct the Record’s announced intention to
“work[] directly with the campaign” on all its pro-Clinton
advocacy, FEC Compl. ¶ 27 (J.A. 123), the blocking
commissioners reasoned that “coordination” was not a “status”
that attached to Correct the Record once it declared an intent to
coordinate with the campaign, Statement of Reasons at 16 (J.A.
282). Instead, they concluded that any finding of coordination
would require a “transaction-by-transaction assessment”
determining that “specific [coordinated] conduct occurred with
respect to particular expenditures.” Id. (J.A. 282). That
detailed assessment was, in their view, lacking here. The
allegations and information before the Commission instead
generally suggested that, to the extent there was coordination,
Correct the Record “limited its interactions with Hillary for
America to the very communications that the Commission had

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previously decided not to regulate,” id. (J.A. 282)—exempt
internet communications.
The Commission’s Chair issued a dissenting statement of
reasons. In her view, many of Correct the Record’s activities—
including paying staff salaries, hiring trackers, commissioning
a private polling firm, and hiring outside consulting firms—
were “off the internet” and thus not exempt from disclosure
requirements and contribution limits. Dissenting Statement of
Reasons at 6-7 (J.A. 290-91). And even at the complaint stage,
the information before the Commission “in the form of press
releases and public interviews with [Correct the Record’s]
officers,” provided reason to believe those activities were
sufficiently coordinated to meet the statutory definition of a
“contribution” subject to disclosure. Id. at 5 (J.A. 289).
In the absence of a majority to move forward, the four
commissioners eventually voted unanimously to close the file
and thereby dismiss the case.
D
In August 2019, Campaign Legal Center filed suit in
district court to challenge, as relevant here, the Commission’s
dismissal of the administrative complaint as contrary to FECA.
Still short two members, the divided four-member Commission
failed to garner the four affirmative votes necessary even to
appear in court to defend the agency. See 52 U.S.C.
§§ 30106(c), 30107(a)(6). Over Campaign Legal Center’s
objection, the district court permitted Correct the Record and
Hillary for America to intervene as defendants.
On consideration of the parties’ cross-motions for
summary judgment, the district court initially held that the
plaintiff lacked standing to challenge the FEC’s
nonenforcement decision, reasoning that Campaign Legal

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Center had “no cognizable interest in learning which [of
Correct the Record’s] activities were in fact coordinated” with
the Clinton campaign. See Campaign Legal Ctr. v. FEC, 507
F. Supp. 3d 79, 85 (D.D.C. 2020) (internal quotation marks
omitted).
We reversed and remanded. CLC I, 31 F.4th at 793. If
Campaign Legal Center prevailed in its suit and the FEC
eventually enforced the FECA violations against Correct the
Record and Hillary for America, we explained, FECA and
Commission regulations would require Correct the Record and
Hillary for America to each “disaggregate its reporting to show
the actual amounts of various expenditures” that were
coordinated with and therefore “in-kind contributions” to the
Clinton campaign. Id. at 790. Then, Campaign Legal Center
would gain access to “FECA-required information,” including
details as to coordination, that was currently unknown to
them—which would, in turn, help it “evaluate candidates for
public office.” Id. (quoting FEC v. Akins, 524 U.S. 11, 21
(1998)). Campaign Legal Center had accordingly established
an informational injury that was “fairly traceable” to the
Commission’s dismissal of their complaint: “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 [plaintiff’s] injury in fact.” Id. at 793.
On remand, the district court ruled in plaintiff’s favor,
holding the Commission’s dismissal of the complaint was
contrary to law. Campaign Legal Center v. FEC, 646 F. Supp.
3d 57, 59 (D.D.C. 2022). The court held that the controlling
commissioners’ statement of reasons espoused an
impermissible interpretation of FECA by “allow[ing] any
coordinated expenditure to escape treatment as a contribution,
so long as that expenditure somehow informs a blog post or
improves a tweet.” Id. at 64. The court also held that it was

