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August 17, 2018

Chair Caroline C. Hunter

Vice Chair Ellen L. Weintraub

Commissioner Matthew S. Petersen

Commissioner Steven T. Walther

Federal Election Commission

1050 First Street, NE

Washington, DC 20002

Re: MUR 6696; Response of Crossroads GPS to Memorandum Opinion of Judge 

Howell in CREW v. FEC and Crossroads GPS

Dear Commissioners,

This response is submitted by the undersigned counsel on behalf of Crossroads GPS in 

response to Judge Howell’s order and memorandum opinion in Citizens for Responsibility and 

Ethics in Washington v. Federal Election Commission and Crossroads Grassroots Policy 

Strategies, Civil Action No. 16-259 (D.D.C. Aug. 3, 2018) (referred to herein as the 

“Memorandum Opinion” or “Judge Howell’s Opinion”). Judge Howell found the Commission’s 

38-year-old regulation at 11 C.F.R. § 109.10(e)(1)(vi) to be invalid and summarily vacated it, 

with vacatur stayed for 45 days in which time the Commission would be required to develop and 

issue interim regulations. Judge Howell also ordered the Commission to reconsider CREW’s

administrative complaint (MUR 6696) within 30 days.1

 

 1 At the outset, we note the extremely aggressive schedule set by Judge Howell’s ruling for complex regulatory and 

administrative actions that directly impinge upon core First Amendment freedoms. If there is one fixed principle in 

the long history of constitutional jurisprudence in this area, it is that the government must carefully and narrowly 

intrude upon the rights of citizens to freely speak and petition their government for grievances. The sharp brevity of 
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Crossroads GPS intends seek a stay from Judge Howell and, if necessary, from the D.C. 

Circuit, prior to appealing Judge Howell’s decision to the D.C. Circuit. However, in the event 

the Commission remains subject to Judge Howell’s remand order in the interim, we submit this 

response regarding the Commission’s reconsideration of MUR 6696 on remand.

As set forth in greater detail below, we urge the Commission to again dismiss CREW’s 

administrative complaint for the following reasons:

1. There is no evidence suggesting that Crossroads GPS solicited or received any 

contributions for the purpose of furthering either “an independent expenditure” or “the reported

independent expenditure.”

2. Crossroads GPS relied in good faith on the plain meaning of 11 C.F.R. § 

109.10(e)(1)(vi) and cannot be subjected to “any sanction” under 52 U.S.C. § 30111(e).

3. Any alleged violation of 52 U.S.C. § 30104(c)(1) should be dismissed as an 

exercise of prosecutorial discretion.

4. The applicable statute of limitations has expired with respect to all events and 

actions at issue.

I. Factual Background

The basic facts of this matter are set forth in Crossroads GPS’s response of January 17, 

2013 (included as Attachment A) and the First General Counsel’s Report (included as 

Attachment B), and are supplemented by filings submitted to Judge Howell. We set forth what 

we believe are the pertinent facts below.

 Judge Howell’s dictated deadlines diminishes the ability of both regulator and the regulated community to ensure 

that that strict constitutional standard is fully met in this instance.
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American Crossroads hosted an event on August 30, 2012, in Tampa, Florida.2

 This 

event was informational in nature, and was not specifically structured as a fundraiser: there was 

no stipulated ticket price, no listed donor “hosts,” and no demand for any specific financial 

commitment.3

 The purpose of the event was to provide an update to various persons interested 

in American Crossroads’ activities.4 As part of this event, the American Crossroads briefers

showed fourteen (14) television advertisements to attendees.5 Two of these advertisements were

independent expenditure advertisements that American Crossroads had already paid for and aired 

earlier in the year.

6

 A third advertisement that was paid for by American Crossroads was also 

shown to attendees. This third advertisement was produced as a “focus group” advertisement 

that was never intended for public distribution, and in fact was not publicly distributed.

7

 The 

 2 The news reports upon which CREW based its Complaint make clear that the event at issue was an American 

Crossroads event. The first paragraph of the BusinessWeek article explains that “Karl Rove took the stage at the 

Tampa Club to provide an exclusive breakfast briefing” and during the event “Rove explained to an audience ... 

how his super PAC, American Crossroads, will persuade undecided voters in crucial swing states to vote against 

Barack Obama. He also detailed plans for Senate and House races....” Sheelah Kolhatkar, Inside Karl Rove’s 

Billionaire Fundraiser, BusinessWeek (Aug. 31, 2012) (emphasis added).

3 See Attachment C, [Proposed] Answer and Affirmative Defense of Intervenor-Defendant Crossroads GPS (April 

26, 2016), ¶ 40.

4 See Attachment A, Response of Crossroads GPS (Jan. 17, 2013), Rove Affidavit ¶ 2; Attachment C, [Proposed] 

Answer and Affirmative Defense of Intervenor-Defendant Crossroads GPS, ¶ 49. 

5 Attachment A, Response of Crossroads GPS (Jan. 17, 2013) at 5-6; Attachment C, [Proposed] Answer and 

Affirmative Defense of Intervenor-Defendant Crossroads GPS, ¶ 47; Memorandum Opinion at 7.

6 Attachment A, Response of Crossroads GPS (Jan. 17, 2013) at 5-6; Attachment C, [Proposed] Answer and 

Affirmative Defense of Intervenor-Defendant Crossroads GPS, ¶ 47. “Behind” was aired in June 2012, and 

expressly advocated the defeat of Tim Kaine. “Smoke” aired in July 2012 and expressly advocated the defeat of 

President Obama.

7 Attachment A, Response of Crossroads GPS (Jan. 17, 2013) at 6; Attachment C, [Proposed] Answer and 

Affirmative Defense of Intervenor-Defendant Crossroads GPS, ¶ 47.
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American Crossroads hosts also showed eleven (11) advertisements that had already been paid 

for and aired by Crossroads GPS.8 

The following advertisements were screened at the August 30 meeting:

1. American Crossroads, “Behind,” aired on or about June 13, 2012. 

(http://www.youtube.com/watch?v=wrEPOIeA3sY) 

(Independent expenditure; expressly advocated defeat of Tim Kaine)

2. Crossroads GPS, “Cost,” aired on or about August 15, 2012.

(http://www.youtube.com/watch?v=q58ADyndS8w)

(Issue advocacy; referenced Tim Kaine)

3. Crossroads GPS, “Cheap,” aired on or about July 3, 2012.

(http://www.youtube.com/watch?v=aIFDqqWhk6Y)

(Issue advocacy; referenced Senator Sherrod Brown)

4. Crossroads GPS, “Get Up,” aired on or about August 23, 2012.

(http://www.youtube.com/watch?v=_lXFzKsuBmM)

(Issue advocacy; referenced Senator Jon Tester)

5. Crossroads GPS, “Suffered,” aired on or about August 23, 2012.

(http://www.youtube.com/watch?v=S2fTu4UHsdI)

(Issue advocacy; referenced Senator Bill Nelson)

6. Crossroads GPS, “Foundation,” aired on or about November 9, 2011.

(http://www.youtube.com/watch?v=tNxez4ddpa0)

(Issue advocacy; referenced Elizabeth Warren)

7. Crossroads GPS, “Investigation,” aired on or about August 3, 2012.

(http://www.youtube.com/watch?v=tWY38AvvU98)

(Independent expenditure; expressly advocated defeat of Rep. Shelley Berkley)

8. Crossroads GPS, “Wake Up,” aired on or about July 7, 2011.

(http://www.youtube.com/watch?v=ESAszBVMnC4)

(Issue advocacy; referenced President Obama)

9. Crossroads GPS, “Typical,” aired on or about December 9, 2011.

(http://www.youtube.com/watch?v=L3UNOsHgbFI)

(Issue advocacy; referenced President Obama)

 8 Attachment A, Response of Crossroads GPS (Jan. 17, 2013) at 5-6; Attachment C, [Proposed] Answer and 

Affirmative Defense of Intervenor-Defendant Crossroads GPS, ¶ 47; Memorandum Opinion at 7.
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10. Crossroads GPS, “Tried,” aired on or about July 12, 2012.

(http://www.youtube.com/watch?v=spu06VOiT8E)

(Issue advocacy; referenced President Obama)

11. Crossroads GPS, “News,” aired on or about July 31, 2012.

(http://www.youtube.com/watch?v=zkWJrf_x2rA)

(Issue advocacy; referenced President Obama)

12. Crossroads GPS, “Stopwatch,” aired on or about June 5, 2012.

(http://www.youtube.com/watch?v=DnwQAUM8D9E)

(Issue advocacy; referenced President Obama)

13. American Crossroads, “Smoke,” aired on or about July 19, 2012.

(http://www.youtube.com/watch?v=s_AHL5K1XeA)

(Independent expenditure; expressly advocated defeat of President Obama)

14. The fourteenth advertisement screened was an advertisement prepared for focus 

group purposes, and which was never intended for public distribution.

Only one of the eleven ads shown that had been aired by Crossroads GPS was classified 

as an independent expenditure because it contained express advocacy. This independent 

expenditure, which was reported to the Commission, was “Investigation,” which aired on or 

about August 3, 2012. 

The other ten Crossroads GPS advertisements that were shown did not qualify as either 

independent expenditures or electioneering communications and therefore were not reported to 

the Commission. Of these ten advertisements:

• Three aired in 2011 (one in July, which referenced Elizabeth Warren, one in November, 

and one in August, both of which referenced President Obama); 

• Three aired in 2012 and referenced President Obama; and 

• Of the remaining four, one referenced Tim Kaine (“Cost”), one referenced Senator 

Sherrod Brown (“Cheap”), one referenced Senator Jon Tester (“Get Up”), and one 

referenced Senator Bill Nelson (“Suffered”).
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Judge Howell’s Opinion asserts that “[e]vent attendees were also solicited for 

contributions to Crossroads GPS, after being shown these advertisements.”9 As noted, all of the 

advertisements shown had already aired (with the exception of the “focus group” advertisement 

that was never intended for airing) during the period July 2011 – July 2012. Despite Judge 

Howell’s clear implication, no funds were solicited for the purpose of paying for any of the 

advertisements shown at the Tampa meeting.10 There is similarly no evidence to support

CREW’s broader contention that meeting “attendees were solicited for contributions ... to 

broadcast advertisements like those the attendees had just watched.”11 At the Tampa meeting, 

attendees were not solicited to help pay for or fund the specific advertisements shown, or even 

substantially similar ads.12 The ad “screening” was not part of any solicitation. The 

advertisements were shown simply to demonstrate the quality and range of the two entities’ 

activities and, perhaps most importantly, to add excitement and entertainment to an otherwise 

fact-laden political briefing.13 

The hosts orally solicited financial support at the event,14 but those oral solicitations 

(made by Mr. Law and Mr. Barbour) were for contributions to support the general work of 

 9 Memorandum Opinion at 8.

10 Attachment A, Response of Crossroads GPS (Jan. 17, 2013) at 5 (“The Complaint wrongly presumes that the 

advertisements that were screened for attendees at the August 30 meeting were advertisements for which Crossroads 

GPS was seeking funding. . . . This is not the case, and CREW’s speculation on this point is simply wrong.”); 

Attachment D, Crossroads GPS Opposition at 16.

11 CREW Motion for Summary Judgment Brief at 20 (emphasis added).

12 Attachment D, Crossroads GPS Opposition at 16.

13 Id. at 16-17.

14 Attachment C, [Proposed] Answer and Affirmative Defense of Intervenor-Defendant Crossroads GPS at ¶ 49.
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American Crossroads.15 CREW’s administrative complaint and filings before Judge Howell 

speculated that Mr. Law and Mr. Barbour used the name “American Crossroads” to refer to both 

American Crossroads and Crossroads GPS, but there is absolutely no evidence to support this 

claim. In fact, both organizations have always gone to considerable lengths to maintain the 

distinctiveness of each organization and its brand, even working to correct erroneous press 

accounts that conflate the two groups. The only solicitation for Crossroads GPS that was made 

at the event was included in the written materials provided to attendees. These materials

included separate donor information sheets for American Crossroads and Crossroads GPS.16 

During the meeting, Karl Rove, an unpaid, informal adviser to American Crossroads and 

Crossroads GPS, recounted a conversation he had with a donor months before, in the spring of 

2012.

17 According to a BusinessWeek reporter who gained access to the meeting by claiming to 

be another attendee’s guest, Mr. Rove said that this donor told him, “I really like Josh Mandel.” 

The donor asked Mr. Rove what his budget in Ohio was, and Mr. Rove told the donor the Ohio 

budget was $6 million. The donor then said to Mr. Rove, “I’ll give ya $3 million, matching 

challenge.”18 In an affidavit submitted with Crossroads GPS’s response to the administrative 

 15 Id. at ¶ 51; see also Attachment A, Response of Crossroads GPS (Jan. 17, 2013) at 10 (“The news articles written 

by Ms. Kolhatkar on which CREW relies indicate that Mr. Law and Mr. Barbour made separate, general 

solicitations of funds for American Crossroads, and not Crossroads GPS. This is entirely consistent with the fact 

that the August 30 meeting was hosted by American Crossroads. . . . Thus, to the extent that CREW’s complaint 

pretends that attendees were orally solicited for contributions to Crossroads GPS, see, e.g., Complaint ‘Count IV,’ 

the evidence does not support that claim.”).

16 Attachment D, Crossroads GPS Opposition at 15.

17 Attachment A, Response of Crossroads GPS (Jan. 17, 2013) at 7-8; Attachment D, Crossroads GPS Opposition at 

17.

18 See Attachment A, Response of Crossroads GPS (Jan. 17, 2013) at 7-8.
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complaint, Mr. Rove stated that his recollection of the conversation with the “matching 

challenge” donor that was recounted as hearsay in BusinessWeek was “substantially accurate.”19

Mr. Rove stated that “the donor indicated that he was a supporter of Josh Mandel, and 

offered to donate funds toward Crossroads GPS’s budget in the State of Ohio.”20 Mr. Rove’s 

conversation with the donor “did not include any discussion of any particular television 

advertisements, or television advertisements in general. There was no discussion of the contents, 

timing, or targeting of any actual or hypothetical television advertisements.”21 Mr. Rove’s 

conversation with this donor did not include:

• “any discussion of specific efforts that would or could be made by Crossroads GPS,”22

• “any discussion of spending the donor’s funds on any specific methods of 

communication,”23 or

• “any discussion of independent expenditures.”24 

During this conversation, “at no time did the donor ask, insist or require that any of the 

pledged funds be spent in any particular manner or on any particular or specific efforts or 

 19 Attachment A, Response of Crossroads GPS (Jan. 17, 2013), Rove Affidavit ¶ 3.

20 Id. at ¶ 5.

21 Id. at ¶ 6.

22 Id. at ¶ 7.

23 Id. at ¶ 8.

24 Id. at ¶ 9.
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projects.”25 As Mr. Rove stated, however, it was his understanding “that the donor intended the 

funds to be used in some manner that would aid the election of Josh Mandel.”26

Mr. Rove stated that approximately $1.3 million was raised in connection with the 

“matching” program he referenced at the Tampa meeting. “These funds were not solicited for a 

particular purpose other than for general use in Ohio.”27 Finally, the “matching challenge” donor 

never made a single contribution of $3 million. “Rather, this donor subsequently contributed a 

larger amount to Crossroads GPS that was not in any way earmarked for any particular use.”28

As the record reflects, after the Tampa meeting Crossroads GPS paid for and reported a 

total of 32 independent expenditure advertisements in connection with U.S. Senate races in 

Montana, Nevada, Ohio, and Virginia. These advertisements were paid for and aired between 

September 11, 2012 and October 31, 2012.

CREW’s Complaint identified “three categories of contributors” that Crossroads GPS 

allegedly failed to disclose on independent expenditure reports.29 According to CREW, 

Crossroads GPS was required to identify the individual with whom Mr. Rove spoke who offered 

the $3 million “matching challenge” for unspecified efforts in support of Josh Mandel.30 CREW 

also alleged that Crossroads GPS was required to disclose any contributors who responded to or 

were part of the “matching challenge.”31 Finally, CREW alleged that Crossroads GPS was 

 25 Id. at ¶ 10.

26 Id. at ¶ 10.

27 Id. at ¶ 13.

28 Id. at ¶ 14.

29 Attachment E, FEC’s Motion for Summary Judgment at 8.

30 Id.

31 Id. at 8-9.
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required to disclose any contributors who contributed to Crossroads GPS after viewing the 

advertisements shown as the Tampa meeting.32

II. Consideration of 52 U.S.C. § 30104(c)(2) Issues on Remand

Judge Howell found that the Office of General Counsel’s recommendation (that was 

approved by three Commissioners) to find no reason to believe that Crossroads GPS violated 11 

C.F.R. § 109.10(e)(1)(vi) and 52 U.S.C. § 30104(c)(2) “relied entirely on the invalid challenged 

regulation” and “this first recommendation is inherently contrary to law.”33 Echoing CREW’s 

complaint, Judge Howell explains: 

Whether 52 U.S.C. § 30104(c)(2)(C) requires disclosure of the identity of any of 

the following donors is an issue to be addressed on remand: (1) the anonymous 

donor who initiated the alleged “matching challenge” and “ended up making a 

donation ‘that was not in any way earmarked for any particular use’—even for use 

in Ohio,” CGPS’s Opp’n at 24 (quoting AR 95 (Rove Aff. ¶ 14)); (2) any 

individuals who gave to “the $1.3 million raised in matching donations [that] ‘were 

not solicited for a particular purpose other than for general use in Ohio’ and were

not ‘for the purposes of aiding the election of Josh Mandel,’” id. (citing AR 95 

(Rove Aff. ¶ 13)); and (3) any of the individuals who gave money after watching 

the advertisements at the Tampa event in 2012, id.34

On remand, the Commission must consider whether Crossroads GPS was required to disclose 

any of these three categories of donors under 52 U.S.C. § 30104(c)(2)(C), as that provision has 

been interpreted by Judge Howell.

Section 30104(c)(2)(C) requires “the identification of each person who made a 

contribution in excess of $200 to the person filing such statement which was made for the 

 32 Id. at 9.

33 Memorandum Opinion at 12-13. 

34 Id. at 104 n.53. 
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purpose of furthering an independent expenditure.” Judge Howell’s Opinion interprets the 

meaning of Section 30104(c)(2) as follows: 

[S]ubsection (c)(2)(C) requires reporting not-political committees to ... identify[] 

each donor who contributed over $200 for the purpose of furthering the entity’s 

independent expenditures “expressly advocating the election or defeat of a clearly 

identified candidate” for federal office. . . . Use of the indefinite article “an” 

before “independent expenditure” indicates a broader coverage than a particular, 

specified independent expenditure and instead means that disclosure must be 

made as to each non-trivial donor contributing to fund “an independent 

expenditure” to a candidate, without regard to the actual reported form of the 

express advocacy funded by the expenditure.35

Judge Howell also cites FEC. v. Mass. Citizens for Life, Inc. (MCFL) as interpreting Section 

30104(c)(2)(C) to require the reporting entity to “identify all persons making contributions over 

$200 who request that the money be used for independent expenditures.”36 

For purposes of this enforcement action, it makes no difference which reporting standard 

applies. Crossroads GPS did not receive any contributions that were made for the purpose of 

furthering either “the reported independent expenditure” under 11 C.F.R. § 109.10(e)(1)(vi), or 

“an independent expenditure” under 52 U.S.C. § 30104(c)(2)(C), as both phrases are interpreted

in Judge Howell’s Opinion. Nothing in the record “demonstrates that any contribution was made 

for the purpose of funding any particular advertisements, advertisements in general, or that the 

donor had any knowledge of any particular Crossroads GPS efforts.”37 Crossroads GPS 

previously noted that “[t]here is no evidence in the Complaint (or anywhere else) that Crossroads 

GPS solicited or received funds for even the general purpose of making independent 

 35 Id. at 59.

36 Id. at 60 citing FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 262 (1986).

37 Attachment A, Response of Crossroads GPS (Jan. 17, 2013) at 13. 
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expenditures.”38 Whether the applicable reporting standard refers to “the reported independent 

expenditure” or “an independent expenditure,” Crossroads GPS was not required to report any 

donors on its independent expenditure reports under Section 30104(c)(2).

Crossroads GPS’s response to the administrative complaint made clear that the “matching 

challenge” donor with whom Mr. Rove spoke was not solicited for the purpose of funding “an 

independent expenditure,” and that donor did not contribute for the purpose of funding “an 

independent expenditure.”39 The evidence shows only that the donor pledged funds to be used 

somehow in connection with the Ohio Senate race.40 The only evidence of the donor’s intention 

is in the donor’s statement, “I really like Josh Mandel,” the donor’s inquiry into the size of the 

Ohio budget, and the donor’s offer to Mr. Rove to put up a “matching challenge” of $3 million.41 

As explained previously, Mr. Rove stated that he understood the donor intended the pledged 

funds to be used generally in some manner that would benefit Josh Mandel.42 

There was no discussion of any particular television advertisements, television 

advertisements in general, or the contents, timing, or targeting of any existing, planned, or 

hypothetical advertisements.43 Not only was there no specific discussion of independent 

expenditures, there was no discussion at all of spending the donor’s funds on any particular 

method of communication.

44 The donor did not ask, insist, or require that any of the pledged 

 38 Id. at 14. 

39 Id. at 7-8, 13, 14.

40 Id. at 16.

41 Id. at 7-8.

42 Id.

43 Id. at 7-8.

44 Id. at 8.
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funds be spent in any particular manner or on any specific efforts or projects.45 Thus, there is no 

evidence indicating that the donor either offered or contributed these funds “for the purpose of 

furthering an independent expenditure.” 

Moreover, as previously noted, the donor ultimately did not make a single contribution of 

$3 million. Instead, the donor contributed a larger amount to Crossroads GPS, over time, that 

was not in any way earmarked for any particular purpose.46 Even if it is assumed solely for the 

sake of argument that the $3 million pledged earlier was subsumed within the larger donation 

made, and the previous statements evidencing the donor’s intent still applied, Crossroads GPS 

remained free to spend that money in any way it wished so long as it somehow benefited the 

election of Josh Mandel. This general, unspecified purpose could have been served in countless 

ways other than funding “an independent expenditure.”

The “matching program” generated approximately $1.3 million in contributions.47 There 

is no information whatsoever in the Complaint about these donors, when they gave, or what their 

intentions were.48 Mr. Rove’s sworn statement regarding these donors and the contributions they 

provided is clear: “[t]hese funds were not solicited for a particular purpose other than for general 

use in Ohio.”49 

Finally, there is no evidence provided by CREW regarding any persons who may have 

contributed following the Tampa event. It is pure speculation on CREW’s part that any person 

 45 Id.

46 Id.

47 Id.

48 Id. at 17-18.

49 Id. at 8.
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contributed funds to Crossroads GPS after watching the advertisements that were shown at the 

Tampa event, or in response to these advertisements. As noted previously, these advertisements 

were shown for the purposes of demonstration and entertainment and were not a part of any 

specific solicitation. There is no evidence to suggest that any donor to Crossroads GPS who 

contributed following the Tampa event referred to the screened advertisements or otherwise 

earmarked the contribution for any particular purpose in the course of contributing funds. 

For the reasons set forth above, the Commission should find no reason to believe that 

Crossroads GPS violated the reporting requirements set forth at Section 30104(c)(2)(C), as those 

requirements are interpreted and explained in Judge Howell’s Opinion.

As an alternative basis for dismissing the allegation that Crossroads GPS violated Section 

30104(c)(2), the Commission should also find that, regardless of the requirements of Section 

30104(c)(2)(C), Crossroads GPS cannot be subject to “any sanction provided by this Act” 

pursuant to 52 U.S.C. § 30111(e). As discussed in more detail below, Section 30111(e) provides 

that Crossroads GPS was entitled to rely in good faith on 11 C.F.R. § 109.10(e)(1)(vi) – even if 

that regulation is subsequently found to be invalid.

III. Consideration of 52 U.S.C. § 30104(c)(1) Issues on Remand

Judge Howell determined that 52 U.S.C. § 30104(c)(1) imposes a separate and distinct 

reporting obligation on persons who file independent expenditure reports pursuant to Section 

30104. Ever since the Commission adopted regulations implementing Section 30104 in 1980, 

the agency has never before taken the expansive view expressed by Judge Howell, nor have there 

ever been regulations implementing the disclosure requirement imposed by Judge Howell’s 
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Opinion.

50 From the perspective of the regulated community, Judge Howell’s Opinion demands

the enforcement of a new regulatory regime that has not previously existed. 

CREW’s administrative Complaint referenced Section 30104(c)(1) briefly in Paragraph 

14 of its “Legal Framework,” but made no further allegations regarding how that provision might 

apply to the facts alleged in the Complaint. Crossroads GPS did not address the issue of liability 

under Section 30104(c)(1) in any detail in its Response because the “complaint did not allege 

that any respondent had failed to disclose information pursuant to 52 U.S.C. § 30104(c)(1).”51 

The First General Counsel’s Report addressed Section 30104(c)(1) briefly, noting that the issue 

was raised in a separate matter that is redacted (and, to the best of our knowledge, still not 

public). The General Counsel wrote, 

[A]s we have explained, Section 434(c)(1) of the Act may impose additional 

reporting obligations for certain contributions made for the purpose of influencing 

a federal election generally. The Commission’s regulation at 11 C.F.R. § 

109.10(e) is silent concerning any such additional reporting requirement.

52 

This assessment is not accurate, and on remand, we strongly encourage the Commission to 

disavow and correct this misstatement of law that subsequently undermined the Commission’s 

position in litigation. The 1980 Explanation and Justification accompanying what is now 11 

C.F.R. § 109.10(e)(1)(vi) made clear that “[t]his section has been amended to incorporate the 

changes set forth at 2 USC 434(c)(1) and (2) [now 52 U.S.C. §§ 30104(c)(1) and (2)] regarding 

reporting requirements for persons, other than a political committee, who make independent 

 50 Attachment G, FEC’s Reply at 39 (“the Commission itself has never taken the position that subsection 

30104(c)(1) is a stand-alone reporting requirement”).

51 Attachment D, Crossroads GPS Motion for Summary Judgment at 20.

52 Attachment B, MUR 6696, First General Counsel’s Report at 12-13 (emphasis added). 
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expenditures.”53 Thus, the regulation is not “silent” on the matter, and it does not ignore Section 

30104(c)(1). Instead, the regulation reflects the Commission’s long-established, affirmative 

determination that Section 30104(c)(1) does not impose a separate and distinct reporting 

requirement. To the best of our knowledge, the Commission has never otherwise addressed this 

specific issue, and the regulated community has abided by the Commission’s long-settled 

standard for 38 years. 

After mischaracterizing the applicable law and the Commission’s understanding of that 

law, the General Counsel explained that “a Respondent could raise equitable concerns about 

whether a filer has fair notice of the requisite level of disclosure required by law if the 

Commission attempted to impose liability under Section [30104](c)(1).”54 While “fair notice” 

and “equitable concerns” support the Commission’s exercise of prosecutorial discretion, it is 

important to make clear that it is not the regulation’s “silence” on the matter that raises these

considerations. Rather, “fair notice” and other “equitable concerns” are raised by the longestablished understanding that the regulation affirms that no separate and distinct reporting 

obligation exists. 

Three Commissioners (the controlling bloc) voted to approve the General Counsel’s 

recommendation to dismiss the allegation that Crossroads GPS violated 2 U.S.C. § 434(c)(1) 

[now 52 U.S.C. § 30104(c)(1)] “as a prudential matter in the exercise of its prosecutorial 

discretion.”55 On the question of whether the Commission adequately explained its reasons for 

not pursuing a Respondent for liability in connection with a reporting obligation that the 

 53 Amendments to Federal Election Campaign Act; Regulations Transmitted to Congress, 45 Fed. Reg. 15,080, 

15,087 (March 7, 1980).

54 Attachment B, MUR 6696, First General Counsel’s Report at 13.

55 Id.
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Commission declared in 1980 did not exist and then never addressed again, Judge Howell 

concludes that it is a “close call” and the question should be remanded “for the FEC to consider 

... in the first instance.”56 Judge Howell directed the Commission to reconsider, on remand, the 

following arguments that have been made in support of the Commission’s decision to dismiss: 

(1) the reliance protection afforded by Section 30111(e); (2) equitable concerns stemming from a 

lack of fair notice; and (3) the degree of deference due where the agency exercises prosecutorial 

discretion.57 

On remand, the Commission should again dismiss any alleged violation of 52 U.S.C. § 

30104(c)(1) as an exercise of prosecutorial discretion under Heckler v. Chaney, for the following 

reasons:

1. Crossroads GPS relied upon a decades-old, duly-promulgated regulation in a 

manner consistent with the universal understanding of what that regulation required, and 

therefore cannot be subjected to “any sanction” under Section 30111(e);

2. Application of Section 30104(c)(1) to Crossroads GPS in the suggested manner 

would violate Crossroads GPS’s due process rights and constitutional right to fair notice; and

3. The applicable statute of limitations has expired with respect to all events at issue 

in this matter.

Dismissal on the basis of prosecutorial discretion, for the reasons set herein, would not be 

subject to judicial review under CREW v. FEC, 892 F.3d 434 (D.C. Cir. 2018).

 56 Memorandum Opinion at 106.

57 See id. at 105.
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A. Regardless of the Commission’s Conclusions on Remand, 52 U.S.C. 

§ 30111(e) Precludes the Commission from Imposing “Any Sanction” 

Against Crossroads GPS

Regardless of the ultimate validity of 11 C.F.R. § 109.10(e)(1)(vi), Crossroads GPS was 

entitled to conduct its affairs in good faith reliance on that regulation. As a result, Crossroads 

GPS cannot be subject to “any sanction provided by this Act” in connection with this 

enforcement matter.58 For purposes of the statute, the “good faith” of an actor is established by 

the actor’s efforts to conform his or her activities with the Commission’s regulation. Thus, 

regardless of the Commission’s conclusions with respect to whether there is “reason to believe” a 

violation would have occurred under either statutory provision as interpreted by Judge Howell, 

no penalties of any nature may be imposed on Crossroads GPS and the matter must be closed.

Crossroads GPS’s reliance on 11 C.F.R. § 109.10(e)(1)59 – and specifically, its wellfounded understanding that that provision set forth the full extent of the applicable reporting 

requirements – was altogether reasonable and justified in light of the regulation’s long history. 

Commission regulations and reporting guidance have never mentioned a separate reporting 

requirement or a separate contributor reporting schedule for non-committee independent 

expenditure filers. Neither Crossroads GPS nor any other similarly situated organization had any 

reason whatsoever to wonder if it should be filing a separate report under Section 30104(c)(1). 

52 U.S.C. § 30111(e) provides:

Notwithstanding any other provision of law, any person who relies upon any rule 

or regulation prescribed by the Commission in accordance with the provisions of 

this section and who acts in good faith in accordance with such rule or regulation 

 58 See 52 U.S.C. § 30111(e).

59 Crossroads GPS is entitled to rely on 11 C.F.R. § 109.10(e)(1) as the applicable regulatory standard that 

implemented the requirements imposed by both Sections 30104(c)(1) and (c)(2), given that the Commission’s 

regulation has always been understood to implement the requirements of both sections. 
Page 19 of 41

shall not, as a result of such act, be subject to any sanction provided by this Act or 

by chapter 95 or chapter 96 of Title 26.

The legislative history of 52 U.S.C. § 30111(e) makes absolutely clear that the 

intent of this provision is to shield from legal liability persons who rely in good faith 

upon this agency’s duly-promulgated regulations:

The Committee added a new provision which specifically allows persons 

to rely upon a regulation prescribed by the Commission in accordance 

with the requirements of this section. A person who relies upon such 

regulations in good faith will not be subject to subsequent enforcement 

action.60 

Crossroads GPS’s “good faith” is objectively demonstrated by its compliance with the 

regulation at issue.61 Furthermore, Crossroads GPS complied with that regulation as it 

was universally understood.62 The Office of General Counsel and three Commissioners 

agreed that Crossroads GPS complied with the regulation. The two Commissioners who

explained their dissent contended that Crossroads GPS should be regulated as a political 

committee and did not suggest that Crossroads GPS at any point failed to properly 

comply with 11 C.F.R. § 109.10(e)(1)(vi).63 There is no credible argument to be made, 

nor did the Commission previously determine, that Crossroads GPS failed to rely on and 

comply with 11 C.F.R. § 109.10(e)(1)(vi) in good faith.

The Supreme Court has recognized the significance of Section 30111(e). In 1990, 

the Court referred to Section 30111(e) as an example of “legislative relief” designed to 

 60 Legislative History of Federal Election Campaign Act Amendments of 1979 at 208 (H.R. Rep. No. 96-422, at 24 

(1979)). 

61 See Attachment F, Crossroads GPS Reply at 6.

62 See id.

63 See MUR 6696, Statement of Reasons of Commissioners Ann M. Ravel and Ellen L. Weintraub.
Page 20 of 41

protect against “significant detrimental reliance on the erroneous advice of Government 

agents.” In full, the Court wrote:

In numerous other contexts where Congress has been concerned at the possibility 

of significant detrimental reliance on the erroneous advice of Government agents, 

it has provided appropriate legislative relief. See, e. g., Federal Election 

Campaign Act of 1971, 2 U.S.C. §§ 437f and 438(e); Federal Trade 

Commission Act, 15 U.S.C. § 57b-4; Securities Act of 1933, 15 U.S.C. § 77s(a); 

Truth in Lending Act, 15 U.S.C. § 1640(f); Portal-to-Portal Act of 1947, 29 

U.S.C. § 259; Employee Retirement Income Security Act of 1974, 29 U.S.C. § 

1028; Technical and Miscellaneous Revenue Act of 1988, Pub. L. 100-647, § 

8018, 102 Stat. 3794.64

The D.C. Circuit subsequently explained that Section 30111(e) permits the public to 

“undertake any conduct permitted by the challenged regulations without fear of penalty, even if 

that conduct violates campaign statutes.”65 Furthermore, “[b]y removing certain conduct from 

any risk of enforcement, the challenged safe harbors establish ‘legal rights’ to engage in that 

conduct.”66 Thus, Section 30111(e) precludes the Commission from imposing the full range of 

FECA-authorized sanctions that CREW seeks, including any so-called “equitable remedies” 

requiring Crossroads GPS to retroactively file amended independent expenditure reports.

Instances of Commission application of Section 30111(e) are rare. In MUR 2601 

(League of Women Voters Education Fund), the Complainant was excluded from a Presidential 

debate sponsored by the Respondent. The Respondent relied on a Commission regulation that 

established selection criteria requirements for non-partisan debate sponsors. The Complainant 

urged the Commission to reinterpret its debate rules. The Commission approved the 

 64 Office of Pers. Management v. Richmond, 496 U.S. 414, 428-429 (1990) (emphasis added).

65 Shays v. FEC (“Shays I”), 414 F.3d 76, 84 (D.C. Cir. 2005) (emphasis added). 

66 Id. at 95; see also FEC v. O’Donnell, 209 F. Supp. 3d 727, 743 n.12 (D. Del. 2016) (“FECA’s ‘safe harbor’ 

provision, 52 U.S.C. § 30111(e), insulates from liability a person acting in good faith reliance on ‘any rule or 

regulation prescribed by the Commission.’”); Shays v. FEC, 424 F. Supp. 2d 100, 115 (D.D.C. 2006) (“FECA 

provides a defense to ‘any person’ who relies in ‘good faith’ on FEC rules. 2 U.S.C. § 438(e).”).
Page 21 of 41

recommendations in the First General Counsel’s Report which determined that the Respondent’s 

debates and selection criteria were consistent with “the Commission’s regulations as interpreted 

by the Explanation and Justification.”67 The General Counsel also explained that under 2 U.S.C. 

§ 438(e) [now 52 U.S.C. § 30111(e)], “the fact that the League relied upon this regulation in 

formulating its procedures for selecting candidates to be invited to League-sponsored debates 

would prevent the Commission from pursuing an enforcement action with regard to the 

application of Section 110.13.”68

Judge Howell notes that the Commission argued in litigation that the safe harbor 

provision was “based on the same rationale” as the “equitable concerns” referenced in the First 

General Counsel’s Report.69 She acknowledges “[t]hat the safe harbor ‘affords a defense,’” but

asserts this “does not mean this provision operates as the absolute bar urged by defendants.”70 

Judge Howell then asserts that several “potential forms of notice” were available which could, in 

her view, serve to undermine a “fair notice” claim.71 (CREW’s briefings raised the same issues, 

but contended that these forms of notice demonstrate, as a factual matter, that Crossroads GPS 

did not act in “good faith.”72) To the extent that either CREW or Judge Howell reads a “fair 

notice” exception into Section 30111(e), or conflates the separate issues of “fair notice” and 

“good faith,” we maintain that this is an incorrect and unprecedented reading of the statute. 

 67 MUR 2601 (League of Women Voters Education Fund), First General Counsel’s Report at 7. 

68 Id.

69 Memorandum Opinion at 106. 

70 Id.

71 Id.

72 See CREW Opposition Brief (Dec. 4, 2017) at 37-38.
Page 22 of 41

Section 30111(e) does not contain a “fair notice” exception on its face, “good faith” and “fair 

notice” are not synonymous, and we are unaware of any precedent that holds otherwise. The 

question of whether “fair notice” existed is simply not relevant to the Section 30111(e) safe 

harbor. “Fair notice” considerations are relevant only to the broader, constitutional due process 

considerations that apply as a general matter within the administrative law regime.

While Section 30111(e) is unquestionably premised upon “equitable concerns,” and may 

very well reflect traditional concepts of due process, it does not follow that Section 30111(e) 

contains the various exceptions that have been recognized in the much broader general context of 

the constitutional right to fair notice. Section 30111(e) is a specific statutory protection written 

in clear and absolute terms, the Supreme Court has recognized that it protects persons who rely 

on “erroneous advice of Government agents,”73 and the D.C. Circuit’s description of the 

provision in Shays I makes clear that the public may “undertake any conduct permitted by the 

challenged regulations without fear of penalty, even if that conduct violates campaign 

statutes.”74 Thus, both the Supreme Court and the D.C. Circuit have held that reliance on a 

Commission regulation is protected even if that regulation is contrary to “campaign statutes.” As 

a result, even if Crossroads GPS had “fair notice” that the Commission’s adoption and decadeslong implementation of 11 C.F.R. § 109.10(e)(1) were somehow invalid or improper, it would be 

irrelevant for purposes of Section 30111(e). Here, Crossroads GPS had an absolute statutory 

right to rely on 11 C.F.R. § 109.10(e)(1) in good faith, and the Commission is prohibited from 

imposing “any sanction” against Crossroads GPS for doing so.

 73 Richmond, 496 U.S. at 428-429.

74 Shays I, 414 F.3d at 84. 
Page 23 of 41

B. Equitable Concerns, Fair Notice, and Due Process

For purposes of traditional due process and the constitutional right to fair notice, 

Crossroads GPS was also entitled to rely on 11 C.F.R. § 109.10(e)(1). The “fair notice” 

requirement applies in the “civil administrative context.”75 As the D.C. Circuit explained, 

“[t]raditional concepts of due process incorporated into administrative law preclude an agency 

from penalizing a private party for violating a rule without first providing adequate notice of the 

substance of the rule.”76 “We thus ask whether ‘by reviewing the regulations and other public 

statements issued by the agency, a regulated party acting in good faith would be able to identify, 

with ascertainable certainty, the standards with which the agency expects parties to 

conform....’”77

In the present matter, “the standards with which the agency expect[ed] parties to 

conform” were set forth at 11 C.F.R. § 109.10(e)(1), which clearly detailed the disclosures 

required of non-political committees that made independent expenditures. No argument has 

been made that Crossroads GPS misread or misinterpreted 11 C.F.R. § 109.10(e)(1) and failed to 

comply with its terms. To the contrary, the meaning of 11 C.F.R. § 109.10(e)(1) was understood 

by all, and Crossroads GPS disclosed what the regulation required. The Office of General 

Counsel and three Commissioners agreed in 2014 that there was no reason to be believe that 

Crossroads GPS had violated 11 C.F.R. § 109.10(e)(1). Judge Howell’s Opinion, if it is upheld, 

would have the effect of dramatically changing the disclosure requirements that apply to non-

 75 General Elec. Co. v. EPA, 53 F.3d 1324, 1329 (D.C. Cir. 1995).

76 Affum v. U.S., 566 F.3d 1150, 1163 (D.C. Cir. 2009) (quoting PMD Produce Brokerage Corp. v. USDA, 234 F.3d 

48, 52 (D.C. Cir. 2000). 

77 Trinity Broad. of Fla., Inc. v. FCC, 211 F.3d 618, 628 (D.C. Cir. 2000) (quoting General Electric Co. v. EPA, 53 

F.3d at 1329).
Page 24 of 41

political committees that may make independent expenditures. It goes without saying that 

Crossroads GPS would have had no notice of such a dramatic ex post facto change in the law 

prior to August 3, 2018.

