Campaign Legal Center v. FEC

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 15, 2021 Decided April 19, 2022

No. 21-5081

CAMPAIGN LEGAL CENTER AND CATHERINE HINCKLEY

KELLEY,

APPELLANTS

v.

FEDERAL ELECTION COMMISSION, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-02336)

Tara Malloy argued the cause for appellants. With her on

the briefs was Megan P. McAllen.

Aria C. Branch argued the cause for appellees. With her

on the brief was Marc Erik Elias.

Before: ROGERS and WALKER, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

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EDWARDS, Senior Circuit Judge: This case involves an

action by Appellants Campaign Legal Center and Catherine

Hinckley Kelley against the Federal Election Commission

(“Commission” or “FEC”). They contend that the

Commission’s decision to dismiss their complaint alleging

violations of the Federal Election Campaign Act (“Act” or

“FECA”) during the 2016 presidential election cycle by

political committee Correct the Record and Hillary Clinton’s

campaign committee, Hillary for America, was contrary to law.

Correct the Record and Hillary for America (together,

“Intervenors”) have intervened as defendants in this suit.

The matter giving rise to this case is Appellants’

disagreement with the Commission’s determination that

expenditures by Correct the Record, made in coordination with

the Clinton campaign, were exempt from disclosure as

coordinated contributions to the campaign under an exception

for unpaid internet communications. Appellants filed an

administrative complaint with the FEC charging, inter alia, that

Correct the Record and Hillary for America violated the Act by

failing to disclose any of the in-kind contributions Correct the

Record made to Hillary for America. Joint Appendix (“J.A.”)

162-63. The Commission split 2-2 on whether there was reason

to believe the joint undertaking gave rise to any “unreported[,]

excessive[,] and prohibited in-kind contributions” from Correct

the Record to the Clinton campaign and dismissed Appellants’

complaint. J.A. 208, 252-55. Appellants then filed a complaint

in the District Court to challenge the FEC’s dismissal as

contrary to law. The District Court dismissed Appellants’

FECA claim for lack of standing.

The sole issue before this court is whether Appellants have

standing to sue. We hold that they do. “The law is settled that

a denial of access to information qualifies as an injury in fact

where a statute (on the claimants’ reading) requires that the

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information be publicly disclosed and there is no reason to

doubt their claim that the information would help them.”

Campaign Legal Ctr. & Democracy 21 v. FEC, 952 F.3d 352,

356 (D.C. Cir. 2020) (per curiam) (quoting Env’t Def. Fund v.

EPA, 922 F.3d 446, 452 (D.C. Cir. 2019)). Were Appellants to

succeed on the merits of their claim, Correct the Record and

Hillary for America would be obligated to disclose FECA-

required factual information about the amounts of the contested

coordinated, in-kind contributions. That “information would

help [Appellants] (and others to whom they would

communicate it) to evaluate candidates for public office, . . .

and to evaluate the role that [Correct the Record’s] financial

assistance might play in a specific election.” FEC v. Akins, 524

U.S. 11, 21 (1998).

Contrary to the findings of the District Court, the

information Appellants seek is not currently known and it

cannot be gleaned from the disclosures that have already been

made by Correct the Record and Hillary for America. Correct

the Record has disclosed its aggregated expenditures publicly,

but it has not broken down its expenditures to show which were

coordinated contributions to the Clinton campaign. There is no

doubt that disaggregation of the existing disclosures would

reveal the amounts of any coordinated contributions. It is also

clear that the amounts that Correct the Record contributed to

the Clinton campaign constitute factual information that is

subject to disclosure under the statute. See 52 U.S.C.

§ 30104(b); 11 C.F.R. §§ 104.13(a), (b), 109.20(b), 109.21(b).

Accordingly, Appellants have demonstrated a

quintessential informational injury directly related to their

“interest in knowing how much money a candidate spent in an

election.” Common Cause v. FEC, 108 F.3d 413, 418 (D.C. Cir.

1997) (per curiam). As the Supreme Court made clear in Akins,

“[t]he ‘injury in fact’ that [Appellants] have suffered consists

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of their inability to obtain information—[including] campaign-

related contributions and expenditures—that, on [Appellants’]

view of the law, the statute requires that [Correct the Record

and Hillary for America] make public.” 524 U.S. at 21. This

being so, Appellants also easily satisfy the causation and

redressability requirements of Article III standing. See id. at 25.

