UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) CAMPAIGN LEGAL CENTER, et al., ) ) Plaintiffs, ) ) v. ) Case No. 23-cv-03163 (APM) ) FEDERAL ELECTION COMMISSION, ) ) Defendant. ) _________________________________________ )
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
In August 2019, Plaintiffs Campaign Legal Center (“CLC”) and OpenSecrets petitioned
Defendant Federal Election Commission (“the FEC” or “the Commission”) to initiate rulemaking
for a set of amendments made to the Federal Election and Campaign Act of 1971 (“FECA”) in
2014. For years, the Commission did not decide on rulemaking—one way or the other—in
response to Plaintiffs’ petition. So, in October 2023, Plaintiffs filed this lawsuit, alleging that the
Commission’s delay violates the Administrative Procedure Act (“APA”).
Before the court are Plaintiffs’ Motion for Summary Judgment, ECF No. 20 [hereinafter
Pls.’ Mot.], and Defendant’s Motion for Summary Judgment, ECF No. 22 [hereinafter Def.’s
Mot.]. For the reasons that follow, the court concludes that the Commission’s delay in answering
Plaintiffs’ petition is unreasonable in violation of the APA. The court therefore grants Plaintiffs’
Motion and denies Defendant’s motion. II. BACKGROUND
A. The FEC’s Rulemaking Process
Congress has authorized the FEC to promulgate regulations to administer FECA.
52 U.S.C. §§ 30106(b)(1), 30107(a)(8), 30111(a)(8). Any such rulemaking requires the vote of at
least four of the Commission’s six members. Id. § 30106(a)(1), (c).
While the Commission may propose rules on its own accord, “[a]ny interested person may
file with the Commission a written petition for the issuance, amendment, or repeal of a rule
implementing” FECA. 11 C.F.R § 200.2(a)(1); see 5 U.S.C. § 553(e). When the Commission
receives a petition, it will, if recommended by the Office of General Counsel (“OGC”), “[p]ublish
a Notice of Availability in the Federal Register” seeking public comment. 11 C.F.R. § 200.3(a).
The Commission may later choose to publish a Notice of Inquiry, publish an Advanced Notice of
Proposed Rulemaking, or hold a public hearing to gather additional input. Id. § 200.3(c).
Only after the public comment period closes on the Notice of Availability will the
Commission decide whether it will initiate rulemaking. See id. §§ 200.3(d)–(e), 200.4(a); see also
id. § 200.5 (listing some of the relevant considerations). If the Commission declines to do so, “it
will give notice of this action by publishing a Notice of Disposition in the Federal Register” that
“include[s] a brief statement of the grounds for the Commission’s decision.” Id. § 200.4(b). If the
Commission decides to proceed with rulemaking, then it will issue a Notice of Proposed
Rulemaking (“NPRM”). See 5 U.S.C. § 553(b); Def.’s Reply in Supp. of Def.’s Mot., ECF No. 28
[hereinafter Def.’s Reply], Suppl. Decl. of Nevan Stipanovic, ECF No. 28-1 [hereinafter Suppl.
Stipanovic Decl.], ¶¶ 13, 18–19. From there, the Commission will seek public comment on the
proposed rule with an eye toward promulgating a final rule. See 5 U.S.C. § 553(c); Suppl.
Stipanovic Decl. ¶¶ 20–21.
2 B. Factual Background and Procedural History
In December 2014, Congress amended FECA to create and establish contribution limits
for three new types of “separate, segregated account[s]” for national party committees: one for
presidential nominating convention expenses, one for party headquarter costs, and one for legal
fees. 52 U.S.C. § 30116(a)(1)(B), (a)(2)(B), (a)(9); Consolidated and Further Continuing
Appropriations Act of 2015, Pub. L. No. 113-235, 128 Stat. 2130, 2772 (2014). On February 13,
2015, the Commission published interim guidance for reporting contributions to and spending
from these special-purpose accounts. Def.’s Mot., Decl. of Nevin Stipanovic, ECF No. 22-1
[hereinafter Stipanovic Decl.], ¶ 4. Still, CLC and others wrote comments to the Commission
urging formal regulation. See Pls.’ Mot. at 9 & n.3. The Commission briefly considered doing so
toward the end of 2015 but did not take further action. See J.A., ECF No. 30, at 2 & n.2.