There is ample precedent supporting the principle that where a party relies on an agency’s 

regulation and “a court [subsequently] determines that the regulation is invalid,” the judicial 

decision requires “nonretroactive application” where the decision “will work an injustice or 

hardship” or “establish[es] a new principle of law, either by overruling clear past precedent . . . 

or by deciding an issue of first impression whose resolution was not clearly foreshadowed.”78 

More generally, “prior notice is required where a private party justifiably relies upon an agency’s 

past practice and is substantially affected by a change in that practice.”79 Moreover, this 

principle applies with special force where the relevant conduct is core First Amendment free 

speech and association. To avoid chilling such highly protected activity, the law must provide 

clear advance notice before burdens may be imposed.80 

There is no dispute that the regulation in question has been in effect and consistently 

applied for 38 years. Neither CREW nor Judge Howell’s Opinion identifies any instance or

precedent where the Commission interpreted or applied the regulation in a manner that reflects 

Judge Howell’s construction. The Commission’s reporting instructions and guidance – which 

 78 Teich v. FDA, 751 F. Supp. 243, 249 (D.C. Cir. 1990) (quoting Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 

349, 355 (1971)) (emphasis added).

79 Nat’l Conservative Pol. Action Comm. v. FEC, 626 F.2d 953, 959 (D.C. Cir. 1980). 

80 Marks v. U.S., 430 U.S. 188, 196 (1977) (“We have taken special care to insist on fair warning when a statute 

regulates expression and implicates First Amendment values.”); Buckley v. Valeo, 424 U.S. 1, 77 (1976) (“Due 

process requires that a criminal statute provide adequate notice to a person of ordinary intelligence that his 

contemplated conduct is illegal, for ‘no man shall be held criminally responsible for conduct which he could not 

reasonably understand to be proscribed.’ ... Where First Amendment rights are involved, an even ‘greater degree of 

specificity’ is required.”).
Page 25 of 41

are legally significant in this context – have consistently described independent expenditure

reports as only requiring identification of contributions “made for the purpose of furthering the 

independent expenditures” being reported,81 or contributions made “for the purpose of making 

the independent expenditures” being reported.

82

Even CREW has conceded the limited scope and dispositive effect of the Commission’s 

regulation. In 2015, well after it filed the administrative complaint that initiated this matter, 

CREW filed public comments with the Commission that observed that “under the Commission’s 

regulations, the identity of a contributor who gives to the organization for the broad purpose of 

influencing a federal election, or even the specific purpose of making independent expenditures, 

need not be disclosed.”83 CREW also acknowledged that the Commission’s existing reporting 

regulation implemented “both contributor disclosure provisions of the statute.”84 

In sum, the applicable reporting requirements were universally understood to be set forth 

in 11 C.F.R. § 109.10(e)(1), and there was similarly no dispute as to the meaning and scope of 

that regulation. Nevertheless, Judge Howell’s Opinion identifies four “potential forms of notice” 

which she believes may undercut any possible “equitable concerns” that could be raised by 

 81 See Federal Election Commission, Instructions for Preparing FEC Form 5, available at

https://transition.fec.gov/pdf/forms/fecfrm5i.pdf. 

82 Federal Election Commission, Campaign Guide for Corporations and Labor Organizations (Jan. 2007) at 36, 

available at https://transition.fec.gov/pdf/colagui.pdf. The Commission guide provides Crossroads GPS with yet an 

additional protection against any sanctions. Under the Small Business Regulatory Enforcement Fairness Act of 

1996, 5 U.S.C. § 601 note, reliance by a “small entity” on an agency’s designated “small entity compliance guide” 

“may be considered as evidence of the reasonableness or appropriateness of any proposed fines, penalties, or 

damages.” The FEC has designated its guide as a “small entity compliance guide.” See Campaign Guide for 

Corporations and Labor Organizations at ii. As a non-profit entity, Crossroads GPS meets the definition of a 

“small entity.” 5 U.S.C. § 601(6), (4).

83 CREW, Comments in Response to Advance Notice of Proposed Rulemaking on Earmarking, Affiliation, Joint 

Fundraising, Disclosure, and Other Issues (Jan. 15, 2015) at 3-4, available at

http://sers.fec.gov/fosers/showpdf.htm?docid=312990.

84 See id. at 2-5. 
Page 26 of 41

applying a new, different, and previously unrecognized disclosure requirement to Crossroads 

GPS in this matter. Judge Howell suggests that “both the FECA and MCFL [are] potential forms 

of ‘notice,’” along with the “multiple RFAIs received by Crossroads GPS about deficient 

reporting.”85 In addition, according to Judge Howell’s Opinion, “the inadequacies of the 

challenged regulation identified through then-Congressman Van Hollen’s rulemaking petition in 

2011” may also have served as notice.86 Judge Howell faults the Office of General Counsel for 

“ma[king] no attempt to connect these observations to any concerns about a lack of fair 

notice.”87 

As explained below, none of the “potential forms of notice” identified by Judge Howell 

render Crossroads GPS’s reliance on the Commission’s regulation in any way “unreasonable.” 

In this matter, the traditional concepts of fair notice and due process support the nonretroactive 

application of any new requirements. 

1. Federal Election Campaign Act

Crossroads GPS reported its independent expenditure activity in accordance with the 

Commission’s 1980 regulation, which the Commission stated at the time “incorporate[d] the 

changes set forth at 2 USC 434(c)(1) and (2) regarding reporting requirements for persons, other 

than a political committee, who make independent expenditures.”88 Thus, the agency tasked 

with administering and implementing the Act adopted a regulation that, the Commission 

explained, specifically addressed the reporting requirements of Section (c)(1). Crossroads GPS 

 85 Memorandum Opinion at 107.

86 Id.

87 Id.

88 Amendments to Federal Election Campaign Act; Regulations Transmitted to Congress, 45 Fed. Reg. 15,080, 

15,087 (March 7, 1980).
Page 27 of 41

filed its reports accordingly. We are aware of no doctrine that requires a person subject to the 

Act to second-guess the Commission’s regulations and file reports that the Commission itself

says are not required. In fact, the Act itself, at 52 U.S.C. § 30111(e), provides that this cannot be

required. 

2. Massachusetts Citizens For Life

CREW argued, and Judge Howell now suggests, that the Supreme Court’s decision in 

MCFL provided “‘fair notice’ of the requisite donor disclosures to be made by a reporting notpolitical committee.”89 Following the Supreme Court’s MCFL decision, the Commission held 

hearings in 1988 on how to implement the decision, and ultimately adopted new regulations in 

1995. To the best of our knowledge, however, the reporting matters addressed in Judge Howell’s 

Opinion were never raised or addressed during that period.

90 This is not surprising, however, 

because most incorporated nonprofit organizations were prohibited from making independent 

expenditures until 2010, meaning that relatively few filed independent expenditure reports. As 

the Commission’s rulemaking reflects, the significance of MCFL at the time was its treatment of 

express advocacy and the recognition that a narrow class of “qualified nonprofit corporations” 

were exempted from certain corporate political spending prohibitions.

The year after MCFL was decided, the Ninth Circuit explained the disclosure requirement 

at issue here as follows: “Section 434(c)(1) requires that any person making an ‘independent 

expenditure’ greater than $250 file a statement with the FEC. The contents of the statement are 

specified in 434(c)(2) . . . .”91 This language plainly supports the Commission’s construction of 

 89 Memorandum Opinion at 107.

90 See Final Rule on Express Advocacy; Independent Expenditures; Corporate and Organization Expenditures, 60 

Fed. Reg. 35,292, 35,296 (July 6, 1995).

91 FEC v. Furgatch, 807 F.2d 857, 859 n.2 (9th Cir. 1987). 
Page 28 of 41

the statute, and is binding on the Commission, but Judge Howell dismisses it because it “appears 

only in a footnote,” and “the Furgatch Court seems unaware of the Supreme Court decision.” 

There is, of course, no rule of judicial interpretation that judicial language which appears in a 

footnote is of less significance or may be disregarded, and one hopes the Ninth Circuit can be 

safely presumed to be aware of Supreme Court precedent. While not binding on Judge Howell

within the D.C. Circuit, Furgatch is binding on the Commission. 

The Furgatch decision is not easily dismissed. Furgatch was decided subsequent to 

MCFL. Whether consistent with MCFL or not, Furgatch was not overturned by the Supreme 

Court, which denied a petition for writ of certiorari.

92 In fact, Furgatch has become a key 

precedent in federal campaign finance law and is the source of both 11 C.F.R. § 100.22(b) and 

Chief Justice Roberts’ “functional equivalent” standard in Wisconsin Right to Life. Judge 

Howell’s point of view that it is deficient appears to be an outlier view. Where a Circuit Court of 

Appeals decision seemingly upholds the Commission’s construction of a statute, that decision 

strongly supports the regulated community’s reliance on the Commission’s construction.

For decades after MCFL and Furgatch were decided, the law on independent expenditure 

reporting did not change. In 2010, during the SpeechNow litigation (referred to as Keating v. 

FEC before the Supreme Court), the Commission represented to the Supreme Court: 

In MCFL, the Court struck down political-committee reporting and registration 

requirements for certain issue-oriented organizations that only “occasionally make 

independent expenditures,” i.e., those “whose major purpose is not campaign 

advocacy.” 479 U.S. at 252- 253, 263. Such groups need only identify each 

person who contributed more than $200 “for the purpose of furthering an 

independent expenditure.” 2 U.S.C. 434(c)(2)(A)-(C); see p. 3, supra. The 

Court explained, however, that if MCFL’s independent campaign spending 

became its major purpose, MCFL would have to abide by the rules applicable to 

entities whose “primary objective is to influence political campaigns,” that is, 

 92 See Furgatch v. FEC, 1987 U.S. LEXIS 3982 (Oct. 5, 1987).
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political committees. 479 U.S. at 262. Those rules include the organizing, 

reporting, and administrative obligations that petitioners challenge here.93

Regardless of the language used by the Supreme Court in MCFL to describe a provision 

that was not the subject of the litigation,94 it is clear that the Commission never recognized the

significance that CREW and Judge Howell now afford the decision. It does not appear that the 

points raised by CREW and Judge Howell regarding MCFL were ever even debated until now. 

3. Reports Analysis Division Requests For Additional Information

The requests for additional information (RFAI) received by Crossroads GPS that are 

referenced in CREW’s administrative complaint did not provide Crossroads GPS with “fair 

notice” that the Commission’s regulation was invalid. RFAIs are form notices produced by 

Reports Analysis Division (RAD) analysts and do not represent legal determinations, let alone 

formal notices of new regulatory or enforcement policies. The Commission’s website explains: 

“An RFAI is your opportunity to correct or explain report information for the public record. You 

receive an RFAI when an FEC Campaign Finance Analyst needs additional clarification or 

identifies an error, omission or possible prohibited activity.”95 

For several years now, non-political committees that file independent expenditure reports

without disclosing donors have routinely received letters similar to those received by Crossroads 

GPS. Crossroads GPS has objected in the past that these form letters misstate the applicable law. 

 93 Respondent’s Opp. Br., Keating v. FEC, No. 10-145, at 17-18 (Sept. 27, 2010) (emphasis added), 

https://transition.fec.gov/law/litigation/sn_sc_fec_brief_in_opposition.pdf. 

94 See Attachment G, FEC’s Reply at 26-28 (“MCFL was not about disclosure. . . . Neither the FEC’s initial brief in 

that case nor any of the four amicus briefs even mentioned the provision at issue in this case. . . . Unsurprisingly, the 

MCFL Court’s opinion likewise did not focus on the independent expenditure reporting provision. . . . Plaintiffs now 

rely on those few sentences to argue that subsection 30104(c)(2)(C) is unambiguous (and that subsection (c)(1) is a 

standalone reporting requirement . . . . But in fact those issues were peripheral to the decision in MCFL, were not 

contested by the parties there, and do not appear to have made a significant difference in the case’s outcome.”)

95 Federal Election Commission, Request for Additional Information (RFAI) (visited Aug. 14, 2018), 

https://www.fec.gov/help-candidates-and-committees/request-additional-information/. 
Page 30 of 41

We have no information regarding how the text used in these RFAIs was generated or approved. 

According to the RFAI received by Crossroads GPS dated June 14, 2011, “Commission 

regulations require that you disclose identification information for each individual who made a 

donation used to fund the independent expenditure.” The letter cites to 11 C.F.R. §§ 

109.10(e)(1)(vi) and 114.10(f). A second RFAI dated October 25, 2012, asserts that “[e]ach 

contributor who made a donation in excess of $200 used to fund the independent expenditure(s) 

must be itemized on Schedule 5-A.” The April 9, 2013 RFAI stated that “[e]ach contributor who 

made a donation in excess of $200 to further the independent expenditures must be itemized on 

Schedule 5-A.” None of these three quoted statements tracks either the cited regulation or the 

corresponding statutory language (Section 30104(c)(2)(C)), although the 2013 version comes 

closest. Crossroads GPS (and numerous other filers) have repeatedly complained to the 

Commission about the language used in these RFAIs, noting that they misstate the law. 

In each instance, Crossroads GPS replied to RAD’s RFAI, explained its legal position, 

and informed RAD that Crossroads GPS had not solicited or received any contributions “for the 

purpose of furthering the reported independent expenditures,” and accordingly, no such 

disclosures were required. To the best of our knowledge, no further action was taken on any of 

these matters, and Crossroads GPS never received any notice of referral. Crossroads GPS 

reasonably concluded that its explanation had been accepted, that the “additional clarification” 

needed had been supplied, that there would be no further inquiry with respect to the report at 

issue, and that the RFAI was sent only because RAD’s manual requires a RFAI to be generated 

any time Form 5 is filed without a donor schedule.

Regardless of whether the referenced RFAIs accurately conveyed the substance of the 

law, an RFAI is not a legal determination and obviously does not supersede or invalidate a long-
Page 31 of 41

established Commission regulation. For purposes of reporting independent expenditures, the 

applicable law was – at all relevant times – 11 C.F.R. § 109.10(e)(1)(vi). RAD does not have 

any authority to change the regulation. If there is a conflict between a description of the law that 

appears in a RFAI and a Commission-approved regulation, the regulation unquestionably

controls. That conflict does not – and cannot – provide “fair notice” that a Commission 

regulation is invalid. It stretches credulity to claim otherwise.

4. Van Hollen Rulemaking Petition

The fourth and final form of potential notice identified in Judge Howell’s Opinion is 

Representative Van Hollen’s 2011 rulemaking petition.96 This petition sought a Commission 

rulemaking to “revise and amend 11 C.F.R. § 109.10(e)(1)(vi)” in a manner that is, for all intents 

and purposes, identical to CREW’s and Judge Howell’s reading of the statute.

During consideration of the petition, Commissioner Petersen explained that in light of the 

age of the regulation and post-Citizens United efforts in Congress to enact new disclosure 

requirements, it was now up to Congress to determine if the Commission’s disclosure 

requirements should be changed. Commissioner Petersen continued, “[u]ntil that happens, the 

rules that have been on the books for 30 years and have been relied upon for three decades are 

the rules that should remain until Congress or the courts tell us to do otherwise.”97 The 

Commission did not approve initiating a rulemaking in response to the petition, and the regulated 

community was justified in concluding that the existing 11 C.F.R. § 109.10(e)(1)(vi) would 

continue to apply.

 96 Representative Van Hollen’s Rulemaking Petition is available at 

http://sers.fec.gov/fosers/showpdf.htm?docid=61143. 

97 Consideration of Van Hollen Rulemaking Petition, Statement of Commissioner Petersen (Dec. 15, 2011), 

available at https://www.fec.gov/resources/audio/2011/2011121503.mp3. 
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The rulemaking petition specifically identified Crossroads GPS as an organization that 

had made independent expenditures without disclosing contributors.98 In other words, the 

petitioner brought Crossroads GPS’s reporting to the Commission’s attention, asked the 

Commission to revise the reporting regulation so that a different standard would apply to 

Crossroads GPS, and the Commission declined to do so.

A rejected petition for rulemaking creates no “positive” law and does not provide 

“notice” that any regulated entity should change its behavior and comply with the rejected 

proposal. The fact that one lawmaker presented to the Commission an alternative reading of a 

statute (which he hoped the agency would adopt after Congress declined to amend the statute) 

does not establish any actionable legal obligation for the regulated community to apply a new 

standard to itself. For the regulated community, the Commission’s rejection of a petition for 

rulemaking means only one thing: the status quo is retained and may be relied upon. Even if the 

Commission’s reading of the underlying law was wrong, when the agency rejected the 

rulemaking petition, it reaffirmed to the regulated community that 11 C.F.R. § 109.10(e)(1)(vi) 

remained in place as the applicable disclosure requirement.

C. Prosecutorial Discretion and Applicable Standard of Review 

Under the D.C. Circuit’s decision in CREW v. FEC, the Commission’s decision not to 

institute enforcement proceedings as a matter of prosecutorial discretion generally is not subject 

to judicial review. The D.C. Circuit determined that the Act does not “provide[] guidelines for 

the agency to follow in exercising its enforcement powers,” which in turn means that “[n]othing 

in the substantive statute [the Federal Election Campaign Act] overcomes the presumption 

 98 See Van Hollen Rulemaking Petition at ¶ 10.
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against judicial review.”99 Thus, the Act “imposes no constraints on the Commission’s judgment 

about whether, in a particular matter, it should bring an enforcement action.”100 Judge Howell’s 

Opinion refers to two remaining exceptions to Heckler v. Chaney’s general rule that the D.C. 

Circuit acknowledged in CREW v. FEC.

101 If neither exception applies, the Commission’s 

action is deemed “committed to the agency’s discretion” and “there can be no judicial review for 

abuse of discretion, or otherwise.”102 

1. Agency “Abdication”

First, Judge Howell notes that “Chaney left open the possibility that an agency 

nonenforcement decision may be reviewed if ‘the agency has ‘consciously and expressly adopted 

a general policy’ that is so extreme as to amount to an abdication of its statutory 

responsibilities.”103 The full footnote in Heckler v. Chaney reads as follows: 

We do not have in this case a refusal by the agency to institute proceedings based 

solely on the belief that it lacks jurisdiction. Nor do we have a situation where it 

could justifiably be found that the agency has “consciously and expressly adopted 

a general policy” that is so extreme as to amount to an abdication of its statutory 

responsibilities. See, e. g., Adams v. Richardson, 156 U. S. App. D. C. 267, 480 

F.2d 1159 (1973) (en banc). Although we express no opinion on whether such 

decisions would be unreviewable under § 701(a)(2), we note that in those 

situations the statute conferring authority on the agency might indicate that such 

decisions were not “committed to agency discretion.”104

 99 CREW v. FEC, 892 F.3d 434, 439 (D.C. Cir. 2018).

100 Id.

101 Memorandum Opinion at 109.

102 CREW v. FEC, 892 F.3d at 441.

103 Id. at 440 n.9 (quoting Heckler v. Chaney, 470 U.S. 821, 833 n.4 (1985)).

104 Heckler v. Chaney, 470 U.S. at 833 n.4 (emphasis added).
Page 34 of 41

As the D.C. Circuit noted in 1989, “the [Supreme] Court stopped short of stating that the 

presumption of unreviewability is inapplicable in such circumstances.”105 The exception has 

been cited with some frequency by plaintiffs, but rarely, if ever, invoked by the courts. The D.C. 

Circuit explained that under the “abdication” exception, “an extreme case ... might warrant 

judicial examination.”106 A review of Adams v. Richardson explains why application of the 

exception is so rare: the “abdication” exception is reserved for instances in which an agency 

expressly and consciously refuses to implement a statutory directive.107 Simple disagreements 

over matters of statutory interpretation do not rise to that level of defiance.

Adams v. Richardson involved the Department of Health, Education and Welfare’s 

“conscious[] and express[]” determination not to take certain actions where “Title VI not only 

requires the agency to enforce the Act, but also sets forth specific enforcement procedures.”108 

The practical result of this agency policy was that “HEW is actively supplying segregated 

institutions with federal funds, contrary to the expressed purposes of Congress.”109 The matter at 

 105 Safe Energy Coalition v. U.S. Nuclear Regulatory Com., 866 F.2d 1473, 1477 (D.C. Cir. 1989); see also

Giacobbi v. Biermann, 780 F. Supp. 33, 40 (D.D.C. 1992) (“Chaney did not purport to decide whether judicial 

review is available where an agency has ‘consciously and expressly adopted a general policy that is so extreme as to 

amount to an abdication of its statutory responsibilities.’”).

106 Cutler v. Hayes, 818 F.2d 879, 892 (D.C. Cir. 1987).

107 See, e.g., Safe Energy Coalition, 866 F.2d at 1477 (“The NRC has hardly taken the position that it may refuse to 

demand compliance with its quality assurance regulations where they do apply; it has done nothing of the sort.”); 

Messier v. United States Consumer Prod. Safety Comm’n, 741 F. Supp. 2d 572, 577 (D.Vt. 2010) (noting that the 

Second Circuit “determined that if a plaintiff can show that an agency had ‘indisputable proof’ that the general 

purpose of the relevant statute was not being met ‘and nonetheless decided it would do nothing to address the 

situation, [the plaintiff] might then plausibly charge that [the agency] had 'abdicated' its statutory responsibility’”).

108 Adams v. Richardson, 480 F.2d 1159, 1162 (D.C. Cir. 1973) (emphasis added).

109 Id.; see also Cutler v. Hayes, 818 F.2d at 892-893 (“In Adams, we directed the Secretary of Health, Education, 

and Welfare and the Director of the Office of Civil Rights to commence enforcement proceedings against primary 

and secondary school districts operating racially segregated schools while receiving federal funding. Title VI of the 

Civil Rights Act of 1964 explicitly directed all federal departments and agencies distributing federal funds to 

effectuate the provision of the Act prohibiting racial discrimination in programs accepting such funds. We held that 

the consistent failure of the federal defendants to carry out this clear and direct statutory mandate was a ‘dereliction 

of duty reviewable in the courts,’ and ordered the defendants to institute enforcement proceedings against schools 
Page 35 of 41

hand does not involve a situation that is even remotely comparable, the Commission has not 

ignored any “specific enforcement procedures,” and Heckler v. Chaney’s purported “abdication” 

exception is therefore not applicable here.

Judge Howell asserts, however, that “discrepancies between the challenged regulation 

compared to the statutory disclosure obligations . . . had been acknowledged without remedial 

action by the FEC for years prior to the dismissal of the plaintiffs’ amended administrative 

complaint, raising the issue whether the FEC had intentionally ‘abdicat[ed] ... its statutory 

responsibilities.’”110 Judge Howell’s claim is inaccurate. It is simply not true that discrepancies 

“had been acknowledged without remedial action by the FEC for years” prior to the present 

matter. While Congressman Van Hollen and elements of the professional campaign finance 

regulation lobby together had alleged such “discrepancies,” “the FEC” has never agreed that the 

regulation was inconsistent with, or failed to properly implement, the statute. (In fact, in the 

litigation that prompted this remand, the FEC argued that the regulation was consistent with, and 

properly implemented, the statute.) These alleged “discrepancies” were repeated and given 

unwarranted credibility by the Office of General Counsel in footnotes in the First General 

Counsel’s Report that ultimately harmed the General Counsel’s client in litigation.111 After 

crediting views that the Commission rejected in 2011, the General Counsel ultimately conceded 

that the consistent position of “the FEC” has been that the regulation faithfully and accurately 

implements the statute.112 

 operating in violation of the Act.”).

110 Memorandum Opinion at 110.

111 Attachment B, MUR 6696, First General Counsel’s Report at 12-13. 

112 On remand, we encourage the Commission to issue a Statement of Reasons that makes clear that its earlier 

approval of the General Counsel’s recommendations was not an endorsement of the General Counsel’s “dicta” 
Page 36 of 41

In the present matter, there is no indication that the Commission has “consciously and 

expressly adopted a general policy” of non-enforcement with respect to the matter at hand. For 

38 years, the Commission has enforced the statutory provisions through a regulation that reflects 

the Commission’s longstanding view of what those statutory provisions require. Where an 

agency adopts a regulation for the express purpose of implementing a statutory provision, it 

makes little sense to suggest that the agency has refused to enforce that provision.113 While 

Judge Howell clearly objects to the substance of the regulation, and to the underlying

interpretation of the statute that the regulation reflects, neither the record nor Judge Howell’s 

Opinion identifies any Commission “enforcement policy” that is at odds with statutory 

requirements. A differing view of what the statute requires is a far cry from expressly adopting 

of policy non-enforcement. 

2. Non-Enforcement on the Basis of FECA Interpretation

Second, Judge Howell states that “if the Commission declines to bring an enforcement 

action on the basis of its interpretation of FECA, the Commission’s decision is subject to judicial 

review to determine whether it is ‘contrary to law.’”114 As explained herein, there are ample 

justifications for declining to bring an enforcement action in this matter that are not premised 

upon the Commission’s “interpretation of FECA.” 

Both the D.C. Circuit and the District Court for the District of Columbia have recently 

upheld Commission non-enforcement decisions that identified numerous reasons for not 

 

assessing the controlling regulation, which in turn, has now been used to support claims that the Commission has 

consciously and expressly abdicated its statutory duties for 38 years.

 

113 See generally Block v. SEC, 50 F.3d 1078, 1084 (D.C. Cir. 1995) (“we cannot agree that the Commission has 

refused to implement § 2(a)(19); the agency has merely chosen thus far to enforce it informally rather than 

formally”) (emphasis added).

114 Memorandum Opinion at 109 (quoting CREW v. FEC, 892 F.3d at 441 n.11)
Page 37 of 41

proceeding with an enforcement action. The D.C. Circuit’s decision in CREW v. FEC involved a 

case in which the controlling Commissioners who voted to dismiss on the basis of prosecutorial 

discretion,

were concerned that the statute of limitations had expired or was about to; that the 

association named in CREW’s complaint no longer existed; that the association 

had filed termination papers with the IRS four years earlier; that it had no money; 

that its counsel had resigned; that the “defunct” association no longer had any 

agents who could legally bind it; and that any action against the association would 

raise “novel legal issues that the Commission had no briefing or time to 

decide.”115 

The D.C. Circuit held that these reasons were not premised on the Commissioners’ 

“interpretation of FECA,” and also noted that “[t]he law of this circuit ‘rejects the notion of 

carving reviewable legal rulings out from the middle of non-reviewable actions.’”116

In a footnote, Judge Howell agrees with CREW’s contention that the D.C. Circuit’s 

ruling against CREW in a separate case is “of very limited value on the questions before this 

Court.”117 Judge Howell notes that the D.C. Circuit’s decision did not “involve[] review ... of 

an FEC dismissal decision predicated on an invalid regulation, with only brief mention of 

‘prosecutorial discretion’ and ‘fair notice’ concerns.”118 These concerns would be easily 

addressed with a more thorough discussion of both topics, which would, in turn, render the D.C. 

Circuit’s decision directly on point, and binding precedent.

 115 CREW v. FEC, 892 F.3d at 438.

116 Id. at 441-442 (quoting Crowley Caribbean Transport, Inc. v. Pena, 37 F.3d 671, 676 (D.C. Cir. 1994)).

117 Memorandum Opinion at 110 n.57.

118 Id.
Page 38 of 41

The recent decision in Campaign Legal Center v. FEC is also instructive with respect to 

the nature of the explanation required to sustain an exercise of prosecutorial discretion.119 In 

Campaign Legal Center, Judge McFadden upheld the Commission’s dismissal of a series of 

enforcement matters involving allegations of “straw donor” contributions from limited liability 

companies (LLCs) to independent expenditure-only committees on the grounds of prosecutorial 

discretion. The controlling Statement of Reasons explained that the Commission determined to

dismiss the complaints at issue but also explained the new legal standard that would apply 

prospectively.

120 

Judge McFadden summarized the controlling Statement of Reasons as follows:

The Commission stated that it declined to find reason to believe a violation 

occurred as “an exercise of the Commission's prosecutorial discretion,” ...

because the Supreme Court’s decision in Citizens United v. Fed. Election 

Comm’n, 558 U.S. 310 (2010) created a sea change in campaign finance law, 

overturning the ban on corporate political speech and making it necessary to 

examine as “an issue of first impression” how Section 30122’s straw donor ban 

applied to corporate contributions. . . .The Commission also “kept . . . in mind” 

(1) that the Commission had previously applied the straw donor ban “almost 

exclusively” in situations involving “excessive and/or prohibited contributions,” 

while the matters under review involved donations to super PACs not subject to 

such limitations, (2) that “Commission precedent has treated funds deposited into 

a corporate account and then used for contributions as the funds of that 

corporation,” (3) that the Commission had “rejected an attribution rule that would 

deem the individual owners of corporate LLCs as the makers of those LLC's 

contributions,” and (4) that “the speech rights recognized in Citizens United

would be hollow if closely held corporations and corporate LLCs were presumed 

to be straw donors—thus, triggering investigations and potential punishment—

each time they made contributions.”121

 119 The Campaign Legal Center filed a notice of appeal in this case on either August 3 or August 8, 2018. 

120 See MURs 6485, 6487, 6488, 6711, and 6930, Statement of Reasons of Chairman Matthew S. Petersen and 

Commissioners Caroline C. Hunter and Lee E. Goodman, http://eqs.fec.gov/eqsdocsMUR/16044391107.pdf. 

121 Campaign Legal Ctr. v. FEC, 2018 U.S. Dist. LEXIS 96142 (D.D.C. June 7, 2018), *6-7.
Page 39 of 41

Judge McFadden determined that “this decision was not a direct ‘result’ of the 

Commission’s ‘interpretation of the Act,’ ... but an exercise of the Commission’s ‘considerable 

prosecutorial discretion.’”122 For Judge McFadden, it was not dispositive that “[t]he 

Commission recognized that the conduct at issue ‘could potentially violate section 30122,’

because the controlling Statement of Reasons instead “concluded that the “[r]espondents did not 

have prior notice of the [Commission’s] legal interpretation,” and that due process and First 

Amendment principles counseled against investigation.123 In addition, while the controlling 

Statement of Reasons “did not explicitly rely on ‘agency resource[]’ constraints or likelihood of 

success to support its decision,” it nevertheless undertook the “complicated balancing” of the 

factors referenced in Heckler v. Chaney.

124 

Judge McFadden’s decision makes clear that in exercising its prosecutorial discretion, the

Commission is not required to invoke a specific list of justifications drawn from the case law. 

Considerations of “whether agency resources are better spent elsewhere, whether its action 

would result in success, and whether there are sufficient resources to undertake the action at all” 

are not the sole considerations that may factor into a Commission prosecutorial discretion 

decision.125 Furthermore, the mere consideration of the requirements of the Act or Commission 

regulations does not render the Commission’s decision subject to review under the “contrary to 

law” standard.

126 

 122 Id. at *13.

123 Id.

124 Id.

125 Id. at *11-12.

126 Judge McFadden explained that the controlling Commissioners had offered a “rationale basis” for the decision to 

dismiss, and that dismissal was not “contrary to law.” Under the D.C. Circuit’s decision in CREW v. FEC, the 

Commission’s decision may have been unreviewable altogether given there was no finding that the Commissioners’ 
Page 40 of 41

Campaign Legal Center affirms the Commission’s broad authority to exercise

prosecutorial discretion, and also makes clear that the Commission may justify its decision by 

reference to factors that go beyond the commonly cited passage in Heckler v. Chaney. Judge 

McFadden specifically upheld lack of fair notice, due process concerns, risk of chilling protected 

speech, “the importance of notice in the First Amendment context,” and broader changes to the

legal landscape as valid considerations – in addition to the traditional Heckler v. Chaney

considerations – that may inform a decision to exercise prosecutorial discretion.127

IV. Statute of Limitations Has Expired

An additional factor weighing in favor of dismissal of this matter is the fact that the 

applicable statute of limitations has expired. The events at issue here occurred over the course of

2012. It is now 2018, and more than five years has passed with respect to all events and actions 

at issue. Any potential violation arising in 2012 is now time-barred and the Commission may 

not seek to impose any civil penalty or fine in MUR 6696.

128 

 

decision rested on an interpretation of the Act or court precedent. Judge McFadden referenced the judicial review 

standard from La Botz v. FEC, 61 F. Supp. 3d 21 (D.D.C. 2014) as well and the standard applied in the district court 

decision CREW v. FEC, 236 F. Supp. 3d 378 (D.D.C. 2017) that was overturned eight days later. Thus, in 

Campaign Legal Center, the Commission’s reasoning survived a more rigorous standard of review than is now

applicable under CREW v. FEC.

127 See Campaign Legal Ctr. v. FEC, 2018 U.S. Dist. LEXIS 96142, *23-24.

128 See 28 U.S.C. § 2462 (“Except as otherwise provided by Act of Congress, an action, suit or proceeding for the 

enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless 

commenced within five years from the date when the claim first accrued if, within the same period, the offender or 

the property is found within the United States in order that proper service may be made thereon.”); see also FEC v. 

Christian Coalition, 965 F. Supp. 66, 70 (D.D.C. 1997) (“the FEC’s cause of action accrued when the events at issue 

occurred, and 28 U.S.C. § 2462 operates according to its terms to bar the enforcement of any civil fine, penalty or 

forfeiture for events that occurred more than five years before the Complaint was filed”); FEC v. National Right to 

Work Comm., 916 F. Supp. 10 (D.D.C. 1996); FEC v. National Republican Senatorial Comm., 877 F. Supp. 15 

(D.D.C. 1995). 
Page 41 of 41

As a matter of prosecutorial discretion, the Commission should also decline to pursue any

“equitable remedy” that may not be barred by the statute of limitations. In the past, the District 

Court for the District of Columbia has noted that “[u]nder the FECA, the Commission has the 

authority to seek injunctive relief wholly separate and apart from its authority to seek a legal 

remedy. See 2 U.S.C. § 437g(a)(6).”129 The referenced statutory provision makes clear that this 

form of remedy, however, must be sought through institution of a civil action for relief, meaning 

the Commission would be required to commit itself to additional litigation. For the reasons 

previously discussed, however, the Commission should decline to seek any form of relief as a 

matter of prosecutorial discretion.

V. Conclusion

For the reasons set forth above, the complaint in MUR 6696 should again be dismissed. 

Thank you for your consideration.

Sincerely,

Thomas J. Josefiak

Michael Bayes

 Counsel to Crossroads GPS

Attachments

cc: Acting General Counsel Lisa J. Stevenson

 129 FEC v. Christian Coalition, 965 F. Supp. at 72.
Attachment A

Response of Crossroads GPS in MUR 6696 (Jan. 17, 2013)
Response in MUR 6696 

Page 1 of 21

January 17, 2013 

Jeff. S. Jordan 

Supervisory Attorney 

Complaints Examination & Legal Administration 

Federal Election Commission 

999 E Street, NW 

Washington, DC 20463 

 Re: Response in MUR 6696 

Dear Mr. Jordan, 

This response is submitted on behalf of Crossroads Grassroots Policy Strategies (GPS), 

Karl Rove, Haley Barbour, Steven Law, and Caleb Crosby jointly, by the undersigned counsel in 

the above-referenced matter. Mr. Rove received a copy of this Complaint from the Commission 

on December 3, 2012. Crossroads GPS received a copy of this Complaint, via its registered 

agent, on December 6, 2012. Crossroads GPS requested, and was granted, a 30-day extension of 

time to submit a response to the Commission. 

Mr. Rove and Governor Barbour are uncompensated advisors to Crossroads GPS. 

Neither is an officer and neither sits on the Board of Directors. Mr. Law is the President of 

Crossroads GPS. Mr. Crosby is the Treasurer of Crossroads GPS. We presume that Messrs. 

Law and Crosby are named as Respondents only in their capacities as officers. 

CREW’s latest stunt is a press release roll-out of a complaint filed against Crossroads 

GPS with both the FEC and FBI.1

 The charges are typically sensational (Ms. Sloan claims a 

“criminal conspiracy” in her press release), but as is often the case with CREW, there is very 

little actual substance, and no merit whatsoever, to the alleged legal violations. The Complaint is 

 

1 See CREW Press Release, “CREW Files FEC Complaint Against Crossroads GPS For Failing To 

Disclose Donors” (Nov. 15, 2012) available at http://www.citizensforethics.org/legal-filings/entry/crewfiles-fec-complaint-crossroads-gps-failing-to-disclose-donors. 
Response in MUR 6696 

Page 2 of 21

based primarily on two news articles that appeared on August 31 and September 4, 2012. Both 

articles were written by a Bloomberg BusinessWeek reporter who duplicitously gained entry to a 

private meeting hosted on August 30 by American Crossroads. While this meeting was widely 

reported among the Washington political press, no individual or organization used it as the basis 

of a complaint in the following months – until now. The reason is quite obvious: the article is 

only of political interest, and it reveals no wrongdoing. 

Many of the “facts” that CREW alleges in support of its case do not actually appear in 

any of the cited materials, nor are they otherwise substantiated. Rather, CREW draws many 

inferences that are simply not true, and the Complaint is replete with speculation. Many of 

CREW’s conclusory statements are not reasonably drawn. Finally, several claims made in the 

Complaint – including claims regarding the state of mind of unknown persons – are so obviously 

fabricated that it is almost certain that Ms. Sloan and Ms. Markley falsely swore to the 

Verifications submitted with their Complaint. 

CREW’s Complaint should be quickly dismissed and CREW admonished for, once 

again, filing an abusive, harassing, and baseless Complaint. We also request that Ms. Sloane and 

Ms. Markley be referred to the appropriate authorities for investigation into whether either or 

both violated 18 U.S.C. § 1001 when they executed their respective Verifications and submitted 

this Complaint. 

I. Questions Presented

Despite the length of the Complaint, the relevant questions raised are quite simple. Does 

the Complaint present credible and unrebutted evidence demonstrating that Crossroads GPS (i) 

solicited or received funds that were provided by a donor “for the purpose of furthering the 

reported independent expenditure” and (ii) then failed to properly report those contributions? 

 As explained below, CREW’s complaint does not satisfy the reason to believe standard 

set forth in MUR 4960 (Hillary Clinton), nor does it provide any evidence of a substantive 

violation of the law. For either or both reasons, the Complaint should be dismissed. 

II. “Reason To Believe” Standard

 The Commission has previously explained: 

The Commission will make a determination of ‘no reason to believe’ a violation has 

occurred when the available information does not provide a basis for proceeding with the 

matter. The Commission finds ‘no reason to believe’ when the complaint, any response 
Response in MUR 6696 

Page 3 of 21

filed by the respondent, and any publicly available information, when taken together, fail 

to give rise to a reasonable inference that a violation has occurred, or even if the 

allegations were true, would not constitute a violation of the law. For example, a ‘no 

reason to believe’ finding would be appropriate when: 

• A violation has been alleged, but the respondent’s response or other evidence 

convincingly demonstrates that no violation has occurred; 

• A complaint alleges a violation but is either not credible or is so vague that an 

investigation would be effectively impossible; or 

• A complaint fails to describe a violation of the Act. 

Statement of Policy Regarding Commission Action in Matters at the Initial Stage in the 

Enforcement Process, 72 Fed. Reg. 12,545, 12,546 (March 16, 2007). 

“’Reason to believe’ is a threshold determination that by itself does not establish that the 

law has been violated. In fact, ‘reason to believe’ determinations indicate only that the 

Commission found sufficient legal justification to open an investigation to determine whether 

there is probable cause to believe that a violation of the Act has occurred.” Statement of Reasons 

of Commissioners Bauerly and Weintraub in MUR 6056 (Protect Colorado Jobs, Inc.) at 2; see 

also Statement of Reasons of Commissioner Walther in MUR 6570 (Berman for Congress) at 9 

(“A ‘reason to believe’ finding is not a finding that a respondent violated the Act, but instead 

simply means that the Commission believes a violation may have occurred.”). 

 “In order for the Commission to determine that a complaint provides a reason to believe a 

violation occurred, the complainant, under penalty of perjury, must provide specific facts from 

reliable sources that a respondent fails to adequately refute.” Statement of Reasons of Vice 

Chairman Petersen and Commissioners Hunter and McGahn in MUR 6056 (Protect Colorado 

Jobs, Inc.) at 6. Taking into account the complaint, the sources of the allegations, and the 

response(s), Commissioners may ask if there is “sufficient information to find no reason to 

believe a violation occurred,” or whether discrepancies or unanswered questions “raise[] 

sufficient questions to warrant further inquiry.” Statement of Reasons of Commissioners 

Bauerly and Weintraub in MURs 6051 and 6052 (Wal-Mart Stores, Inc.) at 2. 

“Unwarranted legal conclusions from asserted facts ..., or mere speculation ... will not 

be accepted as true. In addition, while credibility will not be weighed in favor of the 

complainant or the respondent, a complaint may be dismissed if it consists of factual allegations 

that are refuted with sufficiently compelling evidence provided in the response to the complaint 

.... [P]urely speculative charges, especially when accompanied by a direct refutation, do not 

form an adequate basis to find reason to believe that a violation of the FECA has occurred.” 

Statement of Reasons of Commissioners Mason, Sandstrom, Smith, and Thomas in MUR 4960 
Response in MUR 6696 

Page 4 of 21

(Hillary Clinton) at 2-3.2 “[M]ere ‘official curiosity’ will not suffice as the basis for FEC 

investigations.” FEC v. Machinists Non-Partisan League, 655 F.2d 380, 388 (D.C. Cir. 1981). 