Accordingly, we reverse the District Court’s dismissal for lack

of standing and remand for further proceedings.

I. BACKGROUND

A. Legal Framework

Congress passed the Federal Election Campaign Act in

1971 with the aim of “remedy[ing] any actual or perceived

corruption of the political process.” Akins, 524 U.S. at 13-14.

To further this goal, the Act uses three primary mechanisms:

contribution limits, source restrictions, and disclosure

requirements. First, it limits the amount a political committee

can contribute to a candidate for federal office. 52 U.S.C.

§ 30116(a)(1)(A). A “contribution” under the Act includes any

“gift . . . of money or anything of value made by any person for

the purpose of influencing any election for Federal office.” Id.

§ 30101(8)(A)(i). Contributions include not only payments

made directly to a candidate, but also “coordinated”

expenditures, which are those “made in cooperation,

consultation[,] or concert with, or at the request or suggestion

of, a candidate, a candidate’s authorized committee, or a

political party committee.” 11 C.F.R. § 109.20. Coordinated

expenditures are necessarily in-kind contributions, rather than

direct monetary payments. Accordingly, utilizing political

committee staff time, office space, or other resources in

cooperation with a candidate counts as a contribution. See id.;

52 U.S.C. § 30101(8)(A)(i), (ii). This structure is designed to

“prevent attempts to circumvent the Act through prearranged

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or coordinated expenditures amounting to disguised

contributions.” Buckley v. Valeo, 424 U.S. 1, 47 (1976) (per

curiam). In the 2016 election cycle, political committee

contributions to candidates were capped at $2,700. Am. Compl.

¶ 38, J.A. 41.

Second, the Act restricts political committees from using

money sourced from unions or corporations to make

contributions to candidates. 52 U.S.C. § 30118(a), (b)(2). This

ensures that unions and corporations cannot avoid direct

contribution limits by funneling money to candidates through

political committees. See McConnell v. FEC, 540 U.S. 93, 145-

48 (2003).

Third, in an effort to “expos[e] large contributions and

expenditures to the light of publicity,” Buckley, 424 U.S. at 67,

and ensure that voters “know exactly how a candidate’s

campaign is financed,” S. Rep. No. 92-229, at 122 (1971), the

Act imposes comprehensive disclosure requirements. Political

committees are required to publicly report all expenditures over

$200. See 52 U.S.C. § 30104(b)(5)(A); 11 C.F.R.

§ 104.3(b)(3)-(4). In addition, they must report contributions –

in-kind, coordinated, or otherwise – made to any candidate. See

id. § 30104(b)(4)(H)(i), (6)(B)(i), (iii). A candidate’s

“authorized committee,” like Hillary for America, must

disclose all in-kind, coordinated contributions it receives as

both contributions and expenditures, because these donations

function as resources spent by the campaign in furtherance of

the election of the candidate. Id. §§ 30101(6), 30104(b); 11

C.F.R. §§ 104.13(a), 109.20(b), 109.21(b). Disclosures are

made regularly in itemized reports to the FEC, and must

include details like the dates, amounts, and purposes of the

contributions and expenditures, as well as the name and address

of a recipient candidate. See 52 U.S.C. § 30104(b); 11 C.F.R.

§§ 104.13(a), 109.20(b), 109.21(b).

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Of relevance here, certain communications made by

political committees in concert with a candidate are considered

in-kind contributions to the campaign. See 11 C.F.R.

§ 109.21(b). In particular, the Commission has promulgated

rules designating political committees’ paid communications –

e.g., paid online advertising – as coordinated campaign

contributions subject to the aforementioned source, amount,

and disclosure requirements. In contrast, unpaid internet

communications – i.e., those communications not placed for a

fee – are exempt from those requirements. Internet

Communications, 71 Fed. Reg. 18589, 18593-95 (Apr. 12,

2006); see also 11 C.F.R. §§ 100.94(a), 100.155(a)(1)

(providing that uncompensated internet activity does not

constitute a contribution or an expenditure).