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20
arbitrary and capricious, and therefore contrary to FECA, for
the commissioners to ignore “the overwhelming and public
evidence” that Correct the Record operated with the principal
purpose of coordinating all of the relevant activities with the
Clinton campaign. Id. at 67. Accordingly, the district court
remanded the matter to the Commission “to sketch the bounds
of the internet exemption and to more fully analyze the facts
before it,” and directed the Commission to conform with its
decision within 30 days. Id. at 69 (citing 52 U.S.C.
§ 30109(a)(8)(C)).
Two weeks after the district court issued its summary
judgment order, the FEC entered an appearance in the district
court. It immediately filed a notice of appeal and a motion to
stay the remand order pending appeal. While that stay motion
was pending, the 30-day remand window elapsed and
Campaign Legal Center initiated a private suit against Correct
the Record and Hillary for America under 52 U.S.C.
§ 30109(a)(8)(C). The district court denied the stay.
Campaign Legal Center v. FEC, No. 19-cv-2336, 2023 WL
6608997, at *3-4 (D.D.C. Feb. 1, 2023). The imminent harm
the FEC had cited in support of a stay was loss of the
exclusivity of its civil enforcement authority if a private case
were initiated but, given the expiration of the 30-day window
for the Commission to conform with the district court’s
judgment and Campaign Legal Center’s initiation of a private
suit, the district court concluded “that ship has sailed.” Id. at
*3. Hillary for America did, however, persuade the district
court to stay Campaign Legal Center’s private suit against
Correct the Record and Hillary for America pending resolution
of this appeal. See Campaign Legal Ctr. v. Correct the Record,
No. 23-cv-75, 2023 WL 2838131, at *5 (D.D.C. Apr. 2, 2023).
We have jurisdiction under 28 U.S.C. § 1291. We review
the district court’s grant of summary judgment de novo. See

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21
Jud. Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C.
Cir. 2013).
DISCUSSION
The Commission urges reversal, arguing that it acted
consistently with FECA and Commission regulations.
Campaign Legal Center asserts that the Commission’s appeal
is moot and forfeited, and alternatively defends the district
court’s decision on the merits. We address the threshold
questions of mootness and forfeiture before turning to the
merits of the Commission’s dismissal.
The Commission presses another argument on appeal,
urging this court to limit the scope of the district court’s remand
to the agency. The Commission casts this as a jurisdictional
matter because, in its view, Campaign Legal Center lacks
standing to seek relief in federal court regarding claims that
Correct the Record and Hillary for America violated FECA’s
contribution limits or source restrictions. The Commission is
mistaken. There is no such jurisdictional issue before this
Court because the question posed by the Commission was not
decided by the district court, nor is it before us. Campaign
Legal Center merely asks this court to hold that the
Commission incorrectly dismissed their complaint based on an
erroneous interpretation of the internet exemption. Because
what the Commission characterizes as a standing argument is
nothing more than a question regarding the scope of potential
relief, we address that argument below, in connection with our
consideration of the appropriate remedy.

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22
A
1
Campaign Legal Center contends this appeal is moot
because the district court’s remand order has no “continuing
legal effects” on the Commission’s rights or obligations. Pl.’s
Br. 32. “[T]he [mootness] doctrine requires a federal court to
refrain from deciding [a case] if events have so transpired that
the decision will neither presently affect the parties’ rights nor
have a more-than-speculative chance of affecting them in the
future.” Am. Bar Ass’n v. FTC, 636 F.3d 641, 645 (D.C. Cir.
2011) (quoting Clarke v. United States, 915 F.2d 699, 700-01
(D.C. Cir. 1990)).
Plaintiff’s theory of mootness is that the Commission,
having defaulted on its opportunity to “conform” within 30
days of the district court’s contrary-to-law ruling, is no longer
a valid participant in their private right of action on remand.
More specifically, they argue as follows: 52 U.S.C.
§ 30109(a)(8)(C) affords the Commission 30 days to
“conform” with a court’s declaration that the agency’s
dismissal was “contrary to law.” The statute also provides that,
if the Commission does not act during that 30-day window, the
complainant (here, Campaign Legal Center) can, in its own
name, bring a “civil action to remedy the violation involved in
the original complaint.” 52 U.S.C. § 30109(a)(8)(C). Because
that 30-day remand window expired in December 2023 before
the district court acted on the FEC’s motion to stay, and
because Campaign Legal Center has, in the meantime, initiated
a private lawsuit against Correct the Record and Hillary for
America, Campaign Legal Center asserts that it would be
impossible for this court to grant the Commission any
meaningful relief even if the Commission were to prevail on
this appeal.