 “[U]nder the Act, before making a reason to believe determination, the Commission must 

assess both the law and the credibility of the facts alleged. To do so, the Commission must 

identify the sources of information and examine the facts and reliability of those sources to 

determine whether they ‘reasonably [give] rise to a belief in the truth of the allegations 

presented.’ Only once this standard is met may the Commission investigate whether a violation 

occurred.” Statement of Reasons of Vice Chair Hunter and Commissioners McGahn and 

Petersen in MUR 6296 (Kenneth Buck) at 5-6 

 As discussed in more detail below, the Complainant’s allegations warrant a “no reason to 

believe” finding and should be dismissed. The evidence presented in the Complaint does not 

show any violation of the law. The specific “facts” cited by CREW that allegedly demonstrate 

the violation are based entirely on incorrect inferences and assumptions that CREW refers to as 

its “information and belief.” That “information and belief,” however, is maliciously wrong – as 

opposed to being merely mistakenly wrong. CREW simply makes up critical “facts” for which 

there is absolutely no evidentiary basis. 

CREW’s general lack of credibility as a legitimate “watchdog” 3 and its history of filing 

frivolous complaints with the Commission should also be taken into account when weighing the 

reliability of the allegations made. Coupled with the Respondents’ correction of the record that 

CREW presents, and the specific refutations of the “facts” that CREW alleges, the Commission 

should have no difficulty dispensing with this matter. There is more than “sufficient information 

 

2 See also Statement of Reasons of Vice Chair Hunter and Commissioners McGahn and Petersen in MUR 

6296 (Kenneth Buck) at 6 (“As in MUR 4960 (Hillary Clinton), the complaint in this matter lacked 

specific facts to establish that Buck, his authorized committee, and Morgensen violated the Act. Instead, 

the complaint was based ‘upon information and belief,’ a phrase that appears at least once on every page. 

None of the allegations were based on personal knowledge and, with two exceptions, the complaint does 

not identify any source for its allegations, credible or otherwise. Moreover, Respondents sufficiently 

refuted the factual allegations made in the complaint. Thus, the Commission is required under the statute 

and its own regulations to find no reason to believe Respondents violated the Act.”). 

3 See, e.g., Karen Tumulty, “The Hill Monitor,” Time (Oct. 23, 2006) (“Since its founding in 2003, 

CREW has worked through legal and regulatory channels to press allegations of impropriety almost 

exclusively against Republicans.”) available at 

http://www.time.com/time/magazine/article/0,9171,1549301,00.html; Paul Singer, “Watchdog, Donors 

Share Common Foes,” Roll Call (Jan. 29, 2008) (“a review of entities against which CREW has filed 

complaints and information about its donors suggests that the organization may be guilty of the same 

practice — attacking groups and individuals who are the foes of CREW’s donors”) available at

http://www.rollcall.com/issues/53_85/-21796-1.html. 
Response in MUR 6696 

Page 5 of 21

to find no reason to believe a violation occurred” here. Statement of Reasons of Commissioners 

Bauerly and Weintraub in MURs 6051 and 6052 (Wal-Mart Stores, Inc.) at 2 (emphasis in 

original). 

III. Discussion of Factual Matters Raised In Complaint

 A. The 14 Advertisements Screened 

 The Complaint wrongly presumes that the advertisements that were screened for 

attendees at the August 30 meeting were advertisements for which Crossroads GPS was seeking 

funding. The Complaint alleges: “Crossroads GPS officials solicited the attendees for additional 

contributions, apparently to pay to broadcast the advertisements the potential donors just viewed 

or to broadcast other ads in those races.”4

 Complaint at ¶ 28 (emphasis added). This is not the 

case, and CREW’s speculation on this point is simply wrong. 

 The following advertisements were screened at the August 30 meeting: 

1. American Crossroads, “Behind,” aired on or about June 13, 2012. 

(http://www.youtube.com/watch?v=wrEPOIeA3sY) 

 2. Crossroads GPS, “Cost,” aired on or about August 15, 2012. 

 (http://www.youtube.com/watch?v=q58ADyndS8w) 

 3. Crossroads GPS, “Cheap,” aired on or about July 3, 2012. 

 (http://www.youtube.com/watch?v=aIFDqqWhk6Y) 

 4. Crossroads GPS, “Get Up,” aired on or about August 23, 2012. 

 (http://www.youtube.com/watch?v=_lXFzKsuBmM) 

 5. Crossroads GPS, “Suffered,” aired on or about August 23, 2012. 

 (http://www.youtube.com/watch?v=S2fTu4UHsdI) 

 

4 See also Complaint at ¶ 55 (“Crossroads GPS showed attendees of the August 30, 2012 fundraiser 

advertisements targeting Democratic Senate candidates in Ohio, Virginia, Montana, Florida, 

Massachusetts, and Nevada. Several of the ads were produced by Crossroads GPS. Immediately after the 

ads were shown, Crossroads GPS solicited contributions from the attendees. Among other things, Mr. 

Law noted more money was needed because advertising rates had increased.”); Complaint at ¶ 56 (“On 

information and belief, Crossroads GPS received contributions given with the intention that the money be 

spent on independent expenditures broadcasting the advertisements shown at the fundraiser or 

broadcasting other ads in the Ohio, Virginia, Montana, and Nevada Senate races.”) (emphasis added). 
Response in MUR 6696 

Page 6 of 21

 6. Crossroads GPS, “Foundation,” aired on or about November 9, 2011. 

 (http://www.youtube.com/watch?v=tNxez4ddpa0) 

 7. Crossroads GPS, “Investigation,” aired on or about August 3, 2012. 

 (http://www.youtube.com/watch?v=tWY38AvvU98) 

 8. Crossroads GPS, “Wake Up,” aired on or about July 7, 2011. 

 (http://www.youtube.com/watch?v=ESAszBVMnC4) 

 9. Crossroads GPS, “Typical,” aired on or about December 9, 2011. 

 (http://www.youtube.com/watch?v=L3UNOsHgbFI) 

 10. Crossroads GPS, “Tried,” aired on or about July 12, 2012. 

 (http://www.youtube.com/watch?v=spu06VOiT8E) 

 11. Crossroads GPS, “News,” aired on or about July 31, 2012. 

 (http://www.youtube.com/watch?v=zkWJrf_x2rA) 

 12. Crossroads GPS, “Stopwatch,” aired on or about June 5, 2012. 

 (http://www.youtube.com/watch?v=DnwQAUM8D9E) 

 13. American Crossroads, “Smoke,” aired on or about July 19, 2012. 

 (http://www.youtube.com/watch?v=s_AHL5K1XeA) 

14. The fourteenth advertisement screened was an advertisement prepared for focus 

group purposes, and which was never intended for public distribution. 

 Thirteen of the fourteen advertisements screened at the August 30 meeting had already 

been paid for and aired. These advertisements were not screened as part of an effort to secure 

funding so that they could be aired, as the Complaint speculates. The fourteenth advertisement 

was a focus group ad that was not produced for public distribution, and was never aired. 

The screened ads were nothing more than examples of advertisements for which 

American Crossroads (in two cases) and Crossroads GPS (in eleven cases) had already paid and 

aired. 
Response in MUR 6696 

Page 7 of 21

 B. Mr. Rove’s Recounting of Conversation With Donor 

CREW’s limited information regarding Mr. Rove’s conversation with a supporter and 

donor comes from two versions of the same source. 

Ms. Kolhatkar’s September 4, 2012, article includes the following passage: 

As for the closely watched race in Ohio, one of the states that has generated the most 

political spending by outside groups like American Crossroads, Rove said that he’d had a 

call from an unnamed out-of-state donor who told him, “I really like Josh Mandel,” 

referring to the Ohio treasurer attempting to unseat Democrat Sherrod Brown. The 

donor, Rove said, had asked him what his budget was in the state; Rove told him $6 

million. “’I’ll give ya $3 million, matching challenge,’” Rove said the donor told him. 

“Bob Castellini, owner of the Cincinnati Reds, is helping raise the other $3 million for 

that one.” 

Sheelah Kolhatkar, Exclusive: How Karl Rove’s Super PAC Plays the Senate, Bloomberg

BusinessWeek (Sept. 4, 2012). 

Subsequently, in an interview with Democracy Now!, Ms. Kolhatkar recounted the same 

comments as follows: 

Rove specifically mentioned that he’d had a call from an anonymous benefactor who did 

not come from Ohio, who came from another state but who was just very interested, and 

wanted to donate half of their $6 million budget in the state. So the condition was it had 

to be a matching challenge. This donor was a big fan of Josh Mandel, who is running 

against Brown. So Rove mentioned that the owner of the Cincinnati Reds baseball team 

was helping raise that money. 

Sheelah Kolhatkar, Democracy Now! Interview, September 5, 2012. 

 

The conversations recounted by Mr. Rove to attendees at the August 30 meeting took 

place months before, in the spring of 2012. See Affidavit of Karl Rove at ¶ 4. Mr. Rove had at 

least one other conversation with Mr. Castellini regarding the so-called “matching challenge” in 

summer of 2012. Id. at ¶ 11. 

The conversation with the donor who stated, “I’ll give ya $3 million, matching 

challenge,” did not include any discussion of any particular television advertisements, television 

advertisements in general, or the contents, timing, or targeting of any existing, planned, or 
Response in MUR 6696 

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hypothetical advertisements. See Affidavit of Karl Rove at ¶ 6. No specific efforts that could or 

would be made by Crossroads GPS were discussed. See id. at ¶ 7. There was no discussion of 

spending the donor’s funds on any specific method of communication. See id. at ¶ 8. There was 

no discussion of independent expenditures. See id. at ¶ 9. 

At no time did this donor ask, insist, or require that any of the pledged funds be spent in 

any particular manner or on any particular or specific efforts or projects. See id. at ¶ 10. Rather, 

this donor indicated to Mr. Rove that he was a supporter of Josh Mandel, and offered to donate 

funds toward Crossroad GPS’s budget in the State of Ohio. Mr. Rove understood that the donor 

intended the pledged funds to be used in some manner that would aid the election of Josh 

Mandel. See id. at ¶¶ 5, 10. 

The resulting “matching program” generated approximately $1.3 million; these funds 

were not solicited for any purpose other than for general use in the State of Ohio. See id. at ¶13. 

The donor who issued the “matching challenge” never made a single contribution in the 

amount of $3 million. Rather, this donor contributed a larger amount to Crossroads GPS that 

was not in any way earmarked for any particular use. Upon receipt of this contribution, Mr. 

Rove understood that the donor did not intend the earlier “matching program” to be a formal 

program, but rather, was simply a way of encouraging Crossroads GPS’s general fundraising 

efforts. See id. at ¶ 14. 

 C. Crossroads GPS 2012 Activity In Ohio 

 CREW alleges that “Crossroads GPS spent $6,363,711 on independent expenditures 

opposing Sen. Brown in the Ohio Senate race.” Complaint at ¶ 40. This figure comes from the 

Center for Responsive Politics’ repackaging of FEC data. This total includes only Crossroads 

GPS’s independent expenditures opposing Senator Brown’s re-election, and does not reflect 

Crossroads GPS’s total activity within Ohio during 2012, or its “Ohio budget.” 

Crossroads GPS spent over $10 million on television advertising in Ohio in 2012 that 

mentioned one or both of the two candidates in the Senate race. Some of these advertisements 

were reported to the Commission as electioneering communications or independent 

expenditures, and those reports are on the public record. Other issue and policy advocacy ads 

did not fall into either category and were not required to be reported to the Commission. 

Production costs for these television ads amounted to approximately $150,000. Crossroads GPS 

also spent an additional $240,000 on online (Internet) advertising directed to Ohio residents, and 

approximately $43,000 on polling. 
Response in MUR 6696 

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CREW’s lazy reliance on the work of a third party aggregator yields incomplete 

information in its Complaint. While the $6.3 million figure conveniently corresponds to the $6 

million “matching” program that never fully existed, that figure represents only a bit over half of 

what Crossroads GPS actually spent. 

 D. Crossroads GPS RFAI Response Dated July 19, 2011 

 The Complaint makes much of a response to a Request For Additional Information 

(RFAI) submitted on behalf of Crossroads GPS on July 19, 2011. That response speaks for 

itself, as does another substantially similar response filed by Crossroads GPS on November 29, 

2012, after CREW submitted its Complaint. 

Crossroads GPS is fully aware of its FEC reporting and disclosure obligations and has 

endeavored to satisfy those obligations at all times during its existence. Crossroads GPS has 

never failed to report contributions required to be reported under the Act and FEC regulations. 

CREW seeks to cast Crossroads GPS’s July 19, 2011, response to a RFAI that should never have 

been sent as “proof” of a knowing and willful violation of law. As demonstrated in this 

Response, however, there was no violation of the law, period. 

To the extent that the aforementioned RFAI suggests that Crossroads GPS did not satisfy 

certain disclosure obligations, we reiterate here that the canned language used by the Reports 

Analysis Division (RAD) badly misstates the disclosure requirement set forth at 11 C.F.R. § 

109.10(e)(1)(vi). Rather than simply quote the regulation at issue, RAD uses an incorrect 

restatement of that regulation. 

In June 2011, the Commission sent to Crossroads GPS a RFAI that was immediately 

available to the public via the Commission’s website. That RFAI contained a poor restatement 

of 11 C.F.R. § 109.10(e)(1)(vi) that very obviously does not track the language of the actual 

regulation. The media, either intentionally or lazily, misunderstood and misreported both the 

nature and meaning of the RFAI.5

 The Commission never made any sort of public correction of 

this misstatement of law, and the RFAI remains on the public record. RAD has subsequently 

delivered RFAIs featuring the same incorrect language to a variety of entities. 

Crossroads GPS’s RFAI response was necessitated solely because the Commission 

publicly distributed a misstatement of the law, which has gone uncorrected. Now, the phony 

“watchdogs” at CREW believe they have found a way to turn Crossroads GPS’s correction of the 

 

5 See, e.g., Alex Roarty, FEC Asks Crossroads to Reveal Donors, National Journal (June 16, 2011) 

available at http://www.nationaljournal.com/hotline/campaign-law-watch/fec-asks-crossroads-to-revealdonors-20110616. 
Response in MUR 6696 

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Commission’s mistake into “evidence” of an alleged knowing and willful (i.e., criminal) 

violation of the law. 

 E. American Crossroads vs. Crossroads GPS 

American Crossroads and Crossroads GPS are legally separate organizations. Nearly all 

of the specific material to which CREW cites in its Complaint refers to “American Crossroads” 

fundraising and “American Crossroads” efforts, yet CREW’s complaint is lodged against 

Crossroads GPS. CREW attempts to gloss over the distinction with the claim that “While Mr. 

Law and Mr. Barbour apparently used the name ‘American Crossroads’ in their fundraising 

pitches, ... they evidently used it to mean both American Crossroads and Crossroads GPS.” 

Complaint at ¶ 30 (emphasis added). This is pure speculation on CREW’s part, and it is both 

apparent and evident that CREW has absolutely no personal knowledge of what Mr. Law or Mr. 

Barbour said or intended. 

The author of the two articles which serve as the sole basis of CREW’s Complaint 

acknowledged in her interview with Democracy Now! that American Crossroads and Crossroads 

GPS are separate organizations. While Ms. Kolhatkar offered her own (incorrect) opinion that 

the two organizations share very similar missions, she nevertheless clearly understood that there 

are two organizations and she distinguished between them in her reports. Thus, there is 

absolutely no reason to pretend – as CREW does – that either Ms. Kolhatkar or Messrs. Law, 

Rove, and Barbour, carelessly used the term “American Crossroads” as some sort of catch-all 

phrase that encompasses both groups. 

The news articles written by Ms. Kolhatkar on which CREW relies indicate that Mr. Law 

and Mr. Barbour made separate, general solicitations of funds for American Crossroads, and not

Crossroads GPS. This is entirely consistent with the fact that the August 30 meeting was hosted 

by American Crossroads. Based on these facts and Ms. Kolhatkar’s acknowledged awareness of 

the separateness of the two organizations, the most reasonable conclusion to draw is that Mr. 

Law and Mr. Barbour actually meant what they said and solicited funds specifically for 

American Crossroads. Thus, to the extent that CREW’s complaint pretends that attendees were 

orally solicited for contributions to Crossroads GPS, see, e.g., Complaint “Count IV”, the 

evidence does not support that claim. 
Response in MUR 6696 

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IV. Application of 11 C.F.R. § 109.10(e)(1)(vi)

 A. History of the Regulation 

 

Central to this matter is the proper application of 11 C.F.R. § 109.10(e)(1)(vi), which 

requires that persons other than political committees disclose on independent expenditure reports 

“the identification of each person who made a contribution in excess of $200 to the person filing 

such report, which contribution was made for the purpose of furthering the reported independent 

expenditure” (emphasis added). This regulation was adopted in 1980 and has not been 

substantively modified since then.6

 The 1980 Explanation and Justification indicates that “[t]his 

section has been amended to incorporate the changes set forth at 2 USC 434(c)(1) and (2) 

regarding reporting requirements for persons, other than a political committee, who make 

independent expenditures.” Final Rules On Amendments to Federal Election Campaign Act of 

1971, 45 Fed. Reg. 15,080, 15,087 (March 7, 1980). 

B. CREW’s Suggestion That The Regulation Does Not “Give Full Effect” To 

The Act Is Irrelevant 

 In what is obviously a suggestion that the Commission should disregard the plain 

language of a regulation that has existed for over 30 years, CREW claims: 

The FEC’s interpretation of the statute [2 U.S.C. § 434(c)(2)(C)] fails to give full effect 

to these provisions. At a minimum, the statute requires identification of persons who 

made contributions “for the purpose of furthering an independent expenditure,” but the 

regulation only requires identification of persons who made contributions “for the 

purpose of furthering the reported independent expenditure.” 

Complaint at ¶ 16 n.1. This argument is entirely irrelevant in an enforcement context. To read 

the reporting requirement set forth at 11 C.F.R. § 109.10(e)(1)(vi) as CREW suggests – which 

would apply a very different substantive standard – would require a formal rulemaking to amend 

the regulation. The FEC cannot conduct a rulemaking exercise under the guise of an 

enforcement matter, or otherwise disregard the language of a duly-enacted, longstanding 

regulation. One should not simply accept CREW’s argument that the statute and corresponding 

regulation are inconsistent, or that the regulation does not adequately reflect Congressional 

intent. To do so is to conclude that CREW’s self-serving reading of the 1979 Amendments to 

 

6

 Prior to the BCRA-era revisions to the Commission’s regulations, this provision was located at 11 

C.F.R. § 109.2(a)(1)(vi). 
Response in MUR 6696 

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the Act, 33 years later, is somehow more “correct” than the Commission’s essentially 

contemporaneous interpretation of those Amendments in 1980. 

 C. Operation of the Existing Regulation 

 In a recent enforcement matter, three Commissioners explained that under Section 

109.10(e)(1)(vi), “a donation must be itemized on a non-political committee’s independent 

expenditure report only if such donation is made for the purpose of paying for the 

communication that is the subject of the report.” Statement of Reasons of Chairman Petersen 

and Commissioners Hunter and McGahn in MUR 6002 (Freedom’s Watch, Inc.) at 5. See also

Findings of Fact in SpeechNow.org. v. FEC, 2009 U.S. Dist. LEXIS 89011 (D.D.C. Sept. 28, 

2009) at 22 (“52. Because SpeechNow does not accept any targeted or ‘earmarked’ funds, it need 

only disclose all of its contributors who provided money ‘for the purpose of furthering’ its 

independent expenditures. Keating Decl. at P 36; 2 U.S.C. 434(c)(2)(C). For each independent 

expenditure SpeechNow were to make, SpeechNow would have to disclose all donors whose 

contributions were given for such purpose and were used to fund any portion of the independent 

expenditure at issue. Id.”). 

The professional campaign finance “reform” industry, with Representative Van Hollen 

serving as the named filer, recently submitted a petition for rulemaking to revise 11 C.F.R. 

§ 109.10(e)(1)(vi). Even those who make their living as the FEC’s greatest detractors recognize 

that the regulation can only be revised via the formal rulemaking process. In their rulemaking 

petition, the “reform” lobby describes Section 109.10(e)(1)(vi) as requiring “disclosure only of 

those contributors who state a specific intent to fund a specific (‘the reported’) independent 

expenditure.” Rep. Van Hollen Petition for Rulemaking to Revise and Amend Regulations 

Relating to Disclosure of Independent Expenditures (April 21, 2011) at 3. Furthermore, the 

petition explains, “under the regulation, all contributions to the person making the independent 

expenditure that were not given for the specific purpose of furthering the specific reported 

independent expenditure are not required to be disclosed.” Id. (emphasis in original). The 

petitioners also note: 

Under present-day 11 C.F.R. § 109.10(e)(1)(vi), even if a contributor gave money to a 

person making independent expenditures with knowledge that the contributed funds 

would be used for independent expenditures, and specifically intended that the funds be 

used for that purpose, the contribution would still not be subject to disclosure under the 

regulation unless the contributor intended that the funds be earmarked and used for a 

specific independent expenditure. 

Id. at 4. 
Response in MUR 6696 

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 While the existing regulation may be unpopular in some quarters at the moment, due to 

circumstances that changed decades after the regulation was adopted, there appears to be broad 

agreement across the spectrum with respect to what the existing regulation says, and how it 

operates in practice. 

 D. Donative Intent 

 As noted, the critical elements of Section 109.10(e)(1)(vi) are (1) the intent of the donor 

in making a contribution, and (2) the specificity of that intent. To the extent that any of the 

donors referenced in CREW’s complaint actually made contributions to Crossroads GPS, 

CREW’s various characterizations of their donative intent(s) should not be accepted by the 

Commission as fact. CREW has no personal knowledge of any of these matters. Rather, any 

conclusions drawn by the Commission regarding the intent of any donors referenced in the 

Complaint must be drawn from the actual evidence presented, and not from CREW’s selfserving legal conclusions. 

 Counts I, II, and III of CREW’s complaint are based entirely on a brief passage from Ms. 

Kolhatkar’s September 4, 2012, article, and her September 5 interview on Democracy Now!. All 

that CREW really knows about the supposed intent of the “unnamed out-of-state donor” – 

notwithstanding its sworn assertions that go well beyond this evidence – comes exclusively from 

these two sources. 

As explained above, CREW’s “factual” claims about this supposed series of transactions 

are badly flawed. The passage that appeared in Bloomberg BusinessWeek indicates that the 

contribution was not made for the purpose of funding any particular advertisements. Rather, to 

the extent the donor’s intent is described at all, the evidence indicates that the funds were 

intended as a general grant for use in Ohio. In the Democracy Now! interview, Ms. Kolhatkar’s 

recounting indicates that the donor’s intent was described as an intention to “donate half of their 

$6 million budget in the state.” Again, nothing here demonstrates that any contribution was 

made for the purpose of funding any particular advertisements, advertisements in general, or that 

the donor had any knowledge of any particular Crossroads GPS efforts. 

As noted above, the independent expenditures that Crossroads GPS reported making in 

connection with the 2012 Ohio Senate race were developed well after the conversation recounted 

in the Bloomberg BusinessWeek article and at ¶ 23 of the Complaint took place in Spring 2012. 

There is also no evidence – and CREW does not suggest – that this “unnamed donor” and Mr. 

Rove discussed or otherwise developed advertisements during their conversation. In short, there 

is no evidence and no suggestion that the unnamed donor “exercised control over how his [or 

her] contribution was spent.” Statement of Reasons of Vice Chair Bauerly and Commissioner 
Response in MUR 6696 

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Weintraub in MUR 6002 (Freedom’s Watch, Inc.) at 2, 4. Accordingly, this donor could not 

possibly have had the requisite and specific intent to finance the advertisements that Crossroads 

GPS subsequently created, aired, and reported. 

Furthermore, as Mr. Rove attests, the “unnamed donor” never made a single contribution 

in the amount of $3 million. Rather, that donor made a larger contribution that was not 

earmarked in any way. 

There is no basis to conclude, and CREW points to no actual evidence indicating, that 

Crossroads GPS financed any reported independent expenditure “in whole or in part with funds 

donated for the purpose of furthering that particular advertisement.” CREW’s “information and 

belief” is not actual evidence – it is speculation and wishful thinking. There is no evidence 

presented in the Complaint (or anywhere else) that Crossroads GPS solicited or received funds 

for even the general purpose of making independent expenditures. At best, CREW’s complaint 

lazily regurgitates a news articles that shows that an “unnamed donor” discussed providing funds 

for general use in a specified state. Far more specificity is required before Section 

109.10(e)(1)(vi) is triggered. 

Nor is there is any evidence of any subsequent actions or events from which information 

regarding donative intent might conceivably be gleaned. Specifically, there is no information 

indicating that any particular donor “parcel[led] out his money project by project,” “rejected 

almost all of the staff’s proposals that have been brought to him,” or otherwise “exercised control 

over how his contribution was spent.” Statement of Reasons of Vice Chair Bauerly and 

Commissioner Weintraub in MUR 6002 (Freedom’s Watch, Inc.) at 2, 4. 

V. Discussion of Legal Matters Raised In Complaint

 A. Complaint “Count I” 

 “Count I” asserts that an individual made $3 million in contributions to Crossroads GPS 

that should have been disclosed on corresponding independent expenditure reports. The donor’s 

supposed intent is described several different ways: 

• Paragraph 37 asserts that this person “made $3 million in contributions for the 

purpose of furthering the independent expenditures Crossroads GPS made in 

the Ohio Senate race.” 

• Paragraph 38 asserts that this person “told Mr. Rove he was giving Crossroads 

GPS $3 million to spend on the Ohio Senate election between Sen. Brown and 
Response in MUR 6696 

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Mr. Mandel. The donor further said the contribution was a ‘matching 

challenge’ to meet Crossroads GPS’s $6 million budget for the state.” 

• In Paragraph 39, CREW alleges, “on information and belief,” that 

“Crossroads GPS received $3 million from the unnamed donor who 

contributed the money with the intent that it be spent on the Ohio Senate 

race.” 

• Paragraph 41 alleges that Crossroads GPS’s independent expenditure reports 

failed to identify the person “who made $3 million in contributions for the 

purpose of furthering those independent expenditures.” 

• Paragraph 42 alleges that Crossroads GPS “received $3 million in 

contributions from the unnamed donor for the purpose of furthering the 

reported independent expenditures in the Ohio Senate race.” 

Contributions are reportable under Section 109.10(e)(1)(vi) only if the donor made the 

contribution “for the purpose of furthering the reported independent expenditure.” To the extent 

that CREW’s various characterizations attempt to assert a standard different from the one set 

forth at Section 109.10(e)(1)(iv), those allegations should be ignored and dismissed. The 

Commission could also reasonably conclude from CREW’s varying descriptions of the donor’s 

intent that CREW knows nothing about the subject. 

 

1. Complaint ¶ 37 

The donor referenced in Paragraph 37 of the Complaint did not actually make a single 

contribution in the amount of $3 million. Rather, the donor contributed a larger amount that was 

not earmarked in any way. 

Paragraph 37 of the Complaint alleges that “Crossroads GPS knowingly and willfully 

failed to identify the person who made $3 million in contributions for the purpose of furthering 

the independent expenditures Crossroads GPS made in the Ohio Senate race.” Complaint at ¶ 

37 (emphasis added). As noted above, there is no evidence of any such intent. Even assuming 

for the sake of argument that the donor actually did contribute to Crossroads GPS “for the 

purpose of furthering the independent expenditures Crossroads GPS made in the Ohio Senate 

race,” that donative intent would create a reporting obligation under 11 C.F.R. § 109.10(e)(1)(iv) 

only if the donor had specific knowledge of the actual independent expenditures referenced. 

Here, this is not possible. The advertisements that CREW erroneously alleges the donor funded 

were not created until well after the contributor donated the funds at issue. The contributor had 

no creative discussions with any representative of Crossroads GPS about these independent 

expenditures. 
Response in MUR 6696 

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In other words, this donor played no role whatsoever in developing, creating, or funding 

any specific independent expenditure – rather, the donor simply pledged funds to be spent 

somehow in connection with the Ohio Senate race, and later made a larger donation with no 

strings attached. Even if we assume that the $3 million pledged earlier was subsumed within the 

larger donation made, Crossroads GPS was free to spend that amount in any way it wished so 

long as it somehow aided in the election of Josh Mandel. This general “purpose” does not create 

any reporting obligation under 11 C.F.R. §109.10(e)(1)(vi). 

If Crossroads GPS had received a donation or contribution from a person, “which 

contribution was made for the purpose of furthering the reported independent expenditure,” then

Crossroads GPS would have reported it as required by FEC regulations. However, no such 

contribution was made for such purpose, and accordingly, Crossroads GPS was not required to 

make any corresponding donor disclosure. 

 2. Complaint ¶¶ 38 – 42 

Paragraphs 38-42 of the Complaint purportedly provide the factual basis for CREW’s 

Count I allegation. The Complaint, however, simply assumes the facts not in evidence that 

CREW believes would be necessary to show the violation alleged. CREW substitutes its own 

legal conclusions and “information and belief” as “facts” and plants them into a restatement of 

the regulatory provision it claims was violated. 

 For example, at Paragraph 38, CREW claims that “[a]n unnamed donor told Mr. Rove he 

was giving Crossroads GPS $3 million to spend on the Ohio Senate election between Sen. Brown 

and Mr. Mandel.” This is decidedly not what this “unnamed donor told Mr. Rove.” Mr. Rove’s 

recounting of what this donor said to him is set forth in the Complaint at Paragraph 23. 

 At Paragraph 42, CREW goes a step further and fabricates a key piece of information it 

believes is necessary to establish a violation. CREW claims that Crossroads GPS “received $3 

million in contributions from the unnamed donor for the purpose of furthering the reported 

independent expenditures in the Ohio Senate race” (emphasis added). First, as explained above, 

Crossroads GPS never received a single contribution in the amount of $3 million from this 

donor. Second, there is absolutely no evidence in support of CREW’s concocted assertions 

regarding the donor’s purported intent or purpose. The disconnect between the vague recounting 

of a conversation paraphrased in a news account and the specificity of CREW’s allegation is 

readily apparent. The news report indicates that a donor reportedly said, “I really like Josh 

Mandel,” asked the size of a state budget, and said ‘I’ll give ya $3 million, matching challenge. 

From this, CREW concludes, in a sworn complaint no less, that this donor contributed “for the 

purpose of furthering the reported independent expenditures in the Ohio Senate race.” Aside 
Response in MUR 6696 

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from the obvious impossibility of CREW knowing anything about this particular individual’s 

specific donative intent, it is also worth noting that “the reported independent expenditures” had 

not even been conceived at the time the donor made this statement. 

 B. Complaint “Count II” 

 In “Count II,” CREW refers to donors about whom it knows next to nothing, and 

maintains that there are one or more donors out there somewhere who contributed a combined $3 

million to Crossroads GPS. Simply put, there was no “$3 million in ‘matching’ contributions.” 

As explained above, one or more donors contributed a total of approximately $1.3 million in 

connection with the Ohio matching program. 

As is the case in “Count I,” the intent of these unknown donors is described several 

different ways. 

• In Paragraph 43, CREW refers to “the persons who made $3 million in 

‘matching’ contributions for the purpose of furthering the independent 

expenditures Crossroads GPS made in the Ohio Senate race.” 

• Paragraph 44 claims that “[a]s of August 30, 2012, Crossroads GPS was in the 

process of soliciting ‘the other’ $3 million in contributions for spending in the 

Ohio Senate election.” 

• In Paragraph 45, on CREW’s “information and belief,” “Crossroads GPS 

solicited and received $3 million in contributions from donors given with the 

intention that the money be spent on the Ohio Senate race.” 

• Paragraph 47 refers to “the persons who made $3 million in contributions as 

part of the ‘matching challenge’ for the purpose of furthering those 

independent expenditures.” 

• Finally, in Paragraph 48, CREW claims that “Crossroads GPS had received $3 

million in contributions as part of the ‘matching challenge’ from donors for 

the purpose of furthering the reported independent expenditures in the Ohio 

Senate race.” 

Based on the evidence presented and the Complaint itself, it is obvious that CREW has 

no idea who these alleged donors might have been, how many there were, how much any of 

them gave individually, when they made these alleged contributions, or why they contributed. 

However, CREW is certain that they gave “for the purpose of furthering the reported 

independent expenditures in the Ohio Senate race.” There is no evidence presented to support 

this conclusion, and CREW has no relevant personal knowledge. 
Response in MUR 6696 

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Where a complainant cannot provide credible details regarding “who,” “what,” and 

“when,” it certainly cannot be relied upon to provide the “why.” The allegations are not 

adequately substantiated under the “reason to believe” standard set forth in MUR 4960 (Hillary 

Clinton) and amount to “purely speculative charges ... [that] do not form an adequate basis to 

find reason to believe that a violation of the FECA has occurred.” Statement of Reasons of 

Commissioners Mason, Sandstrom, Smith, and Thomas in MUR 4960 (Hillary Clinton). 

Furthermore, CREW’s assertions regarding the specific intent of donors about which nothing 

else is known are so obviously fabricated that Ms. Sloan and Ms. Markley almost certainly 

falsely swore to the Verifications submitted with this Complaint. The rote prefacing of an 

assertion with the hedge “on information and belief” does not create a license to lie. 

“Count II” of the Complaint alleges that “Crossroads GPS knowingly and willfully failed 

to identify the persons who made $3 million in ‘matching’ contributions for the purpose of 

furthering the independent expenditures Crossroads GPS made in the Ohio Senate race.” 

Complaint at ¶ 43; see also Complaint at ¶ 47. As explained above, there are no “persons who 

made $3 million in ‘matching’ contributions for the purpose of furthering the independent 

expenditures Crossroads GPS made in the Ohio Senate race,” meaning Crossroads GPS could 

not possibly have “knowingly and willfully failed to identify” them. 

 The donors who contributed approximately $1.3 million in connection with the matching 

program did not make those contributions “for the purpose of furthering the independent 

expenditures Crossroads GPS made in the Ohio Senate race.” There is no evidence presented 

regarding any donor’s intent. However, any funds solicited or received by Crossroads GPS in 

connection with the matching program were limited for subsequent use only to the extent that 

donors expected the funds would be spent somehow in Ohio. 

 C. Complaint “Count III” 

 Complaint “Count III” asserts a “conspiracy” to “violate the FECA and defraud the FEC 

by knowingly and willfully failing to identify” the donors/contributions referenced in Counts I 

and II. Complaint at ¶ 49. This allegation is presumably targeted to the FBI (and the media), as 

the Commission does not enforce 18 U.S.C. § 371. Nevertheless, the “facts” on which CREW 

premises its Counts I and II are badly flawed, and CREW presents no evidence of any 

wrongdoing or of any violation of the Act or Commission regulations. There can be no 

“conspiracy” to “violate the FECA” where there is no violation of FECA. 

Messrs. Rove, Law, and Crosby did not “unlawfully conspire[] to violate the FECA and 

defraud the FEC.” See Complaint at ¶ 49. Nor did they “knowingly enter[] into an unlawful 

agreement to intentionally violate 2 U.S.C. § 434 and 11 C.F.R. §§ 109.10(b) – (e) and to 

defraud the FEC by failing to identify the person who made $3 million in contributions for the 
Response in MUR 6696 

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purpose of furthering the independent expenditures Crossroads GPS made in the Ohio Senate 

race, and by failing to identify the persons who made $3 million in ‘matching’ contributions for 

the purpose of furthering those independent expenditures.” See Complaint at ¶ 50. Neither Mr. 

Crosby, nor Mr. Law, nor Mr. Rove “committed overt acts to effect the object of the conspiracy 

in violation of 18 U.S.C. § 371,” nor “caused others to commit overt acts to effect” the same. 

See Complaint ¶¶ 51-53. 

 D. Complaint “Count IV” 

 The allegations contained in “Count IV” of the Complaint should be dismissed outright. 

CREW alleges that “Crossroads GPS knowingly and willfully failed to identify the persons who 

made contributions for the purpose of broadcasting the advertisements shown at the August 30, 

2012 fundraiser or broadcasting other ads in those races.” Complaint at ¶ 54. On CREW’s 

“information and belief, Crossroads GPS received contributions given with the intention that the 

money be spent on independent expenditures broadcasting the advertisements shown at the 

fundraiser or broadcasting other ads in the Ohio, Virginia, Montana, and Nevada Senate races.” 

Complaint at ¶ 56. 

 As noted above, the materials on which these particular allegations rest (i.e., Sheelah 

Kolhatkar’s August 30 article) indicate that towards the end of the August 30 meeting, Mr. Law 

and Mr. Barbour made separate, general solicitations of funds for American Crossroads, not 

Crossroads GPS. 

Once again, the advertisements that were screened for attendees at the August 30 meeting 

were not screened for the purpose of seeking funding for them. Thirteen of fourteen ads had 

already been paid for and aired, and the fourteenth advertisement was never intended for public 

distribution. As a basic factual matter, no attendee could have contributed “for the purpose of 

broadcasting the advertisements shown at the August 30, 2012 fundraiser.” In addition, the 

Complainant has presented no evidence whatsoever indicating that anyone in attendance actually 

made a contribution following the August 30 meeting, let alone made a contribution “for the 

purpose of ... broadcasting other ads in those races.” To the extent CREW’s allegations in 

“Count IV” are even a factual possibility, those allegations are “purely speculative” and should 

be dismissed pursuant to the Statement of Reasons in MUR 4960 (Hillary Clinton) (“purely 

speculative charges, especially when accompanied by a direct refutation, do not form an 

adequate basis to find reason to believe that a violation of the FECA has occurred”). 

The allegations in “Count IV” that are not precluded as a basic factual matter amount to: 

“if someone in attendance at the August 30 meeting subsequently made a contribution to 

Crossroads GPS, and if that contribution was made “for the purpose of broadcasting ... other ads 
Response in MUR 6696 

Page 20 of 21

in the Ohio, Virginia, Montana, and Nevada Senate races,” then that person should have been 

reported on a Crossroads GPS report, and Crossroads GPS ‘knowingly and willfully’ failed to do 

so.” There is no evidence for either of these “ifs,” and the alleged donative purpose does not 

create a disclosure requirement under Section 109.10(e)(1)(vi). At a minimum, a donor who is 

subject to disclosure under Section 109.10(e)(1)(vi) must know what advertisement he or she is 

funding. A donation made for the far more general purpose of funding unspecified 

advertisements to be broadcast in a handful of states at some later date does not satisfy the 

requirement that the contribution be made “for the purpose of furthering the reported 

independent expenditure.” Here, CREW simply engages in baseless speculation in the hopes the 

Commission will undertake an investigation. 

Nevertheless, Crossroads GPS did not solicit or receive, at any time, any contributions 

“for the purpose of ... broadcasting other ads in those races.” 

 E. Complaint “Count V” 

 Finally, Complaint “Count V” asserts a “conspiracy” to “defraud the FEC by knowingly 

and willfully failing to identify” the donors/contributions referenced in “Count IV.” Complaint 

at ¶ 59. Like “Count III,” “Count V” and its allegations based on 18 U.S.C. § 371, are 

presumably targeted to the FBI and the media. As explained above, “Count IV” does not 

identify any violation of the Act or Commission regulations or present any evidence of any 

“conspiracy” to violate any law. 

VI. Conclusion 

 For the reasons set forth above, CREW’s complaint should be dismissed because it fails 

to satisfy the standards set forth in MUR 4960 (Clinton). Alternatively, the Commission should 

 
Response in MUR 6696 

Page 21 of 21

find no reason to believe a violation of the Act occurred. In addition, Ms. Sloan and Ms. 

Markley should be referred to the appropriate authorities for investigation into whether they 

executed false Verifications in connection with the submitted Complaint. 

 

Sincerely, 

 

 Thomas J. Josefiak 

Michael Bayes 

Counsel to Crossroads GPS, Karl Rove, 

Haley Barbour, Steven Law, and Caleb 

Crosby 
2124852789 10: 58:43 a.m. 01-17-2013

AFFIDAVIT OF KARL ROVE

PERSONALLY came and appeared before me, the undersigned Not :. , the within named KARL

ROVE, and makes this his Statement and General Affidavit upon oa :; nd affirmation of belief

and personal knowledge that the following matters, facts and things s forth are true and correct

to the best of his knowledge: ,.

2/3

1.

2.

3.

4.

5.

6.

7.

8.

9.

I am Karl Rove. I am an uncompensated advisor to Crossroa 1;' GPS and American

Crossroads, and have served in those capacities since 2010. .

~.

American Crossroads hosted an event on August 30, 2012, in :,. ampa, Florida. Invited

attendees included a variety ofinterested persons~ some ofw;, had previously made

donations, and some ofwhom had not previously made donatl~ s. Some ofthe persons

in attendance have never, to the present date, made a donatio ; 0 either Crossroads GPS

or American Crossroads. .

The recollection of a conversation I had with a donor regardi '. Crossroads GPS efforts in

Ohio that is recounted by Sheelah Kolhatkar in her two artie! {; in Bloomberg

BusinessWeek is substantially accurate. t

The conversation with the donor who issued the "matching ch~ lenge" took place in the

spring of2012. ~ ~ .1,

.During the conversation referenced in Paragraph 4 above, the ~. onor indicated that he was

a supporter ofJosh Mandel, and offered to donate funds towa ~:. Crossroads GPS's budget

in the State of Ohio. I

The conversation referenced in Paragraph 4 above did not inel} de any discussion ofany

particular television advertisements, or television advertiseme~' ts in generaL There was

no discussion ofthe contents, timing, or targeting of any actu . or hypothetical television

advertisements. i

The conversation referenced in Paragraph 4 above did not in ~,( de any discussion of

specific efforts that would or could be made by Crossroads Gl . The conversation referenced in Paragraph 4 above did not inJde any discussion of

spending the donor's funds on any specific methods ofcomml ication.