The Act provides that any person who believes a violation

of the Act has occurred may file a complaint with the

Commission. 52 U.S.C. § 30109(a)(1). The Office of General

Counsel reviews the complaint and any response and

recommends to the Commission whether there is “reason to

believe” a violation has occurred. Id. § 30109(a)(2), (3). The

FEC Commissioners – six total, half from each of the two

major political parties – then vote on whether there is “reason

to believe” the Act was violated. Id. §§ 30106(a)(1),

30109(a)(2). If at least four Commissioners vote yes, the

Commission will investigate; otherwise, the complaint is

dismissed. See id. §§ 30106(c), 30109(a)(2). In the event of a

deadlock, the “declining-to-go-ahead” Commissioners must

issue a Statement of Reasons to serve as the basis for judicial

review. Common Cause v. FEC, 842 F.2d 436, 449 (D.C. Cir.

1988). “Any party aggrieved” by the dismissal of a complaint

may then seek judicial review. 52 U.S.C. § 30109(a)(8)(A).

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B. Factual Background

Campaign Legal Center is a non-profit watchdog group

dedicated to “improving democracy and promoting

representative, responsive, and accountable government for all

citizens.” Am. Compl. ¶ 15, J.A. 36. Catherine Hinckley Kelley

is a registered voter and a director at Campaign Legal Center.

Together, these Appellants filed an administrative complaint

with the Commission in October 2016. They alleged that,

during the run-up to the 2016 presidential election, political

committee Correct the Record made, and Hillary Clinton’s

campaign committee Hillary for America accepted, millions of

dollars in coordinated contributions in violation of the Act.

Those payments were not disclosed as coordinated in-kind

contributions by either group. The amount of these alleged

contributions greatly exceeds the contribution limits in the Act,

and the payments allegedly violated source restrictions as well.

The dispute here concerns whether these allegedly

coordinated expenditures were exempt from disclosure. In the

leadup to the election, Correct the Record was open about its

coordination with the Clinton campaign in the media, but

claimed that its spending was exempt from statutes and

regulations governing coordination pursuant to the unpaid

internet exception. Am. Compl. ¶¶ 63-66, J.A. 47-48; see also,

e.g., Matea Gold, How a Super PAC Plans to Coordinate

Directly with Hillary Clinton’s Campaign, Wash. Post (May

12, 2015), https://www.washingtonpost.com/news/post-

politics/wp/2015/05/12/how-a-super-pac-plans-to-coordinate-

directly-with-hillary-clintons-campaign/. Under Correct the

Record’s interpretation of the exemption, input costs associated

with unpaid internet communications – such as the staff time,

filming, computers, office space, and travel involved in

producing unpaid internet communications – are exempt from

disclosure. See Intervenor-Appellees’ Principal and Resp. Br.

8

12-13. In line with its interpretation, Correct the Record

disclosed $9,617,828.28 in total expenditures to the FEC as

required, but did not designate any of that spending as in-kind

coordinated contributions to the Clinton campaign. See FEC,

Correct the Record Financial Summary, 2015-2016,

https://www.fec.gov/data/committee/C00578997/?cycle

=2016. Likewise, the Clinton campaign did not declare any of

that spending as contributions or expenditures of its own.

In their administrative complaint to the Commission,

Appellants challenged Intervenors’ interpretation of the law,

contending that expenditures by Correct the Record on items

like “opposition research, message development, surrogate

training and booking, professional video production, and press

outreach for the benefit of the Clinton campaign” were not

exempt under the unpaid internet communications exception.

FEC Compl. ¶ 5, J.A. 117. Rather, they contended that these

expenditures should have been reported as coordinated in-kind

contributions and subject to the spending limitation restrictions

in the Act.

The General Counsel of the FEC agreed with Appellants,

finding that “[Correct the Record] raised and spent

approximately $9 million on a wide array of activities, most of

which are not fairly characterized as ‘communications.’” First

General Counsel’s Report, In re: Correct the Record, MUR

6940 et al., p. 5 (FEC, Oct. 16, 2018), reprinted in J.A. 188.

The General Counsel found that:

the bulk of [Correct the Record]’s reported

disbursements are for purposes that are not

communication-specific, including payroll, salary,

travel, lodging, meals, rent, fundraising consulting,

computers, digital software, domain services, email

services, equipment, event tickets, hardware,

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insurance, office supplies, parking, and shipping in

addition to payments for explicitly mixed purposes

such as ‘video consulting and travel’ and

‘communication consulting and travel.’

Id. at 9-10, J.A. 192-93.