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23
That argument misapprehends FECA’s judicial review
provision. Campaign Legal Center apparently assumes that,
however we rule on its claim that dismissal was “contrary to
law,” the Commission has foregone any further involvement in
this matter by failing to act within 30 days of the district court’s
remand order, as the statute requires. The Commission itself
espoused a similar view in asking the district court to stay the
remand order: It argued that, absent a stay, it would “face the
dilemma of either taking action on the underlying
administrative complaint” and risk “moot[ing] its appeal,” or
appealing and, due to the passage of time, “permanently losing
exclusive civil enforcement jurisdiction over the case by
triggering a private right of action under 52 U.S.C.
§ 30109(a)(8)(C).” Motion for Stay at 1-2, Campaign Legal
Center v. FEC, No. 19-cv-2336 (D.D.C. Dec. 21, 2022), ECF
No. 73. In denying the Commission’s stay request, the district
court, too, treated the initial 30-day remand window as the
Commission’s last opportunity to consider the matter. See
Campaign Legal Center, 2023 WL 6608997, at *3.
That assumption is mistaken. It attributes to Congress the
highly implausible intent to afford the Commission an
opportunity to appeal a district court’s adverse judgment
conditioned on thereby forfeiting the opportunity to conform
with the remand order in the event its appeal is unsuccessful.
But the statute extends both the opportunity to appeal and to
conform without casting each as a Hobson’s choice. After all,
52 U.S.C. § 30109(a) not only mandates that the court allow
the agency 30 days to “conform” with its declaration that the
Commission’s dismissal was “contrary to law.” 52 U.S.C.
§ 30109(a)(8)(C). It also entitles the Commission to appeal
“[a]ny judgment of a district court under this subsection . . . to
the court of appeals.” Id. § 30109(a)(9); see also id.
§ 30107(a)(6) (delegating to the Commission the power to
“appeal any civil action in the name of the Commission”).

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24
Campaign Legal Center offers no reason to think that Congress
meant to give the Commission an either/or choice: conform
with the district court’s remand order and give up the right to
appeal, or appeal the district court’s contrary-to-law ruling and
give up the chance to conform if the district court’s ruling is
affirmed.
The only way to effectuate both FECA provisions—the
30-day remand window and the agency’s appeal right—is to
allow the agency to appeal and, if the district court’s contrary-
to-law decision is affirmed, afford the Commission on remand
30 days to “conform” with that affirmed judgment before the
private right of action is triggered. In other words, FECA
implicitly stays the 30-day remand window until the
Commission’s opportunity to appeal has expired.
Contrary to plaintiff’s assertion of mootness, then, our
decision carries two important legal consequences for the
parties before us. Whether we affirm the district court’s
judgment will determine, first, whether the Commission will
be subject to a remand order directing it to “conform” with the
contrary-to-law declaration. Id. § 30109(a)(8)(C). Second,
only if we affirm that the Commission’s dismissal was
“contrary to law,” and only if the Commission fails to conform
with such declaration on remand, can Campaign Legal Center
maintain its private suit against Correct the Record and Hillary
for America: After all, section 30109(a)(8)(C) allows a
complainant to bring a civil action only after a court “declare[s]
that the [Commission’s] dismissal of the complaint” was
“contrary to law” and after the Commission fails to “conform
with such declaration within 30 days.” If the dismissal was not
“contrary to law,” or if it was but the Commission conforms
with the declaration after a renewed remand, the Commission
will retain the exclusive power “to initiate civil actions” to

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25
enforce FECA, and Campaign Legal Center’s suit will be
dismissed. Id. § 30107(e).
The Commission accordingly retains a stake in the
outcome of this appeal, vitiating any claim of mootness.
2
Campaign Legal Center relatedly protests that the FEC’s
“appeal must fail” because, by declining to appear in the
district court, the Commission forfeited the arguments it now
advances. Pl.’s Br. 25. That forfeiture is not fatal here because,
based on the remaining parties’ and intervenors’ submissions,
the district court entered judgment on the issues the
Commission raises. The “general rule” that “this court will not
entertain arguments not made in the district court” does not
apply where “the district court nevertheless” heard and
“addressed the merits of the issue.” Blackmon-Malloy v. U.S.
Capitol Police Bd., 575 F.3d 699, 707 (D.C. Cir. 2009).
The district court allowed Correct the Record and Hillary
for America to intervene to defend the Commission’s dismissal
and raise the arguments that the then-absent Commission did
not. The district court considered (and rejected) those
arguments when it held that the controlling commissioners’
statement of reasons was contrary to FECA and arbitrary and
capricious. Campaign Legal Ctr., 646 F. Supp. 3d at 64, 67.
Although Campaign Legal Center objected to Correct the
Record’s motion to intervene in the district court, it has not
challenged that intervention decision on appeal. “[B]ecause
the district court passed upon” the contrary-to-law dispute
“appellants now present to this court,” Blackmon-Malloy, 575
F.3d at 707-08 (internal quotation marks omitted), the
Commission’s appeal may proceed on the shoulders of Correct
the Record and Hillary for America’s participation in district
court.