The conversation referenced in Paragraph 4 above did not incIf.. de any discussion of .~

independent expenditures.
2124852789 10: 59: 14 a.m. 01-17-2013 3/3

<.

,

·1·

10. During the conversation referenced in Paragraph 4 above, at time did the donor, ask,

insist or require that any ofthe pledged funds be spent in any' icular manner or on any

particular or specific efforts or projects. It was my understan g, however, that the

donor intended the funds to be used in some manner that wo aid the election ofJosh

Mandel.

11. I had multiple conversations with Mr. Castellini during the s~:: ng and summer of2012.

One or more ofthese conversations included discussion ofth tother donor's "matching

challenge."

~;:

12. Mr. Castellini participated in efforts to raise funds for Crossr t., ds GPS toward the

Hmatching challenge."

13. In total, approximately $1.3 million was raised in connection .~; ith this "matching"

program. These funds were not solicited for a particular purp:' e other than for general

use in Ohio. t

(

14. The donor who issued the "matching challenge," as reference; in Paragraph 4 above, ~.,

never made a single contribution of $3 milliont Rather, this nor subsequently

contributed a larger amount to Crossroads GPS that was not i: apy way earmarked for

any particular use. Upon receipt ofthis donor's contribution, :: t was my understanding

that this donor did not intend the earlier "matching challenge'(to be a formal programt

Rather, it was my understanding that this person was simply:' ,couraging our general

efforts to raise funds.

"",

.- " RILEAA. .. .......:., <~~

Nota .~ Publict State of New Yc'rk ~': No. 01J06172750 ~':::. ,"",

Qu .:fit;u in New York County.' ....'... "I"" ,~

Comml ,on ExpiresAugustr13, 2015·~'~.~ "

DATED this the 11 day ofJanuary, 2013

My Commission Expires:
Unsigned copy included for reference purposes 

AFFIDAVIT OF KARL ROVE

PERSONALLY came and appeared before me, the undersigned Notary, the within named KARL 

ROVE, and makes this his Statement and General Affidavit upon oath and affirmation of belief 

and personal knowledge that the following matters, facts and things set forth are true and correct 

to the best of his knowledge: 

1. I am Karl Rove. I am an uncompensated advisor to Crossroads GPS and American 

Crossroads, and have served in those capacities since 2010. 

2. American Crossroads hosted an event on August 30, 2012, in Tampa, Florida. Invited 

attendees included a variety of interested persons, some of whom had previously made 

donations, and some of whom had not previously made donations. Some of the persons 

in attendance have never, to the present date, made a donation to either Crossroads GPS 

or American Crossroads. 

3. The recollection of a conversation I had with a donor regarding Crossroads GPS efforts in 

Ohio that is recounted by Sheelah Kolhatkar in her two articles in Bloomberg 

BusinessWeek is substantially accurate. 

4. The conversation with the donor who issued the “matching challenge” took place in the 

spring of 2012. 

5. During the conversation referenced in Paragraph 4 above, the donor indicated that he was 

a supporter of Josh Mandel, and offered to donate funds toward Crossroads GPS’s budget 

in the State of Ohio. 

6. The conversation referenced in Paragraph 4 above did not include any discussion of any 

particular television advertisements, or television advertisements in general. There was 

no discussion of the contents, timing, or targeting of any actual or hypothetical television 

advertisements. 

7. The conversation referenced in Paragraph 4 above did not include any discussion of 

specific efforts that would or could be made by Crossroads GPS. 

8. The conversation referenced in Paragraph 4 above did not include any discussion of 

spending the donor’s funds on any specific methods of communication. 

9. The conversation referenced in Paragraph 4 above did not include any discussion of 

independent expenditures. 
Unsigned copy included for reference purposes 

10. During the conversation referenced in Paragraph 4 above, at no time did the donor, ask, 

insist or require that any of the pledged funds be spent in any particular manner or on any 

particular or specific efforts or projects. It was my understanding, however, that the 

donor intended the funds to be used in some manner that would aid the election of Josh 

Mandel. 

11. I had multiple conversations with Mr. Castellini during the spring and summer of 2012. 

One or more of these conversations included discussion of the other donor’s “matching 

challenge.” 

12. Mr. Castellini participated in efforts to raise funds for Crossroads GPS toward the 

“matching challenge.” 

13. In total, approximately $1.3 million was raised in connection with this “matching” 

program. These funds were not solicited for a particular purpose other than for general 

use in Ohio. 

14. The donor who issued the “matching challenge,” as referenced in Paragraph 4 above, 

never made a single contribution of $3 million. Rather, this donor subsequently 

contributed a larger amount to Crossroads GPS that was not in any way earmarked for 

any particular use. Upon receipt of this donor’s contribution, it was my understanding 

that this donor did not intend the earlier “matching challenge” to be a formal program. 

Rather, it was my understanding that this person was simply encouraging our general 

efforts to raise funds. 

 DATED this the ____ day of January, 2013 

 ________________________ 

 Signature of Affiant, Karl Rove 

 SWORN to subscribed before me, this ___ day of January, 2013 

 ____________________________ 

 NOTARY PUBLIC 

My Commission Expires: 

______________________ 
Attachment B

MUR 6696, First General Counsel’s Report
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

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17 

18 

19 

20 

21 

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23 

24 

25 

26 

27 

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29 

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31 

32 

33 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

FIRST GENERAL COUNSEL'S REPORT O 

m I 

MUR: 6696 r 

DATE COMPLAINT FILED: NovemWP-l 5, Si2 

DATE OF NOTIFICATION: November 28, 2QJ2 

DATE OF LAST RESPONSE: January 18,20^3 

DATE ACTIVATED: April 3,2013 U3 

m 

__o 

om 

^>'2j 

com-:; 

o 

zz 

COMPLAINANT: 

RESPONDENTS: 

RELEVANT STATUTES: 

INTERNAL REPORTS CHECKED: 

FEDERAL AGENCIES CHECKED: 

EXPIRATION OF STATUTE OF LIMITATIONS: 

October 30,2017 

ELECTION CYCLE: 2012 

Citizens for Responsibility and Ethics in 

Washington 

Melanie Sloan 

Nicholas Mezlak 

Crossroads Grassroots Policy Strategies 

Steven Law 

Karl Rove 

Haley Barbour 

Caleb Crosby 

2 U.S.C. § 434(c) 

11 C.F.R.§ 109.10 

Disclosure Reports; Commission Indices 

None 

34 1. INTRODUCTION 

35 The Complaint contends that Crossroads Grassroots Policy Strategies ("Crossroads") 

36 failed to disclose donors in certain independent expenditure reports that Crossroads filed with the 

37 Commission, in violation of 2 U.S.C. § 434 and 11 C.F.R. §§ 109.10(b)-(e).^ The Complaint 

' An Amended Complaint was filed on April 24,2013. The Amended Complaint replaced Jessica Markley 

with Nicholas Mezlak as a complainant and included references to additional public filings made by Crossroads but 

did not assert any new substantive allegations. 

Am. Compl. at 11-14 (Apr. 24, 2013). 
MUR 6696 (Crossroads Grassroots Policy Strategies) 

First General Counsel's Report 

Page 2 of 14 

1 further alleges that Crossroads was aware of its legal obligation to identify those donors, and that 

2 several, individuals associated with Crossroads — Steven Law, Karl Rove, .Haley Barbour, and 

3 Caleb Crosby — conspired to prevent disclosure of the donors' identities.^ Respondents argue 

4 that Crossroads was not required to disclose any contributions for the independent expenditures 

5 at issue because no donor made a contribution "for the purpose of furthering the reported 

6 independent expenditure."" 

7 As discussed, the record reflects that an unnamed individual contributed to Crossroads in 

8 furtherance of Crossroads' effort to support a clearly identified federal candidate. Nonetheless, 

.?[ 9 because the relevant information does not reasonably suggest that the donor made a contribution 

I 10 "for the purpose of furthering the reported independent expenditure," it does not appear that 

11 Crossroads was required to identify that contributor on its relevant independent expenditure 

12 report or reports under the applicable Commission regulation.' Likewise, with respect to the 

13 other reported independent expenditures in question, the facts alleged here do not support the 

14 conclusion that the applicable Commission regulation imposed an obligation on Crossroads to 

15 identify contributors in connection with those reports.® We therefore recommend that the 

16 Commission find no reason to believe that Crossroads violated 2 U.S.C. § 434(c)(2) and 

17 11 C.F.R. § 109.10(e)(l)(vi). Further, to the extent the question is presented on these facts, we 

^ The Complaint and Responses make cross-allegations of criminal violations under Title 18, including 

conspiracy and false statements, each recommending that the Commission refer the other to the appropriate law 

enforcement authorities. See Compl.; Resp. at 2 (Jan. 18, 2013); Supp. Rcsp. at 1 (May 14,2013). We make no 

recommendation concerning alleged violations of federal criminal law outside the scope of the Commission's 

jurisdiction, nor do we see any basis warranting a Commission referral of any individual to another law enforcement 

agency in connection with this matter. See 2 U.S.C. § 437d(a)(9). Accordingly we recommend that the Commission 

close the file as to Steven Law, Karl Rove, Haley Barbour and Caleb Crosby. 

" Resp. at 2, 11-14 (citing 11 C.F.R. § 109.10(e)(l)(vi)). 

' 11 C.F.R. § 109.10(e)(l)(vi) (emphasis added). 

' Id. 
MUR 6696 (Crossroads Grassroots Policy Strategies) 

First General Counsel's Report 

Page 3 of 14 

1 recommend that the Commission dismiss in the exercise of prosecutorial discretion the allegation 

2 that Crossroads violated 2 U.S.C. § 434(c.)(l). 

3 11. FACTUAL BACKGROUND 

4 Crossroads is a non-profit organization established under section 501(c)(4) of the Internal 

5 Revenue Code.' It was formed as a Virginia corporation on June 2, 2010.* Steven Law is 

6 Crossroads' President, and Karl Rove is reportedly a co-founder, fundraiser, and an 

7 uncompensated advisor.' Caleb Crosby serves as Treasurer for Crossroads." Mississippi 

8 Governor Haley Barbour joined American Crossroads — a political committee registered with 

9 the Commission — in 2011 to serve .as a. fundraiser." 

I |i 10 The Complaint relies upon published accounts of a reporter who gained access to an 

11 August 30, 2012, fundraiser for Crossroads and American Crossroads.'^ According to those 

12 reports, Karl Rove, Haley Barbour, and Steven Law spoke before 70 donors and apparently 

13 solicited, contributions in connection with the presidential race and various senate races during 

' See Commonwealth of Va., State Corp. Comm'n, httDs://sccefile.scc.virginia.gov/Business/0723872 (last 

visited June 11,2013). 

Id. 

' See Am. Compl. at 3; Resp.,. Affidavit of Karl Rove ^ 1 ("Rove. AfF."). 

Am. Conipl., Ex. L (Letter from Caleb Crosby to Christopher Whyrick, RAD (Nov. 29, 2012)). 

" Am. Compl., Ex. A; see Cameron Joseph, Barbour to Join American Crossroads, THE HILL (Sept. 9,2011), 

liliD.7/lhehill.t:Qin/blogs/ballot-box/hi:esidentia)-raccsy 1.805.1.1 -barboui-to-ioin-amei:ican-ci6ssroads: 

See Sheelah Kolhatkar, Exclusive: Inside Karl Rove's Billionaire Fundraiser, BLOOMBERG BUSINESSWEEK, 

Aug. 31,2012, [hereinafter Kolhatkar, Rove Fundraiser] (Exhibit B of Amended Complaint); Sheelah Kolhatkar, 

Exclusive: How Karl Rove's SuperPAC Plays the Senate, BLOOMBERG BUSINESSWEEK, Sept. 4,2012, [hereinafter 

Kolhatkar, Rove SuperPAC] (Exhibit D of Amended Complaint); Interview with Sheelah Kolhatkar, DEMOCRACY 

Now (Sept. 5, 2012) (Exhibit C of Amended Complaint). 
MUR 6696 (Crossroads Grassroots Policy Strategies) 

First General Counsel's Report 

Page 4 of 14 

1 the 2012 election.'^ Rove also reportedly identified numerous states that could be competitive 

2 for Republicans. With respect to Ohio, the Complaint relies on the reporter's claim that 

3 Rove stated that he'd had a call from an unnamed out-of-state donor who told 

4 him, "I really like Josh Mandel," referring to the Ohio treasurer attempting to 

5 unseat Democrat Sherrod Brown. The donor, Rove said, had asked him what his 

6 budget was in the state; Rove told him $6 million. "T'll give ya $3 million, 

7 matching challenge,'" Rove said.the donor told him. "Bob Castellini,. owner of 

8 the Cincinnati Reds, is helping raise the other $3 million for that one."'^ 

9 

10 The Complaint notes that Crossroads later reported making $6,363,711 in independent 

11 expenditures in Ohio, which tlie Complaint contends involved funds that Crossroads raised as a 

12 result of the matching challenge Rove described during his speech.The Complaint further 

13 alleges that Rove's conversation with the Unnamed out-of-state donor conceming his support.for 

14 Mandel indicates that Crossroads should have disclosed in its independent expenditure reports 

15 the identity both of that donor and the donors who made $3 million in matching contributions. 

16 Because Crossroads did not identify any donors in ten reports disclosing independent 

17 expenditures in Ohio, the Complaint alleges that Crossroads violated 2 U.S.C. § 434 and 

18 11 C.F.R.§§ 109.10(b)-(e)."' 

19 In addition, the Complaint further asserts that at the August 30, 2012, fundraiser, 

20 Crossroads showed attendees advertisements targeting Senate candidates in Ohio, Virginia, 

" See Kolhatkar, Rove Fundraiser, supra\ Kolhatkar, Rove SuperPAC, supra. 

Id. 

" Kolhatkar, Rove SuperPAC, supra, at 2-3. 

Am. Compl. at 13. 

" 74. at 11-14. 

Id. 11 
MUR 6696 (Crossroads Grassroots Policy Strategies) 

First General Counsel's Report 

Page 5 of 14 

1 Montana, Florida, Massachusetts, and Nevada and then solicited attendees for contributions.'® 

2 The Complaint notes that after the fundraiser, Crossroads filed 32 reports disclosing independent 

3 expenditures for broadcasting advertisements in Virginia, Montana, and Nevada.^" From these 

4 facts, the Complaint concludes that individuals present at the fundraiser made contributions for 

5 the purpose of furthering the advertisements in Virginia, Montana, and Nevada and should have 

6 been identified in Crossroads' independent expenditure reports.^' The Complaint alleges that 

7 Crossroads violated 2 U.S.C. § 434 and 11 C.F.R. §§ 109.10(b)-(e) by not doing so." 

8 The Response disputes the Complaint's recitation of facts and argues that Crossroads had 

9 no obligation to identify any contributors in connection with the challenged independent 

10 expenditure reports, as no donor made a contribution for the purpose of furthering a specific 

11 independent expenditure." The Response relies on a sworn affidavit of Karl Rove." Rove 

12 concedes in his affidavit that Kolhatkar's description of his conversation with the Ohio donor is 

13 "substantially accurate."^^ Rove states that the conversation took place in Spring 2012 and that 

14 the "donor indicated that he was a supporter of Josh Mandel, and offered to donate funds toward 

" Id. at 15. The Complaintstates that organizers of the fundraiser reportedly screened 14 television 

advertisements, which included ads "targeting Democratic Senate candidates in Virginia, Ohio, Montana, Florida, 

Massachusetts, and Nevada." Kolhatkar, Rove Fundraiser, supra. Some were Crossroads ads, and others were for 

American Crossroads. Kolhatkar, Rove SuperPAC, supra. After the ads were shown, the Complaint alleges that 

Law and Barbour solicited funds on behalf of both American Crossroads and Crossroads, and that Law specifically 

noted increases in advertising rates in connection with his solicitation. Am. Compl. at 8, IS, Ex. G (Paul 

Blumenthal, Karl Rove-Backed Groups Are Largest Single Outside Force in 2012, HUFFINGTON POST, Nov. 4, 

2012); Kolhatkar, Rove Fundraiser, supra, at 3. 

Am. Compl. at 16. 

Id. 

Id. 

" Resp. at 13. The Response further contends that the fundraising appeals in question were made on behalf 

of American Crossroads, not Crossroads. Id. at 19. 

Resp. at 7-8. 

" Rove Aff. H 3. 
I 

MUR 6696 (Crossroads Grassroots Policy Strategies) 

First General Counsel's Report 

Page 6 of 14 

1 [Crossroads'] budget in the State of Ohio."^^ Rove asserts that the conversation did not "include 

2 any discussion of any particular television advertisements, or television advertisements in 

3 general," nor did it include any discussion of any "specific efforts" that Crossroads would take to 

4 support Mandel.^' Nonetheless, Rove understood "that the donor intended the funds to be used 

5 in some manner that would aid the election of Josh Mandel."^® Rove avers, however, that the 

6 unnamed donor never made a $3 million contribution; rather, the donor contributed a larger 

7 amount to Crossroads "that was not in any way earmarked for any particular use."^' 

j 8 With respect to the alleged matching challenge, Rove claims that the unnamed donor who 

i 9 extended the offer did not intend for the challenge to be a formal program; rather. Rove 

.1 10 understood that the donor wanted "simply [to] encourage[] our general efforts to raise funds."^® 

b 

11 Rove further avers that Crossroads raised $ 1.3 million for "general use in Ohio" as a result of the 

12 matching challenge.^' 

13 Concerning the independent expenditure reports addressing Crossroads^funded 

14 broadcasts in Virginia, Montana, and Nevada, the Response contends no donor contributed 

15 money specifically to fund those advertisements.^^ Further, none of the donors who attended the 

16 August 30, 2012, fiuidraiser made contributions to further any of the fourteen ads displayed 

26 

27 

28 

29 

30 

31 

32 

Id. H 5. 

7^^11116-7. 

Id. II 10. 

Id II 14. 

Id. 

Id H 13. 

Resp. at 5-6. 
MUR 6696 (Crossroads Grassroots Policy Strategies) 

First General.Counsel's Report 

Page 7 of 14 

1 during the event.^^ Indeed, 13 of the 14 advertisements at issue were fully "paid for and aired" 

2 before the August 30,2012, fundraiser, and the 14th advertisement was shown to a focus group 

3 and not publicly aired at all.^" The Response also asserts that Law and Barbour did not solicit 

4 funds on behalf of both Crossroads and American Crossroads at the fundraiser; rather, their 

5 solicitations related specifically and solely to American Crossroads " 

6 The Response further asserts that, contrary to the representations in the Complaint, 

7 Crossroads spent over S10 million in Ohio on TV ads mentioning one of the two U.S. Senate 

8 candidates.^® The Response represents that these ads included either independent expenditures 

9 or electioneering communications and "[o]ther issue and policy advocacy ads [that] did not fall 

10 into either category and were not required to be reported Production costs for those ads 

11 not required to be reported totaled approximately $ 150,000.^® The Respondents explain that the 

12 Complaint's $6.4 million figure includes only funds that Crossroads spent on independent 

13 expenditures that opposed Senator Brown.^' 

14 The Complaint also contends that the Respondents' violations were knowing and willfiil. 

15 It cites responses to Requests for Additional Information ("RFAls") sent to Crossroads that were 

33 

34 

35 

36 

37 

Id. 

Id. at 6. 

Id at 10. 

Rcsp. at 8. 

Id. Commission disclosure reports confirm that Crossroads spent approximately $6.4 million on 

independent.expenditures in Ohio. Although the Response here suggests that Crossroads may have spent some, 

amount of money in connection with electioneering communications, Crossroads has not filed any electioneering 

communication reports in connection with its Ohio activities. As such, it remains unclear how Crossroads spent that 

additional $3.6 million in Ohio beyond those funds it claims were committed to independent expenditures in the 

state. 

Id. 

Id. 
MUR 6696 (Crossroads Grassroots Policy Strategies) 

First General Counsel's Report 

Page 8 of 14 

1 issued in connection with other Crossroads independent expenditure reports."" Those notices 

2 informed Crossroads that it had failed to itemize any contributions in its independent expenditure 

3 reports."' The June 2011 and October 2012 RFAIs stated that Crossroads was required to 

4 disclose identification information for each individual who made a donation in excess of $200 

5 "used to fund the independent expenditure[s].""^ In its response, Crossroads asserted that the 

6 RFAIs misstated the law and that Crossroads neither solicited nor received contributions "for the 

7 purpose of furthering the reported independent expenditure.""^ Moreover, Crossroads declared 

8 that it understood the applicable reporting regulations and that any omission of contributor 

9 information in future reports "should not be assumed to be an oversight.""" The legal position 

10 Crossroads described in its responses to the RFAIs is therefore consistent with the position the 

11 Respondents take concerning the allegations raised here. 

12 III. LEGAL ANALYSIS 

13 An independent expenditure is an expenditure that expressly advocates the election or 

14 defeat of a clearly identified federal candidate and "that is not made in concert or cooperation 

15 with or at the request or suggestion of such candidate, the candidate's authorized political 

16 committee, or their agents, or a political party committee or its agents.""^ The Federal Election 

See Am. Compl. at 15-16. 

See Letter from Christopher Whyrick, PEC to Crossroads (June 14,2011) C'June 2011 RFAI") (Exhibit I of 

Amended Complaint); Letter from Christopher Whyrick, PEC to Crossroads (Oct. 25,2012) ("Oct. 2012 RFAI") 

(Exhibit K of Amended Complaint); Letter from Christopher Whyrick, PEC to Crossroads (Apr. 9, 2013) ("Apr. 

2013 RPAl") (Exhibit M of Amended Complaint). 

" June 2011 RFAI at 1; October 2012 RFAI at 2. 

See Letter from Thomas Joseflak to Christopher Whyrick, PEC at 1 (June 19, 2011) ("June 2011 Resp.") 

(Exhibit J of Amended Complaint); Letter from Caleb Crosby to Christopher Whyrick, PEC (Apr. 10.2013) 

(Exhibit N of Amended Complaint). 

June 2011 Resp. at 2. 

2 U.S.C. §431(17). 
f; 

MUR 6696 (Crossroads Grassroots Policy Strategies) 

First General Counsel's Report 

Page 9 of 14 

1 Campaign Act of 1971, as amended (the "Act") requires persons, other than political committees, 

2 to report independent expenditures that exceed $250 during a calendar year.'*® Such a report 

3 must include, among other information, "the identification of each person who made a 

4 contribution in excess of $200 to the person filing such statement which was made for the 

5 purpose of furthering an independent expenditure."''^ The Commission's implementing 

6 regulation provides that an independent expenditure report must, include "[t]he identification of 

7 each person who made a contribution in excess of $200 to the person filing such report which 

8 contribution was made for the purpose of furthering the reported independent expenditure."^® 

9 Relying on the language of the Commission's regulation, the Response argues that 

10 Crossroads must only disclose the identity of those donors who make a contribution intending 

11 that those funds be used to further a specific advertisement: 

12 At a minimum, a donor who is subject to disclosure under Section 

13 109.10(e)( 1 )(vi) must know what advertisement he or she is funding. A 

14 donation made for the far more general purpose of funding unspecified 

15 advertisements in a handful of states at some later date does not satisfy the 

16 contribution be made "for the purpose of furthering the reported 

17 independent expenditure. 

18 This Office previously addressed the scope of disclosure required under Section 434(c) of 

19 the Act and Section 109.10(e)(l)(vi) of the Commission's implementing regulations in 

W. § 434(c)(1); n C.F.R. § 109.10(b). 

" 2 U.S.C. § 434(c)(2)(C) (emphasis added). 

11 C.F.R. § 109.10(e)(I)(vi) (emphasis added). In 2011, Rep. Chris Van Hollen petitioned the Commission 

to revise section 109.10(e)(l)(vi), arguing that it "requires disclosure only of those contributors who state a specific 

intent to fund a specific ('the reported') independent expenditure." Rep. Chris Van Hollen, Petition for Rulemaking 

at 3 (Apr. 21,2011) ("Van Hollen Petition"). In response, this Office submitted to the Commission a draft notice of 

proposed rulemaking proposing to amend section I09.10(e)(l)(vi). The proposal would have required disclosure of 

all contributors who make a contribution for the purpose of furthering "an" independent expenditure. See Draft 

Notice of Proposed Rulemaking for Independent Expenditure Reporting at 7 (Dec. 15,2011) ("Draft Notice"). The 

Commission did not approve the proposal for publication in the Federal Register. 

Resp. at 20 (emphasis in original). 
MUR 6696 (Crossroads Grassroots Policy Strategies) 

First Gerreral Counsel's Report 

Page 10 of 14 

1 In that matter, the Commission approved our 

2 recommendation not to open a matter where there was no information that a 501 (c)(4) 

3 organization received "donations tied to a specific independent expenditure."^" We concluded 

4 that Section 434(c) may reasonably be construed to require disclosure of the identity of certain 

5 contributors regardless of whether the contributor, made a contribution to further a specific 

6 independent expenditure. Nonetheless, we explained that the regulatory language of section 

7 109.10(e)( 1 )(vi) "appears to require an express link between the receipt and the independent 

8 expenditure."^' Nothing in the record before the Commission indicated that a donor had made a 

9 contribution for the purpose of funding the reported independent expenditure or otherwise 

10 triggering disclosure under Section 434(c).^^ Acknowledging the difficulty of resolving the 

11 question through an enforcement action and given the lack of information suggesting had 

12 received a contribution that would require disclosure under any construction of Section 434(c), 

13 this Office recommended that the Commission not open a matter, and the Commission approved 

14 that recommendation. 

so 

" Id. As we further explained, paragraph (c)(1) of the same provision of the Act may impose additional 

reporting obligations — namely, that every person (other than a political committee) who makes independent 

expenditures in excess of $250 must file a report identifying each person who, for the purpose of influencing a 

federal election, made a contribution to that person in excess of $200 in a calendar year, regardless of whether the 

contribution was made for the purpose of furthering an independent expenditure. See id. at 7-8 (citing FEC v. 

Massachusetts Citizens for Life, 479 U.S. 238,262 (1986)). 

Id. at 3-5, 11. In its disclosure reports filed with the Commission, the respondent in had 

identified two contributors who had made contributions — of $3,500 and $500, respectively — to further the 

independent expenditures that were, the subjects of its reports. See id. at 3.6. With respect to the remaining 

independent expenditures in question, argued in the enforcement proceeding that it used general treasury funds 

to pay for its independent expenditures and asserted that it would be impossible to identify other individuals who 

donated funds tied to any specific independent expenditure. Id. at 3. 

53 
MUR 6696 (Crossroads Grassroots Policy Strategies) 

First General Counsel's Report 

Page 11 of 14 

1 Here, although Rove contends that the donor subsequently contributed a different amount 

2 not tied to any stated purpose,'^ the initial discussion concerning the proposed contribution —"I 

3 really like Josh Mandel I'll give ya 3 million " — was at least specific enough that 

4 Rove understood that the donor proposed to make a contribution to Crossroads for it to use to 

5 support the election of Josh Mandel." Nonetheless, a donor's general purpose to support an 

6 organization in its efforts to further the election of a particular federal candidate does not itself 

7 indicate that the donor's purpose was to further "the reported independent expenditure" — the 

8 requisite regulatory test. 

9 The record also fails to support a reasonable inference that any persons made 

10 contributions in response to the matching challenge for the purpose of furthering the ten reported 

11 independent expenditures in Ohio. The Complaint alleges that Crossroads spent $6.4 million in 

12 independent expenditures opposing Senator Brown in the Ohio Senate race. Even if true, 

13 however, that fact would not advance the claim that, as a result of the matching challenge, 

14 Crossroads received funds from a donor for the purpose of furthering Crossroads' reported 

15 independent expenditures in Ohio. 

16 The Complaint also alleges that Crossroads failed to disclose the identities of persons 

17 who attended the August 30, 2012, fundraiser and made contributions relating to the 14 

18 television advertisements shown at the fundraiser in connection with the 32 independent 

" 5eeRove Aff.TI 14. 

" See Rove Aff. H 10. Consistent with the position of this Office in litigation concerning similar regulatory 

language, when considering the donor's purpose under 11 C.F.R. § 109.10(e)(l)(vi), we construe the available 

record using objective standards and in light of all the circumstances. Cf. FEC Mem. of P.&A. in Supp. of Mot. for 

Summ. J. at 33, Fow Hollen v. FEC, Civ. No. 00766 (Aug. 1,2011) (contending that similar regulatory language 

concerning disclosure of identity of donors for electioneering communications "does not rely solely on statements 

(public or private) by donors, but applies objective standards to determine which donations meet the regulatory 

standard."); FEC Resp. to PL's Supplemental Mem. at 2, Van Hollen v. FEC, Civ. No. 00766 (Apr. 29,2013) 

(same). Because the test is an objective one, the stated purpose of the donor may be a relevant fact, but it is not 

necessarily dispositive. 
MUR 6696 (Crossroads Grassroots Policy Strategies) 

First General Counsel's Report 

Page 12 of 14 

1 expenditures Crossroads reported for Virginia, Montana, and Nevada. Crossroads represents that 

2 none of the contributions received at the event were for the purpose of furthering those 

3 communications.^® Moreover, Crossroads explains that 13 of the advertisements were broadcast 

4 and fully paid for before August 30, 2012, and that the 14th never aired, which further tends to 

5 support Crossroads' assertion that it did not receive contributions for the purpose of furthering 

6 those communications. Consequently, there is no basis to conclude on these facts that 

7 Crossroads received contributions from individuals at the fundraiser for the purpose of furthering 

8 Crossroads' reported independent expenditures in Virginia, Montana, and Nevada as alleged. 

9 We therefore recommend that the Commission find no reason to believe that Crossroads 

10 violated 2 U.S.C. § 434(c)(2) or 11 C.F.R. § 109.10(e)(l)(vi) when it filed independent 

11 expenditure reports without identifying any donors who contributed to Crossroads with the 

12 purpose of furthering the reported independent expenditures.®' 

13 Finally, as we have explained. Section 434(c)(1) of the Act may impose additional 

14 reporting obligations for certain contributions made for the purpose of influencing a federal 

15 election generally.®® The Commission's regulation at 11 C.F.R. § 109.10(e) is silent concerning 

" Resp. at5,6, 19. 

" Although we conclude that the record before the Commission does not indicate that Crossroads violated the 

regulatory standard for disclosure of donors in connection with its independent expenditure reporting, we note that 

2 U.S.C. § 434(c)(2) specifically mandates disclosure of the identity of those who contribute for the purpose of 

furthering "an independent expenditure," an arguably more expansive approach. See First Gen. Counsel's Rpt. at 2, 

The Commission promulgated 11 C.F.R. § 109.10(e)(l)(vi) specifically to address Section 434(c), 

however, and thus it constitutes the Commission's controlling interpretation of the statutory provision it implements. 

See Reporting of Independent Expenditures by Persons Other Than a Political Committee, 45 Fed, Reg. 15,087 

(Mar. 7, 1980) (stating that 11 C.F.R § 109.2 [subsequently renumbered 109.10] "has been amended to incorporate 

the changes set forth at 2 U.S.C. § 434(c)(1) and (2)"). Accordingly, our recommendation that the Commission find 

no reason to believe Crossroads violated the independent expenditure reporting regulation at 11 C.F.R. 

§ 109.10(e)( 1 )(vi) applies with equal force to the alleged violation of the independent expenditure reporting 

provision it implements at 2 U.S.C. § 434(c)(2). 

S8 
MUR 6696 (Crossroads Grassroots Policy Strategies) 

First General Counsel's Report 

Page 13 of 14 

1 any such additional reporting requirement. Because the record here does not suggest a basis to 

2 find a violation of the regulatory standard at 11 C.F.R. § 109.10(e)(l)(vi) under its plain terms, a 

3 Respondent could raise equitable concerns about whether a filer has fair notice of the requisite 

4 level of disclosure required by law if the Commission attempted to impose liability under 

5 Section 434(c)(l).^' Accordingly, to the extent that the facts here may also give rise, to a claim 

6 that Crossroads allegedly violated 2 U.S.C. § 434(c)(l),®° we recommend that the Commission 

7 dismiss that allegation as a prudential matter in the exercise of its prosecutorial discretion.®' 

8 * * * 

9 For the foregoing reasons, we recommend that the Commission find no reason to believe 

10 that Crossroads violated 2 U.S.C. § 434(c)(2) and 11 C.F.R. § 109.10(e)(l)(vi), dismiss the 

11 allegation that Crossroads violated 2 U.S.C. § 434(c)(1), and close the file in this matter. 

12 IV. RECOMIVIENDATIONS 

13 1. Find no reason to believe that Crossroads Grassroots Policy Strategies violated 

14 2 U.S.C. § 434(c)(2) and 11 C.F.R. § 109.10(e)(l)(vi); 

15 2. .Dismiss in the exercise of prosecutorial discretion the allegation that Crossroads 

16 Grassroots Policy Strategies violated 2 U.S.C. § 434(c)(1); 

17 3. Close the file as to Steven Law, Karl Rove, Haley Barbour and Caleb Crosby. 

18 4. Approve the attached Factual and Legal Analysis; 

19 5. Approve the appropriate letters; and 

" Id. at 10 ("In short, although certain disclosures appear to be required by the Act and MCFL, the 

Commission regulations concerning the disclosure requirements of the Act for QNCs can reasonably be interpreted 

as too narrow to provide sufficient notice to QNCs regarding what they must disclose."); 

" See Compl. at 4-5 & n.l (reciting language of disclosure obligations under Sections 434(c)(1) and (c)(2) 

and asserting that Commission's regulatory interpretation "fails to give full effect to these provisions"). 

See Heckler v. Chaney, 470 U.S. 821, 831 (1985). 
1 

MUR 6696 (Crossroads Grassroots Policy Strategies) 

First General Counsel's Report 

Page 14 of 14 

6. Close the file. 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

Date: 3/7/7 

^ai^i K.l?eSlar 

Associate Cieneral Counsel 

Mark Shonkwiler 

Assistant General Counsel 
Attachment C

[Proposed] Answer and Affirmative Defense of Intervenor-Defendant Crossroads GPS, 

CREW v. FEC (Civil Action No. 1:16-cv-00259-BAH) (April 26, 2016)
1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CITIZENS FOR RESPONSIBILITY AND 

ETHICS IN WASHINGTON, et al., 

 Plaintiffs, 

 v. 

 

FEDERAL ELECTION COMMISSION, 

 Defendant, 

CROSSROADS GRASSROOTS POLICY 

STRATEGIES 

1401 New York Ave., NW 

Ste. 1200 

Washington, DC 20005, 

Proposed Intervenor- 

 Defendant. 

Civil Action No. 1:16-cv-00259-BAH 

[PROPOSED] ANSWER AND AFFIRMATIVE DEFENSE OF 

INTERVENOR-DEFENDANT CROSSROADS GRASSROOTS POLICY STRATEGIES 

By leave of the Court, Crossroads Grassroots Policy Strategies (“Crossroads GPS”) 

intervenes in this action as a party Defendant, and submits this Answer, denying each allegation 

of the Complaint except to the extent expressly admitted below: 

 1. Admitted that Plaintiffs have filed an action challenging the Federal Election 

Commission’s (“FEC” or Commission”) dismissal of an administrative complaint filed by 

Plaintiffs and the FEC’s promulgation of the regulation at 11 C.F.R. § 109.10(e)(1)(vi). To the 

extent that Paragraph 1 contains Plaintiffs’ characterizations and conclusions of law, no response 

is required. To the extent any response is required, Plaintiffs’ characterizations and conclusions 

of law are denied. 

 2. Admitted that Crossroads GPS received funds in excess of $3 million from a 

donor in 2012. Admitted that Karl Rove is an unpaid, informal advisor to Crossroads GPS. 

13968175.7 

Case 1:16-cv-00259-BAH Document 14 Filed 04/26/16 Page 1 of 10
2 

Admitted that Crossroads GPS sponsored independent expenditure television advertisements in 

Ohio in 2012. Admitted that Crossroads GPS did not report the identity of donors on 

independent expenditure reports filed with the FEC. Denied that Crossroads GPS was required 

to disclose donors on any independent expenditure reports filed with the FEC. To the extent that 

Paragraph 2 contains Plaintiffs’ characterizations and conclusions of law, no response is 

required. To the extent any response is required, Plaintiffs’ characterizations and conclusions of 

law are denied. 

 3. Admitted that Crossroads GPS received approximately $1.3 million in “matching” 

funds from donors for its unspecified general use in Ohio, and that Crossroads GPS did not 

report the identity of any of those donors on independent expenditure reports filed with the FEC. 

Denied that Crossroads GPS was required to disclose any donors on any independent 

expenditure reports filed with the FEC. To the extent that Paragraph 3 contains Plaintiffs’ 

characterizations and conclusions of law, no response is required. To the extent any response is 

required, Plaintiffs’ characterizations and conclusions of law are denied. 

 4. Admitted that Crossroads GPS did not report the identity of any of its other 

donors on independent expenditure reports filed with the FEC. Denied that Crossroads GPS was 

required to disclose donors on any independent expenditure reports filed with the FEC. Denied 

that independent expenditure advertisements distributed subsequent to the event at issue 

[duplicated] the example advertisements shown at the event. Denied that Crossroads GPS 

brought contributors to a fundraiser held on August 30, 2012, provided materials for donating to 

the group, showed example independent expenditure advertisements to these donors, and then 

solicited funds from these donors for the purpose of funding particular independent expenditure 

advertisements. To the extent that Paragraph 4 contains Plaintiffs’ characterizations and 

Case 1:16-cv-00259-BAH Document 14 Filed 04/26/16 Page 2 of 10
3 

conclusions of law, no response is required. To the extent any response is required, Plaintiffs’ 

characterizations and conclusions of law are denied. 

 5. Paragraph 5 sets forth Plaintiffs’ opinions and characterizations and conclusions 

of law to which no response is required. To the extent any response is required, these allegations 

are denied. 

 6. Admitted that venue in this district is proper pursuant to 52 U.S.C. § 

30109(a)(8)(A) and 28 U.S.C. § 1391(e). Otherwise denied. 

 7. Admitted that Plaintiff operates pursuant to Section 501(c)(3) of the Internal 

Revenue Code. 

 8 – 10. Crossroads GPS lacks sufficient information to admit or deny CREW’s 

generalized descriptions of itself and its purposes, nor is any response to these descriptions 

required. 

 11. Admitted that Plaintiff files complaints with the FEC. Crossroads GPS lacks 

sufficient information to admit or deny CREW’s generalized descriptions of itself and its 

purposes, nor is any response to these descriptions required. 

 12 – 13. Crossroads GPS lacks sufficient information to admit or deny CREW’s 

generalized descriptions of itself and its purposes, nor is any response to these descriptions 

required. 

 14 – 15. Crossroads GPS lacks sufficient information to admit or deny CREW’s 

descriptions of its publications, nor is any response to these descriptions required. 

 16. Denied that Crossroads GPS refuses to comply with FEC’s reporting and 

disclosure requirements. Crossroads GPS lacks sufficient information to admit or deny CREW’s 

Case 1:16-cv-00259-BAH Document 14 Filed 04/26/16 Page 3 of 10
4 

generalized descriptions of itself and its purposes, nor is any response required. To the extent a 

response to these allegations is required, they are denied. 

 17. Crossroads GPS lacks sufficient information about Plaintiff Nicholas Mezlak to 

admit or deny the factual representations regarding Mr. Mezlak set forth in Paragraph 17. To the 

extent that Paragraph 17 contains Plaintiffs’ characterizations and conclusions of law, no 

response is required. To the extent any response is required, Plaintiffs’ characterizations and 

conclusions of law are denied. 

 18. Paragraph 18 contains Plaintiffs’ characterizations and conclusions of law to 

which no response is required. To the extent any response is required, these allegations are 

denied. 

19-34. FECA’s statutory provisions, the Code of Federal Regulations, and the FEC’s 

policy statements speak for themselves and require no response. 

35-39. Admitted. 

 40. Denied that Crossroads GPS held a fundraiser at the Tampa Club in Tampa, 

Florida on August 30, 2012. 

 41. Admitted that a news media report indicates there were “about70” attendees at the 

August 30, 2012 event hosted by American Crossroads. The rest of Paragraph 41 contains 

Plaintiffs’ characterizations of attendees, to which no response is required. 

 42. Admitted. 

 43. Admitted that a news media report attributed the quoted statements and 

recollections to Mr. Rove. Admitted that Mr. Rove affirmed in an affidavit that was included 

with Crossroads GPS’s response to CREW’s administrative complaint filed in FEC Matter Under 

Review 6696, and which Plaintiffs have attached to their Complaint in this instant matter as 

Case 1:16-cv-00259-BAH Document 14 Filed 04/26/16 Page 4 of 10
5 

Exhibit I, that the news media reporter’s account of Mr. Rove’s statements was substantially 

accurate. 

 44. Crossroads GPS’s reports filed with the FEC speak for themselves and require no 

response. 