In January 2016, Perkins Coie LLP filed a formal petition for comprehensive rulemaking
on the 2014 FECA amendments. See id. at 26–42. The Commission published a Notice of
Availability nine months later on October 27, 2016. Id. at 64. It received two comments that
supported initiating rulemaking, including one from CLC, and two comments that opposed. Id.
The Commission otherwise never responded to the petition.
Approximately three-and-a-half years after the Perkins Coie petition, on August 5, 2019,
Plaintiffs filed their own petition for rulemaking on the 2014 amendments. See id. at 1–7. Their
request was narrower than Perkins Coie’s, in that Plaintiffs asked only that the Commission codify
reporting requirements for the special-purpose accounts. Compare id., with id. at 26–42. Plaintiffs
highlighted the inconsistencies in how party committees report contributions to and spending from
these accounts, as well as the public’s difficulty in discerning the aggregate amounts of each.
See id. at 2–6. Plaintiffs asked the Commission to consider rules such as “a new schedule to the
3 national parties’ monthly reports,” an “effective ‘cross-indexing system,’” or “guidelines on
uniform terminology for all committees to use.” Id. at 6. The Commission approved a Notice of
Availability at its first open meeting after Plaintiffs submitted their petition, Stipanovic Decl. ¶ 6,
and the notice was published in the Federal Register on August 28, 2019, J.A. at 13–14. The
Commission received six comments before the October 28, 2019 deadline. Stipanovic Decl. ¶ 6;
see also J.A. at 16–49.
Just after the Commission approved the Notice of Availability, it lost its quorum.
Stipanovic Decl. ¶ 7. Its quorum was restored when a new Commissioner was confirmed by the
Senate and sworn in on June 5, 2020. Id. ¶ 8. Shortly thereafter, CLC submitted a comment urging
the newly constituted Commission to act on seven pending regulatory matters, including Plaintiffs’
petition. Id. The Commission’s ability to act, however, lasted less than one month, as another
Commissioner stepped down on July 3, 2020. Id. ¶ 9. The Commission did not have a quorum
again until December 2020. Id.
After a quorum was restored, CLC submitted yet another comment requesting that the
Commission prioritize the same seven rulemakings. Id. At that time, the Commission faced a
backlog of hundreds of pending matters, including enforcement actions, audits, and advisory
opinion requests, some of which were time sensitive. Id. ¶¶ 10–13. And it had to address them
while understaffed. Id. ¶ 11.
Still, from the time the Commission had its quorum restored to the time the parties briefed
the instant motions, the Commission completed 23 rulemakings. Stipanovic Decl. ¶¶ 16–22. Each
rulemaking is resource-intensive and takes hundreds, if not thousands, of hours. Suppl. Stipanovic
Decl. ¶¶ 7–9 (noting rulemakings that have required anywhere from 211.5 staff hours to 4,360
4 hours). The Commission typically spends over 200 hours deciding whether to initiate rulemaking
alone, and the amount of time required increases with the petition’s complexity. Id. ¶¶ 10, 12.
Although it has not yet granted or denied Plaintiffs’ petition, the Commission reports
having spent 587 hours on it. Id. ¶¶ 10, 14. The petition, which the agency views as “potentially
quite complex,” “involves amendments to FECA that have not previously been addressed in a
rulemaking and would thus require OGC to propose an entirely new set of regulations.” Id. ¶ 14.
Further, the petition overlaps with the subject-matter of the Perkins Coie petition, which “may be
a better vehicle for addressing the issues CLC raised but would necessitate a more comprehensive
and thus more complex rulemaking effort.” Id.; see also Def.’s Reply at 16.
On October 10, 2023, over four years after filing their petition, Plaintiffs filed suit,
challenging the Commission’s “unreasonable delay” in resolving the petition. Compl., ECF No.
1, ¶ 1. A few months later, the Commission voted unanimously to reopen both Plaintiffs’ and
Perkins Coie’s petitions for public comment. Suppl. Stipanovic Decl. ¶¶ 23–24; J.A. at 59–70.
The resulting Notice of Inquiry was published in the Federal Register on February 14, 2024. J.A.
at 71–72. The Commission again received six public comments regarding whether to proceed with
rulemaking pursuant to one or both petitions. Stipanovic Decl. ¶ 25; see also J.A. at 73–96.