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26
B
On the merits, we set aside the Commission’s dismissal of
a complaint if it is “contrary to law.” 52 U.S.C.
§ 30109(a)(8)(C). A dismissal is contrary to law if it is the
“result of an impermissible interpretation of the Act” or “if the
[Commission’s] dismissal of the complaint, under a
permissible interpretation of the statute, was arbitrary or
capricious, or an abuse of discretion.” Orloski, 795 F.2d at 161
(citations omitted); see Campaign Legal Ctr. v. FEC, 952 F.3d
352, 357 (D.C. Cir. 2020) (per curiam). Because the
Commission’s dismissal rested in part on an impermissible
interpretation of FECA and, to the extent it did not, was
arbitrary and capricious, we affirm the decision of the district
court that the dismissal was contrary to law.
1
Campaign Legal Center does not challenge the
Commission’s rule that unpaid internet communications, even
though of value to a campaign, are not themselves campaign
contributions, and therefore are exempt from the Act’s
contribution limits and disclosure requirements. And it
apparently agrees that at least some expenses antecedent to
unpaid internet communications—including “input costs” like
“video production or domain services expenses” for videos to
be posted online—fall within the internet exemption. Pls.’ Br.
23. The principal dispute before us is whether the Commission
acted contrary to law in defining exempt “input costs” as
broadly as it did. In particular, Campaign Legal Center
challenges the Commission’s wholesale exemption of any
expenditure even a fraction of which contributed in some way
to an eventual unpaid communication on the internet—an
interpretation that exempts a virtually unlimited category of
coordinated expenditures from regulation.

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27
The controlling commissioners adopted what they called a
“bright-line rule” that exempts from regulation under FECA all
money spent “to produce an internet communication.”
Statement of Reasons at 13 (J.A. 279). The commissioners’
approach broadly exempts “staff time, computer usage, and
electricity,” as well as “additional overhead and other
expenses, such as for travel and the services of consultants,
graphic designers, videographers, actors, and other
specialists.” Id. (J.A. 279). And the commissioners refused to
require Correct the Record to separately account for and
“allocate overhead expenses across internet communications”
and “other activities,” on the theory that doing so would
“eviscerate the internet exemption” and “potentially chill
political speech online.” Id. (J.A. 279).
We hold that the Commission’s approach is contrary to
FECA’s expansive definition of expenditures, 52 U.S.C.
§ 30101(9)(A)(i), and its regulation of all expenditures made
“in cooperation, consultation, or concert with, or at the request
or suggestion of” a candidate or party, id. § 30116(a)(7)(B). By
reading FEC regulations to exempt any expenditure even
remotely or tangentially related to an eventual posting on the
internet, the controlling commissioners pave a path for the very
circumvention of campaign finance laws that FECA’s
reporting requirement is designed to prevent. See Buckley, 424
U.S. at 46-47.
Take Correct the Record’s poll as an illustrative example.
Both the General Counsel and the controlling commissioners
singled out the poll for “special attention.” Statement of
Reasons at 13 (J.A. 279); see General Counsel Report at 20
(J.A. 200). The controlling commissioners determined that
paying a polling firm for the underlying poll was “necessary to
make” a subsequent internet communication: the blog post
publishing the poll’s results online. Statement of Reasons at