 45. Denied that Crossroads GPS’s independent expenditure reports filed with the FEC 

failed to disclose the names of any donors that were required to be disclosed by relevant FEC 

regulations and precedent. Crossroads GPS’s independent expenditure reports filed with the 

FEC speak for themselves and require no response. 

 46. American Crossroads’ reports filed with the FEC speak for themselves and 

require no response. 

 47. Admitted that fourteen television advertisements were shown to attendees at the 

August 30, 2012 event hosted by American Crossroads. Admitted that eleven advertisements 

had previously been paid for and publicly distributed by Crossroads GPS. Admitted that two 

advertisements had previously been paid for and publicly distributed by American Crossroads. 

Admitted that one advertisement had previously been paid for by American Crossroads and 

shown to a focus group, but not publicly distributed. To the extent that Paragraph 47 contains 

Plaintiffs’ characterizations of those advertisements, no response is required. To the extent any 

response is required, Plaintiffs’ characterizations are denied. 

 48. Crossroads GPS’s advertisements speak for themselves and require no response. 

To the extent any response is required, Crossroads GPS denies that this paragraph fully and 

accurately conveys the content of the referenced advertisements. 

 49. Generally denied. Admitted that American Crossroads officials orally solicited 

contributions from attendees at the August 30, 2012, event. 

Case 1:16-cv-00259-BAH Document 14 Filed 04/26/16 Page 5 of 10
6 

 50. Admitted that a news media report attributed the quoted material to Mr. Barbour. 

Plaintiffs’ characterizations of those statements attributed to Mr. Barbour require no response. 

 51. Denied that Mr. Law and Mr. Barbour used the name “American Crossroads” to 

refer to both American Crossroad and Crossroads GPS. Admitted that Mr. Law and Mr. Barbour 

solicited contributions to American Crossroads at the August 30, 2012 event. Crossroads GPS’s 

advertising in Florida and related press release attached as Exhibit D to Plaintiffs’ Complaint 

speak for themselves and require no response. To the extent that Paragraph 51 contains 

Plaintiffs’ characterizations and speculation about the event that appear to derive from a thirdparty news report attached to Plaintiffs’ Complaint as Exhibit G, and which require no response 

To the extent any response is required, Plaintiffs’ characterizations and speculation are denied. 

 52. Denied that advertising aired by Crossroads GPS duplicated the example 

advertisements shown at the August 30, 2012, meeting. Crossroads GPS’s advertising and FEC 

filings speak for themselves and no response is required. Paragraph 52 contains Plaintiffs’ 

characterizations of Crossroads GPS’s advertisements, to which no response is required. 

 53. Denied that Crossroads GPS’s independent expenditure reports filed with the FEC 

failed to disclose the names of any donors that were required to be disclosed by relevant FEC 

regulations and precedent. Crossroads GPS’ independent expenditure reports filed with the FEC 

speak for themselves and require no response. 

 54. Admitted. 

 55. Admitted that Plaintiff filed an administrative complaint against Crossroads GPS 

with the FEC on November 14, 2012. The content of Plaintiffs’ administrative complaint filed 

with the FEC speaks for itself and no response is required. To the extent any response is 

Case 1:16-cv-00259-BAH Document 14 Filed 04/26/16 Page 6 of 10
7 

required, Crossroads GPS generally denies the substantive allegations set forth in Plaintiffs’ 

administrative complaint. 

56-61. Admitted that Crossroads GPS filed a response to Plaintiffs’ administrative 

complaint with the FEC on January 17, 2013, and that this response included an affidavit signed 

by Mr. Rove. Plaintiffs’ characterizations of Crossroads GPS’s FEC response and Mr. Rove’s 

affidavit require no response. To the extent any response is required, Plaintiffs’ characterizations 

of Crossroads GPS’s response are denied to the extent that those characterizations vary from 

Crossroads GPS’s response. 

 62. Admitted that American Crossroads paid for and distributed advertising in 

connection with the U.S. Senate races in Montana and Florida, as well as in Wisconsin, Indiana, 

and Nebraska, subsequent to the August 30, 2012 meeting. Admitted that American Crossroads 

did not report spending any money on advertising subsequent to the August 30 meeting in 

connection with the U.S. Senate races in Massachusetts, Nevada, Ohio, or Virginia. Admitted 

that, subsequent to the August 30, 2012 meeting, Crossroads GPS paid for and distributed 

independent expenditures in connection with the U.S. Senate races in Massachusetts, Nevada, 

Ohio, and Virginia, as well as in North Dakota, Wisconsin, Montana, Indiana, Maine, and New 

Mexico. 

 63. Admitted. 

64-69. Admitted that the FEC’s Office of General Counsel issued a First General 

Counsel’s Report that is date-stamped March 7, 2014. This First General Counsel’s Report 

speaks for itself, and Plaintiffs’ characterizations of the Report require no response. To the 

extent any response is required, Plaintiffs’ characterizations of the First General Counsel’s 

Case 1:16-cv-00259-BAH Document 14 Filed 04/26/16 Page 7 of 10
8 

Report are denied to the extent that those characterizations vary from First General Counsel’s 

Report itself. 

70-71. Admitted that the FEC voted on the recommendations made by the Office of 

General Counsel in the First General Counsel’s Report. The official FEC records regarding the 

FEC’s votes speak for themselves and require no response. 

 72. Admitted that the controlling Commissioners have not issued a Statement of 

Reasons in connection with MUR 6696. 

 [Paragraph numbers 73 through 109 are omitted in the Complaint.] 

 110. Crossroads GPS incorporates its responses in all preceding paragraphs as if fully 

set forth herein. 

 111. Denied. 

 112. Admitted that the three Commissioners who voted against finding reason to 

believe that Crossroads GPS violated the law have not issued a separate Statement of Reasons. 

Denied that these Commissioners failed to provide an explanation for their vote(s). Denied that 

the Office of General Counsel’s First General Counsel’s Report is insufficient to justify 

dismissal of the enforcement matter. 

113-116. Denied. 

 117. Crossroads GPS incorporates its responses in all preceding paragraphs as if fully 

set forth herein. 

 118. Admitted that the three Commissioners who voted against finding reason to 

believe that Crossroads GPS violated the law have issued no separate Statement of Reasons. 

Denied that these Commissioners failed to provide an explanation for their vote(s). Denied that 

Case 1:16-cv-00259-BAH Document 14 Filed 04/26/16 Page 8 of 10
9 

the Office of General Counsel’s First General Counsel’s Report is insufficient to justify 

dismissal of the enforcement matter. 

119-124. The First General Counsel’s Report, Code of Federal Regulations, and FECA 

speak for themselves. To the extent these Paragraphs contain Plaintiffs’ characterizations and 

conclusions of law, no response is required. To the extent any response is required, Plaintiffs’ 

characterizations and conclusions of law are denied. 

 125. Crossroads GPS incorporates its responses in all preceding paragraphs as if fully 

set forth herein. 

 126. Admitted that the three Commissioners who voted against finding reason to 

believe that Crossroads GPS violated the law have issued no separate Statement of Reasons. 

Denied that these Commissioners failed to provide an explanation for their vote(s). Denied that 

the Office of General Counsel’s First General Counsel’s Report is insufficient to justify 

dismissal of the enforcement matter. 

127-130. The First General Counsel’s Report, Code of Federal Regulations, FECA, and 

Crossroads GPS’s response to the administrative complaint speak for themselves. To the extent 

these Paragraphs contain Plaintiffs’ characterizations and conclusions of law, no response is 

required. To the extent any response is required, Plaintiffs’ characterizations and conclusions of 

law are denied. 

 131. Denied. 

AFFIRMATIVE DEFENSES 

 1. The Administrative Procedure Act (“APA”) does not provide an avenue for relief 

where other adequate bases for relief from administrative action are available. Because the 

FECA otherwise provides relief from improper dismissal, no APA remedy is available here. 

Case 1:16-cv-00259-BAH Document 14 Filed 04/26/16 Page 9 of 10
10 

 2. Plaintiffs’ challenge to the FEC’s promulgation of 11 C.F.R. § 109.10(e)(1)(vi), 

which was promulgated on March 7, 1980 (and was numbered 11 C.F.R. § 109.2 at the time), is 

time-barred under 28 U.S.C. § 2401(a). 

 WHEREFORE, Crossroads Grassroots Policy Strategies requests that the complaint be 

dismissed with prejudice and that the Court award it all other lawful and proper relief. 

April 15, 2016 

/s/ Thomas W. Kirby. 

Michael E. Toner (D.C. Bar No. 439707) 

E-mail: mtoner@wileyrein.com 

Thomas W. Kirby (D.C. Bar No. 915231) 

E-mail: tkirby@wileyrein.com 

Eric Wang (D.C. Bar. No. 974038) 

WILEY REIN LLP 

1776 K Street NW 

Washington, DC 20006 

Tel.: 202.719.7000 

Fax: 202.719.7049 

Counsel for Crossroads Grassroots Policy 

Strategies 

Case 1:16-cv-00259-BAH Document 14 Filed 04/26/16 Page 10 of 10
Attachment D

Crossroads GPS’s Opposition to Plaintiff’s Motion for Summary Judgment and CrossMotion for Summary Judgement, 

CREW v. FEC (Civil Action No. 1:16-cv-00259-BAH) (Oct. 23, 2017)
i 

 UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CITIZENS FOR RESPONSIBILITY AND 

ETHICS IN WASHINGTON, et al., 

 Plaintiffs, 

 v. 

 

FEDERAL ELECTION COMMISSION, 

 Defendant, 

CROSSROADS GRASSROOTS POLICY 

STRATEGIES, 

 

Intervenor-Defendant. 

Civil Action No. 1:16-cv-00259-BAH 

ORAL ARGUMENT REQUESTED 

CROSS-MOTION FOR SUMMARY 

JUDGMENT 

CROSSROADS GRASSROOTS POLICY STRATEGIES’ OPPOSITION TO 

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND 

CROSS-MOTION FOR SUMMARY JUDGMENT 

 Intervenor-Defendant Crossroads Grassroots Policy Strategies (“CGPS”) moves this 

Court for an order (1) granting its Cross-Motion for Summary Judgment under Rule 56 of the 

Federal Rules of Civil Procedure and Local Rule 7(h) and dismissing the Plaintiffs’ complaint 

with prejudice, and (2) denying Plaintiff’s Motion for Summary Judgment (Dkt. No. 27). 

 In support of this motion, CGPS files (1) a Memorandum of Points and Authorities in 

Support of Its Opposition to Plaintiffs’ Motion for Summary Judgment and Cross-Motion for 

Summary Judgment, and (2) a Proposed Order. CGPS requests oral argument on this motion. 

 

Case 1:16-cv-00259-BAH Document 29 Filed 10/23/17 Page 1 of 65
ii 

Respectfully submitted, 

/s/ Thomas W. Kirby 

Thomas J. Josefiak Michael E. Toner (D.C. Bar No. 439707) 

J. Michael Bayes (D.C. Bar No. 501845) Thomas W. Kirby (D.C. Bar No. 915231) 

HOLTZMAN VOGEL JOSEFIAK TORCHINSKY PLLC Andrew G. Woodson (D.C. Bar No. 494062) 

45 North Hill Drive, Suite 100 Eric Wang (D.C. Bar No. 974038) 

Warrenton, VA 20186 WILEY REIN LLP 

Tel.: 540.341.8808 1776 K Street, NW 

Fax: 540.341.8809 Washington, DC 20006 

Tel.: 202.719.7000 

Fax: 202.719.7049 

Counsel for Crossroads Grassroots Policy 

October 23, 2017 Strategies 

Case 1:16-cv-00259-BAH Document 29 Filed 10/23/17 Page 2 of 65
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CITIZENS FOR RESPONSIBILITY AND 

ETHICS IN WASHINGTON, et al., 

 Plaintiffs, 

 v. 

 

FEDERAL ELECTION COMMISSION, 

 Defendant, 

CROSSROADS GRASSROOTS POLICY 

STRATEGIES, 

 

Intervenor-Defendant. 

Civil Action No. 1:16-cv-00259-BAH 

CROSSROADS GRASSROOTS POLICY STRATEGIES’ MEMORANDUM IN 

SUPPORT OF ITS CROSS-MOTION FOR SUMMARY JUDGMENT 

Case 1:16-cv-00259-BAH Document 29 Filed 10/23/17 Page 3 of 65
i 

TABLE OF CONTENTS 

TABLE OF AUTHORITIES ......................................................................................................... iii 

LIST OF ABBREVIATIONS ........................................................................................................ xi 

INTRODUCTION .......................................................................................................................... 1

SUMMARY OF THE ARGUMENT ............................................................................................. 2

STATEMENT OF FACTS ............................................................................................................. 6

I. CROSSROADS GRASSROOTS POLICY STRATEGIES ............................................... 6

II. INDEPENDENT EXPENDITURES UNDER THE FECA AND FEC 

REGULATIONS................................................................................................................. 7

III. HISTORY OF THE FEC’S IE REGULATION ................................................................. 8

A. Congress Enacts the FEC’s IE Recommendations in Its 1979 FECA Amendments ................ 8

B. The FEC Implements the Statutory Language ........................................................................ 11

C. Congress Did Not Use Its Special Oversight Powers to Reject the FEC Rule, and the 

FEC Has Adhered to the Approved Regulation for 37 Years. ................................................ 13

IV. THE FEC IMPLEMENTS PARALLEL EARMARKING-BASED DONOR 

REPORTING FOR ELECTIONEERING COMMUNICATIONS .................................. 14

V. THE AUGUST 30, 2012, EVENT AND CGPS’S 2012 ACTIVITIES ........................... 15

VI. FEC ENFORCEMENT ..................................................................................................... 17

VII. THE UNDERLYING FEC ADMINISTRATIVE PROCEEDINGS ............................... 18

ARGUMENT ................................................................................................................................ 22

I. STANDARD OF REVIEW .............................................................................................. 22

II. THE FEC PROPERLY DISMISSED CREW’S FIRST CLAIM THAT CGPS 

VIOLATED 11 C.F.R. § 109.10(E)(1)(VI) ...................................................................... 23

III. THE COURT SHOULD DISPOSE OF CREW’S CLAIMS TWO AND THREE 

WITHOUT RULING ON THEIR MERITS..................................................................... 25

A. CGPS Was Entitled to Rely on the FEC’s IE Reporting Regulation ...................................... 25

Case 1:16-cv-00259-BAH Document 29 Filed 10/23/17 Page 4 of 65
ii 

1. The FECA Specifically Protects Those Relying on the FEC’s Regulations From Any 

Sanctions or Enforcement Proceedings ............................................................................... 25

2. CGPS Was Entitled to Rely on the FEC’s Regulation Under Principles of Due 

Process and Administrative Law .......................................................................................... 27

3. CGPS’s Reliance on 11 C.F.R. § 109.10(e)(1)(vi) Precludes CREW’s Claims Two 

and Three and Any Enforcement in This Matter .................................................................. 31

B. CREW’s Administrative Complaint Did Not Allege the FEC’s Regulation Is Invalid or 

That CGPS Violated Subsection 30104(c)(1), and These New Theories Are Not 

Properly Before This Court. .................................................................................................... 32

C. CREW’s Facial Challenge to the Regulation’s Validity Is Time-Barred, and an AsApplied Challenge Would Not Redress CREW’s Claimed Injury .......................................... 35

D. The FEC’s Heckler Dismissal of the Agency Staff’s Self-Initiated Hypothetical Theory 

That CGPS May Have Violated Subsection 30104(c)(1) Was Rational Under the 

“Extremely Deferential Standard” of Judicial Review ............................................................ 37

IV. THE CONTENT PROVISION SPECIFIES TAILORED IE REPORTING, AND 

THE FEC’S REGULATION IS A REASONABLE INTERPRETATION OF 

THAT REQUIREMENT. ................................................................................................. 38

A. Chevron Step 1: Congress Tailored the FECA to Require Ad-Based Identification of 

Contributors. ............................................................................................................................ 38

B. Chevron Step 2: The FEC’s Regulatory Construction Is Within the Range of 

Permissible Options. ................................................................................................................ 41

1. The FEC Was Heavily Involved in the Statute’s Drafting.................................................... 42

2. For 37 Years, Congress Has Not Disagreed With the FEC’s Contemporaneous 

Interpretation of the Statute, but Has Ratified It .................................................................. 43

3. The FEC’s Interpretation of the Statute Has Remained Consistent for Nearly Four 

Decades ................................................................................................................................ 45

4. The FEC’s Regulation Accords With Expressed Congressional Intent ............................... 46

5. The FEC’s Interpretation Does Not Render Any Other Provision Superfluous .................. 47

C. CREW’s Procedural Objections to the FEC IE Contributor Reporting Regulation Are 

Irrelevant and, in Any Event, Erroneous. ................................................................................ 48

V. SUBSECTION 30104(C)(1) DOES NOT MANDATE “ADDITIONAL” 

REPORTING. ................................................................................................................... 49

CONCLUSION ............................................................................................................................. 50

 

Case 1:16-cv-00259-BAH Document 29 Filed 10/23/17 Page 5 of 65
iii 

TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Abbott GmbH & Co. KG v. Yeda Research & Dev. Co., 

516 F. Supp. 2d 1 (D.D.C. 2007) .............................................................................................40 

Action on Smoking and Health v. C.A.B., 

699 F.2d 1209 (D.C. Cir. 1983) ...............................................................................................45 

Affum v. U.S., 

566 F.3d 1150 (D.C. Cir. 2009) ...............................................................................................27 

AFL-CIO v. FEC, 

333 F.3d 168 (D.C. Cir. 2003) .................................................................................................44 

Air Courier Conf. of Am. v. Am. Postal Workers Union, AFL-CIO, 

498 U.S. 517 (1991) .................................................................................................................25 

Barnett v. Weinberger, 

818 F.2d 953 (D.C. Cir. 1987) ...........................................................................................31, 32 

Buchanan v. FEC, 

112 F. Supp. 2d 58 (D.D.C. 2000) ...........................................................................................22

Buckley v. Valeo, 

424 U.S. 1 (1976) ............................................................................................................. passim

Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 

566 U.S. 399 (2012) .................................................................................................................40 

Chevron, USA, Inc. v. NRDC, 

467 U.S. 837 (1984) .................................................................................................................38 

Common Cause v. FEC, 

842 F.2d 436 (D.C. Cir. 1988) .............................................................................................1, 46 

Creekstone Farms Premium Beef, L.L.C. v. Dept. of Agriculture, 

539 F.3d 492 (D.C. Cir. 2008) .................................................................................................45 

CREW v. FEC, 

236 F. Supp. 3d 378, 390 (D.D.C. 2017) ...............................................................23, 37, 38, 48 

Crossroads Grassroots Policy Strategies v. FEC, 

788 F.3d 312 (D.C. Cir. 2015) .................................................................................................22 

Case 1:16-cv-00259-BAH Document 29 Filed 10/23/17 Page 6 of 65
iv 

DaimlerChrysler Corp. et al. v. Cuno et al., 

547 U.S. 332 (2006) .................................................................................................................36 

DCCC v. FEC, 

831 F.2d 1131, 1134 (D.C. Cir. 1987) ....................................................................................22

Encino Motorcars, LLC v. Navarro, 

136 S. Ct. 2117 (2016) .............................................................................................................31 

FDA v. Brown & Williamson Tobacco Corp., 

529 U.S. 120 (2000) .................................................................................................................45 

FEC v. DSCC, 

454 U.S. 27 (1981) ...................................................................................................................21 

FEC v. Furgatch, 

807 F.2d 857 (9th Cir. 1987) ...............................................................................................7, 50 

FEC v. Massachusetts Citizens for Life, 

479 U.S. 238 (1986) .................................................................................................................50 

FEC v. NRSC, 

966 F.2d 1471 (D.C. Cir. 1992) .........................................................................................15, 21

FEC v. Ted Haley Congressional Comm., 

852 F.2d 1111 (9th Cir. 1988) .................................................................................................43 

Foo v. Tillerson, 

244 F. Supp. 3d 17 (D.D.C. 2017) ...........................................................................................41

Freeman United Coal Min. Co. v. Fed. Mine Safety and Health Review Comm’n, 

108 F.3d 358 (D.C. Cir. 1997) .................................................................................................30 

Graceba Total Communications, Inc. v. FCC, 

115 F.3d 1038 (D.C. Cir. 1997) ...............................................................................................36 

Hagelin v. FEC, 

411 F.3d 237 (D.C. Cir. 2005) .................................................................................................22 

Heckler v. Chaney, 

470 U.S. 821 (1985) ...........................................................................................................21, 37 

King v. Burwell, 

135 S. Ct. 2480 (2015) .............................................................................................................39 

In re Lehman Bros. Mortg.-Backed Sec. Litig., 

650 F.3d 167 (2d Cir. 2011).....................................................................................................39 

Case 1:16-cv-00259-BAH Document 29 Filed 10/23/17 Page 7 of 65
v 

Lujan v. Defenders of Wildlife, et al., 

504 U.S. 555 (1992) .................................................................................................................36 

Marks v. U.S., 

430 U.S. 188 (1977) .................................................................................................................27 

Middle South Energy, Inc. v. F.E.R.C., 

747 F.2d 763 (D.C. Cir. 1984) .................................................................................................43 

Miller v. Youakim, 

440 U.S. 125 (1979) .................................................................................................................42 

Moore v. District of Columbia, 

907 F.2d 165 (D.C. Cir. 1990) .................................................................................................42 

Nat’l Conservative Pol. Action Comm. v. FEC, 

626 F.2d 953 (D.C. Cir. 1980) .................................................................................................27 

New Hampshire Motor Transp. Ass’n v. Rowe, 

448 F.3d 66 (1st Cir. 2006), aff’d, 552 U.S. 364 (2008)..........................................................40 

NLRB Union v. FLRA, 

834 F.2d 191 (D.C. Cir. 1987) ...........................................................................................35, 37 

Nuclear Energy Inst., Inc. v. EPA, 

373 F.3d 1251 (D.C. Cir. 2004) ...............................................................................................34 

Orloski v. FEC, 

795 F.2d 156 (D.C. Cir. 1986) .................................................................................................39 

P&V Enterprises, et al. v. U.S. Army Corps of Engineers, et al., 

466 F. Supp. 2d 134 (D.D.C. 2006) .........................................................................................36 

PDK Labs., Inc. v. DEA, 

362 F.3d 786 (D.C. Cir. 2004) .................................................................................................25 

PMD Produce Brokerage Corp. v. USDA, 

234 F.3d 48, 52 (D.C. Cir. 2000) ............................................................................................30 

Raton Gas Transmission Co. v. FERC, 

852 F.2d 612 (D.C. Cir. 1988) .................................................................................................35 

Shays v. FEC, 

414 F.3d 76 (D.C. Cir. 2005) .......................................................................................26, 38, 44

Suburban Air Freight, Inc. v. Transp. Sec. Admin., 

716 F.3d 679 (D.C. Cir. 2013) .................................................................................................31 

Case 1:16-cv-00259-BAH Document 29 Filed 10/23/17 Page 8 of 65
vi 

Teich v. FDA, 

751 F. Supp. 243 (D.C. Cir. 1990) ...........................................................................................27 

Thomas Jefferson Univ. v. Shalala, 

512 U.S. 504 (1994) .................................................................................................................48 

Tierney v. FEC, 

538 F. Supp. 2d 99 (D.D.C. 2008) ...........................................................................................23

Tripoli Rocketry Assoc. v. U.S. BATF, 

2002 U.S. Dist. LEXIS 27588 (D.D.C. June 24, 2002) ...........................................................36 

United Airlines, Inc. v. Brien, 

588 F.3d 158 (2d Cir. 2009).....................................................................................................42 

United States v. Ashurov, 

726 F.3d 395 (3d Cir. 2013).....................................................................................................39 

United States v. Hagler, 

700 F.3d 1091 (7th Cir. 2012) .................................................................................................40 

United Transp. Union v. Lewis, 

711 F.2d 233 (D.C. Cir. 1983) .................................................................................................42 

Van Hollen v. FEC, 

811 F.3d 486 (D.C. Cir. 2016) ......................................................................................... passim

Vasser v. McDonald, 

228 F. Supp. 3d 1, 17 (D.D.C. 2016) .................................................................................33, 34 

Vote Choice, Inc. v. Di Stefano, 

814 F. Supp. 186 (D.R.I. 1992)................................................................................................50 

Wallaesa v. FAA, 

824 F.3d 1071 (D.C. Cir. 2016) ...............................................................................................34 

Weaver v. Fed. Motor Safety Admin., 

744 F.3d 142 (D.C. Cir. 2014) ...........................................................................................35, 36 

Weber v Heaney, 

995 F.2d 872 (8th Cir. 1993) .............................................................................................43, 44 

Woodford v. Ngo, 

548 U.S. 81 (2006) ...................................................................................................................33 

Case 1:16-cv-00259-BAH Document 29 Filed 10/23/17 Page 9 of 65
vii 

Statutes 

2 U.S.C. § 434 ....................................................................................................................18, 19, 33 

2 U.S.C. § 434(c)(2) .......................................................................................................................21 

2 U.S.C. § 434(c)(2)(C) .................................................................................................................15 

2 U.S.C. § 434(e)(1) .........................................................................................................................8 

2 U.S.C. § 434(e)(2) .......................................................................................................................10 

5 U.S.C. § 601 ................................................................................................................................28 

28 U.S.C. § 2401(a) .................................................................................................................13, 35 

52 U.S.C. § 434(c)(1) ...........................................................................................................9, 12, 50 

52 U.S.C. § 30101(17) .....................................................................................................................7 

52 U.S.C. § 30101(c)(1) .................................................................................................................19 

52 U.S.C. § 30104(c)(1) ......................................................................................................... passim

52 U.S.C. § 30104(c)(2) ...........................................................................................................21, 40 

52 U.S.C. § 30104(c)(2)(C) .................................................................................................7, 15, 30 

52 U.S.C. § 30104(f) ......................................................................................................................49 

52 U.S.C. § 30104(f)(2)(F) ............................................................................................................14 

52 U.S.C. § 30104(f)(3) .................................................................................................................14 

52 U.S.C. § 30106(c) .....................................................................................................................21 

52 U.S.C. § 30107(a)(8) ...................................................................................................................8 

52 U.S.C. § 30109(a)(1) .................................................................................................4, 17, 32, 34 

52 U.S.C. § 30109(a)(2) .................................................................................................................34 

52 U.S.C. § 30109(a)(8) ...........................................................................................................22, 34 

52 U.S.C. § 30109(a)(8)(A) ...........................................................................................................32 

52 U.S.C. § 30109(a)(8)(C) .......................................................................................................1, 32 

52 U.S.C. § 30111 ..........................................................................................................................44 

Case 1:16-cv-00259-BAH Document 29 Filed 10/23/17 Page 10 of 65
viii 

52 U.S.C. § 30111(d)(1) ..................................................................................................................8 

52 U.S.C. § 30111(e) ...........................................................................................................3, 26, 31 

IRC Section 527 ...............................................................................................................................6 

Pub. L. 94–283 .................................................................................................................................8 

Pub. L. 104-79................................................................................................................................44 

Pub. L. 106-58................................................................................................................................44 

Pub. L. 106-346..............................................................................................................................44 

Pub. L. 107–155 .......................................................................................................................14, 44 

Pub. L. 108-199..............................................................................................................................44 

Pub. L. 110-81................................................................................................................................44 

Other Authorities 

11 C.F.R. § 100.22 ...........................................................................................................................7 

11 C.F.R. § 109.2(e).......................................................................................................................45 

11 C.F.R. § 109.10 ...........................................................................................................................8 

11 C.F.R. § 109.10(e)(1)(vi) .................................................................................................. passim

26 C.F.R. § 1.501(c)(4)-1(a)(2) .......................................................................................................7 

Center for Responsive Politics, “Outside Spending,” at

https://www.opensecrets.org/outsidespending/........................................................................46 

Center for Responsive Politics, “Outside Spending by Disclosure, Excluding 

Party Committees,” at 

https://www.opensecrets.org/outsidespending/disclosure.php. ...............................................46 

CREW Am. Admin. Compl. Exh. C (6:02-6:20), available at

https://youtu.be/RZsudD4O3i8 ................................................................................................24 

CREW, Comments in Response to Advance Notice of Proposed Rulemaking on 

Earmarking, Affiliation, Joint Fundraising, Disclosure, and Other Issues (Jan. 

15, 2015), available at http://sers.fec.gov/fosers/showpdf.htm?docid=312990. .....................28 

FEC, Bipartisan Campaign Reform Act of 2002 Reporting, 68 Fed. Reg. 404 

(Jan. 3, 2003)............................................................................................................................45 

Case 1:16-cv-00259-BAH Document 29 Filed 10/23/17 Page 11 of 65
ix 

FEC, Campaign Guide for Corporations and Labor Organizations (Aug. 1997) 

(Exh. A)....................................................................................................................................14 

FEC, Campaign Guide for Corporations and Labor Organizations (Jan. 2007), 

available at https://transition.fec.gov/pdf/colagui.pdf. ............................................................28 

FEC, Electioneering Communications,72 Fed. Reg. 72,899 (Dec. 26, 2007) ...............................15 

FEC, Form 5 (rev. Sept. 2013), at

https://transition.fec.gov/pdf/forms/fecfrm5.pdf. ......................................................................8 

FEC, FEC Form 5 Instructions (rev. Sept. 2013), at

https://www.fec.gov/resources/cms-content/documents/fecfrm5i.pdf. .....................................8 

FEC, Independent Expenditure Reporting, at

http://sers.fec.gov/fosers/ruledata.htm? ...................................................................................29 

FEC, Matter Under Review 4313 (Lugar for President), First General Counsel’s 

Report, available at http://eqs.fec.gov/eqsdocsMUR/0000018F.pdf ......................................48 

FEC, Matter Under Review 4960 (Hillary Rodham Clinton for U.S. Senate 

Exploratory Comm.), Statement of Reasons of Commissioners David M. 

Mason, Karl J. Sandstrom, Bradley A. Smith, and Scott E. Thomas, available 

at http://eqs.fec.gov/eqsdocsMUR/0000263B.pdf. ..................................................................18 

FEC, Matter Under Review 6002 (Freedom’s Watch), Statement of Reasons of 

Chairman Matthew S. Petersen and Commissioners Caroline C. Hunter and 

Donald F. McGahn, available at

http://eqs.fec.gov/eqsdocsMUR/10044274536.pdf. ................................................................15 

FEC, Matter Under Review 6816 (American Future Fund, et al.) ................................................46 

FEC, Matter Under Review 7085 (State Tea Party Express).........................................................46 

FEC, Reg 2011-01 Independent Expenditure Reporting, at

http://sers.fec.gov/fosers/ruledata.htm?ruleNumber=REG%202011-01. ................................29 

FEC, Request for Additional Information, at https://www.fec.gov/helpcandidates-and-committees/request-additional-information. ...................................................34 

FEC, Statement of Policy Regarding Commission Action in Matters at the Initial 

Stage in the Enforcement Process, 72 Fed. Reg. 12,545 (Mar. 16, 2007) ...............................18 

H.R. Res. 5010 ...............................................................................................................................11 

H.R. Res. 5175 ...............................................................................................................................45 

H.R. Res. 780 .................................................................................................................................13 

Case 1:16-cv-00259-BAH Document 29 Filed 10/23/17 Page 12 of 65
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IRS, 2000 Exempt Orgs. Continuing Professional Educ. Text, Affiliations Among 

Political, Lobbying, and Educational Organizations, available at

https://www.irs.gov/pub/irs-tege/eotopics00.pdf .......................................................................7 

Legislative History of Federal Election Campaign Act Amendments of 1979

(1983), available at 

http://classic.fec.gov/pdf/legislative_hist/legislative_history_1979.pdf. ...................................9 

Rep. Van Hollen Petition for Rulemaking to Revise and Amend Regulations 

Relating to Disclosure of Independent Expenditures (Apr. 21, 2011), available 

at http://classic.fec.gov/pdf/nprm/citizensunited/van_hollen.pdf. ...........................................29 

S. Res. 236 .....................................................................................................................................13 

S. Res. 275 .....................................................................................................................................13 

Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. 

Rev. 363, 368 (1986) ...............................................................................................................42 

U.S. Const., Amend. I ......................................................................................................3, 6, 27, 31 

 

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xi 

LIST OF ABBREVIATIONS 

BCRA – Bipartisan Campaign Reform Act of 2002 (Pub. L. 107–155)

CGPS – Crossroads Grassroots Policy Strategies 

CREW – Citizens for Responsibility and Ethics in Washington 

EC – electioneering communication 

FEC – Federal Election Commission 

FECA – Federal Election Campaign Act of 1971, as amended (52 U.S.C. § 30101 et seq.) 

FGCR – First General Counsel’s Report 

IE – independent expenditure

Case 1:16-cv-00259-BAH Document 29 Filed 10/23/17 Page 14 of 65
1 

INTRODUCTION 

The Federal Election Campaign Act of 1971, as amended (“FECA”), sets forth a “FirstAmendment-sensitive regime” with “enormous subtleties and complexities.” Common Cause v. 

FEC, 842 F.2d 436, 445 (D.C. Cir. 1988). The FECA vests the Federal Election Commission 

(“FEC” or “Commission”) with “primary and substantial responsibility for administering and 

enforcing” that statute. Buckley v. Valeo, 424 U.S. 1, 109 (1976). 

Citizens for Responsibility and Ethics in Washington (“CREW”) attempts with this 

lawsuit to short-circuit the FEC’s rulemaking process, which is the vehicle best-suited for sorting 

through the FECA’s subtleties and complexities. CREW could have filed a rulemaking petition 

with the six-member, bipartisan FEC to amend the agency’s independent expenditure (“IE”) 

reporting regulation, which CREW contends here is deficient. Had the FEC not acted on such a 

petition, CREW could have sought review of that decision in this Court. 

But CREW did not file a rulemaking petition. Instead, CREW asks this Court to use the 

enforcement process to repeal a 37-year-old regulation – widely relied on by advocacy groups 

across the ideological spectrum – without any notice to or comment by the public, and largely 

based on CREW’s unilateral assertions about recent campaign finance developments. In so 

doing, CREW asks this Court to retroactively apply a new legal rule to subject Crossroads 

Grassroots Policy Strategies (“CGPS”) to the burdens of enforcement and sanction, even though 

CGPS fully complied with and relied upon a longstanding FEC regulation and Commission 

practice. 

This Court applies a highly deferential standard of review in deciding whether the FEC’s 

dismissal of an administrative complaint was “contrary to law.” 52 U.S.C. § 30109(a)(8)(C). 

The career staff in the FEC’s Office of General Counsel and the Commission, through its 

controlling bloc of commissioners, confirmed that CGPS complied with the FEC’s IE reporting 

Case 1:16-cv-00259-BAH Document 29 Filed 10/23/17 Page 15 of 65
2 

regulation. On such a clear factual record, this Court must defer to the agency’s more-thanreasonable determination to dismiss this matter and reject CREW’s Claim One here. 

There are many legal and policy reasons why this Court should refuse CREW’s two 

follow-on requests to substitute this enforcement matter for an administrative rulemaking. Most 

fundamental, however, is CGPS’s compliance with the Commission’s controlling regulation that 

has been in effect for decades. By law, that compliance precludes further enforcement, 

regardless of whether the regulation is deemed valid. This moots CREW’s Claims Two and 

Three, which present (mistaken) statutory challenges to the validity of the regulation and do not 

affect the lawfulness of the FEC’s dismissal of the administrative complaint. 

Even if the Court were to consider CREW’s challenges to the regulation in the context of 

this ongoing litigation, the ultimate result would be the same. The regulation is consistent with 

the statutory text and is a rational means of implementing congressional intent, doubly so given 

the great deference owed to the FEC on such matters. For their part, CREW’s baseless 

complaints about the rulemaking procedures followed by the Commission 37 years ago come too 

late. CREW’s challenges to the regulation thus would fail if they mattered here, which they do 

not. 

SUMMARY OF THE ARGUMENT 

CREW’s Claim One alleges CGPS failed to comply with 11 C.F.R. § 109.10(e)(1)(vi), 

which required CGPS to report its spending for each express advocacy IE and identify any 

contributions to CGPS “for the purpose of furthering the reported independent expenditure.” 

CREW’s FEC submission asserted that CGPS received contributions intended for political 

purposes or to assist certain candidates. But CREW offered no evidence that any such funds 

were earmarked for a particular IE, or even for IEs generally. To the contrary, the administrative 

record before the FEC made clear that the donors at issue left CGPS free to spend as it chose, 

Case 1:16-cv-00259-BAH Document 29 Filed 10/23/17 Page 16 of 65
3 

whether for issue advocacy, IEs, polling, voter registration and get-out-the-vote drives, or other 

activities. Under the plain language of the Commission’s regulation as it has been construed for 

37 years, such donations are not “for the purpose of furthering the reported independent 

expenditure.” Id. (emphasis added). Thus, the FEC’s professional staff appropriately found no 

FECA violation on these facts, and the controlling commissioners reasonably accepted that 

conclusion. Indeed, even the commissioners who voted to pursue enforcement did so on the 

basis of an alternative theory not raised in CREW’s administrative complaint, and did not 

articulate any disagreements with their colleagues’ or the staff’s reasoning for dismissing. 

By statute and basic fairness, CGPS’s compliance with the Commission’s regulation 

protected it from any enforcement proceeding and made dismissal of the administrative 

complaint mandatory. Recognizing the risk that uncertain laws may impermissibly chill core 

First Amendment speech, the FECA provides the following explicit, statutory “protection for 

good faith reliance upon rules or regulations”: 

Notwithstanding any other provision of law, any person who relies upon any rule 

or regulation prescribed by the Commission in accordance with the provisions of 

this section and who acts in good faith in accordance with such rule or regulation 

shall not, as a result of such act, be subject to any sanction provided by this Act or 

by chapter 95 or chapter 96 of title 26. 

52 U.S.C. § 30111(e). Moreover, even if there were no specific statutory reliance provision, 

there is abundant authority that principles of fair notice, which have particular force in protecting 

the exercise of core First Amendment rights, preclude enforcement against a respondent who 

complied with applicable agency regulations and guidance. If CREW wants to challenge the 

FEC regulation, it must use rulemaking procedures of prospective effect, which it has not done. 

CREW’s complaint before this Court suffers from a wide range of other flaws, most 

notably that CREW failed to exhaust its administrative remedies and, in large part, abandoned its 

Case 1:16-cv-00259-BAH Document 29 Filed 10/23/17 Page 17 of 65
4 

present Claims Two and Three in the FEC proceedings below. Each of CREW’s five counts in 

its administrative complaint asserted that CGPS failed to report earmarked contributions as 

required by the Commission’s regulation, and no count alleged that CGPS failed to identify 

donors under the broadest level of donor reporting CREW now claims FECA section 

30104(c)(1) requires. This matters. The FECA requires any enforcement action be taken only 

“on the basis of the complaint,” and judicial review of complaint-generated matters must be 

limited to “the original complaint.” Id. § 30109(a)(1), (a)(8)(C). Because CREW’s 

administrative complaint failed to raise these issues against CGPS, CREW’s present Claims Two 

and Three are not properly before this Court. 

CREW’s Claim Two, which facially challenges the regulation’s validity and not merely 

its application to this case, also is time-barred. Furthermore, CREW lacks standing to bring 

Claim Two. Its claimed standing relies on the theory that further enforcement in this matter 

could compel CGPS to identify its donors, and that CREW would find this information useful. 

But even if this Court were to find the FEC’s regulation invalid, CGPS’s compliance with the 

regulation still is an absolute bar against enforcement. Therefore, CREW’s purported injury 

(that it lacks information about CGPS’s donors) is not redressable – a prerequisite for standing. 

 CREW’s Claim Three, which challenges the FEC’s dismissal of any claim that CGPS 

may have violated FECA section 30104(c)(1), also fails to meet the high bar for judicial 

deference to agencies’ exercise of their prosecutorial discretion. This is especially so where the 

agency’s dismissal was based not on any claim that CREW specifically asserted against CGPS, 

but rather on a theoretical issue that FEC staff incorporated into their analysis sua sponte. 

Finally, even if the Court were to reach the merits of CREW’s Claims Two and Three, 

and it should not, each claim would fail. CREW’s present Claim Two is that Section 

Case 1:16-cv-00259-BAH Document 29 Filed 10/23/17 Page 18 of 65
5 

30104(c)(2)(C)’s requirement to identify support for “an independent expenditure” plainly means 

“any” independent expenditure, such that contributions earmarked for unknown future 

independent advocacy trigger reporting. CREW does not explain, however, why Congress did 

not say “any” if that is what it meant. CREW does not grapple with relevant authority that “an” 

often is equivalent to “one.” CREW does not mention, much less explain away, the fact that 

Congress made no objection when the FEC submitted the regulation for congressional review in 

1980 – which is strong evidence that the Commission accurately discerned congressional intent. 

CREW also fails to adequately rebut Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016), which 

recently approved the FEC’s parallel earmarking-based reporting regime for electioneering 

communications, and that was modeled on the IE regulation challenged here. Nor does CREW 

give fair weight to the FEC’s interpretative leeway under Chevron.