Since then, the Commission has not decided on rulemaking as to either petition. It has,
however, updated its website to enable users to more easily view, filter, and aggregate special-
purpose account data. See Def.’s Notice of Subsequent Developments, ECF No. 31.
Both parties now move for summary judgment.
III. LEGAL STANDARD
In APA cases, “summary judgment is the mechanism for deciding whether as a matter of
law an agency action is supported by the administrative record and is otherwise consistent with
5 the APA standard of review.” Louisiana v. Salazar, 170 F. Supp. 3d 75, 83 (D.D.C. 2016). But
instead of deciding whether there is a genuine dispute of material fact under Federal Rule of Civil
Procedure 56, the district court “sits as an appellate tribunal,” Am. Biosci., Inc. v. Thompson,
269 F.3d 1077, 1083 (D.C. Cir. 2001), and determines “whether or not as a matter of law the
evidence in the administrative record permitted the agency to make the decision it did,” Sierra
Club v. Maniella, 459 F. Supp. 2d 76, 90 (D.D.C. 2006) (internal quotation marks omitted). Where
a Plaintiff alleges unreasonable delay, the court may also look to evidence outside the
administrative record to perform this “fact intensive inquiry.” See Kusuma Nio v. U.S. Dep’t of
Homeland Sec., 314 F. Supp. 3d 238, 242 (D.D.C. 2018) (internal quotation marks and citation
omitted).
IV. DISCUSSION1
Under the APA, an agency must “proceed to conclude a matter presented to it” within “a
reasonable time.” 5 U.S.C. § 555(b). Claims that an agency has failed to do so are governed by
the so-called TRAC factors. See Telecomms. Rsch. & Action Ctr. v. FCC (TRAC), 750 F.2d 70
(D.C. Cir. 1984). The factors are:
(1) the time agencies take to make decisions must be governed by a “rule of reason,” (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason, (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority, (5) the court should also take into account the nature and extent of the interests prejudiced by delay, and (6) the court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed.’”
1 Plaintiffs argue that they have both informational and organizational standing to challenge the Commission’s inaction. See Pls.’ Mot. at 20–23. The Commission does not contend otherwise. See generally Def.’s Mot. The court has reviewed the grounds on which Plaintiffs assert standing and agrees that they may bring this suit.
6 Id. at 80 (internal citations omitted). The first factor is the most important. See In re Core
Commc’ns, Inc., 531 F.3d 849, 855 (D.C. Cir. 2008). The fourth factor often carries substantial
weight, as well. See Milligan v. Pompeo, 502 F. Supp. 3d 302, 319 (D.D.C. 2020). These two
factors accordingly will drive the court’s analysis.
Beginning with the first factor, the court looks to considerations like “the complexity of
the task at hand, the significance (and permanence) of the outcome, and the resources available to
the agency” to determine whether the Commission’s timeline has been governed by a “rule of
reason.” Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1102 (D.C. Cir.
2003). The other TRAC factors may also inform the court’s conclusion on the first factor.
See Liberty Fund, Inc. v. Chao, 394 F. Supp. 2d 105, 115 (D.D.C. 2005).2
The Commission has not adequately explained the reasonableness of its timeline.
See Cutler v. Hayes, 818 F.2d 879, 898 (D.C. Cir. 1987). Start with “the complexity of the task at
hand.” Mashpee, 336 F.3d at 1102. The Commission only goes as far as stating that Plaintiffs’
petition is “potentially quite complex.” Suppl. Stipanovic Decl. ¶ 14 (emphasis added). That does
not mean that the petition is actually complex. And the Commission’s vague explanation as to
why it might be is unpersuasive. The Commission gestures broadly at the notion that Plaintiffs’
petition “involves amendments to FECA that have not previously been addressed in a rulemaking
and would thus require OGC to propose an entirely new set of regulations.” Id. But that, in and
of itself, does not necessarily make the task complex. Although the Commission is writing on a
blank canvas—which agencies undoubtedly must do from time to time—it does not explain how
this rulemaking would involve the kind of “complex scientific and technical questions” that might
2 The parties agree that the second factor plays no role in the court’s analysis here, as FECA does not provide a “timetable” for the agency to act that could supply the content for the “rule of reason” in this case. TRAC, 750 F.2d at 80; see Pls.’ Mot. at 32; Def.’s Mot. at 34–35.