The General Counsel concluded that both the external and

internal communications of Correct the Record and the Clinton

campaign evidenced coordination between the two entities on

these activities. She rejected the argument that the expenditures

were for unpaid internet communications and therefore

exempt, reasoning that “[t]he fact that [activities] were

subsequently transmitted over the internet does not

retroactively render the costs of [those activities] a

‘communication’ cost.” Id. at 20, J.A. 203. Accordingly, the

General Counsel recommended to the Commission that there

was “reason to believe” that Correct the Record and Hillary for

America violated FECA by making coordinated contributions

in excess of the prescribed limits, with funds from

impermissible sources, and by failing to disclose those

transactions as coordinated contributions.

When the Commission received the General Counsel’s

recommendation, it had only four Commissioners in place

instead of the six that Congress authorized under FECA. This

was due to a lack of executive appointments. The four

Commissioners deadlocked two-two along party lines on the

vote to decide whether there was “reason to believe” that illegal

coordination had occurred. As a result, the Commission failed

to achieve the four votes necessary to proceed. The two

Republican Commissioners voted against finding there was

reason to believe a violation occurred and issued a Statement

of Reasons explaining their controlling decision. See Statement

of Reasons of Vice Chairman Matthew S. Petersen and

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Commissioner Caroline C. Hunter, In re: Correct the Record,

MUR 6940 et al. (FEC, Aug. 21, 2019), reprinted in J.A. 256-

73. They agreed with Correct the Record and Hillary for

America that all “input costs” associated with unpaid internet

communications are exempt from regulation under the Act.

The Commission therefore dismissed the administrative

complaint.

C. Procedural History

In August 2019, Appellants filed suit in District Court to

challenge the Commission’s decision as (1) contrary to FECA,

and (2) arbitrary and capricious under the Administrative

Procedure Act. Still short two members, the Commission failed

to garner the four affirmative votes necessary to defend the

agency in this action, see 52 U.S.C. §§ 30106(c), 30107(a)(6),

so the FEC did not enter an appearance in this case. However,

the District Court, over Appellants’ objection, permitted

Correct the Record and Hillary for America to intervene as

defendants.

At the start of the proceedings in District Court, the

Intervenors filed a motion to dismiss. The District Court

initially found that Appellants had standing to bring suit.

Campaign Legal Ctr. v. FEC, 466 F. Supp. 3d 141, 150-54

(D.D.C. 2020). Analyzing whether an informational injury was

present, the trial judge determined that Appellants “[had] no

information as to the actual amount of money that, in [their]

view, should have been considered a contribution or

expenditure under the Act.” Id. at 151. He further concluded

that organizational standing existed because Campaign Legal

Center plausibly alleged it was forced to divert organizational

resources to obtain the information it was due by law. Id. at

154. On the merits, the trial judge concluded that the

Commission’s interpretation of the internet-communications

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exception was contrary to law and “unduly compromise[d] the

Act’s purposes.” Id. at 157 (quoting Orloski v. FEC, 795 F.2d

156, 164 (D.C. Cir. 1986)). The trial judge noted that, because

the controlling Commissioners had decided that all

expenditures for computer equipment, office space, software,

web hosting, video equipment, placing a poll online, salaries,

and the like were exempt from regulation as unpaid internet

expenditures, the FEC determination would mean that “any

expenditure could be exempted from regulation if it ultimately

resulted in an unpaid internet communication.” Id. at 149. The

trial judge said that such an interpretation “creates a loophole

that effectively vitiates the plain language of FECA.” Id. at

158. The trial judge further found that the Commission’s

interpretation was “contrary to law” “because it ignored clear

evidence of coordinated expenditures between [the Clinton

campaign] and [Correct the Record] even apart from those

claimed to be exempt under the internet-communications

regulation.” Id. at 159.

At summary judgment, however, the District Court

“reverse[d] field” and “[came] out the other way” on the issue

of Appellants’ standing to pursue the FECA claim. Campaign

Legal Ctr. v. FEC, 507 F. Supp. 3d 79, 82 (D.D.C. 2020). The

court explained that it had “not sufficiently take[n] account of”

the decision in Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir.