CREW’s present Claim Three rests on FECA section 30104(c)(1), the provision CREW 

failed to prosecute in the underlying administrative proceeding. CREW now reads that section to 

require any entity that reports any IE – even one concerning a narrow topic in an isolated area of 

the country – to report all “contributions made for the purpose of influencing a federal election 

generally,” CREW Motion for Summary Judgment (“MSJ”) Brief (Doc 27) at 34, 49, even if a 

contribution had absolutely no relation to the reported IE or election at issue. Not only is this an 

erroneous reading of the statute’s substantive requirement, but as Van Hollen recognized, 

CREW’s approach would burden the reporting entity’s speech, while doing more to obscure than 

illuminate who is actually supporting any reported advocacy. 

Congress never intended the FECA to require speakers to convey such misleading 

information. Back in 1980, the FEC understood Congress to create only a limited reporting 

burden – those who funded express advocacy IEs for or against identified federal candidates 

Case 1:16-cv-00259-BAH Document 29 Filed 10/23/17 Page 19 of 65
6 

were to identify themselves, and financial support earmarked for a specific IE had to be reported. 

Conversely, the FEC understood Congress not to require reporting of those funders who 

generally supported a reporting entity but did not link their support to particular express 

advocacy public communications. The FEC could have confidence in its assessment because the 

law was based on the agency’s own legislative recommendation to Congress. 

The FEC embodied that understanding in its implementing regulation, and Congress 

expressed no concern in the statutory review process established precisely to identify regulatory 

deviations from legislative intent. The Commission’s understanding was reasonable at the time 

and was arguably compelled by the First Amendment. Thus, when the FEC later implemented a 

parallel reporting regime for electioneering communications, it similarly narrowed the scope of 

contributor identification. If CREW believes more recent campaign finance experience shows 

circumstances have changed, it must, at minimum, squarely present that claim and supporting 

data to the FEC in a rulemaking proceeding that allows for public comment and a broad-based 

evaluation of recent data. What CREW cannot be permitted to do is hijack an administrative 

enforcement proceeding in which CGPS’s compliance with the Commission’s governing 

regulation, whether valid or invalid, requires dismissal. 

STATEMENT OF FACTS 

I. CROSSROADS GRASSROOTS POLICY STRATEGIES 

CGPS was founded in 2010 with the mission of educating, equipping, and engaging 

American citizens to take action on important economic and legislative issues. The Internal 

Revenue Service (“IRS”) has issued a determination letter to CGPS recognizing it as a Section 

501(c)(4) social welfare organization under the Internal Revenue Code (“IRC”). Like many 

501(c)(4) entities, CGPS has a legally distinct affiliated entity, American Crossroads, which is 

organized as a political organization under Section 527 of the IRC and is registered with the FEC 

Case 1:16-cv-00259-BAH Document 29 Filed 10/23/17 Page 20 of 65
7 

as a “super PAC.” See IRS, 2000 Exempt Orgs. Continuing Professional Educ. Text, Affiliations 

Among Political, Lobbying, and Educational Organizations, available at

https://www.irs.gov/pub/irs-tege/eotopics00.pdf. 

CGPS works to advance its mission by conducting issue research, holding events with 

policymakers, and engaging and inviting citizens to participate in grassroots advocacy on 

pending legislative issues through advertising, mailings, e-mails, and web-based advocacy tools. 

Many of the public policy issues that 501(c)(4) entities like CGPS seek to affect are largely 

determined by elected officials. Not surprisingly, therefore, some of CGPS’s public 

communications have advocated for or against elected officials and candidates based on whether 

their positions are favorable or inimical to CGPS’s preferred public policy outcomes. See IRS, 

Rev. Ruls. 2004-6 and 1981-95; 26 C.F.R. § 1.501(c)(4)-1(a)(2).

II. INDEPENDENT EXPENDITURES UNDER THE FECA AND FEC 

REGULATIONS 

When public communications “expressly advocate” the election or defeat of a candidate 

and are not coordinated with any candidate or political party, they are regulated as “independent 

expenditures” (“IEs”) under the FECA. 52 U.S.C. § 30101(17). “To insure that the reach of [the 

IE reporting requirement] is not impermissibly broad,” the Supreme Court construes “express 

advocacy” narrowly only to cover language “such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your 

ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ ‘reject.’” Buckley, 424 U.S. at 80, 44 

n.52, and 80 n.108; see also 11 C.F.R. § 100.22 (defining “expressly advocating”).

IEs are subject to reporting requirements. As the judiciary has recognized, see FEC v. 

Furgatch, 807 F.2d 857, 859 n.2 (9th Cir. 1987), FECA section 30104(c)(1) – i.e., the “Coverage 

Provision” – defines the scope of who is covered by the IE reporting requirement, while section 

30104(c)(2)(C) – i.e., the “Content Provision” – defines, with respect to contributor information, 

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8 

the content of what is required to be reported. In line with that structure, the FEC has 

promulgated comprehensive and detailed regulations for when and how IE reports must be filed 

and what those reports must include. See 11 C.F.R. § 109.10. Of particular relevance here, the 

Content Provision requires IE reports to include “[t]he identification of each person who made a 

contribution in excess of $200 to the person filing such report, which contribution was made for 

the purpose of furthering the reported independent expenditure.” Id. § 109.10(e)(1)(vi). 

Under the FECA, the FEC also has the authority “to develop such prescribed forms . . . as 

are necessary to carry out the provisions of this Act.” 52 U.S.C. § 30107(a)(8). The 

Commission has prescribed Form 5 for persons other than political committees to use to report 

their IEs. FEC, Form 5 (rev. Sept. 2013), at https://transition.fec.gov/pdf/forms/fecfrm5.pdf. 

The instructions for Form 5 require filers to report the sources of “each contribution over $200 

that was made for the purpose of furthering the independent expenditures” being reported. FEC, 

Instructions for Preparing FEC Form 5 (rev. Sept. 2013), at https://www.fec.gov/resources/cmscontent/documents/fecfrm5i.pdf. The reporting forms are submitted to Congress for review prior 

to taking effect. See 52 U.S.C. § 30111(d)(1). 

III. HISTORY OF THE FEC’S IE REGULATION 

A. Congress Enacts the FEC’s IE Recommendations in Its 1979 FECA 

Amendments 

In the wake of Buckley, Congress enacted a number of significant reforms to the FECA,

including provisions affecting the reporting of IEs. See Pub. L. 94–283 (1976). Between 1976 

and 1979, the FECA required “[e]very person (other than a political committee or candidate) 

who makes contributions or independent expenditures expressly advocating the election or defeat 

of a clearly identified candidate” to file a statement with the FEC containing certain contributor 

and expenditure information, as appropriate. Id. (codified as 2 U.S.C. § 434(e)(1), and later 

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9 

renumbered as 52 U.S.C. § 434(c)(1)). Paragraph (2) of the same subsection required two 

specific pieces of information be included in these IE reports: (A) information about the 

expenditure (e.g., which candidate was supported or opposed); and (B) a certification that the 

expenditure was made independent of a candidate’s campaign. Id. 

“During implementation of the 1976 Amendments, the FEC kept a continually updated 

list of apparent statutory omissions, inadequacies and other problems” with the law, which was 

converted into an annual set of legislative recommendations to Congress. Legislative History of 

Federal Election Campaign Act Amendments of 1979 at 10 (1983) (“1979 FECA History”), 

available at http://classic.fec.gov/pdf/legislative_hist/legislative_history_1979.pdf. In July 1979, 

the Senate Committee on Rules and Administration convened a hearing to consider, in the words 

of Chairman Claiborne Pell, “some long-overdue amendments to the [FECA].” Id. at 7. Chief 

among them were the FEC’s legislative recommendations, which built upon recent Commission 

experience and made “valuable suggestions for simplifying the [FECA]’s reporting requirements 

and improving its administration.” Id. The FEC’s Chairman and Vice-Chairman testified at the 

Committee hearing and were accompanied by the Commission’s Staff Director and General 

Counsel. Id. at 8, 20, 39. The FEC’s representatives pledged their agency’s readiness to assist 

the Committee and its staff in revising the FECA and remained substantively engaged with the 

Committee following the hearing. Id. at 10, 150-60. 

As relevant here, the FEC recommended abolishing the requirement for contributors to 

file their own reports if they gave to sponsors of IEs, and instead requiring that “persons who file 

independent expenditure reports . . . report the sources of any contributions in excess of $100 

which is donated with a view toward bringing about an independent expenditure.” Id. at 25. 

Following the hearing, Committee staff circulated draft legislative language that included 

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revisions to the FECA’s IE reporting provisions. See id. at 62-100, 108-142, 451. The language 

required persons filing IE reports to identify “each person who has made a contribution of more 

than $200 to the person filing such statement, which was made for the purpose of furthering an 

independent expenditure.” Id. at 78, 123. This gloss on the overall IE reporting statute was 

incorporated as subsection (C) to 2 U.S.C. § 434(e)(2).1

 The accompanying Summary of 

Committee Working Draft confirmed that this change was an “FEC legislative recommendation,” 

id. at 101, 103, 145, that required “the person who receives the contributions, and subsequently 

makes the independent expenditure, [to] report having received the contribution to the 

Commission.” Id. at 103, 145 (emphasis added). 

The Committee approved the draft language unanimously and reported S. 1757 favorably 

to the Senate floor. See id. at 450, 463. The Committee report accompanying the Senate bill 

explained the rationale and import of the IE-related changes as follows: 

 “[R]eporting requirements under the existing act have [generally] been viewed by most 

reporting entities as unduly burdensome [and] going beyond legitimate disclosure to 

actively discourage participating in the electoral process”; 

 The existing independent expenditure reporting requirements, in particular, were 

“burdens[ome]”; 

 The Senate bill, S. 1757, “includes certain legislative recommendations from the Federal 

Election Commission’s 1978 annual report, which are intended to remedy statutory 

omissions and address other technical problems in the operation of the current law”; and 

 The proposed law would require “the person who receives the contribution, and 

subsequently makes the independent expenditure, [to] report having received that 

                                                            

1

 The statute is reproduced in its entirety on pages 38-40, infra. 

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contribution to the Commission.” 

Id. at 449, 458 (emphasis added). 

Materially similar IE reporting requirements were incorporated into the House’s 

campaign finance legislation, H.R. Res. 5010, which was introduced shortly after the Senate 

hearing and ultimately signed into law by President Carter on January 8, 1980. See id. at 187, 

558, 573. In urging his colleagues to approve the final bill, Chairman Pell explained the IErelated provisions on the Senate floor as follows: 

Reporting requirements in the bill generally simplify existing law by reducing the 

amount of information to be included in reports. . . . The reporting threshold for 

independent expenditures is also raised to $250 and only the person making the 

independent expenditure must report this. 

Id. at 549. 

Pursuant to a special congressional review provision, see infra at 13, H.R. Res. 5010 also 

required the FEC to “transmit to the Congress proposed rules and regulations necessary for the 

purpose of implementing the [law]” prior to February 29, 1980. Id. at 562. This deadline was 

barely more than 50 days after the bill was signed into law. See id. at 562, 573. 

B. The FEC Implements the Statutory Language 

The FEC moved quickly on the implementing regulations. On January 4, 1980, the 

FEC’s Staff Director circulated a memorandum to the Commission, noting that the legislative 

“changes themselves present relatively few novel problems or difficult questions of statutory 

interpretation.” AR1002. Given the short deadline set by Congress, the Staff Director 

recommended including an earlier-than-normal draft of the regulations in the Notice of Proposed 

Rulemaking (“NPRM”) to “provide a vehicle for assuring that all concerned [including 

Commission staff] can focus on the central problems of implementation.” AR1003. 

The Commission formally took up the impact of the new law at its January 10 and 17 

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meetings. AR1025-32, 1048-52. On January 23, the NPRM was published in the Federal 

Register. AR1057. Consistent with the legislative history, the NPRM explained that the 

“proposed regulations would, among other things, reduce recordkeeping and reporting 

requirements.” Id. The NPRM also advised potential commenters that “the draft regulations that 

are being published in this notice . . . have not been approved by the Commission.” Id. 

On January 30 and 31, the FEC called a special meeting to conduct a “section-by-section 

review of the proposed changes for 11 CFR.” AR1051, AR1083. Shortly afterwards, the 

Commission received feedback on the NPRM, with only one commenter addressing the IE 

reporting requirements. In addition to suggesting an edit to the IE rules, which the Commission 

implemented, the commenter praised the NPRM’s language as going “a long way to reducing 

and simplifying the recordkeeping and reporting requirements of the [FECA],” and observing 

that Congress had “accepted the logic” inherent in the FEC’s legislative recommendations. AR 

1228. Neither this commenter, nor anyone else, claimed that the Commission had overlooked a 

separate, broader reporting obligation under 2 U.S.C. § 434(c)(1). 

On February 19, Commission staff circulated “proposed regulations” to the FEC 

commissioners. AR1337. The accompanying memorandum explained that the changes from the 

staff’s NPRM language were the “result of the Commission’s discussion of the proposed 

regulations” over the past month. Id. The proposed regulations first explained (in section 104.4) 

that Part 109 was meant to comprehensively address all of the IE reporting requirements 

applicable to persons other than political committees. AR1416. Section 109.2 was then 

relabeled “Reporting of Independent Expenditures by Persons Other Than a Political 

Committee” and included a few adjustments to the NPRM’s preliminary regulatory text. 

AR1444. Most importantly, the preliminary contributor reporting requirement changed from 

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identifying each person whose contribution “was made for the purpose of furthering an 

independent expenditure” to each person whose “contribution was made for the purpose of 

furthering the reported independent expenditure.” Compare AR1075 with AR1444. 

The Commission voted to adopt these proposed regulations at its February 21 meeting. 

AR1494. The FEC published its explanation and justification for the new rules on March 7, 

1980, see AR1496-1542, and explained the IE contributor reporting provision as follows: 

This section has been amended to incorporate the changes set forth at 2 USC 

434(c)(1) and (2) regarding reporting requirements for persons, other than a 

political committee, who make independent expenditures. 

AR1503 (emphasis added). Thus, the regulation implemented both the Coverage and Content 

Provisions that CREW cites here. 

C. Congress Did Not Use Its Special Oversight Powers to Reject the FEC Rule, 

and the FEC Has Adhered to the Approved Regulation for 37 Years. 

The FECA requires that all proposed FEC regulations be transmitted to Congress for 

review before they take legal effect. This special congressional review process had been used 

several times before the agency’s 1980 IE reporting rulemaking, including just a few months 

before to disapprove the FEC’s candidate debates regulation. See S. Res. 236, 96th Cong. 

(1979).2

Consistent with the statutory deadline, the FEC’s IE reporting regulations were 

transmitted to Congress on February 28, 1980. AR1496. Congress did not disapprove the 

regulations during the requisite 15-day legislative review period, and the regulations took effect 

on April 1, 1980. AR1543, 1553. No party subsequently challenged the regulations within the 

six-year statute of limitations period available for doing so. See 28 U.S.C. § 2401(a). 

                                                            

2

 The House and Senate rejected FEC regulations on several earlier occasions as well. See H.R. Res. 780, 94th 

Cong. (1975); S. Res. 275, 94th Cong. (1975). 

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Over the past 37 years, the Commission and its staff have consistently interpreted the IE 

contributor reporting requirement under the statute and the FEC’s regulations. See FEC, 

Campaign Guide for Corporations and Labor Organizations (Jan. 2007), infra at 28; FEC, 

Campaign Guide for Corporations and Labor Organizations (Aug. 1997) at 24 (Exh. A) 

(instructing IE reports to identify “each person who contributed more than $200 for the purpose 

of making the independent expenditures” being reported); FEC Matter Under Review (“MUR”) 

6696, First General Counsel’s Report, infra at 21. 

IV. THE FEC IMPLEMENTS PARALLEL EARMARKING-BASED DONOR 

REPORTING FOR ELECTIONEERING COMMUNICATIONS. 

In 2002, Congress passed, and the President signed, the Bipartisan Campaign Reform Act 

(“BCRA”), amending the FECA. Pub. L. 107–155. Of relevance here, BCRA regulates certain 

speech in close proximity to elections that does not contain express advocacy in a manner similar 

to how the FECA regulates IEs. However, Congress did not attempt to reach this speech by 

expanding the definition of express advocacy. Instead, it adopted a parallel system to regulate 

so-called “electioneering communications” (“ECs”), defined in terms of timing, reference to 

candidates, and distribution media. See 52 U.S.C. § 30104(f)(3). Among other things, BCRA 

required reporting of some funding sources for ECs. Id. § 30104(f)(2)(F). 

As amended by BCRA, the FECA requires sponsors of ECs that do not use a segregated 

bank account to report “all contributors who contributed an aggregate amount of $1,000 or more 

to the person making the disbursement” during the calendar year in which the report is filed. 52 

U.S.C. § 30104(f)(2)(F). However, the Commission’s implementing regulation narrowed the EC 

reports’ donor identification requirement due to concerns over “the significant burden” on 

corporations (including non-profit corporations) and labor unions who might have to report “the 

identities of the vast numbers of customers, investors, or members, who have provided funds for 

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purposes entirely unrelated to the making of ECs.” FEC, Explanation and Justification for Final 

Rule on Electioneering Communications (hereinafter, “ECs E&J”), 72 Fed. Reg. 72,899 (Dec. 

26, 2007). Specifically, the FEC’s EC reporting regulation requires only the identification of 

persons who gave “for the purpose of furthering electioneering communications.” 11 C.F.R. 

§ 104.20(c)(9). The Commission explained that the relevant language from the EC provision 

was “drawn from the reporting requirements that apply to independent expenditures” and cited 

both 2 U.S.C. § 434(c)(2)(C) (52 U.S.C. § 30104(c)(2)(C)) and 11 C.F.R. § 109.10(e)(1)(vi), the 

IE reporting regulation at issue here.3

 ECs E&J, 72 Fed. Reg. at 72,911 n.22. The D.C. Circuit 

recently upheld the FEC’s EC donor identification regulation as rational and consistent with 

legislative intent. Van Hollen, 811 F.3d 486. 

V. THE AUGUST 30, 2012, EVENT AND CGPS’S 2012 ACTIVITIES 

On August 30, 2012, American Crossroads hosted an informational meeting in Tampa to 

provide an update to various persons interested in the super PAC’s activities.4 While attendees 

were orally encouraged to support the work of American Crossroads, and were provided 

information on how they could contribute to the organization (as well as given separate donor 

information sheets for CGPS), the event was not specifically structured as a “fundraiser” (e.g., no 

stipulated ticket price, no listed donor “hosts,” no demand for specific commitments), as CREW 

                                                            

3

 In an enforcement matter, the controlling group of FEC commissioners (see FEC v. NRSC, 966 F.2d 1471, 1476 

(D.C. Cir. 1992)) determined that the EC reporting regulation is parallel to the IE reporting regulation, requiring the 

identification of donors “only if such donations are made for the purpose of furthering the electioneering 

communication that is the subject of the report.” FEC Matter Under Review (“MUR”) 6002 (Freedom’s Watch), 

Statement of Reasons of Chairman Matthew S. Petersen and Commissioners Caroline C. Hunter and Donald F. 

McGahn at 5, available at http://eqs.fec.gov/eqsdocsMUR/10044274536.pdf. 

4

 CREW’s MSJ Brief (Doc 27 at 20) alleges “Crossroads GPS officials” took certain actions at this meeting under 

the name of “American Crossroads,” which “they evidently used [] to mean both American Crossroads and 

Crossroads GPS.” CREW cites nothing more than the unsubstantiated allegations in its own administrative 

complaint and complaint for judicial review for these naked claims, and there is no evidence in the administrative 

record to support these contentions. 

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has asserted. See Rove Aff. ¶ 2, AR094; CREW MSJ Brief (Doc 27) at 18; CGPS Answer ¶ 49. 5

As part of the informational update, American Crossroads showed two independent 

expenditure ads that it had already aired and paid for earlier in the year, as well as another focus 

group advertisement not intended for public distribution. CGPS Resp. to Admin. Compl., 

AR077-78. American Crossroads also showed eleven of CGPS’s ads, also already aired and paid 

for. Id.6 Notwithstanding CREW’s mischaracterization of all of these ads as “independent 

expenditures,” ten of the eleven CGPS ads shown were not IEs and were not reported to the FEC 

as IEs because they did not contain express advocacy. Compare CREW MSJ Brief (Doc 27) at 

45 with CGPS Resp. to Admin. Compl., AR077-78.7

 Moreover, while CREW mischaracterizes 

CGPS’s response as having “admitted” these ads were “‘examples’ of the activities raised funds 

would support,” in fact neither American Crossroads nor CGPS solicited attendees to help fund 

the specific ads shown, or even substantially similar ads. Compare CREW MSJ Brief (Doc 27) 

at 45 and 19 with CGPS Resp. to Admin. Compl., AR078 and CGPS Answer ¶ 47.8 Rather, the 

purpose of showing the ads was merely to demonstrate the quality and range of the two entities’ 

                                                            

5

 CREW also contends that, “by failure to respond,” CGPS admitted CREW’s allegation that “[CGPS] held a 

fundraiser . . . in conjunction with American Crossroads.” CREW MSJ Brief (Doc 27) at 18. In fact, CGPS denied 

it “held [the] fundraiser” in question. CGPS Answer ¶ 40. 

6

 YouTube links to the ads were provided in CGPS’s response to the administrative complaint. AR077-78. 

7

 CGPS’s “Investigation” ad, which opposed Nevada U.S. Senate candidate Shelley Berkley, was the only IE among 

the eleven CGPS ads shown at the August 30 meeting, and an IE report was properly filed with the FEC for that ad. 

See CGPS Resp. to Admin. Compl., AR078; see also AR151, 153. In its administrative complaint, CREW also: (1) 

made conclusory allegations about “independent expenditures broadcasting the advertisements shown at the [August 

30 meeting] or broadcasting other ads in the Ohio, Virginia, Montana, and Nevada Senate races”; and (2) cited the 

IE reporting requirements in alleging CGPS failed to report donors who gave “for the purpose of broadcasting the 

advertisements shown at the August 30, 2012 [meeting] or broadcasting other ads in those races.” CREW Amend. 

Admin. Compl. ¶¶ 59, 62-64, AR113-14 (emphasis added); see also CREW MSJ Brief (Doc 27) at 1 (alleging the 

FEC made a “finding” that CGPS’s work “primarily consist[ed] of disseminating explicit campaign ads.”). Contrary 

to CREW’s contention, the FEC never determined whether the ads shown at the August 30 meeting were IEs. First 

General Counsel’s Report, AR174-75 (discussing the “television advertisements shown at” the event and “those 

communications”). 

8

 CGPS also has not admitted that “attendees were solicited for contributions . . . to broadcast advertisements like 

those the attendees had just watched,” as CREW erroneously contends. Compare CREW MSJ Brief (Doc 27) at 20 

with CGPS Answer ¶ 49. 

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activities, and to add excitement to an otherwise straightforward political briefing. 

During the August 30 meeting, Karl Rove, an unpaid adviser to American Crossroads and 

CGPS, also recounted a $3 million matching challenge offered by a donor for CGPS’s activities 

in Ohio. Mr. Rove’s conversation with that donor did not entail: (1) “any discussion of any 

particular television advertisements, or television advertisements in general”; (2) any specific 

details “of any actual or hypothetical television advertisements”; (3) any “specific efforts”; 

(4) “any specific methods of communications”; (5) “any discussion of independent 

expenditures”; or (6) the spending of funds “in any particular manner or on any particular or 

specific projects or efforts.” Rove Aff. ¶¶ 3-10, AR094-95. 

Later in 2012, and relevant to this matter, CGPS sponsored and properly reported 32 IEs 

disseminated in connection with the U.S. Senate races in Montana, Nevada, Ohio, and Virginia. 

CREW Am. Admin. Compl. ¶ 60, AR113; Compl. ¶ 53. The donor whose $3 million matching 

challenge Mr. Rove mentioned at the August 30 meeting ended up making a larger contribution 

“that was not in any way earmarked for any particular use.” Rove Aff. ¶ 14, AR095. 

VI. FEC ENFORCEMENT 

Upon receiving a written complaint alleging a FECA violation, the FEC must give the 

respondent notice and the opportunity to file a written response demonstrating that “no action 

should be taken . . . on the basis of the complaint.” 52 U.S.C. § 30109(a)(1). If, on the basis of 

the complaint and the response, at least four commissioners find there is “reason to believe that a 

person has committed, or is about to commit,” a violation, the FEC must notify the respondent 

and may open an investigation. Id. § 30109(a)(2). The FECA and the FEC’s regulations and 

publications spell out subsequent enforcement procedures. 

The FEC shall find “reason to believe” only “where the available evidence in the matter 

is at least sufficient to warrant conducting an investigation, and where the seriousness of the 

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alleged violation warrants either further investigation or immediate conciliation.” FEC, 

Statement of Policy Regarding Commission Action in Matters at the Initial Stage in the 

Enforcement Process, 72 Fed. Reg. 12,545 (Mar. 16, 2007). That standard is not met unless all 

the facts justify “a reasonable inference that a violation has occurred.” Id. at 12,546. And 

“evidence provided in the response” may defeat inferences that otherwise might be drawn. FEC 

MUR 4960 (Hillary Rodham Clinton for U.S. Senate Exploratory Comm.), Statement of Reasons 

of Commissioners David M. Mason, Karl J. Sandstrom, Bradley A. Smith, and Scott E. Thomas 

at 2 (internal citations omitted), available at http://eqs.fec.gov/eqsdocsMUR/0000263B.pdf.

VII. THE UNDERLYING FEC ADMINISTRATIVE PROCEEDINGS 

CREW filed an administrative complaint with the FEC on November 15, 2012, in 

connection with CGPS’s 2012 IEs in Montana, Nevada, Ohio, and Virginia and the August 30, 

2012, meeting. AR001-018. CREW filed an amended complaint on April 24, 2013, which 

substituted the individual named complainant and narrowed CREW’s legal theory in one 

material respect (see note 12, infra). AR098-117; CREW MSJ Brief (Doc 27) at 23. 

Regarding CGPS’s FEC reports for the Ohio IEs, CREW’s amended complaint alleged: 

(1) CGPS violated 2 U.S.C. § 434 (now 52 U.S.C. § 30104) and 11 C.F.R. § 109.10(b)-

(e) by failing to identify the donor who offered the $3 million matching challenge, which CREW 

alleged “was for the purpose of furthering those independent expenditures” (“Count I”), CREW 

Am. Admin. Compl. ¶ 44, AR109 (emphasis added); 

(2) CGPS violated 2 U.S.C. § 434 (52 U.S.C. § 30104) and 11 C.F.R. § 109.10(b)-(e) by 

failing to identify the donors who gave in response to the matching challenge “for the purpose of 

furthering the independent expenditures CGPS made in the Ohio Senate race” (“Count II”), id. 

¶¶ 46, 50, AR110 (emphasis added); and 

(3) CGPS, its officers, and Mr. Rove violated 18 U.S.C. § 371 (criminal conspiracy to 

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defraud the federal government) by failing to report the donor who made the $3 million matching 

donation, and the donors who responded to the matching challenge, “for the purpose of 

furthering the independent expenditures [CGPS] made in the Ohio Senate race” (“Count III”), id. 

¶¶ 52-53, AR111 (emphasis added).9

Regarding the August 30 meeting, CREW’s amended complaint further alleged that: 

(4) Attendees at the meeting gave “contributions” to CGPS “with the intention that the 

money be spent on independent expenditures broadcasting the advertisements shown at the 

fundraiser or broadcasting other ads in the Ohio, Virginia, Montana, and Nevada Senate races,” 

and that CGPS’s IE reports failed to identify “any of the persons who made contributions for the 

purpose of broadcasting the advertisements” in violation of 2 U.S.C. § 434 (52 U.S.C. § 30104) 

and 11 C.F.R. §§ 109.10(b)-(e) (“Count IV”), id. ¶¶ 59-60, AR113 (emphasis added); and 

(5) CGPS, its officers, and Mr. Rove violated 18 U.S.C. § 371 by failing to “identify the 

persons who made contributions for the purpose of broadcasting the advertisements shown at the 

August 30, 2012 [meeting] or broadcasting other ads in those races” (“Count V”), id. ¶ 62, 

AR113 (emphasis added). 

Notably, CREW’s administrative complaint did not claim: (a) that CGPS violated 52 

U.S.C. § 30104(c)(1) by failing to identify on its IE reports “all contributors” who had given 

more than $200 to CGPS during the calendar year; or (b) that the FEC’s IE reporting regulation 

was invalid. See CREW Am. Admin. Compl., AR098-117, compare id. with CREW MSJ Brief 

(Doc 27) at 28-40, 42 and Compl. ¶ 124 and Requested Relief ¶ 3.

10 

                                                            

9

 CREW abandoned its 18 U.S.C. § 371 criminal conspiracy allegations in its complaint for judicial review. Even if 

those allegations were properly before this Court, they are without merit to the same extent the underlying alleged 

violations of the FEC regulation and the FECA are without merit. 

10 While CREW recited in passing the language from 52 U.S.C. § 30101(c)(1), CREW did not specifically allege 

that CGPS had violated this provision, whether by reference to the provision’s statutory designation or its substance. 

Compare CREW Am. Admin. Compl. ¶ 14, AR101 with id. ¶¶ 40-67, AR108-115. 

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CGPS filed a response with the FEC refuting all of the allegations in CREW’s 

administrative complaint and not addressing any additional allegations omitted in the complaint. 

AR073-095.11 After considering CREW’s administrative complaint and CGPS’s response, the 

FEC’s Office of General Counsel issued its “First General Counsel’s Report” (“FGCR”), 

recommending that the Commission find no reason to believe that CGPS had violated 2 U.S.C. 

§ 434(c)(2) (52 U.S.C. § 30104(c)(2)) and 11 C.F.R. § 109.10(e)(1)(vi). AR165. 

According to the FGCR, even if the CGPS donor who made the $3 million matching 

challenge had a “general purpose to support an organization in its efforts to further the election 

of a particular federal candidate” (i.e., in Ohio), that “does not itself indicate that the donor’s 

purpose was to further ‘the reported independent expenditure’ – the requisite regulatory test,” or 

that other donors responding to the matching challenge had given for such purpose. AR174. 

With respect to the IEs in other states addressed at the August 30 meeting, the FGCR endorsed 

CGPS’s explanation that “it did not receive contributions for the purpose of furthering those 

communications” shown at the meeting because those communications had already been aired 

and fully paid for, and another one had never aired. AR175. “Consequently, there is no basis to 

conclude on these facts that [CGPS] received contributions from individuals . . . for the purpose 

of furthering [CGPS’s] reported independent expenditures” in those other states. Id.

As to whether FECA section 30104(c)(1) required a broader level of contributor 

identification than the Commission’s IE reporting regulation, the FEC’s staff perceived no clear 

claim in CREW’s administrative complaint to this effect. Rather, the staff addressed this issue in 

the hypothetical: “[T]o the extent the question is presented on these facts, we recommend that the 

                                                            

11 Because CREW’s amended administrative complaint contained no new substantive allegations, CGPS responded 

to the amended complaint merely by reiterating its previous response. AR162-63. 

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Commission dismiss in the exercise of prosecutorial discretion” any allegation involving section 

30104(c)(1). AR165-66.12 The staff cited a prior matter in which the Commission dismissed a 

claim that the FECA compelled broader IE reporting than the FEC’s regulation required, AR172-

73, and reasoned that CGPS could raise “equitable concerns” and “fair notice” claims “if the 

Commission attempted to impose liability under Section [30104](c)(1).” AR175-76. 

Accordingly, the staff recommended a dismissal on this hypothetical theory in the Commission’s 

prosecutorial discretion. AR176 (citing Heckler v. Chaney, 470 U.S. 821, 831 (1985)). 

The commissioners divided 3-3 on whether to pursue or, as recommended by the FGCR, 

dismiss the administrative complaint. AR193-194. Because the FECA requires an affirmative 

vote of four commissioners to proceed in an enforcement action, this vote constituted a formal 

Commission decision not to proceed that resulted in dismissal of the administrative complaint. 

See 52 U.S.C. § 30106(c). 

Due to the 3-3 vote, the commissioners who voted to dismiss CREW’s administrative 

complaint “constitute a controlling group for purposes of the decision,” and “their rationale 

necessarily states the agency’s reasons for acting as it did” on review. NRSC, 966 F.2d at 1476. 

More specifically, because these commissioners followed the recommendations in the FGCR, 

they did not issue their own statement of reasons. Therefore, the FGCR “provides the basis for 

the Commission’s action.” FEC v. DSCC, 454 U.S. 27, 38 n.19 (1981). 

Two of the dissenting commissioners who disagreed with the Commission’s dismissal of 

the administrative complaint wrote a statement of reasons supporting their own theory that CGPS 

                                                            

12 Footnote 60 of the FGCR merely characterizes CREW’s original administrative complaint as “reciting language 

of disclosure obligations under Sections 434(c)(1) and (c)(2),” but did not suggest that CREW was alleging CGPS 

had violated the latter. AR176. Moreover, CREW’s amended administrative complaint, which is the one that 

should have governed the Commission’s decision and the one that is properly before this Court, revised CREW’s 

theory to focus specifically on the contributor reporting requirements under subparagraph (c)(2). Compare CREW 

Am. Admin. Compl. at 5 n.1, AR102 with CREW Admin. Compl. at 4 n.1, AR004.

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22 

should have been regulated as a political committee. AR198-99. Notably, however, no 

commissioner disputed any of the staff’s recommendations or reasoning with respect to dismissal 

of the IE reporting claim. See id.

Dissatisfied with the FEC’s resolution of the matter, CREW filed the instant complaint 

for judicial review under 52 U.S.C. § 30109(a)(8). 

ARGUMENT 

I. STANDARD OF REVIEW 

Although the FECA permits some review of the FEC’s dismissal of a complaint, that 

judicial scrutiny must be “[h]ighly deferential,” Hagelin v. FEC, 411 F.3d 237, 242 (D.C. Cir. 

2005), and “limited” in its breadth, Crossroads Grassroots Policy Strategies v. FEC, 788 F.3d 

312, 315 (D.C. Cir. 2015). To that end, “the FEC is entitled, and indeed required, to make

subjective evaluation of claims” under the “reason to believe” standard, and “to weigh the 

evidence before it and make credibility determinations in reaching its ultimate decision.” 

Buchanan v. FEC, 112 F. Supp. 2d 58, 72 (D.D.C. 2000) (quoting and citing Orloski v. FEC, 795 

F.2d 156, 168 (D.C. Cir. 1986)). In this respect, the Commission’s role is not subject to the 

constraints a district court faces in deciding a motion to dismiss a civil complaint. Rather, it is 

more analogous to a decision by a prosecutor on whether to present a matter to a grand jury. 

Courts “may set aside the FEC’s dismissal of a complaint only if its action was ‘contrary 

to law,’ . . . e.g., ‘arbitrary or capricious, or an abuse of discretion,’” Hagelin, 411 F.3d at 242, 

and “judges . . . owe large deference to a Commission disposition so long as the FEC (or its 

General Counsel) supplied reasonable grounds for reaching (or recommending) the disposition,” 

DCCC v. FEC, 831 F.2d 1131, 1134 (D.C. Cir. 1987). “As long as the FEC presents a coherent 

and reasonable explanation of that decision, it must be upheld.” Buchanan v. FEC, 112 F. Supp. 

2d 58, 72 (D.D.C. 2000) (citing Carter/Mondale Presidential Comm., Inc. v. FEC, 775 F.2d 

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23 

1182, 1185 (D.C. Cir. 1985)).

Courts also apply an “extremely deferential standard” of review when the Commission 

dismisses a case in its prosecutorial discretion. CREW v. FEC, 236 F. Supp. 3d 378, 390 (D.D.C. 

2017) (quoting LaBotz v. FEC, 61 F. Supp. 3d 21, 33 (D.D.C. 2014)). This “is an area where the 

decision is ‘generally committed to an agency’s absolute discretion,’” since it “is not for the 

judiciary to ride roughshod over agency procedures or sit as a board of superintend[e]nce 

directing where limited agency resources will be devoted.” Id. (quoting LaBotz, 61 F. Supp. 3d 

at 33-34 and FEC v. Rose, 806 F.2d 1081, 1091 (D.C. Cir. 1986)) (emphasis added). 

In all instances, the “burden of proof is on . . . the party challenging agency action.” 

Tierney v. FEC, 538 F. Supp. 2d 99, 103 (D.D.C. 2008), aff’d, No. 08-5134, 2008 WL 5516511 

(D.C. Cir. Sept. 12, 2008). 

II. THE FEC PROPERLY DISMISSED CREW’S FIRST CLAIM THAT CGPS 

VIOLATED 11 C.F.R. § 109.10(e)(1)(vi). 

CGPS is entitled to summary judgment on CREW’s Claim One, which alleges the FEC 

was required to find reason to believe that CGPS violated 11 C.F.R. § 109.10(e)(1)(vi) by failing 

to report any contributions “for the purpose of furthering the reported independent 

expenditure[s]” at issue. CREW failed to present facts in the underlying administrative 

proceeding showing such a purpose. In fact, CGPS presented evidence negating any such 

purpose, and the FEC’s informed evaluation of the facts receives an extremely high level of 

judicial deference. 

CREW summarizes the factual allegations of its administrative complaint relating to its 

Claim One on pages 44-45 of its MSJ Brief (Doc 27). However, much of CREW’s recitation 

consists of its own inaccurate and selective characterization of the administrative record. CREW 

omits that Mr. Rove’s affidavit swears that the donor who initially offered the $3 million match 

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24 

that CREW emphasizes actually ended up making a donation “that was not in any way 

earmarked for any particular use” – even for use in Ohio. Rove Aff. ¶ 14, AR095. Mr. Rove 

also specifically attested that the $1.3 million raised in matching donations “were not solicited 

for a particular purpose other than for general use in Ohio” and were not “for the purposes of 

aiding the election of Josh Mandel,” as CREW erroneously contends. Compare id. ¶ 13, AR095 

with CREW MSJ Brief (Doc 27) at 44. Moreover, as discussed supra, ten of the 11 CGPS ads 

that were shown at the August 30 meeting were issue ads and not IEs, as CREW 

mischaracterizes them, and CGPS has not “admitted” that these ads were “‘examples’ of the 

activities raised funds would support,” as CREW speciously contends. Compare CGPS 

Response to CREW Admin. Compl., AR078 with CREW MSJ Brief (Doc 27) at 45. 

Strikingly, CREW’s administrative complaint never clearly alleged CGPS solicited 

donors to fund any advertisements whatsoever (regardless of whether they were IEs, or whether 

they were disseminated in the four states at issue or elsewhere). Rather, CREW resorted to a 

vague and unsupported allegation that the solicitations were “apparently to pay” for the 

advertisements at issue. CREW Am. Admin. Compl. ¶ 28, AR 105 (emphasis added). But in the 

“Democracy Now” segment that CREW relies on, the reporter who attended the August 30 

meeting described the materials that were distributed along with donation forms as merely 

“explaining what the missions are of both organizations” (referring to American Crossroads and 

CGPS). CREW Am. Admin. Compl. Exh. C (6:02-6:20), available at

https://youtu.be/RZsudD4O3i8. 

Moreover, even assuming arguendo, as CREW alleges, that donors gave to CGPS “for 

the purpose[] of aiding the election of Josh Mandel,” CREW MSJ Brief (Doc 27) at 44, that does 

not lead to the conclusion, or even an inference, that they gave “for the purpose of furthering the 

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25 

reported independent expenditure[s]” in question here, see 11 C.F.R. § 109.10(e)(1)(vi). CGPS 

submits that the facts before the Commission clearly negated such a purpose. Certainly, the facts 

were not so compelling that the FEC’s decision can be condemned as contrary to law, which is 

the standard CREW must meet here. 

III. THE COURT SHOULD DISPOSE OF CREW’S CLAIMS TWO AND THREE 

WITHOUT RULING ON THEIR MERITS. 

 Because CGPS’s compliance with the FEC’s IE reporting regulation is dispositive, 

whether or not the regulation is valid, this Court need not and should not rule on the merits of 

CREW’s Claims Two and Three. See Air Courier Conf. of Am. v. Am. Postal Workers Union, 

AFL-CIO, 498 U.S. 517, 531 (1991) (Stevens, J., concurring) (“Faithful adherence to the 

doctrine of judicial restraint provides a fully adequate justification for deciding this case on the 

best and narrowest ground available.”); see also PDK Labs., Inc. v. DEA, 362 F.3d 786, 799 

(D.C. Cir. 2004) (Roberts, J., concurring) (“if it is not necessary to decide more, it is necessary 

not to decide more”). That is even more so here because CREW’s claims also are time-barred, 

not properly before this court, and otherwise precluded by the FEC’s prosecutorial discretion. 

A. CGPS Was Entitled to Rely on the FEC’s IE Reporting Regulation.

As discussed more fully below, 11 C.F.R. § 109.10(e)(1)(vi) validly implements the 

FECA. But even if the regulation were invalid, CGPS was entitled to rely on it under both the 

FECA and well-established principles of due process and administrative law. Therefore, this 

Court should dismiss CREW’s Claims Two and Three as unnecessary to decide. 

1. The FECA Specifically Protects Those Relying on the FEC’s Regulations 

From Any Sanctions or Enforcement Proceedings. 

The FECA provides that: 

Scope of protection for good faith reliance upon rules or regulations. 