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28
13 (J.A. 279). That sufficed, in their view, to render all the
payments that went into conducting the poll, analyzing the
data, and writing up the results exempt from disclosure as a
contribution. Id. (J.A. 279). Commission counsel
acknowledged at oral argument that money spent in
coordination with a campaign to commission a poll for the
candidate’s use would ordinarily be a campaign contribution.
Oral Arg. Rec. 10:23-47; see 52 U.S.C.
§§ 30101(9)(A)(i), 30116(a)(7)(B). But, under the controlling
commissioners’ approach, none of that spending is a
contribution so long as the Committee posts the results for free
on a blog and, in so doing, delivers the commissioned poll
results to the candidate.
The commissioners offer no limiting principle for their
expansive reading. When pressed at oral argument,
Commission counsel answered only that, “in the Buckley
speech context, we are not big on limits.” Oral Arg. Rec.
15:42-49. As the district court warned, that approach
essentially allows any “coordinated expenditure to escape
treatment as a contribution, so long as that expenditure
somehow informs a blog post or improves a tweet.” Campaign
Legal Ctr., 646 F. Supp. 3d at 64.
The apparent implication of the blocking commissioners’
refusal to “allocate overhead expenses across internet
communications” and “other activities,” Statement of Reasons
at 13 (J.A. 279), is even broader than the district court
described. On their logic, an entity that blogs or tweets in
coordination with a campaign arguably exempts all of its
overhead expenses from regulation under FECA—no matter
that some portion of those overhead expenses is entirely
unrelated to the organization’s internet-related activities.
Taken to its logical conclusion, that suggests a political action
committee wholly devoted to coordinating its spending “for the

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29
purpose of influencing an[] election for Federal office,” 52
U.S.C. § 30101(9)(A)(i), need not disclose any portion of its
rent, internet bills, or inventory costs as campaign
contributions, so long as it spends a fractional portion of its
time tweeting about its activities. Likewise, the implication
seems to be that, if a political committee staffer spends some
of her time blogging online, that committee can evade any
requirement to report her salary as a campaign contribution.
That cannot square with FECA’s plain text or purpose. As
we explained in Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005),
“if a communication involves ‘expenditure’ and is made ‘in
cooperation, consultation, or concert with, or at the request or
suggestion of’ a candidate or party—the provision’s two
elements—then the FEC lacks discretion to exclude that
communication from its coordinated communication rule.” Id.
at 99 (quoting 52 U.S.C. § 30116(a)(7)(B)). The blocking
commissioners ignore that statutory limitation.
The blocking commissioners’ approach is also
unrecognizable in the Commission’s own description of the
internet exemption. The internet exception was never intended
as a FECA-swallowing loophole enabling political committees
to launder all their coordinated expenditures via unpaid internet
postings. The commissioners who crafted it sought to “ensure
that political committees properly finance and disclose their
Internet communications.” 71 Fed. Reg. at 18589. Indeed, the
Commission explicitly noted in summarizing the exemption
that “a political committee’s purchase of computers for
individuals to engage in Internet activities for the purpose of
influencing a Federal election” remains a regulated
“expenditure” by that political committee. Id. at 18606. By
the same token, the Commission explained, an entity makes an
“in-kind ‘contribution’” by “providing software and Internet
access for the specific purpose of enabling its employees to

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influence a Federal election through political Internet
activities.” Id.
The FEC fails to explain how the construction of the
internet exemption it defends here squares with the statute’s
regulation of coordinated expenditures. Relying on nothing but
double bootstrapping, the Commission emphasizes “the
agency’s prerogative to interpret FECA through the
promulgation of the regulation itself,” FEC Br. 33, and defends
its interpretation by reference to the notion that “an agency is
bound by its own regulations,” Reply Br. 10 (internal quotation
marks omitted). But the exemption does not effect wholesale
deregulation of coordinated expenditures that contribute in
some part to an eventual internet posting. See 11 C.F.R.
§ 109.20(b). No legitimate agency prerogative is undermined
by invalidating a legal view that conflicts with the statute and
rule it purports to interpret.
We have not been asked to decide in the first instance
precisely which expenses can be exempt from regulation as
inputs to unpaid internet communications. As did the district
court, we conclude that the expert Commission should have an
opportunity in the first instance to draw that line. It suffices for
present purposes to hold that the line drawn by the blocking
commissioners in this case unmistakably conflicts with the
statutory text and purpose.
2
The two naysaying commissioners also declined to
investigate allegations that Correct the Record’s non-internet-
related expenditures were made in coordination with the
Clinton campaign. They recognized that, even under their
broad interpretation of the internet exemption, not all of
Correct the Record’s expenditures in the lead-up to the 2016
election were inputs to the organization’s internet