2001). 507 F. Supp. 3d at 85. It described Wertheimer as saying

that a plaintiff lacks a cognizable informational injury where

“the plaintiff ‘do[es] not really seek additional facts[,] but only

the legal determination that’ the facts of which she is already

aware amount to a legal violation.” Id. at 84 (alterations in

original) (quoting Wertheimer, 268 F.3d at 1075). The District

Court then concluded that the information Appellants seek,

including what portions of the already-disclosed expenditures

were coordinated, “would not actually entail the disclosure of

any information other than legal determinations of

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coordination” and therefore did not support informational

standing. Id. at 88. The District Court dismissed the FECA

claim for lack of standing. Id. at 91. In a separate opinion, the

District Court dismissed Appellants’ Administrative Procedure

Act claim as precluded by FECA. Campaign Legal Ctr. v. FEC,

Civ. Action No. 19-2336, 2021 U.S. Dist. LEXIS 27082, at *3-

10 (D.D.C. Feb. 12, 2021), reprinted in J.A. 310-17.

Appellants raised a timely appeal on standing for their

FECA claim. They do not challenge the District Court’s

dismissal of their Administrative Procedure Act claim in this

appeal.

II. ANALYSIS

A. Standard of Review

This court reviews a District Court decision on standing de

novo. Friends of Animals v. Jewell, 824 F.3d 1033, 1040 (D.C.

Cir. 2016). “The plaintiff bears the burden of invoking the

court’s subject matter jurisdiction, including establishing the

elements of standing.” Arpaio v. Obama, 797 F.3d 11, 19 (D.C.

Cir. 2015) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 561

(1992)).

B. Standing to Redress Informational Injury

As noted above, the sole issue before the court is whether

Appellants have an informational injury sufficient to support

standing. To succeed, Appellants must show that the legal

ruling they seek might lead to additional factual information

that, on their view of the law, FECA requires the Intervenors to

make public. Akins, 524 U.S. at 21. Intervenors Correct the

Record and Hillary for America maintain that, because Correct

the Record has already publicly disclosed all expenditures

13

made during the 2016 election in some form, Appellants would

not obtain any new factual information if they prevailed on the

merits. Appellants claim, however, that they still lack access to

FECA-required information about the amounts, dates,

recipients, and purposes of any coordinated expenditures and

contributions Correct the Record made to Hillary for America.

Appellants argue that if they succeed in this litigation, Correct

the Record would be required to disaggregate its already-

reported expenditures to show which portions of those

expenditures were coordinated contributions and which were

not. This would provide Appellants with new, pertinent

information about the amounts Correct the Record contributed

to the Clinton campaign, information that is currently

unknown. We agree and therefore find that Appellants have

established a cognizable informational injury.

1. The Applicable Law at Issue

To establish Article III standing, a plaintiff must show “the

irreducible constitutional minimum” of “injury in fact,”

causation, and redressability. Lujan, 504 U.S. at 560-61. An

injury in fact must be “concrete and particularized” and “actual

or imminent, not conjectural or hypothetical” to suffice. Id. at

560 (internal quotations omitted). In the FECA context, “[t]o

carry its burden of demonstrating a ‘sufficiently concrete and

particularized informational injury,’” the plaintiff must show

that, in being denied access to the information, “it suffers . . .

the type of harm Congress sought to prevent by requiring

disclosure.” Elec. Priv. Info. Ctr. v. Presidential Advisory

Comm’n on Election Integrity, 878 F.3d 371, 378 (D.C. Cir.

2017) (quoting Friends of Animals v. Jewell, 828 F.3d 989, 992

(D.C. Cir. 2016)).

In the seminal case FEC v. Akins, voters contested the

Commission’s determination that the American Israel Public

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Affairs Committee (“AIPAC”) was not a “political committee”

under the definition provided in FECA. 524 U.S. at 15-18.

Under plaintiffs’ view of the law, AIPAC was a “political

committee” and thus required under the Act to disclose the

sources of its contributions and its spending. Id. at 15-16. The

Supreme Court was clear in holding that because plaintiffs

“fail[ed] to obtain information which must be publicly

disclosed pursuant to a statute” under their view of the law,

they “suffer[ed] an ‘injury in fact.’” Id. at 21 (citing Pub.

Citizen v. U.S. Dep’t of Just., 491 U.S. 440, 449 (1989)).