Notwithstanding any other provision of law, any person who relies upon any rule 

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26 

or regulation prescribed by the Commission in accordance with the provisions of 

this section and who acts in good faith in accordance with such rule or regulation 

shall not, as a result of such act, be subject to any sanction provided by this Act or 

by chapter 95 or chapter 96 of title 26. 

52 U.S.C. § 30111(e) (emphasis added). As the legislative history further explains, “[a] person 

who relies upon [the FEC’s] regulations in good faith will not be subject to subsequent 

enforcement action.” 1979 FECA History at 208. 

 Thus, the FECA permits the public to “undertake any conduct permitted by the 

challenged regulations without fear of penalty, even if that conduct violates campaign statutes.” 

Shays v. FEC (“Shays I”), 414 F.3d 76, 84 (D.C. Cir. 2005) (emphasis added). The “good faith 

reliance” statute is unequivocal: compliance with FEC regulations removes “certain conduct 

from any risk of enforcement” and “establish[es] ‘legal rights’ to engage in that conduct.” Id. at 

95 (emphasis added). This precludes the full range of FECA-authorized sanctions that CREW 

seeks, including “equitable remedies” requiring CGPS to retroactively file amended IE reports. 

Compare CREW MSJ Brief (Doc 27) at 43 with 52 U.S.C. §§ 30111(e) (prohibiting “any 

sanction provided by this Act” for reliance on FEC regulations) and 30109(6)(A), (B) (otherwise 

permitting an “injunction, restraining order, or any other appropriate order” for violations). This 

is especially so where CREW’s desired relief would violate the associational privacy rights of 

CGPS and its donors, who relied on the FEC’s regulation with the understanding that they would 

not be publicly identified thereunder. As the Supreme Court has recognized, campaign finance 

reporting requirements – like the IE reporting scheme here – pose “not insignificant burdens on 

individual rights,” “deter some individuals who otherwise might contribute,” and “expose 

contributors to harassment or retaliation.” Buckley, 424 U.S. at 68; see also Van Hollen, 811 

F.3d at 499-500. 

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2. CGPS Was Entitled to Rely on the FEC’s Regulation Under Principles of Due 

Process and Administrative Law. 

The FECA’s protection for those complying with FEC regulations also tracks 

“[t]raditional concepts of due process incorporated into administrative law,” which “preclude an 

agency from penalizing a private party for violating a rule without first providing adequate notice 

of the substance of the rule.” Affum v. U.S., 566 F.3d 1150, 1163 (D.C. Cir. 2009) (quoting PMD 

Produce Brokerage Corp. v. USDA, 234 F.3d 48, 52 (D.C. Cir. 2000)). This notice may be in 

form of the rule text itself “and other public statements issued by the agency.” Id. (quoting 

Trinity Broad. of Fla., Inc. v. FCC, 211 F.3d 618, 628 (D.C. Cir. 2000)). 

Even where a party relies on an agency’s regulation and “a court [subsequently] 

determines that the regulation is invalid,” the judicial decision requires “nonretroactive 

application” where the decision “will work an injustice or hardship” or “establish[es] a new 

principle of law, either by overruling clear past precedent . . . or by deciding an issue of first 

impression whose resolution was not clearly foreshadowed.” Teich v. FDA, 751 F. Supp. 243, 

249 (D.C. Cir. 1990) (quoting Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349, 355 (1971))

(emphasis added). More generally, “prior notice is required where a private party justifiably 

relies upon an agency’s past practice and is substantially affected by a change in that practice.” 

Nat’l Conservative Pol. Action Comm. v. FEC, 626 F.2d 953, 959 (D.C. Cir. 1980). These 

principles apply with special force where the relevant conduct is core First Amendment free 

speech and association. To avoid chilling such highly protected activity, the law must provide 

clear advance notice before burdens may be imposed. Marks v. U.S., 430 U.S. 188, 196 (1977);

Buckley, 424 U.S. at 77. 

Here, CREW concedes the FEC’s regulation in question has been in effect for more than 

37 years. Compl. ¶ 120; CREW MSJ Brief (Doc 27) at 7. During that time, CREW has not 

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identified any precedent where the FEC interpreted or applied the regulation under the “more 

expansive approach” CREW advocates here. Compl. ¶ 122. In fact, as discussed above, the 

agency previously considered an enforcement matter involving the identical issue that CREW 

presents here, and the FEC dismissed the matter. AR172-3. The FEC’s reporting instructions 

and guidance – which are legally significant – also have consistently described IE reports as only 

requiring identification of contributions “made for the purpose of furthering the independent 

expenditures” being reported, FEC, Instructions for Preparing FEC Form 5, supra, or 

contributions “for the purpose of making the independent expenditures” being reported, FEC, 

Campaign Guide for Corporations and Labor Organizations (Jan. 2007) at 36, available at

https://transition.fec.gov/pdf/colagui.pdf.

13

Indeed, CREW itself previously conceded the limited scope and dispositive effect of the 

Commission’s regulation. In response to a broad-based FEC request for public comments, 

CREW sharply critiqued the narrow scope of the FEC’s IE reporting regulation. According to 

CREW, “under the Commission’s regulations, the identity of a contributor who gives to the 

organization for the broad purpose of influencing a federal election, or even the specific purpose 

of making independent expenditures, need not be disclosed.” CREW, Comments in Response to 

Advance Notice of Proposed Rulemaking on Earmarking, Affiliation, Joint Fundraising, 

Disclosure, and Other Issues (Jan. 15, 2015) at 3-4, available at http://sers.fec.gov/fosers/ 

showpdf.htm?docid=312990. 

In the same proceeding, CREW also (1) acknowledged that the Commission’s IE 

                                                            

13 The FEC guide provides CGPS with yet an additional protection against any sanctions. Under the Small Business 

Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. § 601 note, reliance by a “small entity” on an agency’s 

designated “small entity compliance guide” “may be considered as evidence of the reasonableness or 

appropriateness of any proposed fines, penalties, or damages.” The FEC has designated its guide as a “small entity 

compliance guide.” FEC, Campaign Guide for Corporations and Labor Organizations at ii. As a non-profit entity, 

CGPS meets the definition of a “small entity.” 5 U.S.C. § 601(6), (4). 

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reporting regulation implemented “both contributor disclosure provisions of the statute” (i.e., the 

Coverage and Content Provisions); and (2) did not suggest that the agency could require more 

reporting of donors simply by ignoring the regulation and enforcing the two FECA provisions 

according to CREW’s own (mistaken) interpretation of them. See id. at 2-5. As CREW 

discusses in its MSJ Brief (Doc 27 at 15-16), in a rulemaking petition filed on behalf of thenRepresentative Chris Van Hollen, campaign finance attorneys at Democracy 21 and the 

Campaign Legal Center also characterized the FEC’s IE reporting regulation as being limited in 

scope and dispositive in effect. Rep. Van Hollen Petition for Rulemaking to Revise and Amend 

Regulations Relating to Disclosure of Independent Expenditures (Apr. 21, 2011) at 4, available 

at http://classic.fec.gov/pdf/nprm/citizensunited/van_hollen.pdf. (Notably, CREW did not 

participate in any way in this rulemaking petition, which further underscores why CREW should 

not be permitted to convert this enforcement action into a rulemaking proceeding. See FEC, Reg 

2011-01 Independent Expenditure Reporting, at http://sers.fec.gov/fosers/ruledata.htm? 

ruleNumber=REG%202011-01.) 

 As CREW also notes, dozens of 501(c) organizations spent tens of millions of dollars on 

IEs during the 2010 election cycle, and hundreds of millions of dollars “during each of the 2012, 

2014, and 2016 election cycles . . . but they did not identify a single contributor or report a single 

dollar in outside contributions.” CREW MSJ Brief (Doc 27) at 15-16. Yet, CREW has not 

identified a single precedent where an organization relying on the FEC’s IE reporting regulation 

has been found to have violated the law – either by the FEC or by a reviewing court. 

In the instant matter, CGPS also responded to four form letters from the FEC’s Reports 

Analysis Division asking for confirmation that no contributors had to be identified on the IE 

reports at issue here. AR149-154. These inquiries are routinely sent by the agency for 

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“additional clarification” on reports. FEC, Request for Additional Information (RFAI), at

https://www.fec.gov/help-candidates-and-committees/request-additional-information. Citing the 

regulation, CGPS explained that “no contributions or donations accepted by [CGPS] were 

solicited or received for the purpose of furthering the reported independent expenditures.” 

AR153. The FEC never disputed CGPS’s responses or demanded that CGPS amend its filings in 

the manner CREW urges. See PMD Produce Brokerage Corp., 234 F.3d at 53 (noting that “preenforcement efforts” may indicate an agency’s interpretation of the relevant law). 

CREW contends that the Coverage Provision, 52 U.S.C. § 30104(c)(1) imposes a broader 

donor identification requirement that is “[s]eparate and distinct from” the FEC’s IE reporting 

regulation, and that “[t]he appearance of [this] requirement in the ‘plain language’ of the statute 

gives ‘fair notice’ to regulated parties.” CREW MSJ Brief (Doc 27) at 39 (quoting Freeman 

United Coal Min. Co. v. Fed. Mine Safety and Health Review Comm’n, 108 F.3d 358, 362 (D.C. 

Cir. 1997)). But as even CREW’s parenthetical for Freeman reveals, that opinion was 

addressing the “plain language” of an agency regulation, and not the conflict that allegedly exists 

here between a regulation and a purportedly broader statute. Here, CREW: (1) concedes – 

consistent with the FEC’s own explanation of the rule – that the regulation construes both the 

Coverage and Content Provisions;14 and (2) never identifies a single instance where the FEC 

interpreted the Coverage Provision as creating a separate reporting obligation. Thus, Freeman

actually supports CGPS’s position. 

CREW further contends that this “case is not among the ‘very limited set of cases’ in 

which courts have found lack of required notice.” CREW MSJ Brief (Doc 27) at 40 (citing 

                                                            

14 Per CREW’s administrative complaint, “FEC regulations interpret these provisions” – referring to 52 U.S.C. 

§ 30104(c)(2)(C) and (c)(1) – to require reporting of each contribution that “was made for the purpose of furthering 

the reported independent expenditure.” CREW Am. Admin. Comp. ¶¶ 14-16, AR101-02 (emphasis added); CREW 

Admin. Compl. ¶¶ 14-16, AR004 (emphasis added). 

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Suburban Air Freight, Inc. v. Transp. Sec. Admin, 716 F.3d 679, 684 (D.C. Cir. 2013)). 

However, CREW’s authority for this proposition also supports CGPS’s position. In Suburban 

Air Freight, the court held that the agency regulation at issue “made clear” the appellant’s 

obligations, and that the appellant “ma[de] no argument that [the agency] previously interpreted 

those provisions differently, let alone that the company relied on any such interpretation.” 716 

F.3d at 684. But that describes exactly the situation here: CREW concedes 11 C.F.R. 

§ 109.21(e)(1)(vi) is clear that only “contributions given for the purpose of furthering ‘the 

reported’ independent expenditure” must be reported. CREW MSJ Brief (Doc 27) at 28. The 

FEC previously has not interpreted the regulation in a manner broader than its plain text, and 

CGPS relied on this longstanding Commission interpretation. 

Finally, of course, the FECA has an express provision making compliance with a 

regulation a bar to further enforcement action. That provision and the First Amendment are 

powerful considerations not present in the cases CREW discusses. 

3. CGPS’s Reliance on 11 C.F.R. § 109.10(e)(1)(vi) Precludes CREW’s Claims 

Two and Three and Any Enforcement in This Matter. 

 Regardless of whether, as CREW alleges, the FEC regulation at issue is unduly 

permissive and contrary to the FECA, the statute (52 U.S.C. § 30111(e)) and traditional 

principles of due process and administrative law present an absolute bar against any sanction, 

penalty, or enforcement action against CGPS where it reasonably relied on the Commission’s 

regulation. In fact, it is CREW’s position in this matter that is impermissible. Had the FEC 

completely and abruptly, and without any advance public notice, reversed its longstanding 

interpretation and application of the regulation at issue, the agency would have acted arbitrarily 

and capriciously. See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016).15 

                                                            

15 CREW misrepresents Barnett v. Weinberger, 818 F.2d 953, 954 (D.C. Cir. 1987) as holding that an “agency

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Therefore, this Court should dispose of CREW’s Claims Two and Three, which are premised 

entirely on two statutory provisions that are both implemented by the FEC’s regulation. 

B. CREW’s Administrative Complaint Did Not Allege the FEC’s Regulation Is 

Invalid or That CGPS Violated Subsection 30104(c)(1), and These New Theories 

Are Not Properly Before This Court. 

The Court also should dispose of CREW’s Claims Two and Three because CREW did 

not clearly raise – indeed, it abandoned – these issues in its administrative complaint. Here, once 

again, both the FECA and traditional principles of administrative law preclude CREW’s claims. 

The FECA provides that “[a]ny party aggrieved by an order of the Commission 

dismissing a complaint filed by such party” may seek judicial review. 52 U.S.C. 

§ 30109(a)(8)(A) (emphasis added). If the court “declare[s] that the dismissal of the complaint 

or the failure to act is contrary to law” and the FEC fails to conform with such declaration, the 

complainant may then bring another suit “to remedy the violation involved in the original 

complaint.” Id. § 30109(a)(8)(C) (emphasis added).16 Furthermore, the FECA requires that 

respondents have an opportunity to submit a written response to administrative complaints, 

which necessarily encompasses responding to the applicable legal theories contained in the 

administrative complaint. Id. § 30109(a)(1). 

Here, CREW’s administrative complaint never once specifically alleged, as CREW does 

now, that CGPS violated the law by relying on an invalid FEC regulation, or that CGPS had 

                                                            

decision premised on [an] invalid regulation at odds with [the] statute was arbitrary.” CREW MSJ Brief (Doc 27) at 

39. The court in Barnett did not determine the regulations at issue were “invalid”; rather the issue was whether the 

regulations, “either as written or applied,” were contrary to the statute. Barnett, 818 F.2d at 959, 970 (emphasis 

added). In addition, the agency’s “‘findings’ of adjudicative facts that [were] not supported by substantial evidence” 

played a large part in the court’s enjoining the agency’s action. Id. at 971. Moreover, the issue in Barnett was 

whether it was proper for an agency to apply its regulation to discontinue future benefits to a member of the public. 

Id. at 954-55. By contrast, the issue here is whether it was proper for CGPS to rely on an agency regulation for 

activities conducted long before the regulation was challenged. 

16 The term “original complaint” here distinguishes the administrative complaint from a later judicial complaint for 

review. For present purposes, CREW’s amended FEC complaint is the relevant “original complaint.” 

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violated the Coverage Provision, 52 U.S.C. § 30104(c)(1), by not reporting “all contributors who 

provide more than $200 annually to the group.” See supra at 18-19 and CREW Am. Admin. 

Compl., AR108-115.17 As to section 30104(c)(1) specifically, the FEC staff’s FGCR also did 

not interpret CREW’s administrative complaint as alleging a violation of this provision. Rather, 

the FGCR merely said that, “to the extent that the facts here may also give rise to a claim that 

Crossroads allegedly violated” 52 U.S.C. § 30104(c)(1), that claim would properly be dismissed 

as a matter of prosecutorial discretion. AR165-66, 176 (emphasis added). In other words, the 

FGCR addressed a hypothetical that CREW never specifically alleged in its administrative 

complaint. 

CREW’s addition of these new legal theories in its complaint filed in this Court not only 

conflicts with the limited scope of judicial review permitted by the FECA, but it also violates the 

basic doctrine of exhaustion of administrative remedies. Under this doctrine, parties in an 

administrative proceeding must “give the agency a fair and full opportunity to adjudicate their 

claims,” and “do[] so properly (so that the agency addresses the issues on the merits).” 

Woodford v. Ngo, 548 U.S. 81, 90 (2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 

(7th Cir. 2002), cert. denied, 537 U.S. 949 (2002) (emphasis in the original). A plaintiff may not 

“proceed to federal court after having raised claims in only a cursory manner,” or “permute 

‘mere[] background information’ in an [administrative] complaint into a separately actionable 

legal claim.” Vasser v. McDonald, 228 F. Supp. 3d 1, 17 (D.D.C. 2016) (quoting Lyles v. 

District of Columbia, 777 F. Supp. 2d 128, 137 (D.D.C. 2011)). Including only a “vague 

reference” to an issue, “[d]espite the opportunity to specifically raise the [issue] as a separate 

                                                            

17 The general references in CREW’s administrative complaint to “2 U.S.C. § 434” cannot fairly be understood as 

specifically alleging that CGPS violated 52 U.S.C. § 30104(c)(1), especially in light of CREW’s actual 

characterization of the alleged violations. See CREW Am. Admin. Compl., “Count I,” ¶ 44; “Count II,” ¶ 50; 

“Count III,” ¶ 53; “Count IV,” ¶ 60; “Count V,” ¶ 62, AR110-114. 

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claim . . . [a]fter listing five different claims” is insufficient. Id. Relatedly, CREW’s additional 

legal theories violate the “hard and fast rule of administrative law, rooted in simple fairness, that 

issues not raised before an agency are waived and will not be considered by a court on review.” 

Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1297 (D.C. Cir. 2004); see also Wallaesa v.

FAA, 824 F.3d 1071, 1078 (D.C. Cir. 2016). 

Although the FEC staff’s FGCR raised the speculative issue of liability under the 

Coverage Provision, 52 U.S.C. § 30104(c)(1), the report merely recommended a dismissal in the 

agency’s prosecutorial discretion due to the “equitable concerns” about “fair notice” that CGPS 

could raise concerning this novel enforcement theory. AR176. The FGCR did not address the 

substantive merits of this theory. Moreover, because CREW failed to allege such a violation in 

any one of the five separate “counts” of its administrative complaint, AR108-115, CGPS’s 

response thereto also did not address any alleged violation of the Coverage Provision, AR083-

84. CGPS also did not have an opportunity to address this new theory when it was first 

presented to the Commission in the FGCR. See FEC, Guidebook for Complainants and 

Respondents on the FEC Enforcement Process (May 2012) at 10-12, available at

https://transition.fec.gov/em/respondent_guide.pdf (explaining that, after respondents file a 

response, the General Counsel’s office issues its report and then the Commission votes on the 

General Counsel’s recommendations). 

Additionally, while the FECA authorizes the FEC to open certain enforcement matters 

sua sponte, 52 U.S.C. § 30109(a)(1), (2), the FECA does not permit complainants to seek 

judicial review of internally generated matters. Compare id. with id. § 30109(a)(8). Thus, to the 

extent the FEC staff’s FGCR, on its own, raised the hypothetical issue of whether CGPS may 

have violated 52 U.S.C. § 30104(c)(1), the agency’s dismissal on that issue is not reviewable. 

Case 1:16-cv-00259-BAH Document 29 Filed 10/23/17 Page 48 of 65
35 

For all of these reasons, CREW’s Claims Two and Three are not properly before this 

Court. 

C. CREW’s Facial Challenge to the Regulation’s Validity Is Time-Barred, and an 

As-Applied Challenge Would Not Redress CREW’s Claimed Injury. 

In addition to the reasons just discussed, this Court should dispose of CREW’s Claim 

Two – which seeks a declaratory order that “11 C.F.R. 109.10(e)(1)(vi) is unlawful and 

invalid” on its face – because the claim is time-barred. Compl. ¶ 124; see also id., Requested 

Relief ¶ 3. Moreover, although this Court has held that CREW’s challenge to the FEC’s 

application of the supposedly invalid regulation is not time-barred, Memo. Op. (Mar. 22, 2017) 

at 15, such a claim cannot redress CREW’s injury, since compliance with the regulation justifies 

dismissal of CREW’s complaint, whether or not the regulation is valid. 

Although 28 U.S.C. § 2401(a) establishes a six-year statute of limitations in this matter 

for judicial review of the regulation’s validity, NLRB Union v. FLRA, 834 F.2d 191 (D.C. Cir. 

1987) recognized “a limited number of exceptions.” See Memo. Op. (Mar. 22, 2017) at 12-13; 

Raton Gas Transmission Co. v. FERC, 852 F.2d 612, 615 (D.C. Cir. 1988) (explaining NLRB 

Union). NLRB Union held that, outside of the statute of limitations, “a party who possesses 

standing may challenge regulations directly on the ground that the issuing agency acted in excess 

of its statutory authority in promulgating them. A challenge of this sort might be raised, for 

example, by way of defense in an enforcement proceeding.” 834 F.2d at 195 (emphasis added). 

The point is that the running of the statute of limitations should not prevent a party from 

redressing a new and recent injury. 

This Court also has noted the D.C. Circuit’s holding in Weaver v. Fed. Motor Safety 

Admin., 744 F.3d 142 (D.C. Cir. 2014). Memo. Op. (Mar. 22, 2017) at 16. As Weaver 

explained: 

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36 

Where Congress imposes a statute of limitations on challenges to a regulation, 

running from a regulation’s issuance, facial challenges to the rule or the 

procedures by which it was promulgated are barred. But when an agency seeks to 

apply the rule, those affected may challenge that application on the grounds that it 

“conflicts with the statute from which its authority derives.” 

744 F.3d 142 at 145 (emphasis added) (internal citations omitted) (quoting Nat’l Air Transp. 

Ass’n v. McArtor, 866 F.2d 483, 487 (D.C. Cir. 1989)).18 In short, the time bar does not subject a 

party to a new injury that violates the substantive command of the law. 

 CREW’s problem is that the FECA makes compliance with the FEC regulation a 

complete defense, regardless of the regulation’s validity. So even if the dismissal of CREW’s 

complaint injured CREW by depriving it of desired information, the injury did not flow from the 

validity or invalidity of the FEC’s regulation. Moreover, declaring the rule invalid would not 

and could not redress that injury: even if the regulation were invalidated, the dismissal would 

stand. 

 CREW may wish to invalidate the regulation so that it will not provide a defense to future 

respondents. But a “plaintiff must demonstrate standing for each claim he seeks to press.” 

DaimlerChrysler Corp. et al. v. Cuno et al., 547 U.S. 332, 335 (2006). And an essential element 

of standing is that success on the claim will redress the plaintiff’s claimed injury. Lujan v. 

Defenders of Wildlife, et al., 504 U.S. 555, 561-62 (1992). CREW’s broader claim that 

invalidating the regulation will allow it to obtain information in the future is precisely the type of 

“facial challenge” that the statute of limitations bars. P&V Enterprises, et al. v. U.S. Army Corps 

of Engineers, et al., 466 F. Supp. 2d 134, 136 (D.D.C. 2006).

                                                            

18 See also Graceba Total Communications, Inc. v. FCC, 115 F.3d 1038, 1040 (D.C. Cir. 1997) (“we permit both 

constitutional and statutory challenges to an agency’s application or reconsideration of a previously promulgated 

rule, even if the period for review of the initial rulemaking has expired.”) (collecting authority) (emphasis added); 

Tripoli Rocketry Assoc. v. U.S. BATF, 2002 U.S. Dist. LEXIS 27588 at *16 (D.D.C. June 24, 2002) (plaintiff’s 

“substantive challenge” to an agency regulation was “not time barred because it attacks [the agency’s] 

‘noncompliance with the substantive provisions of federal law as applied to plaintiffs.’”) (emphasis added). 

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37 

CREW’s position also is untenable to the extent it relies on procedural arguments, 

because a “petitioner’s contention that a regulation suffers from some procedural infirmity . . . 

will not be heard outside of the statutory limitations period.” NLRB Union, 834 F.2d at 196. 

Here, CREW argues that the FEC adopted the IE reporting regulation at issue without an 

adequate contemporaneous explanation for it. CREW MSJ Brief (Doc 27) at 28-30. This is an 

attack on the regulation’s procedural validity and is not properly before this court outside of the 

six-year statute of limitations for reviewing the rule’s promulgation. 

D. The FEC’s Heckler Dismissal of the Agency Staff’s Self-Initiated Hypothetical 

Theory That CGPS May Have Violated Subsection 30104(c)(1) Was Rational 

Under the “Extremely Deferential Standard” of Judicial Review. 

CREW’s Claim Three – that CGPS may have failed to report a broader universe of 

donors supposedly required by the Coverage Provision, 52 U.S.C. § 30104(c)(1) – fails on 

multiple grounds. As noted above, because CREW did not plainly present that claim to the FEC, 

it failed to exhaust its administrative remedies. The Commission staff’s comment that, if such a 

claim had been made, it would be subject to dismissal as a matter of prosecutorial discretion 

under Heckler v. Chaney, 470 U.S. 821 (1985), does not excuse this failure, doubly so since the 

FECA does not authorize private complainants to seek review of FEC staff-originated issues. 

And, beyond all this, on the facts here CREW cannot begin to overcome the great deference 

accorded such a highly discretionary ruling. 

The “extremely deferential standard” of judicial review that protects the FEC’s exercise 

of prosecutorial discretion, CREW, 236 F. Supp. 3d at 390, is even more deferential in matters 

involving “novel legal issues,” where prosecution would invite great risk of litigation by the 

respondent, id. at 391, 393.19 This is such a novel case. The FEC, to CGPS’s knowledge, has

                                                            

19 Despite the weight of authorities supporting the FEC’s broad prosecutorial discretion, CREW has appealed this 

ruling to the D.C. Circuit. See CREW v. FEC, No. 17-5049. 

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38 

never previously adopted CREW’s position on identifying donors on IE reports, whether in 

enforcement matters or in the agency’s guidance documents. Thus, the FGCR more than 

reasonably and rationally concluded that CGPS “could raise equitable concerns,” as it does now, 

“about whether [it had] fair notice of the requisite level of disclosure” commanded by an out-ofcontext reading of the Coverage Provision. Therefore, the commissioners who voted on this 

basis to dismiss the agency staff’s self-initiated hypothetical claim, and to avoid the high 

litigation risk of proceeding under this theory, had more than a reasonable and rational basis for 

exercising the agency’s prosecutorial discretion. Under the “extremely deferential standard” of 

judicial review, CREW, 236 F. Supp. 3d at 390, this Court should not disturb that decision. 

IV. THE CONTENT PROVISION SPECIFIES TAILORED IE REPORTING, AND THE 

FEC’S REGULATION IS A REASONABLE INTERPRETATION OF THAT 

REQUIREMENT. 

For all the reasons just discussed, this Court need not and should not reach the merits of 

CREW’s argument that the FEC’s IE reporting regulation is inconsistent with the FECA. But if 

the issue were reached, the two-step process contained in Chevron, USA, Inc. v. NRDC, 467 U.S. 

837 (1984), requires CREW to establish either that (i) the statutory text clearly forecloses the 

regulation, or if not, (ii) the regulation is irrational in light of the statute’s purpose. See Shays I, 

414 F.3d at 96. CREW can establish neither, particularly given the high level of deference 

afforded FEC interpretations of the FECA. See, e.g., Orloski, 795 F.2d at 164. 

A. Chevron Step 1: Congress Tailored the FECA to Require Ad-Based 

Identification of Contributors. 

The pertinent statutory language is as follows (with the key language in italics and other 

language to be discussed shortly in bold/underlined): 

2 U.S.C. 434 REPORTS . . . 

(c)(1) Every person (other than a political committee) who makes independent 

expenditures in an aggregate amount or value in excess of $250 during a calendar 

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39 

year shall file a statement containing the information required under subsection 

(b)(3)(A)20 for all contributions received by such person. 

(2) Statements required to be filed by this subsection shall be filed in accordance 

with subsection (a)(2), and shall include—, 

(A) the information required by subsection (b)(6)(B)(iii),21 indicating 

whether the independent expenditure is in support of, or in opposition 

to, the candidate involved; 

(B) under penalty of perjury, a certification whether or not such22

independent expenditure is made in cooperation, consultation, or 

concert, with, or at the request or suggestion of, any candidate or any 

authorized committee or agent of such candidate; and 

(C) the identification of each person who made a contribution in excess of 

$200 to the person filing such statement which was made for the purpose 

of furthering an independent expenditure. 

Any independent expenditure (including those described in subsection 

(b)(6)(B)(iii)) aggregating $1,000 or more made after the 20th day, but more than 

24 hours, before any election shall be reported within 24 hours after such 

independent expenditure is made. Such statement shall be filed with the Clerk, 

the Secretary, or the Commission and the Secretary of State and shall contain the 

information required by subsection (b)(6)(B)(iii) indicating whether the 

independent expenditure is in support of, or in opposition to, the candidate 

involved. 

(3) The Commission shall be responsible for expeditiously preparing indices 

which set forth, on a candidate-by-candidate basis, all independent expenditures 

separately, including those reported under subsection (b)(6)(B)(iii), made by or 

                                                            

20 This provision provides that: “(b) Each report under this section shall disclose . . . (3) the identification of each . . . 

(A) person (other than a political committee) who makes a contribution to the reporting committee during the 

reporting period, whose contribution or contributions have an aggregate amount or value in excess of $200 within 

the calendar year, or in any lesser amount if the reporting committee should so elect, together with the date and 

amount of any such contribution.” 

21 This provision provides that the report will disclose “the full name and mailing address (occupation and the 

principal place of business, if any) of each person to whom expenditures have been made by such committee or on 

behalf of such committee or candidate within the calendar year in an aggregate amount or value in excess of $100, 

the amount, date, and purpose of each such expenditure and the name and address of, and office sought by, each 

candidate on whose behalf such expenditure was made.” 

22 See King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (defining “such” as “That or those; having just been 

mentioned”); United States v. Ashurov, 726 F.3d 395, 398 (3d Cir. 2013) (explaining that “such” means “of the 

character, quality, or extent previously indicated or implied”); In re Lehman Bros. Mortg.-Backed Sec. Litig., 650 

F.3d 167, 176–77 (2d Cir. 2011) (citing Webster’s Third New International Dictionary’s definition of “such” as 

“something ‘previously characterized or specified’”). 

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40 

for each candidate, as reported under this subsection, and for periodically 

publishing such indices on a timely pre-election basis.” 

For the reasons explained below, the best (and, at the very least, a permissible) reading of the 

statute is that the Content Provision, 52 U.S.C. § 30104(c)(2), only requires reporting of those 

contributors who gave for the purpose of furthering the reported independent expenditure. 

To begin, the term “‘an’ means ‘one,’” New Hampshire Motor Transp. Ass’n v. Rowe, 

448 F.3d 66, 72 (1st Cir. 2006), aff’d, 552 U.S. 364 (2008) (citing Merriam Webster’s Collegiate 

Dictionary at 40, 53 (10th ed. 2001)), which is the “normal” reading of such an indefinite article, 

Abbott GmbH & Co. KG v. Yeda Research & Dev. Co., 516 F. Supp. 2d 1, 6 (D.D.C. 2007) 

(quotation omitted). This is particularly true where the modified term is singular, as 

“independent expenditure” is here. See United States v. Hagler, 700 F.3d 1091, 1097 (7th Cir. 

2012). 

Moreover, in determining the meaning of “an,” “context matters.” Caraco Pharm. Labs., 

Ltd. v. Novo Nordisk A/S, 566 U.S. 399, 413-14 (2012) (interpreting “not an” language to mean 

“not a particular one”). Here, the FECA’s structure and history support the FEC’s reading of the 

statute. For example, as discussed above, see supra at 10, the Summary of Committee Working 

Draft and the Senate Committee’s report confirm that the statute targets reporting of 

contributions received for “the independent expenditure.” (Emphasis added.) Furthermore, 

where “the rest of the statute is written using definite articles,” it indicates specificity of the 

modified item. Hagler, 700 F.3d at 1097. Here, the two paragraphs above and two paragraphs 

below the relevant provision all contain terms underscoring that IE contribution reporting relates 

to funds designated for a particular advertisement. 

If, as CREW maintains, Congress intended a broader level of contributor-related 

reporting for IEs, it easily could have said so, beginning with a reference to giving “for the 

Case 1:16-cv-00259-BAH Document 29 Filed 10/23/17 Page 54 of 65
41 

purpose of furthering any independent expenditures.” But Congress did not do that. Instead, it 

required earmarking to support “an expenditure.” If that language does not compel the FEC’s 

reading of the statute – and CGPS submits that it does23 – it certainly permits such a reading, 

given the FEC’s broad Chevron discretion. 

B. Chevron Step 2: The FEC’s Regulatory Construction Is Within the Range of 

Permissible Options. 

That leaves the issue of rationality.24 CREW argues it is irrational for the FEC’s IE 

reporting regulation to include an earmarking principle under which no contributor is identified 

unless the contribution is earmarked for a particular IE. But the D.C. Circuit rejected precisely 

that argument with respect to the parallel FEC regulation containing an earmarking principle for 

identifying EC funders: 

[T]he FEC’s purpose requirement regulates electioneering communication 

disclosures in precisely the same way BCRA itself regulates express advocacy 

disclosures. . . . The FEC was concerned [in the EC context] that some individuals 

who contribute to a union or corporation’s general treasury may not support that 

entity’s electioneering communications, and a robust disclosure rule would thus 

mislead voters as to who really supports the communications. . . . It’s hard to 

escape the intuitive logic behind this rationale. 

Van Hollen, 811 F.3d at 497. 

Here, as in Van Hollen, the FEC regulation’s earmarking component avoids misleading 

reporting and, at the same time, avoids imposing reporting burdens on core political speech that 

are not clearly necessary. Take, for example, an Alaska donor who helps fund an environmental 

conservation group’s IEs attacking an Alaska congressional candidate’s support for drilling in 

the Arctic National Wildlife Refuge. Under the FEC’s regulation, that donor is not identified on 

                                                            

23 CREW’s MSJ Brief (Doc 27 at 31) also agrees that “use of a definite article” – e.g., “the” – “would mean that the 

contribution must be related to a specific independent expenditure.” 

24 Cf. Foo v. Tillerson, 244 F. Supp. 3d 17 (D.D.C. 2017) (upholding the State Department’s interpretation of “an 

individual” under Chevron Step Two when Congress did not provide an explicit definition). 

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42 

the group’s FEC reports for an IE promoting an Arkansas U.S. Senate candidate’s opposition to 

fracking in the Fayetteville Shale. Similarly, a Long Island property developer who contributes 

to a national trade association’s voter turnout efforts for a New York congressional candidate is 

not identified on the organization’s FEC reports for an IE opposing a California congressional 

candidate’s position on federal public transit funding. 

Five further considerations show that the FEC’s regulation is consistent with legislative 

intent: 

1. The FEC Was Heavily Involved in the Statute’s Drafting. 

Administrative interpretations of statutes are “especially persuasive” where either “the 

agency participated in developing the provision,” Miller v. Youakim, 440 U.S. 125, 144 (1979), 

or where there is “a contemporaneous construction of a statute by those charged with the 

responsibility of setting its machinery in motion,” United Transp. Union v. Lewis, 711 F.2d 233, 

242 (D.C. Cir. 1983). As to the former, courts attach “‘great weight’ to agency representations 

to Congress when the administrators ‘participated in drafting and directly made known their 

views to Congress in committee hearings,’” since this forms “part of the legislative background” 

of the new law. Moore v. District of Columbia, 907 F.2d 165, 176 (D.C. Cir. 1990) (quoting 

Zuber v. Allen, 396 U.S. 168, 192 (1969)). As to the latter, contemporaneous constructions are 

important because the agency “may possess an internal history in the form of documents or 

‘handed-down oral tradition’ that casts light on the meaning of a difficult phrase or provision.” 

Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 368 

(1986). Indeed, a contemporaneous construction “might . . . ‘carry the day against doubts that 

might exist from a reading of the bare words of a statute.’” United Airlines, Inc. v. Brien, 588 

F.3d 158, 172 (2d Cir. 2009) (quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 414 

(1993)). The presence of both factors here together means deference principles apply with “even 

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43 

greater force.” Middle South Energy, Inc. v. F.E.R.C., 747 F.2d 763, 769 (D.C. Cir. 1984). 

As explained above, the statute upon which the FEC regulation is based was explicitly 

identified as an FEC legislative recommendation, and FEC commissioners and staff worked 

closely with Congress to develop the provision. See supra at 9-10. When it came time to 

implement the statute by regulation, which Congress mandated be done quickly, the Commission 

could do so expeditiously because the FEC knew precisely what it had asked Congress to enact. 

Nor should the FEC’s efficiency be confused with carelessness in the agency’s 

rulemaking. After the bill was signed into law, the Commission held four meetings to discuss 

these issues, including a section-by-section discussion of the proposed regulations themselves. 

See supra at 11-13. In the end, and consistent with the legislative history that expressed an 

interest in reducing IE-related reporting burdens and also requiring reporting of contributions for 

“the” independent expenditure, the FEC promulgated its regulation narrowly, 

contemporaneously, and appropriately.25

2. For 37 Years, Congress Has Not Disagreed With the FEC’s 

Contemporaneous Interpretation of the Statute, but Has Ratified It. 

Congressional “failure to revise or repeal the [FEC’s regulatory] interpretation is 

persuasive evidence that the interpretation is the one intended by Congress,” Weber v Heaney, 

995 F.2d 872, 877 (8th Cir. 1993) (quoting Young v. Community Nutrition Inst., 476 U.S. 974, 

983 (1986)), and “strongly implies that the regulations accurately reflect congressional intent,” 

FEC v. Ted Haley Congressional Comm., 852 F.2d 1111, 1114 (9th Cir. 1988) (quoting Grove 

                                                            

25 CREW makes much of the change between the draft regulations expeditiously prepared by FEC staff as part of the 

1980 NPRM, on the one hand, and the final regulations promulgated by the Commission, on the other. However, 

the NPRM itself noted that the regulatory text printed therein was preliminary and had “not been approved by the 

Commission.” See supra at 12. Moreover, the preliminary rules used the same “an” language as the statute, which, 

as discussed above, was Congress’ way of referencing contributions provided to fund a particular expenditure. The 

“the” language ultimately used in the final rule simply gave the public clearer notice of what Congress intended. 

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44 

City College v. Bell, 465 U.S. 555, 568 (1974)). This is particularly true when Congress did not 

use the special, FECA-specific review provision to reject the regulation here. 

Congress built into the FECA a provision permitting the legislative branch to 

immediately reject FEC regulations before they go into effect. Under 52 U.S.C. § 30111, “the 

FEC must submit a proposed regulation and an accompanying statement to both the House and 

the Senate. If neither house disapproves the proposed regulation within [the preset time period], 

the FEC may issue it.” Weber, 995 F.2d at 876-77. Courts “normally accord considerable 

deference to the Commission . . . [where] Congress took no action to disapprove the regulation 

when the agency submitted it for review pursuant to [the FECA’s special provision].” AFL-CIO 

v. FEC, 333 F.3d 168, 175 (D.C. Cir. 2003) (internal quotation omitted). 

Here, the FEC transmitted the regulation to Congress on February 28, 1980. Consistent 

with the congressional review timeline, the FEC waited 15 days before making the regulation 

effective. See supra at 13. Congress did not object to the IE reporting regulation during this 

period, thus bestowing considerable legitimacy on the agency’s interpretation. 

Congress also has ratified the regulation in other ways. Congress amended the statute 

containing the IE reporting requirements (2 U.S.C. § 434) in 1995, 1999, 2000, 2002, 2004, and 

2007.26 BCRA and the Honest Leadership and Open Government Act of 2007, Pub.L. 110-81, in 

particular, made significant changes to the statute. Indeed, the BCRA “ordered the FEC to 

rewrite its regulations” on another provision relevant to IEs. Shays I, 414 F.3d at 97-98. Yet in 

no instance did Congress revise or reject the FEC’s IE contributor reporting requirements. Given 

                                                            

26 See Pub. L. 104-79, §§ 1(a), 3(b), Dec. 28, 1995, 109 Stat. 791, 792; Pub. L. 106-58, Title VI, §§ 639(a), 641(a), 

Sept. 29, 1999, 113 Stat. 476, 477; Pub. L. 106-346, § 101(a) [Title V, § 502(a), (c)], Oct. 23, 2000, 114 Stat. 1356, 

1356A-49; Pub. L. 107-155, Title I, § 103(a), Title II, §§ 201(a), 212, Title III, §§ 304(b), 306, 308(b), Title V, 

§§ 501, 503, Mar. 27, 2002, 116 Stat. 87, 88, 93, 99, 102, 104, 114, 115; Pub. L. 108-199, Div. F, Title VI, § 641, 

Jan. 23, 2004, 118 Stat. 359; Pub. L. 110-81, Title II, § 204(a), Sept. 14, 2007, 121 Stat. 744.) 

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45 

this record, it “would be inappropriate to overturn an interpretation that Congress has acquiesced 

in for [] years, during which it has closely reviewed the statutory scheme under question.” 

Action on Smoking and Health v. C.A.B., 699 F.2d 1209, 1215 (D.C. Cir. 1983). See also FDA v. 

Brown & Williamson Tobacco Corp., 529 U.S. 120, 155-56 (2000) (cataloging the affirmative 

legislative “actions by Congress over the past 35 years” as having “effectively ratified” an 

agency’s position). Instead, CREW should turn its attention toward advocating for one or more 

of the bills before Congress in recent years that would establish new reporting requirements for 

501(c) organizations making IEs. See, e.g., H.R. Res. 5175, 111th Cong. § 211 (2010) (the 

“Democracy is Strengthened by Casting Light on Spending in Elections Act” or “DISCLOSE 

Act”).27 

3. The FEC’s Interpretation of the Statute Has Remained Consistent for Nearly 

Four Decades. 