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31
communications. They acknowledged, for example, that
Correct the Record’s research and tracking activities, surrogacy
program, and contacts with reporters did “not relate directly to
[its] internet communications.” Statement of Reasons at 14
(J.A. 280). So they considered whether the money was spent
“in cooperation, consultation, or concert with, or at the request
or suggestion of” Hillary for America, and therefore required
to be reported as in-kind contributions. See 11 C.F.R. § 109.20.
The commissioners saw no basis to investigate those
expenditures, either. In their view, “[t]he information in the
record indicates that Correct the Record limited its interactions
with Hillary for America to the very communications that the
Commission has previously decided not to regulate”—unpaid
internet communications. Statement of Reasons at 16 (J.A.
282).
That conclusion fails to meaningfully account for the
complaint’s allegations to the contrary—allegations citing to
information that is already publicly available—which recount
Correct the Record’s own public statements of coordination
with the Clinton campaign on all its activities, not just those the
commissioners deemed related to internet postings. Take, for
example, a May 2015 report in the Wall Street Journal quoting
a Correct the Record spokeswoman asserting that, because her
group would make no ads explicitly advocating for or against
a candidate, there would be “no restrictions on its ability to
coordinate with Mrs. Clinton’s campaign.” FEC Compl. ¶ 10
(J.A. 116) (emphasis added) (quoting Rebecca Ballhaus, Pro
Clinton Group Sets Novel Strategy, Wall St. J. (May 12, 2015),
https://www.wsj.com/articles/BL-WB-55199). The complaint
also quotes a Time magazine article reporting that Correct the
Record founder David Brock was working “on what he calls
the ‘coordinated’ side of the Clinton campaign.” Id. ¶ 24 (J.A.
122) (quoting Michael Scherer, Hillary Clinton’s Bulldog

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Blazes New Campaign Finance Trials, Time (Sept. 10, 2015),
https://perma.cc/QJL3-33D8). “[S]ince [Correct the Record]
does not pay for advertising advocating [Clinton’s] election,”
Time magazine noted, “[Brock] says he can continue under
current rules to talk to [Clinton] and her campaign staff about
strategy, while deploying the unregulated money he raises to
advocating her election online, through the press, or through
other means of non-paid communications.” Id. (J.A. 122)
(quoting same). In the same vein, the Los Angeles Times
reported on a Correct the Record spokeswoman’s insistence
that “an FEC loophole means that the coordination regulation
doesn’t apply to them because their work is posted only
online.” Id. ¶ 27 (J.A. 123) (quoting Joseph Tanfani & Seema
Mehta, Super PACs Stretch the Rules that Prohibit
Coordination with Presidential Campaigns, L.A. Times (Oct.
6, 2015), https://perma.cc/4N69-7BJY).
The controlling commissioners dismissed that evidence
wholesale, labeling it a misguided attempt to transform
“[c]oordination” into a “status,” such that “coordination in one
activity can be imputed to other activities” without a
“transaction-by-transaction assessment to determine whether
specific conduct occurred with respect to particular
expenditures.” Statement of Reasons at 16 (J.A. 282). To the
contrary, it is Correct the Record, with its announced blanket
intention to coordinate with Hillary for America on all its
activities, that failed to particularize. One need not understand
coordination as a “status” to take seriously allegations of
Correct the Record’s own categorical public assertions that
“the coordination regulation doesn’t apply to [it].” FEC
Compl. ¶ 27 (J.A. 123) (quoting Tanfani & Mehta, supra). Far
from suggesting that Correct the Record carefully calibrated its
interaction with the Clinton campaign to respect the limits of
the internet exemption, the complaint plausibly describes