Akins also established that FECA grants voters a

cognizable interest in information used “to evaluate candidates

for public office,” including information which reveals “the

role that [a political committee]’s financial assistance might

play in a specific election.” Id. For that reason, in Shays v. FEC,

528 F.3d 914 (D.C. Cir. 2008), we recognized that an

informational injury “no differen[t]” than “the injury deemed

sufficient to create standing in Akins” is present when a voter

is denied FECA-required disclosures about coordinated in-kind

expenditures they believe must be reported as contributions to

a candidate. Id. at 923 (“Here, as in Akins, Shays’s injury in

fact is the denial of information he believes the law entitles him

to.”).

Voter-related informational injuries of this sort are not

generalized grievances because, “though widely shared, . . .

[they are] sufficiently concrete and specific” to each voter to

constitute an injury in fact. Akins, 524 U.S. at 24-25. Thus,

“[t]he fact that other citizens or groups of citizens might make

the same complaint . . . does not lessen [claimants’] asserted

injury” where, as in Akins or Shays, the harm is concrete. Id.

(quoting Pub. Citizen, 491 U.S. at 449-50); see also Shays, 528

F.3d at 923.

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Of course, not every demand for information from the FEC

is sufficient to establish Article III standing. We have

recognized that “the nature of the information allegedly

withheld is critical to the standing analysis.” Common Cause v.

FEC, 108 F.3d 413, 417 (D.C. Cir. 1997) (per curiam). The

information sought must be that for which there is a statutory

right and which “is related to [the plaintiff’s] informed

participation in the political process.” Nader v. FEC, 725 F.3d

226, 230 (D.C. Cir. 2013). “If an organization has simply been

‘deprived of the knowledge as to whether a violation of the law

has occurred,’ that ‘injury’ is no more than a generalized

‘interest in enforcement of the law,’ and does not support

standing.” Jud. Watch, Inc. v. FEC, 180 F.3d 277, 278 (D.C.

Cir. 1999) (per curiam) (quoting Common Cause, 108 F.3d at

418). Thus, plaintiffs seeking information solely “to ‘get the

bad guys,’ rather than disclose information,” lack the sort of

injury that sustains standing. Common Cause, 108 F.3d at 418.

In addition, plaintiffs must lack access to the information

sought; a plaintiff cannot establish injury based on information

that is already available “from a different source,” disclosure

of which would only result in “duplicative reporting.”

Wertheimer v. FEC, 268 F.3d 1070, 1075 (D.C. Cir. 2001).

Similarly, if the information sought “would add only a trifle to

the store of information about the transaction already publicly

available,” a plaintiff lacks standing. Citizens for Resp. &

Ethics in Wash. v. FEC, 475 F.3d 337, 340 (D.C. Cir. 2007).

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2. Applying the Law to the Facts of this Case

Turning to the case at hand, FECA clearly gives

Appellants a statutory right to information about the amounts,

dates, recipients, and purposes of any coordinated expenditures

and contributions made by a political committee and received

by a candidate’s authorized committee. 52 U.S.C. §§ 30104(b),

30116(a)(7). And there is no serious dispute that, on

Appellants’ view of the law, many of Correct the Record and

Hillary for America’s coordinated expenses that the

Commission found exempt from disclosure as “unpaid

internet” expenses should be disclosed as in-kind

contributions. If Appellants win on the merits, Correct the

Record would be required to disaggregate its reporting to show

the actual amounts of various expenditures that were in-kind

contributions. Appellants would therefore gain access to

FECA-required information about coordinated contributions

from Correct the Record to the Clinton campaign. Finally, it is

clear, as in Akins, “that the information would help

[Appellants] . . . evaluate candidates for public office.” 524

U.S. at 21. Accordingly, Appellants claim an injury in fact no

different than that in Akins.

Intervenors’ principal argument, with which the District

Court agreed, is that no “additional factual information” would

be disclosed if Appellants prevailed on the merits. Intervenor-

Appellees’ Principal and Resp. Br. 24. Rather, they argue,

“‘only the legal determination that’ the facts [Appellants]

already possess[] amount to a legal violation” would result. Id.

at 30 (quoting Wertheimer, 268 F.3d at 1075). Intervenors

contend that if Appellants prevail on the merits, Correct the

Record’s existing entries of expenditures would simply be

moved from one line to another on the FEC reporting form,

labeled as in-kind contributions, and described as benefiting

17

the Clinton campaign. This argument mischaracterizes the

claims and information at stake.

