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


  • January 12, 2018
  • March 23, 2018
  • June 25, 2018
  • August 24, 2018 - FEC's In Opposition to Plaintiff's Motion for Summary Judgement
  • October 9, 2018 - Reply Brief in Support of Plaintiff's Motion For Summary Judgement
  • October 9, 2018 - Declaration of Stuart McPhail & Exhibits
  • November 16, 2018
  • March 29, 2019 - Order Granting Defendant's Motion for Summary Judgement
  • May 28, 2019
  • October 22, 2019
  • October 22, 2019
  • October 29, 2019 - Amicus Brief of Campaign Legal Center In Support of Plaintiff- Appellants
  • November 26, 2019
  • December 2, 2019
  • December 20, 2019
  • June 23, 2021
  • 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
  • June 30, 2021 - Brief of Election Law Scholars as Amici Curiae in Support of Appellants’ Petition for Rehearing En Banc
  • 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
  • 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
  • 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 More in Lawsuits