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33
Correct the Record as entirely sidestepping disclosure of
expenditures it avowedly coordinated with the campaign.
The controlling commissioners’ conclusion that “Correct
the Record limited its interactions with Hillary for America” to
unpaid internet communications runs counter to the
information before the agency, and was therefore arbitrary and
capricious. See Orloski, 795 F.2d at 161; see also Motor
Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 43 (1983). And, considering Correct the Record’s public
admission that it planned to coordinate extensively with Hillary
for America, it was unreasonable for the Commission to
demand that Campaign Legal Center allege coordination as to
each subcategory of activities. That is particularly true
because, at this stage, the commissioners need identify only
“reason to believe that [Correct the Record] has committed” a
FECA violation in order to trigger its obligation to “make an
investigation of such alleged violation,” 52 U.S.C.
§ 30109(a)(2), that would allow the Commission to determine
whether the alleged violation has evidentiary support.
The Commission failed to explain how it concluded, in the
face of the complaint and the publicly available sources it
quotes, that it had no grounds for investigation. We
accordingly hold that the blocking commissioners’ analysis of
non-internet-related expenditures was arbitrary and capricious
and thus contrary to law. Orloski, 795 F.2d at 161. For the
reasons explained above, see supra at 22-24, our affirmance of
the district court’s contrary-to-law holding means the FEC will
have an opportunity on remand to conform with our ruling. See
52 U.S.C. § 30109(a)(8)(C).

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34
C
That leaves only the FEC’s argument that Campaign Legal
Center “lack[s] standing” as to four counts of the
administrative complaint that allege violations of FECA’s
source restrictions and contribution limits. FEC Br. 26. Citing
CLC I, the Commission reasons that Campaign Legal Center
has standing to challenge only the alleged disclosure violations,
and accordingly urges us to “direct the district court to dismiss
the complaint to the extent it seeks an order regarding” the
source restrictions or contribution limits. Id. But the district
court has not ordered the Commission to take any action
specific to those counts, so this appeal need not address them.
Plaintiff’s appeal of the legal sufficiency of the internet-
exemption and coordination allegations is supported by their
standing to seek relief for informational injuries, which this
court has already sustained. See CLC I, 31 F.4th at 783. We
decline the Commission’s invitation to make an anticipatory
ruling on a standing question, keyed to a specific form of relief,
that may never arise.
The FEC’s argument rests on the misapprehension that,
without a further caveat as to plaintiff’s standing, the district
court’s remand order would require the FEC to take
enforcement action on the source- and contribution-limit
allegations whose dismissals the Commission believes plaintiff
lacks standing to challenge in federal court. But the district
court’s remand order did no such thing. It provided that:
Because the Commission’s decision was based on an
impermissible interpretation of the Act and was
otherwise arbitrary and capricious, its dismissal of
Plaintiffs’ complaint was contrary to law. The Court
leaves it to the expert Commission on remand to
sketch the bounds of the internet exemption and to

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35
more fully analyze the facts before it. That exception
must have real bounds, however, and the clear
evidence of coordination discussed above shall
inform the Commission’s analysis. . . .
For the foregoing reasons, the Court will grant
CLC’s Motion for Summary Judgment, deny
[Correct the Record’s], and direct the Commission to
conform with this decision within 30 days. See 52
U.S.C. § 30109(a)(8)(C).
Campaign Legal Ctr., 646 F. Supp. 3d at 69. The order requires
the Commission to “sketch the bounds of the internet
exemption and . . . more fully analyze the facts before it.” Id.
Whether doing so will lead the Commission to take
enforcement action with respect to the source restrictions and
contribution-limits claims is a question the district court did not
address.
That is for good reason. Plaintiff’s suit challenges only
one FEC action: dismissal of the administrative complaint
following the blocking commissioners’ conclusion that Correct
the Record’s expenditures were not campaign contributions.
As we explained in CLC I, the informational injury—as to
which plaintiff’s standing is settled—traces to that dismissal.
A Commission determination that there was reason to believe
Correct the Record made contributions to Hillary for America
could result in additional disclosures of the amount of such
contributions. CLC I, 31 F.4th at 783. Whether a future
determination by the Commission that Correct the Record
contributed to Hillary Clinton’s campaign may have other
implications for the FEC’s treatment of Correct the Record’s
expenditures is not at issue here. In any event, the Commission
may choose, under a correct reading of the law, to enforce
FECA’s contribution limits against Correct the Record and

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36
Hillary for America, regardless of whether Campaign Legal
Center would have Article III standing to challenge the
Commission’s failure to do so. We need go no further than
directing remand to the expert Commission to “sketch the
bounds of the internet exemption and . . . more fully analyze
the facts before it.” Campaign Legal Ctr., 646 F. Supp. 3d at
69.
* * *
For the foregoing reasons, the judgment of the district
court is affirmed. The matter is remanded to the district court
with instructions to remand to the FEC consistent with 52
U.S.C. § 30109(a)(8)(C) and the discussion herein.
So ordered.

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