7 explain a multi-year delay in resolving Plaintiffs’ petition.3 See Ctr. for Sci. in the Pub. Int. v.
FDA, 74 F. Supp. 3d 295, 301 (D.D.C. 2014); accord In re United Mine Workers of Am. Int’l
Union, 190 F.3d 545, 555 (D.C. Cir. 1999); Sierra Club v. Thomas, 828 F.2d 783, 798 (D.C. Cir.
1987). The Commission also references the need to consider how the petition’s subject matter
overlaps with the Perkins Coie petition, which “may be a better vehicle for addressing the issues
CLC raised but would necessitate a more comprehensive and thus more complex rulemaking
effort.” Suppl. Stipanovic Decl. ¶ 14; see also Def.’s Reply at 16. While that may be true, it makes
the Commission’s delay even more substantial, as it received the Perkins Coie petition over three-
and-a-half years before Plaintiffs’. See J.A. at 1, 26. The Commission does not adequately justify
the reasonableness of this delay.
The fourth TRAC factor does not help the Commission, either. This factor instructs the
court to consider “the effect of expediting delayed action on agency activities of a higher or
competing priority.” TRAC, 750 F.2d at 80. The Commission contends that it is “entitled to
deference in how it prioritizes competing matters.” Def.’s Mot. at 39. It maintains that it has
properly spent its limited time and resources on other rulemakings, enforcement actions, and
required tasks that it views as more pressing. See id. at 37–42; Stipanovic Decl. ¶¶ 10–13, 16–22.
To be sure, the court is not in a position to second-guess the Commission’s ordering of its priorities.
See In re Barr Lab’ys, Inc., 930 F.2d 72, 76 (D.C. Cir. 1991). And the court is cognizant of the
Commission’s limited resources. See Mashpee, 336 F.3d at 1101. But the Commission’s other
priorities have not caused the agency to put Plaintiff’s petition entirely on the backburner for the
last several years. The Commission admits to already spending 587 hours on Plaintiffs’ petition—
almost three times the amount it typically spends answering a petition for rulemaking—yet it does
3 Even if the court excludes the time during which the Commission did not have a quorum, see Def.’s Mot. at 36–37, the Commission’s quorum was restored at the end of 2020, Stipanovic Decl. ¶ 9.
8 not explain why that significant commitment of resources has not been sufficient here. See Suppl.
Stipanovic Decl. ¶¶ 10, 14. As already noted, the Commission has not adequately justified its
delay with reference to the petition’s “potential[]” complexity. Id. ¶ 14. Nor has the Commission
spoken to what more it would need to do to resolve to Plaintiffs’ petition. And it has not asserted
that forcing a decision on Plaintiffs’ petition would place them at the head of the queue and simply
move all other rulemaking petitioners back, producing no net gain. See Mashpee, 336 F.3d at
1100. While the court acknowledges that resolving to some rulemaking petitions has taken the
Commission upwards of thousands of hours, the Commission has not explained why Plaintiffs’
petition requires the same. See Suppl. Stipanovic Decl. ¶ 8. The court therefore cannot conclude
on the record before it that competing priorities justify the Commission’s delay, or that requiring
the Commission to act promptly on Plaintiffs’ petition—when it already has expended hundreds
of hours on it—would upend its ability to address other matters moving forward.
The remaining factors do not weigh heavily in favor of either party. Factors three and
five—which focus on the interests at stake in the agency’s action—at most, tilt slightly in
Plaintiffs’ favor. True, “human health and welfare” is not the subject of this rulemaking. TRAC,
750 F.2d at 80. But courts in this District have repeatedly recognized the importance of the
interests that FECA upholds, such as the integrity of the nation’s electoral system. See Common
Cause v. FEC, 692 F. Supp. 1397, 1401 (D.D.C. 1988); Democratic Senatorial Campaign Comm.
v. FEC, No. 95-0349 (JHG), 1996 WL 34301203, at *8 (D.D.C. Apr. 17, 1996); Giffords v. FEC,
No. 19-1192 (EGS), 2021 WL 4805478, at *6 (D.D.C. Oct. 14, 2021). That said, the Commission
cites several facts that it contends “indicate[] that the ‘nature and extent of the interests prejudiced’
by any alleged delay are necessarily circumscribed.” Def.’s Mot. at 44 (quoting TRAC, 750 F.2d
at 80). First, the Commission issued interim guidance for special-account reporting in 2015, which
9 some in the regulated community have stated provides “adequate clarity.” Id. at 44–45 (citing J.A.
