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U.S. Senators Sheldon Whitehouse, Jeffrey A. Merkley, Richard Blumenthal, Mazie K. Hirono, Elizabeth Warren, and Chris Van Hollen filed a brief of amici curiae in support of CREW’s petition for rehearing en banc. Read the filing below.

CREW sued the Federal Election Commission (FEC) for dismissing a complaint CREW filed with the agency in September of 2014 against a 501(c)(4) non-profit organization that made contributions to various super PACs. In 2012, the organization, New Models, received and disbursed millions of dollars with the purpose of influencing federal elections, such that over 65% of its spending for that year was aimed at influencing elections. Under the Federal Election Campaign Act (FECA), the group should therefore have registered as a political committee and disclosed its contributors. However, New Models did not, and as a result many of New Models’ donors, whose money was funneled to super PACs that ran politically influential ads, remained secret, denying the public essential information about who is funding federal elections.

New Models did not run political ads itself, but rather directed funds to other independent expenditure-only political committees (super PACs) so that those super PACs could use the money to influence federal elections. New Models’ contributions totaled more than $3 million in 2012, constituting approximately 68.5% of the group’s expenditures for that year. The super PACs that reported receiving the funds from New Models reported them as “contributions” under the FECA, meaning gifts or other transactions made “for the purpose of influencing any election for Federal office.”

CREW highlighted these facts in its complaint and requested that the FEC conduct an investigation on the matter. In May 2015, the FEC’s Office of General Counsel (OGC) issued its first General Counsel’s Report, in which it recommended that the FEC find reason to believe that New Models violated the FECA by failing to register and report as a political committee, that the FEC approve the OGC’s factual and legal analysis, and that the FEC approve compulsory process. The FEC failed to act on the OGC’s recommendations for over two years.

Finally, in November 2017, the FEC put the matter to a vote and, in a 2-2 stalemate, the FEC failed to adopt the OGC’s recommendations. That same day, the FEC voted to close the file and dismiss CREW’s complaint.

On December 20, 2017, the two commissioners who voted against finding reason to believe New Models violated the law, Commissioner Lee Goodman and Vice Chair Caroline Hunter, released their statement of reasons for rejecting CREW and the OGC’s analysis of New Models’ behavior. Their rationale relied in part on the conclusion that, since New Models did not spend a majority of its funds on political influence in years other than 2012, it should not be considered a political committee. This line of reasoning drew a rebuke from FEC Commissioner Ellen Weintraub, one of the two votes in favor of adopting OGC’s recommendations, who noted this same rationale was explicitly discredited by a judge in May 2011 in our case CREW v. FEC (FOIA; Commissioners).

 

Lawsuit Documents

  • Complaint
    January 12, 2018
    Read here
  • Answer
    March 23, 2018
    Read here
  • Plaintiff's Motion for Summary Judgement
    June 25, 2018
    Read here
  • FEC's In Opposition to Plaintiff's Motion
    August 24, 2018 - FEC's In Opposition to Plaintiff's Motion for Summary Judgement
    Read here
  • Reply Brief in Support of Plaintiff's Motion
    October 9, 2018 - Reply Brief in Support of Plaintiff's Motion For Summary Judgement
    Read here
  • Declaration of Stuart McPhail & Exhibits
    October 9, 2018 - Declaration of Stuart McPhail & Exhibits
    Read here
  • FEC Reply & Exhibits
    November 16, 2018
    Read here
  • Order Granting Defendant's Motion
    March 29, 2019 - Order Granting Defendant's Motion for Summary Judgement
    Read here
  • Plaintiff's Notice of Appeal
    May 28, 2019
    Read here
  • Brief of Appellants
    October 22, 2019
    Read here
  • Joint Appendix
    October 22, 2019
    Read here
  • Amicus Brief of Campaign Legal Center
    October 29, 2019 - Amicus Brief of Campaign Legal Center In Support of Plaintiff- Appellants
    Read here
  • Brief for the FEC
    November 26, 2019
    Read here
  • Amicus Brief of Randy Elf in Support of FEC
    December 2, 2019
    Read here
  • Reply Brief of Appellants
    December 20, 2019
    Read here
  • Petition for Rehearing En Banc
    June 23, 2021
    Read here
  • Professors Amicus Brief for En Banc Rehearing
    June 30, 2021 - Motion for Invitation to Participate as Amicus Curiae by Professors of Administrative Law in Support of Plaintiffs-Appellants’ Petition for Rehearing En Banc
    Read here
  • Law Scholars Amici Brief for En Banc Rehearing
    June 30, 2021 - Brief of Election Law Scholars as Amici Curiae in Support of Appellants’ Petition for Rehearing En Banc
    Read here
  • Brennan Center Amicus Brief for En Banc Rehearing
    June 30, 2021 - Motion of The Brennan Center for Justice at NYU School of Law for Invitation to File Brief as Amicus Curiae in Support of Appellants’ Petition for Rehearing En Banc
    Read here
  • CLC Amicus Brief for En Banc Rehearing
    June 30, 2021 - Motion for Invitation to Participate as Amicus Curiae by Campaign Legal Center in Support of Plaintiffs Appellants’ Petiton for Rehearing En Banc
    Read here
  • Senators Amici Brief for En Banc Rehearing
    June 30, 2021 - Motion for Invitation to File Brief of Amici Curiae United States Senators Sheldon Whitehouse, Jeffrey A. Merkley, Richard Blumenthal, Mazie K. Hirono, Elizabeth Warren, and Chris Van Hollen, in Support of Plaintiffs-Appellants’ Petition for Rehearing En Banc
    Read here
  • FEC Response to Petition to Rehearing en Blanc
    July 9, 2021
    Read here

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