Appellants’ claim is that some not insignificant portion of

Correct the Record’s expenditures were coordinated in-kind

contributions to the Clinton campaign. Appellants do not know

the amounts, however, because Intervenors have not disclosed

them. If Appellants won and certain expenditures were found

not to be exempt as unpaid internet communication expenses,

Correct the Record would be required under FECA to

disaggregate the “lump sum” disbursements it has already

reported for various overhead expenses (such as payroll,

salaries, travel, lodging, rent, or fundraising) to reveal which

portion of each expenditure funded coordinated activities. See

Appellants’ Reply Br. 10. This disaggregation would result in

disclosure of the numerical amounts of any coordinated

expenditures that were contributions to the Clinton campaign.

Those amounts, currently unknown, constitute factual

information core to Appellants’ established interests in

knowing “who is funding presidential candidates’ campaigns,”

Shays, 528 F.3d at 923, and “how much money a candidate

spent in an election,” Common Cause, 108 F.3d at 418.

An example used by the District Court to suggest that no

additional factual information would be disclosed if Appellants

prevail actually illustrates that the opposite is true. In its

expenditures, Correct the Record has disclosed that its founder

and chairman David Brock was paid a biweekly salary of

$4,521.56 in June 2016, described simply as “salary.” Pls.’

Opp’n to Correct the Record’s and Hillary for America’s Am.

Mot. Dismiss Ex. D, ECF No. 27-4. Appellants maintain that

“there is reason to believe that some portion of [Brock’s]

paycheck functioned as a disguised contribution to the

campaign.” Id. at 18. The District Court recognized that if the

Commission concluded that fifty percent of Brock’s time in a

18

two-week period was spent on coordinated activities, his salary

payment would need to be disclosed as one non-coordinated

salary expenditure of $2,260.78 and one in-kind contribution

of $2,260.78. 507 F. Supp. 3d at 88. But the District Court then

characterized this disclosure as “nothing more than the ‘fact’

of ‘coordination,’ which under Wertheimer is not a fact at all

but rather a legal conclusion.” Id. (internal quotation omitted).

We disagree.

The District Court’s analysis ignores that disaggregation

of Brock’s salary to show which portion was coordinated

would in fact reveal the numerical amount of Correct the

Record’s coordinated contribution to the Clinton campaign,

information political committees are required by statute to

make public. Appellants do not now know that numerical

amount, nor did the District Court; the “suppose[d]” fifty

percent or $2,260.78 that might have been contributed in the

court’s example is made up; it is but a guess. See id. If

Appellants prevail, the actual amount of Brock’s salary that

was a contribution to the Clinton campaign would have to be

disclosed, along with disaggregated amounts for a myriad of

other lump sum expenditures Appellants believe involved

coordinated contributions. There is no doubt that those

numerical amounts constitute factual information and that

FECA requires them to be disclosed.

Intervenors argue that this court’s decision in Wertheimer

supports their position. They are mistaken because that case is

not on point. Indeed, the facts in Wertheimer are markedly

different from the facts in this case.

The principal holding in Wertheimer is that a plaintiff

cannot establish injury based on information that is already

available “from a different source” and that would only result

in “duplicative reporting.” 268 F.3d at 1075. The plaintiffs in

19

Wertheimer argued that coordinated expenditures by political

parties were contributions to candidates (which was not yet

established law) and sought disclosure of coordinated

expenditures by presidential campaigns. Id. at 1071, 1074. But,

the precise transactions that the plaintiffs sought in Wertheimer

had already been reported by political parties as coordinated

expenditures. Id. at 1075 (Garland, J., concurring) (“[P]olitical

party committees are already required to report and to identify

such coordinated expenditures . . . in their FECA filings.”). In

other words, the information sought by the plaintiffs in

Wertheimer had already been “disaggregated” and marked as

coordinated in the reports of political parties, so the plaintiffs

had access to all the information they were seeking. If the

plaintiffs in Wertheimer had won, they would have obtained

“the same information from a different source.” Id. at 1075.

Therefore, Wertheimer would support Intervenors’ position

only if Correct the Record had disclosed its coordinated

contributions to the Clinton campaign and designated them as

such, and Appellants were simply seeking reciprocal disclosure

from Clinton’s campaign of those same transactions. See id.

But the information at issue in this case has not been

disaggregated, nor have the allegedly coordinated

contributions been disclosed.