at 69, 77, 81, 83). The Commission also points out that the alleged reporting inconsistencies may
be so minor as to avoid impeding comprehensibility and thus that, “on the whole, the disclosure
scheme advances the purposes of FECA.” Id. at 45–46. Finally, the Commission argues that its
new website, which allows users to view, filter, and aggregate special-account data, should
“ameliorate[]” any concerns about public access. Id. at 46–47. While these facts do not diminish
the “nature” of the interests at stake, they appear to limit their “extent,” so the court does not
ascribe substantial weight to factors three and five. See TRAC, 750 F.2d at 80.
Lastly, factor six does not affect the court’s calculus. Plaintiffs do not allege that the
Commission has acted in bad faith. However, the court need not find any impropriety to conclude
that the agency’s action was unreasonably delayed. Id. at 80.
Ultimately, while factors two, three, five, and six make little difference, factors one and
four decidedly weigh in favor of Plaintiffs. Because the balance of the TRAC factors favors
Plaintiffs, the court concludes that the Commission’s delay in answering Plaintiffs’ petition for
rulemaking is unreasonable and thus violates the APA.
V. REMEDY
The court now turns to fashioning the appropriate remedy. Most immediately, Plaintiffs
ask the court to order the Commission to reach a final decision on its petition within 30 days.
Pls.’ Mot., Proposed Order, ECF No. 20-3. This would include requiring the Commission to
produce a draft NPRM within that time if it were to decide to move forward with rulemaking. Id.
The court declines to go so far.
“[C]ourts rarely compel an agency to render an immediate decision on an issue.” Orion
Rsrvs. Ltd. P’ship v. Kempthorne, 516 F. Supp. 2d 8, 11 (D.D.C. 2007). This case illustrates why.
10 The Commission avers that producing a NPRM within 30 days of the court’s order would be
“nearly impossible.” Suppl. Stipanovic Decl. ¶ 16. Drafting a NPRM is an involved process that
requires “mastering” the relevant area of law, “weighing the various interests at stake,” “crafting
a detailed explanation of the Commission’s policy objectives and questions,” and “anticipat[ing]
potentially different directions that the final rule might take.” Id. ¶ 15. The staff attorneys assigned
to the matter must have sufficient time to draft, and then the senior attorneys in OGC, the
Regulations Committee, and the Commission must each have time to review and approve it at their
respective steps of the process. Id. ¶¶ 17–19. Only then can the notice be published in the Federal
Register. Id. ¶ 19. Requiring the FEC to complete all these tasks within 30 days would be unsound.
While the court concludes that the delay up to this point has been unreasonable, “judicial
imposition of an overly hasty timetable” also “would ill serve the public interest.” United
Steelworkers of Am., AFL-CIO-CLC v. Rubber Mfrs. Ass’n, 783 F.2d 1117, 1120 (D.C. Cir. 1986).
The court’s remedy, while requiring prompt action, must not do so at the expense of the agency’s
ability to ensure that any proposed or final rule is “constructed carefully and thoroughly.” Id.
Accordingly, the parties shall meet and confer and file a Joint Status Report proposing a
reasonable schedule for the Commission to provide a final response to Plaintiffs’ petition. Both the
D.C. Circuit and other courts in this District have prescribed similar remedies. See, e.g., In re Pub.
Emps. for Env’t Resp., 957 F.3d 267, 275 (D.C. Cir. 2020); Muwekma Tribe v. Babbitt, 133
F. Supp. 2d 30, 41 (D.D.C. 2000). Afterward, the court will retain jurisdiction to “monitor the
[Commission’s] progress” through regular status reports. In re Pub. Emps., 957 F.3d at 276.
VI. CONCLUSION AND ORDER
For the foregoing reasons, the court grants Plaintiffs’ Motion for Summary Judgment,
ECF No. 20, and denies Defendant’s Motion for Summary Judgment, ECF No. 22. The parties
11 shall file a Joint Status Report by March 2, 2026, which proposes a schedule for the agency to
provide a final response to Plaintiffs’ petition.
Dated: January 30, 2026 Amit P. Mehta United States District Judge