Finally, we reject Intervenors’ argument that Appellants’

view of the law would not require disaggregation of existing

disclosures because Appellants believe “that all of Correct the

Record’s spending was coordinated.” Intervenor-Appellees’

Principal and Resp. Br. 35. This claim is belied by the record.

Appellants have argued from the start that Correct the Record

“coordinated many of its activities with the Clinton campaign,”

noting that “the total amount of [coordinated expenditures] is

unknown.” Am. Compl. ¶¶ 68-70, J.A. 48-50 (emphasis

added). They have at no point argued that all of Correct the

Record’s expenditures were coordinated under the law, or that

20

none of Correct the Record’s expenditures were exempt from

disclosure under the internet exception. Therefore, Intervenors’

contention that Appellants have attempted to manufacture

standing by “revamp[ing]” their argument to claim that only

some portion of Intervenors’ activities were coordinated is

baseless. Intervenor-Appellees’ Principal and Resp. Br. 33.

The related concern expressed by the District Court that, if

Appellants have standing here, a plaintiff “could seemingly

manufacture standing in nearly every conceivable case” by

“trimming its sails” and claiming to seek information about

some proportion of already-disclosed expenditures, instead of

whether those expenditures as a whole were coordinated, is

equally misplaced. 507 F. Supp. 3d at 87-88. As discussed

above, the inquiry from Wertheimer starts and stops with

examining whether a plaintiff “only seek[s] the same

information from a different source” such that no “additional

facts” will result. 268 F.3d at 1074-75. Where, as here, a

plaintiff demonstrates on the record that additional, statutorily-

required information would be exposed under plaintiff’s theory

of the law that would serve an interest Congress sought to

protect through disclosure, the plaintiff has undoubtedly

established an informational injury under Akins and Shays.

This is not an “end-run around Wertheimer,” 507 F. Supp. 3d

at 87, but a properly pled informational injury.

Moreover, the District Court failed to consider that

mischief could easily occur with the approach that it endorsed.

Were standing denied to those seeking disaggregated

information that FECA plainly requires be disclosed whenever

aggregate information is available, then political committees

and campaigns could simply report information in increasingly

broad, undifferentiated lump sums. Under the District Court’s

holding, even if a plaintiff’s view of the law had merit, a

plaintiff would have no right to seek non-trivial information

21

covered by FECA so long as the information was included as a

part of some undifferentiated lump sum. There is nothing in the

law to support this position. Thus, in this case, Appellants have

no way of knowing what portion of Intervenors’ lump sum

disclosures consist of coordinated expenses. Such information

is only known by parties (like Intervenors) who are responsible

for making disaggregated disclosures under statute.

Disaggregated FECA-required information cannot be deduced

from aggregate, lump-sum disclosures of this kind.

Denying standing in circumstances of the sort raised by

this case would permit easy workarounds for parties who seek

to block the standing of persons who may raise legitimate

requests for information covered by FECA. Moreover, the

Intervenors’ approach runs contrary to settled law that “a denial

of access to information qualifies as an injury in fact where a

statute (on the claimants’ reading) requires that the information

be publicly disclosed and there is no reason to doubt their claim

that the information would help them.” Campaign Legal Ctr.

& Democracy 21 v. FEC, 952 F.3d 352, 356 (D.C. Cir. 2020)

(per curiam) (quoting Env’t Def. Fund v. EPA, 922 F.3d 446,

452 (D.C. Cir. 2019)).

In sum, Appellants have established an informational

injury in fact. Having done so, Appellants easily satisfy the

remaining two constitutional standing requirements of

causation and redressability. As in Akins, Appellants’ injury is

fairly traceable to the Commission’s decision to dismiss their

complaint. See 524 U.S. at 25. Should a reviewing court find

that the Commission’s determinations are contrary to law, the

agency’s action would be set aside and the case would likely

redress Appellants’ injury in fact. See id.; see also Shays, 528

F.3d at 923.

22

III. CONCLUSION

For the reasons given above, we hold that Appellants have

standing to challenge the Commission’s dismissal of their

complaint. Appellants have established that, because of this

dismissal, they lack access to FECA-required information

concerning money spent by the Clinton campaign. If their

challenge succeeds, they will likely gain access to that

information, which will no doubt “help them . . . evaluate

candidates for public office.” Akins, 524 U.S. at 21.

Accordingly, the decision of the District Court is reversed and

the case is remanded for further proceedings consistent with

this opinion.