At Step Two, courts also accord “great weight to the longstanding interpretation placed 

on a statute by an agency charged with its administration.” Creekstone Farms Premium Beef, 

L.L.C. v. Dept. of Agriculture, 539 F.3d 492, 500 (D.C. Cir. 2008). Here, the FEC’s 

interpretation of the FECA’s IE contributor identification provision is entitled to great deference 

because the agency itself has maintained its interpretation of the statute – without change – for 

37 years. See supra at 14. Moreover, when the public was given an opportunity to submit 

comments on significant revisions to the IE reporting requirements that took effect in 2003 –

including revisions to 11 C.F.R. § 109.2(e) – “[t]he Commission received no comments on [the 

IE contributor reporting] section” and left 109.2(e)(1)(vi) unchanged. FEC, Bipartisan 

Campaign Reform Act of 2002 Reporting, 68 Fed. Reg. 404, 415 (Jan. 3, 2003). 

                                                            

27 Notably, Congress declined to enact the DISCLOSE Act and has otherwise refused to impose additional IE donor 

reporting requirements. 

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4. The FEC’s Regulation Accords With Expressed Congressional Intent. 

“The general purpose of the 1979 amendments to the FECA . . . was to simplify reporting 

and administrative procedures.” Common Cause, 842 F.2d at 444. The FEC regulation at issue 

here is consistent with that legislative goal. Furthermore, as explained above (see supra at 10, 

38-41), Congress intended that contributor reporting be tied to contributions for “the” 

expenditure. 

CREW’s MSJ Brief (Doc 27 at 33-34) attempts to convert the 1979 FECA amendments 

into a “disclosure at all costs” directive. But this type of dogmatic voyeurism was soundly 

rejected just last year in Van Hollen, where the court observed that “[j]ust because one of [the 

FECA’s] purposes (even chief purposes) was broader disclosure does not mean that anything less 

than maximal disclosure is subversive.” 811 F.3d at 494–95 (emphasis in the original). 

Moreover, it is simply not true that the FEC’s regulation has “effectively resulted in no

disclosure of contributions used to fund independent expenditures.” CREW MSJ Brief (Doc 27) 

at 34 (emphasis in the original). According to the Center for Responsive Politics (using FEC 

data), the percentage of “outside spending” by organizations that have publicly reported some of 

their donors in recent years has ranged between 7.2% (in 2010) to 29.7% (in 2012). Ctr. for 

Responsive Politics (“CRP”), “Outside Spending by Disclosure, Excluding Party Committees,” 

at https://www.opensecrets.org/outsidespending/disclosure.php.

28 Thus, reporting is occurring 

under the statue precisely as Congress intended. 

                                                            

28 CRP uses the term “outside spending” to refer to both IEs and ECs, although the vast majority of CRP’s “outside 

spending” statistics pertain to IEs. See CRP, “Outside Spending,” at https://www.opensecrets.org/outsidespending/. 

Organizations engaged in “outside spending” that report some of their donors is a distinct category from 

organizations that publicly report all of their donors (i.e., political committees, or “PACs”). See id. and CRP, 

“Outside Spending by Disclosure, Excluding Party Committees,” supra. For its part, in 2016 alone the FEC 

identified millions of dollars in contributions requiring reporting under the IE regulation. See Conciliation 

Agreements, MUR 7085 (State Tea Party Express) (Sept. 21, 2016), MUR 6816 (Americans for Job Security) (June 

21, 2016), MUR 6816 (The 60 Plus Association, Inc.) (July 7, 2016), MUR 6816 (American Future Fund) (June 21, 

2016). 

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47 

5. The FEC’s Interpretation Does Not Render Any Other Provision Superfluous. 

CREW also contends that 11 C.F.R. § 109.10(e)(1)(vi) renders the FECA’s and 

regulation’s requirements to separately report an IE’s sponsor and its contributors “redundant,” 

by “requir[ing] such a close connection between the contributor and the independent expenditure 

that the contributor would in fact be the maker of the independent expenditure itself.” CREW 

MSJ Brief (Doc 27) at 35. This is a strained construction of the FEC’s regulation, at best, and it 

is not the Commission’s position. 

CREW acknowledges the FGCR “did not elaborate” to provide support for CREW’s 

illogical reading of the regulation. Id. Rather, CREW resorts to treating the report as a 

Rorschach test that “appears” or “apparently” supports CREW’s contrivance that donors are not 

reportable under the regulation unless their funds “go directly from the contributor to pay for the 

ad,” and not if “they were routed through [an organization’s] ‘general treasury.’” Id. In fact, the 

FGCR suggests no such thing, and merely posits that “an express link” must exist “between the 

receipt and the independent expenditure” to trigger contributor reporting. AR173. 

In practice, this requisite nexus between a contributor’s purposes and the reported IE 

simply means that contributors who earmark their funds for a particular IE are identified as the 

sources of funding, and are publicly linked to the entity sponsoring the IE. This concept of 

tailoring reporting only to contributors of “earmarked” funds has been recognized by more than 

40 years of campaign finance jurisprudence, see Van Hollen, 811 F.3d at 489 (quoting Buckley, 

424 U.S. at 80), and is fully consistent with the core purposes of the FECA’s reporting regime to 

“provide[] the electorate with information ‘as to where political campaign money comes from’” 

and to “expos[e] large contributions and expenditures to the light of publicity.” Buckley, 424 

U.S. at 66-67. This approach also is consistent with FEC precedent. For example, the FEC 

General Counsel’s office previously has concluded that an incorporated entity “took on a legal 

Case 1:16-cv-00259-BAH Document 29 Filed 10/23/17 Page 61 of 65
48 

identity separate from that” of its apparent sole funder, “and was subject to regulation as such” 

for the purposes of the IE reporting requirements. FEC MUR 4313 (Lugar for President), First 

General Counsel’s Report at 34, available at http://eqs.fec.gov/eqsdocsMUR/0000018F.pdf. 

Ultimately, CREW’s reading of the regulation as conflating the contributors for an IE 

with the maker of the IE is not how the FEC has interpreted its own regulation, and courts “must 

give substantial deference to an agency’s interpretation of its own regulations.” Thomas 

Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994).

C. CREW’s Procedural Objections to the FEC IE Contributor Reporting 

Regulation Are Irrelevant and, in Any Event, Erroneous. 

On its face, the Commission’s regulation reasonably construes the statute, and that is 

confirmed by the regulation’s survival of congressional review. Because CREW’s challenge – to 

the extent it is permissible at all – is limited to a claim that the regulation is substantively invalid, 

those considerations are determinative. 

Moreover, CREW identifies nothing in the FEC’s 1980 rulemaking record that shows the 

Commission’s regulation was arbitrary at the time. Indeed, the FEC’s legislative 

recommendations, the language of the NPRM, and the final explanation and justification easily 

surpass the high bar for challenging a regulation procedurally. See Van Hollen, 811 F.3d at 496–

97. CREW further complains that the campaign finance experience since 1980 has shown that 

the regulation defeats the intended scope of reporting. That is doubtful for the reasons the FEC 

gave with respect to the EC reporting regulation approved in Van Hollen. Beyond that, however, 

FEC action cannot be condemned as arbitrary or capricious based on facts that emerged later. 

See CREW, 209 F. Supp. 3d at 88. If CREW wants to rely on post-1980 experience, it must 

petition the agency to initiate a rulemaking. 

Case 1:16-cv-00259-BAH Document 29 Filed 10/23/17 Page 62 of 65
49 

V. SUBSECTION 30104(C)(1) DOES NOT MANDATE “ADDITIONAL” REPORTING. 

CREW’s MSJ Brief (at 39-44) contends that the Coverage Provision imposes 

“additional” reporting obligations independent of the Content Provision. But this argument is 

inconsistent with the FECA’s structure and conflicts with judicial precedent. 

The Coverage Provision is easily and naturally read as a generalized opening statement 

requiring persons that make IEs to report certain information. Then, following the outlay of this 

general rule, the Content Provision logically provides the contents of what the reports under the 

Coverage Provision must contain – i.e., an indication of whether the IE is in support 

of/opposition to a candidate, a certification that the IE was made independent of a candidate’s 

campaign, and certain information about contributors. Indeed, the Content Provision opens with 

the phrase: “[s]tatements required to be filed by this subsection,” which can only be interpreted 

as a gloss on what the preceding subsection means. Cf. 52 U.S.C. § 30104(f) (“Disclosure of 

electioneering communications”), (f)(1) (“Statement required”), (f)(2) (“Contents of Statement”). 

The Coverage Provision’s introductory requirement that the statement contain “the information 

required under subsection (b)(3)(A) for all contributions received by such person” simply means 

that any information about contributors to be disclosed, pursuant to the Content Provision, must 

include “the date and amount of any such contribution.” (Emphasis added.) 

CREW’s reading of the statute would frustrate congressional intent by decreasing the 

information reported. The Coverage Provision contains an affirmative reporting obligation – i.e., 

“Every person . . . shall file a statement.” The Content Provision, however, does not actually 

contain an affirmative statement that the IE maker do anything. Without linking the two 

provisions together, there would be no requirement that an IE maker file a certification that the 

IE was independent of a candidate’s campaign, for example. That would effectively read out of 

the statute certain information that Congress clearly wanted to have filed with the Commission. 

Case 1:16-cv-00259-BAH Document 29 Filed 10/23/17 Page 63 of 65
50 

CGPS’s reading of the statute also accords with judicial precedent. “Section 434(c)(1) 

requires that any person making an ‘independent expenditure’ greater than $250 file a statement 

with the FEC. The contents of the statement are specified in 434(c)(2).” Furgatch, 807 F.2d at 

859 n.2. 

CREW cites the earlier decision in FEC v. Massachusetts Citizens for Life (“MCFL”), 

479 U.S. 238 (1986), for the proposition the Coverage and Content Provisions constitute separate 

reporting obligations. But CREW fails to mention that Justice Brennan – who delivered the 

Court’s opinion – was not speaking for the Court on the IE reporting point, as five justices were 

unwilling to sign on to that part of his opinion. See id. at 241. Moreover, as both the Chief 

Justice and other courts have observed, the non-essential portions of MCFL are dicta. See, e.g.,

id. at 271 (Rehnquist, J., concurring and dissenting); Vote Choice, Inc. v. Di Stefano, 814 F. 

Supp. 186, 191 n.12 (D.R.I. 1992). 

The FEC correctly concluded that the FECA required all non-political committee IE 

makers to only file one report, and the Commission used its regulations in 11 CFR Part 109 to 

implement that requirement. See AR1416, 1503. This decision was consistent with the FECA’s 

plain language. Moreover, even if there were any statutory ambiguity, this Court should – 

consistent with abundant judicial authority – defer to the FEC’s 37 years of consistent reading, 

implementation, and enforcement of the Coverage Provision. 

CONCLUSION 

For the foregoing reasons, CGPS respectfully requests this Court deny CREW’s Motion 

for Summary Judgment and grant CGPS’s Cross-Motion for Summary Judgment. 

 

Case 1:16-cv-00259-BAH Document 29 Filed 10/23/17 Page 64 of 65
51 

Respectfully submitted, 

/s/ Thomas W. Kirby 

Thomas J. Josefiak Michael E. Toner (D.C. Bar No. 439707) 

J. Michael Bayes (D.C. Bar No. 501845) Thomas W. Kirby (D.C. Bar No. 915231) 

HOLTZMAN VOGEL JOSEFIAK TORCHINSKY PLLC Andrew G. Woodson (D.C. Bar No. 494062) 

45 North Hill Drive, Suite 100 Eric Wang (D.C. Bar No. 974038) 

Warrenton, VA 20186 WILEY REIN LLP 

Tel.: 540.341.8808 1776 K Street, NW 

Fax: 540.341.8809 Washington, DC 20006 

Tel.: 202.719.7000 

Fax: 202.719.7049 

Counsel for Crossroads Grassroots Policy 

October 23, 2017 Strategies

Case 1:16-cv-00259-BAH Document 29 Filed 10/23/17 Page 65 of 65
CROSSROADS GRASSROOTS POLICY STRATEGIES’ MEMORANDUM IN 

SUPPORT OF ITS CROSS-MOTION FOR SUMMARY JUDGMENT 

EXHIBIT A 

Case 1:16-cv-00259-BAH Document 29-1 Filed 10/23/17 Page 1 of 3
August Federal Election Commission 1997 

CAMHlIGN 

DIDE 

FOR CORPORATIONS • 

AND LABOR 

ORGANIZATIONS 

• 

Case 1:16-cv-00259-BAH Document 29-1 Filed 10/23/17 Page 2 of 3
Nonprofit Status 

The corporation is a social welfare organization as described in 26 U.S.C. 

§501 (c)(4). 114.1 0(c)(5). 

Express Purpose 

The corporation's organic documents, 

authorized agents or actual activities 

must indicate that its only purpose is issue advocacy, election influencing activity or research, training or educational 

activities tied to the corporation's political 

goals. 114.1 O(b) and 114.1 0(c)(1). 

Business Activities 

The corporation cannot engage in business activities. Business activities include the provision of goods, services, 

advertising or promotional activity that results in income to the corporation, other 

than in the form of membership dues or 

donations. Note, however, that if 

fund raising activities are expressly described as a request for donations to be 

used for political purposes, such as supporting or opposing candidates, they are 

not business activities. 114.1 0(b)(3) and 

(C)(2).4 

Shareholder/Disincentives to 

Disassociate 

A corporation cannot have shareholders 

or persons, other than employees and 

creditors, who: 

• Have an equitable interest in the corporation or are otherwise affiliated in a 

way that would allow them to make a 

claim on the organization's assets or 

earnings; or 

• Receive a benefit that they lose if they 

end their affiliation with the corporation 

or cannot obtain unless they become 

affiliated, e.g., credit cards, insurance 

policies, savings plans, education or 

business information (except that education and business information may be 

provided to enable the recipient to help 

promote the group's political ideas). 

These types of benefits are disincentives for individuals to disassociate 

themselves from the organization. 

114.10(c)(3). 

4. In May 1997 the U.S. Court of Appeals 

(8th Cir.) upheld the district court in Minnesota Citizens Concerned for Life (MCCL) v. 

FEC, ruling that the ONC Exception regulations conflict with the 8th Circuit's prior 

decision in Day v. Holahan, which is controlling law in that circuit. In Day the court 

struck down a state law with requirements 

similar to those in the ONC Exception 

regulations. The courts found that the "no 

business activity" requirement violated 

MCCL's First Amendment rights. In July 

1997, the 8th Circuit denied the 

Commission's petition for rehearing and 

suggestion for rehearing en banc of the 

MCCL case. 

Relationship with Business 

Corporations and Labor Organizations 

The corporation was not established by a 

corporation or a labor organization, does 

not accept direct or indirect donations 

from such organizations and, if unable to 

demonstrate that it has not accepted 

such donations, has a written policy 

against accepting donations from them. 

114.10(c)(4).5 

Certification of ONC Status 

If a ONC makes independent expenditures that aggregate in excess of $250 in 

a calendar year, it must certify that it is 

eligible for ONC status and report the independent expenditures (see below). 

Certification may be made by filing FEC 

Form 5, or by submitting a letter, by the 

due date of the first independent expenditure report. The form or letter must contain the following information: 

• Name and address of the corporation; 

• Signature and printed name of the individual filing the qualifying statement; 

and 

• A statement certifying that the corporation meets the above five qualifications 

of a ONC. 114.1 0(e)(1). 

Filing Reports 

A ONC must report the independent expenditures that exceed $250 on FEC 

Form 5 or in a signed statement with the 

appropriate authority. 114.1 0(e)(2) and 

109.2. 

Content 

The report (or statement) must include: 

• The reporting person's name, mailing 

address, occupation and employer (if 

any); 

5. Exception and Caution: Although a 

501(c)(4) corporation may accept donations from a 501(c)(3) corporation, it must 

use that donation in a manner that is consistent with the 501 (c)(3)'s tax exempt purpose, which, under the Internal Revenue 

Code, is never to make independent expenditures in support of, or in opposition 

to, any candidate. Tax exempt corporations are urged to consult with the Internal 

Revenue Code and Regulations. 

• The name and mailing address of the 

person to whom the expenditure was 

made; 

• The amount, date and purpose of each 

expend itu re; 

• A statement as to whether the 

expenditure(s) was in support of or in 

opposition to a candidate and the 

candidate's name and office sought; 

• A notarized certification under penalty 

of perjury as to whether the expenditure 

met the standards of "independence" 

(see Independent Expenditures, p. 22); 

and 

• The identification of each person who 

contributed more than $200 for the purpose of making the independent expenditures. 109.2(a). 

When to File 

The report is due at the end of the reporting period (see pp. 26-28) during which 

independent expenditures aggregating in 

excess of $250 are made and at the end 

of each reporting period thereafter in 

which additional independent expenditures are made. 114.1 0(e)(2) and 

109.2(a)(2). 

Last Minute Expenditures 

There are special reporting requirements 

for independent expenditures made after 

the 20th day but more than 24 hours before the day of the election. See page 41. 

109.2(b). 

Contributions Prohibited 

Despite this exception for independent 

expenditures, the ONC is still prohibited 

from making monetary or in-kind contributions in connection with federal elections. 114.1 0(d)(2). 

24 

Case 1:16-cv-00259-BAH Document 29-1 Filed 10/23/17 Page 3 of 3
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CITIZENS FOR RESPONSIBILITY AND 

ETHICS IN WASHINGTON, et al., 

 Plaintiffs, 

 v. 

 

FEDERAL ELECTION COMMISSION, 

 Defendant, 

CROSSROADS GRASSROOTS POLICY 

STRATEGIES, 

 

Intervenor-Defendant. 

Civil Action No. 1:16-cv-00259-BAH 

[PROPOSED] ORDER 

 Upon consideration of Plaintiffs’ Motion for Summary Judgment, Defendant Federal 

Election Commission’s Cross-Motion for Summary Judgment, Intervenor-Defendant Crossroads 

Grassroots Policy Strategies’ Cross-Motion for Summary Judgment, and all memoranda and 

other materials submitted in support of and in opposition to both motions, 

IT IS HEREBY ORDERED that Plaintiffs’ Motion for Summary Judgment is DENIED

and that the Motions for Summary Judgment of Defendant Federal Election Commission and 

Intervenor-Defendant Crossroads Grassroots Policy Strategies are GRANTED. 

IT IS FURTHER ORDERED that JUDGMENT shall be entered for defendants. 

 This is a final appealable order. See Fed. R. App. P. 4(a). 

DATED: _______________ __________________________ 

Beryl A. Howell 

United States District Judge 

Case 1:16-cv-00259-BAH Document 29-2 Filed 10/23/17 Page 1 of 2
NAMES OF PERSONS TO BE SERVED WITH PROPOSED ORDER UPON ENTRY 

In accordance with LCvR 7(k), listed below are the names and addresses of the attorneys 

and parties entitled to be notified of the proposed order’s entry: 

Lisa J. Stevenson 

Kevin Deeley 

Harry Jacobs Summers 

Seth E. Nesin 

Federal Election Commission 

Office of General Counsel 

999 E Street, NW 

Washington, DC 20463 

Michael E. Toner 

Thomas W. Kirby 

Andrew G. Woodson 

Eric Wang 

WILEY REIN LLP 

1776 K Street, NW 

Washington, DC 20006 

Stuart C. McPhail 

Adam J. Rappaport 

Citizens for Responsibility and Ethics in 

Washington 

455 Massachusetts Avenue, NW 

Sixth Floor 

Washington, DC 20001 

Case 1:16-cv-00259-BAH Document 29-2 Filed 10/23/17 Page 2 of 2
Attachment E

FEC’s Memorandum of Points and Authorities in Support of its Motion for Summary 

Judgment and in Opposition to Plaintiff’s Motion for Summary Judgment, 

CREW v. FEC (Civil Action No. 1:16-cv-00259-BAH) (Oct. 23, 2017)
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, et al., ) 

 ) Civ. No. 16-259 (BAH) 

 Plaintiffs, ) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant, ) 

 ) 

CROSSROADS GRASSROOTS POLICY ) 

STRATEGIES, ) MEMORANDUM AS TO 

 ) SUMMARY JUDGMENT 

 Intervenor-Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S MEMORANDUM OF POINTS AND 

AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AND 

IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

Kevin Deeley 

Associate General Counsel 

October 23, 2017 

Harry J. Summers 

Assistant General Counsel 

Seth Nesin 

Attorney 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

(202) 694-1650 

Case 1:16-cv-00259-BAH Document 31 Filed 10/23/17 Page 1 of 62
i 

TABLE OF CONTENTS 

 Page 

BACKGROUND .......................................................................................................................3 

I. THE PARTIES...............................................................................................................3 

II. STATUTORY AND REGULATORY BACKGROUND .............................................4 

A. FECA’s Requirements for Independent Expenditure Reporting by 

Persons That Are Not Political Committees ......................................................4 

B. The Commission’s Regulation Implementing FECA’s Requirements for 

Independent Expenditure Reporting by Persons That Are Not Political 

Committees ........................................................................................................6 

III. ADMINISTRATIVE PROCEEDINGS FOR MATTER UNDER REVIEW 6696 ......8 

IV. PLAINTIFFS’ LAWSUIT AGAINST THE COMMISSION .....................................12 

ARGUMENT ...........................................................................................................................14 

I. THE COMMISSION’S PROMULGATION OF REGULATIONS AND ITS 

DISMISSAL OF ADMINISTRATIVE COMPLAINTS ARE ENTITLED 

TO JUDICIAL DEFERENCE .....................................................................................14 

II. THE COMMISSION’S DISPOSITION OF THE ADMINISTRATIVE 

COMPLAINT WAS LAWFUL ...................................................................................15 

A. FEC Dismissals Must Be Affirmed Unless They Are “Contrary to Law” ......16 

B. It Was Reasonable, Based on the Facts Presented, Not to Find Reason 

to Believe That Crossroads GPS Violated 11 C.F.R. § 109.10(e)(1)(vi) .........17 

C. It Was Reasonable, Based on the Facts Presented, Not to Find Reason 

to Believe That Crossroads GPS Violated 52 U.S.C. § 30104(c)(2)(C) ..........19 

D. 52 U.S.C. § 30104(c)(1) Is an Ambiguous Statutory Provision and 

Therefore the Commission Properly Exercised Prosecutorial Discretion 

in Dismissing an Allegation That Crossroads GPS Violated It .......................23 

1. Congress’s Intent When Passing 52 U.S.C. § 30104(c)(1) Is 

Unclear .................................................................................................24 

Case 1:16-cv-00259-BAH Document 31 Filed 10/23/17 Page 2 of 62
ii 

2. The Commission Properly Exercised Discretion in Dismissing 

the Allegation of a Violation of 52 U.S.C. § 30104(c)(1) ...................28 

III. 11 C.F.R. § 109.10(E)(1)(VI) PROVIDED A REASONABLE BASIS FOR 

DISMISSAL AS A VALID REGULATION UNDER THE APA AND 

CHEVRON ...................................................................................................................31 

A. The Commission’s Dismissal Should Be Affirmed Under the APA 

Unless the Challenged Regulation Is Arbitrary, Capricious, or in Excess 

of Statutory Jurisdiction ...................................................................................31 

B. There Are Significant Ambiguities in the Statute Governing Independent 

Expenditure Reporting by Persons Other Than Political Committees .............34 

1. It Is Unclear What Congress Meant by “for the Purpose of 

Furthering an Independent Expenditure” .............................................34 

2. Congress’s General Desire for Disclosure on Other Subjects 

Does Not Mean It Intended to Mandate the Specific Disclosure 

Plaintiffs Favor.....................................................................................41 

C. The Commission’s Regulation Passes Chevron Step 2 Because It 

Reasonably Requires Disclosure Consistent with Congress’s Statutory 

Directive ...........................................................................................................42 

1. The Commission’s Clarification That Contributions Be Disclosed 

If They Are for the Purpose of “the Reported” Independent 

Expenditure Is a Reasonable Statutory Interpretation .........................43 

a. The Commission’s Decision to Substitute “the Reported” 

for “An” Was a Reasonable Interpretation That Provides 

Greater Guidance to Regulated Entities and Reduces the 

Chance of Misleading the Public About Political Spending ....43 

b. The Commission’s Regulation Does Not Make the Statute 

Redundant ................................................................................46 

2. The Court Should Not Consider Evidence That Post-Dates the 

Commission’s 1980 Rulemaking .........................................................47 

a. Review of the Regulation Is Limited to the Administrative 

Record That Existed When the FEC Issued the Regulation ....47 

b. Plaintiffs’ Complaints Here Are Largely the Result of 

Changes in the Legal Landscape That Were Unforeseeable 

in 1980 .....................................................................................48 

Case 1:16-cv-00259-BAH Document 31 Filed 10/23/17 Page 3 of 62
iii 

IV. THE PROPER REMEDY FOR ANY FINDING THAT THE FEC ERRED 

BY DISMISSING THE ADMINISTRATIVE COMPLAINT OR THAT THE 

REGULATION IS UNLAWFUL WOULD BE REMAND TO THE 

COMMISSION ............................................................................................................49 

CONCLUSION ........................................................................................................................50 

Case 1:16-cv-00259-BAH Document 31 Filed 10/23/17 Page 4 of 62
iv 

TABLE OF AUTHORITIES 

Cases 

AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003) ...................................................................15 

Akins v. FEC, 736 F. Supp. 2d 9 (D.D.C. 2010) ......................................................................30 

Alabama v. North Carolina, 560 U.S. 330 (2010) ...................................................................21 

Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 

988 F.2d 146 (D.C. Cir. 1993) .....................................................................................50 

Amfac Resorts, L.L.C. v. Dep’t. of Interior, 143 F. Supp. 2d 7 (D.D.C. 2001) .......................47 

Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87 (1983) .............................32 

Bluewater Network v. EPA, 372 F.3d 404 (D.C. Cir. 2004) ....................................................33 

Buckley v. Valeo, 424 U.S. 1 (1976) ..........................................................................................4 

Camp v. Pitts, 411 U.S. 138 (1973) ...................................................................................47, 50 

Cellco P’ship v. FCC, 357 F.3d 88 (D.C. Cir. 2004)...............................................................32 

Cent. States Motor Freight Bureau v. ICC, 924 F.2d 1099 (D.C. Cir. 1991) ..........................32 

Chamber of Commerce of the U.S. v. FEC, 76 F.3d 1234 (D.C. Cir. 1996) ...........................33 

Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) ............. 2, 31-34, 40 

Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) ...........................14, 32, 47 

Citizens United v. FEC, 558 U.S. 310 (2010) .................................................................... 48-49 

Common Cause v. FEC, 906 F.2d 705 (D.C. Cir. 1990) .........................................................17 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) .........................................................15 

Common Cause v. Schmitt, 455 U.S. 129 (1982).....................................................................15 

Common Cause v. Schmitt, 512 F. Supp. 489 (D.D.C. 1980) ..................................................15 

CREW v. FEC, 475 F.3d 337 (D.C. Cir. 2007) ........................................................................29 

CREW v. FEC, 243 F. Supp. 3d 91 (D.D.C. 2017) ............................................................13, 49 

Case 1:16-cv-00259-BAH Document 31 Filed 10/23/17 Page 5 of 62
v 

CREW v. FEC, 236 F. Supp. 3d 378 (D.D.C. 2017) ................................................................30 

Ctr. for Individual Freedom v. Van Hollen, 694 F.3d 108 (D.C. Cir. 2012) ...........................40 

Deukmejian v. NRC, 751 F.2d 1287 (D.C. Cir. 1984) .............................................................47 

Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) ..................................................22 

Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275 (D.C. Cir. 1981) .............................................48 

FCC v. Fox Television Stations, Inc., 567 U.S. 239 (2012)...............................................29, 30 

FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009).....................................................22 

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) .......................................42 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981) ......................12, 14, 16 

FEC v. Furgatch, 807 F.2d 857 (9th Cir.), cert denied 484 U.S. 850 (1987)..........................27 

FEC v. Machinists Non-Partisan Political League, 655 F.2d 380 (D.C. Cir. 1981) ...............15 

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) ......................................................27 

FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471 (D.C. Cir. 1992) .......................12 

FEC v. Nat’l Rifle Ass’n of Am., 254 F.3d 173 (D.C. Cir. 2001).......................................33, 42 

FEC v. Wisconsin Right To Life, Inc., 551 U.S. 449 (2007) ....................................................48 

Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (1985) .........................................................50 

Ford Motor Credit Co. v. Milhollin, 444 U.S. 555 (1980) ......................................................22 

Friedman v. Sebelius, 686 F.3d 813 (D.C. Cir. 2012) .............................................................29 

Fund for Animals v. Babbitt, 903 F. Supp. 96 (D.D.C. 1995) .................................................48 

Gen. Instrument Corp. v. FCC., 213 F.3d 724 (D.C. Cir. 2000) .............................................33 

Hagelin v. FEC, 411 F.3d 237 (D.C. Cir. 2005) ......................................................................16 

Halverson v. Slater, 129 F.3d 180 (D.C. Cir. 1997) ................................................................34 

Heartland Reg’l Med. Ctr. v. Sebelius, 566 F.3d 193 (D.C. Cir. 2009) ..................................50 

Case 1:16-cv-00259-BAH Document 31 Filed 10/23/17 Page 6 of 62
vi 

Heckler v. Cheney, 470 U.S. 821 (1985) ...........................................................................28, 29 

Household Credit Servs., Inc. v. Pfennig, 541 U.S. 232 (2004) ..............................................15 

IMS, P.C. v. Alvarez, 129 F.3d 618 (D.C. Cir. 1997) ..............................................................48 

In re Barr Labs., Inc., 930 F.2d 72 (D.C. Cir. 1991) ...............................................................28 

In re Carter-Mondale Reelection Comm., Inc., 642 F.2d 538 (D.C. Cir. 1980) ......................15 

Int’l Union, United Mine Workers v. Fed. Mine Safety and Health Admin., 

920 F.2d 960 (D.C. Cir. 1990) .....................................................................................50 

La Botz v. FEC, 61 F. Supp. 3d 21 (D.D.C. 2014) ............................................................28, 29 

Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221 (D.C. Cir. 1993) .......................31 

McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003) .........................................................21 

McFadden v. United States, 135 S. Ct. 2298 (2015) ...............................................................36 

Mich. Citizens for an Indep. Press v. Thornburgh, 868 F.2d 1285 (D.C. Cir. 1989) ..............33 

Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 

463 U.S. 29 (1983) .......................................................................................................32 

Mourning v. Family Publ’ns Serv., Inc., 411 U.S. 356 (1973) ................................................32 

Nader v. FEC, 725 F.3d 226 (D.C. Cir. 2013) .........................................................................29 

Nader v. FEC, 823 F. Supp. 2d 53 (D.D.C. 2011) ....................................................... 16-17, 29 

Nat’l Park and Conservation Ass’n v. Stanton, 54 F. Supp. 2d 7 (D.D.C. 1999)....................48 

Nat’l Treasury Emps. Union v. Hove, 840 F. Supp. 165 (D.D.C. 1994) .................................48 

NLRB v. Food & Commercial Workers, 484 U.S. 112 (1987) ...............................................33 

Office of Pers. Mgmt. v. Richmond, 496 U.S. 414 (1990) .......................................................22 

Office of Workers Comp. v. Newport News, 514 U.S. 122 (1995)...........................................41 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) .......................................................................16 

Pauley v BethEnergy Mines, Inc., 501 U.S. 680 (1991) ..........................................................33 

Case 1:16-cv-00259-BAH Document 31 Filed 10/23/17 Page 7 of 62
vii 

Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990) ...........................................33 

Reytblatt v. U.S. Nuclear Regulatory Comm’n, 105 F.3d 715 (D.C. Cir. 1997) .....................48 

Rodriguez v. United States, 480 U.S. 522 (1987) ....................................................................41 

San Luis Obispo Mothers for Peace v. NRC, 789 F.2d 26 (D.C. Cir. 1986) ...........................47 

Serono Labs, Inc. v. Shalala, 158 F.3d 1313 (D.C. Cir. 1998) ................................................33 

Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) ...........................................................................21 

Sierra Club v. EPA, 353 F.3d 976 (D.C. Cir. 2004) ..........................................................14, 32 

Smiley v. Citibank (S.D.), N.A., 517 U.S. 735 (1996) ..............................................................14 

Stark v. FEC, 683 F. Supp. 836 (D.D.C. 1988) .......................................................................29 

Student Loan Mktg. Ass’n v. Riley, 104 F.3d 397 (D.C. Cir. 1997) .........................................41 

United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012) .....................................................21 

United States v. Kanchanalak, 192 F.3d 1037 (D.C. Cir. 1999) .......................................15, 34 

United States v. Williams, 553 U.S. 285 (2008) ......................................................................30 

Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016) ........................................16, 39, 40, 41, 42 

Vermont Yankee Nuclear Power Corp. v. Nat’l Res. Def. Council, Inc., 

435 U.S. 519(1978) ......................................................................................................47 

Walter O. Boswell Mem'l Hosp. v. Heckler, 749 F.2d 788 (D.C. Cir. 1984) ...............47, 48, 49 

WorldCom, Inc. v. FCC, 288 F.3d 429 (D.C. Cir. 2002) .........................................................50 

Statutes and Regulations 

2 U.S.C. § 434(c)(2) (now codified as 52 U.S.C. § 30104(c)(2)) ..............................................6 

2 U.S.C. § 434(e) (now codified as 52 U.S.C. § 30104(e)) .......................................................6 

2 U.S.C. § 438(e) (now codified as 52 U.S.C. § 30111(e)) .....................................................21 

5 U.S.C. § 706 ............................................................................................................................1 

5 U.S.C. § 706(2)(A) ...............................................................................................................31 

Case 1:16-cv-00259-BAH Document 31 Filed 10/23/17 Page 8 of 62
viii 

5 U.S.C. § 706(2)(C) ................................................................................................................31 

29 U.S.C. § 259(a) ...................................................................................................................22 

52 U.S.C. § 30101(11) ...............................................................................................................4 

52 U.S.C. § 30101(17)(A)..........................................................................................................4 

52 U.S.C. § 30104 ................................................................................................................8, 34 

52 U.S.C. § 30104(a) ...........................................................................................................4, 34 

52 U.S.C. § 30104(a)(1) ...........................................................................................................26 

52 U.S.C. § 30104(a)(2) .....................................................................................................35, 37 

52 U.S.C. § 30104(a)(3) .....................................................................................................35, 37 

52 U.S.C. § 30104(a)(4) .....................................................................................................35, 37 

52 U.S.C. § 30104(b) ...............................................................................................................35 

52 U.S.C. § 30104(b)(3)(A)) ....................................................................................5, 25, 26, 35 

52 U.S.C. § 30104(c) .....................................................................................4, 5, 25, 26, 31, 35 

52 U.S.C. § 30104(c)(1) ................................................................................................... passim

52 U.S.C. § 30104(c)(2) .........................................................................5, 25, 26, 27, 28, 37, 49 

52 U.S.C. § 30104(c)(2)(C) ............................................................................................. passim

52 U.S.C. § 30104(c)(3) ...........................................................................................................25 

52 U.S.C. § 30104(f) ............................................................................................................4, 39 

52 U.S.C. § 30104(f)(2)(F) ......................................................................................................40 

52 U.S.C. § 30104(f)(3)(A)(i) ..................................................................................................39 

52 U.S.C. § 30104(f)(3)(B)(ii) .................................................................................................39 

52 U.S.C. § 30104(g)(1)(A) ...............................................................................................28, 35 

52 U.S.C. § 30104(g)(1)(B) .....................................................................................................35 

Case 1:16-cv-00259-BAH Document 31 Filed 10/23/17 Page 9 of 62
ix 

52 U.S.C. § 30104(g)(2)(A) ...............................................................................................28, 35 

52 U.S.C. § 30104(g)(2)(B) .....................................................................................................35 

52 U.S.C. § 30104(g)(3)(B) .....................................................................................................28 

52 U.S.C. § 30106 ......................................................................................................................3 

52 U.S.C. § 30106(b)(1) ............................................................................................................3 

52 U.S.C. § 30106(c) ...............................................................................................................10 

52 U.S.C. § 30107 ......................................................................................................................3 

52 U.S.C. § 30107(a)(8) .......................................................................................................3, 32 

52 U.S.C. § 30109(a)(1) .........................................................................................................3, 8 

52 U.S.C. § 30109(a)(2) .......................................................................................................3, 10 

52 U.S.C. § 30109(a)(6) .............................................................................................................3 

52 U.S.C. § 30109(a)(8) .................................................................................................1, 13, 24 

52 U.S.C. § 30109(a)(8)(A) .....................................................................................................12 

52 U.S.C. § 30109(a)(8)(C) ...................................................................................13, 14, 16, 49 

52 U.S.C. § 30111(a)(8) .............................................................................................................3 

52 U.S.C. § 30111(e) ...................................................................................................20, 21, 22 

11 C.F.R. § 104.20(c)(9) ..........................................................................................................40 

11 C.F.R. § 109.10(b) ..........................................................................................................8, 35 

11 C.F.R. § 109.10(c).................................................................................................................8 

11 C.F.R. § 109.10(d) ................................................................................................................8 

11 C.F.R. § 109.10(e)...........................................................................................................8, 28 

11 C.F.R. § 109.10(e)(1)(vi) ............................................................................................ passim

11 C.F.R. § 111.4 .......................................................................................................................8 

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Miscellaneous 

Factual and Legal Analysis, FEC Matter Under Review 7101, 

https://www.fec.gov/files/legal/murs/current/119538.pdf ...........................................21 

FEC, Bipartisan Campaign Reform Act of 2002 Reporting, 

68 Fed. Reg. 404, 415 (Jan. 3, 2003) .............................................................................7 

FEC, Amendments to the Federal Election Campaign Act of 1971; Regulations 

Transmitted to Congress, 45 Fed. Reg. 15080 (Mar. 7, 1980) ..................................6, 7 

Pub. L. 96-187, 93 Stat. 1339 (Jan. 8, 1980) ............................................................................6 

Webster’s New International Dictionary (2d ed. 1954) ...........................................................36

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1 

The Federal Election Commission (“Commission” or “FEC”) acted lawfully when it 

dismissed the administrative complaint filed by plaintiffs Citizens for Responsibility and Ethics 

in Washington (“CREW”) and Nicholas Mezlak. That administrative complaint alleged that 

Crossroads Grassroots Policy Strategies (“Crossroads GPS”) and several associated individuals 

filed reports with the FEC of independent expenditures, which expressly advocate the election or 

defeat of federal candidates, that improperly did not disclose the identities of contributors to 

Crossroads GPS. After reviewing the facts and arguments presented both by the administrative 

complainants and respondents, however, a controlling group of Commissioners determined that 

there was no reason to believe the respondents had violated the provision of the Federal Election 

Campaign Act (“FECA” or “Act”) or the FEC’s implementing regulation governing the 

disclosure of such identities. The controlling Commissioners also decided, as an exercise of 

prosecutorial discretion, not to pursue another allegation regarding a possible disclosure 

obligation because that allegation rested upon a novel statutory interpretation arguably 

inconsistent with the agency’s regulations and therefore could raise equitable concerns about fair 

notice. Plaintiffs now challenge the Commission’s decisions pursuant to FEC’s judicial review 

provision at 52 U.S.C. § 30109(a)(8). Plaintiffs also challenge the Commission’s dismissal of 

the administrative complaint on the grounds that the applicable FEC regulation is invalid and 

unlawful under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. (Compl. for 

Injunctive and Declaratory Relief (“Compl.”) ¶¶ 117-24 (Doc. No. 1)). 

The Court should reject plaintiffs’ claims that it was unlawful not to find reason to 

believe Crossroads GPS violated the Commission’s reporting regulation or the statutory 

provision it interprets. Both the statute and the regulation specify that contributors need only be 

identified if their contributions to a group like Crossroads GPS, which is not registered with the 

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2 

FEC as a political committee, were made “for the purpose of furthering” an independent 

expenditure. The administrative complaint did not provide evidence of that critical factor. 

Rather, plaintiffs simply compared a press article about Crossroads GPS’s fundraising to the 

group’s independent expenditure reports and then alleged that some contributions must have 

been made for that purpose. But such speculation does not show that the contributions had the 

specific purpose of supporting an independent expenditure, and the respondents provided 

information indicating that the contributions did not in fact have that specific purpose. To the 

extent the statute can be interpreted to require more disclosure than the FEC’s longstanding 

regulation implementing it, respondents were entitled to rely in good faith on the regulation. It 

was thus reasonable for the Commission not to launch an investigation into the respondents here. 

The Court should also reject plaintiffs’ argument that it was contrary to law to exercise 

the FEC’s broad prosecutorial discretion not to pursue an investigation based on a novel 

interpretation of a different provision of FECA—an interpretation that is at odds with the FEC’s 

past enforcement practices and the expectations of reporting entities like Crossroads GPS, and is 

one that plaintiffs did not even raise in their administrative complaint. Plaintiffs now argue that 

it is “clear on the face of the statute” that groups like Crossroads GPS that make independent 

expenditures have a separate obligation to report all of their contributors above a certain level. 

(Mem. of P. & A. in Supp. of Pls.’ Mot. for Summ. J. (“Pls.’ Mem.”) at 41 (Doc. No. 27)). But it 

was reasonable for the FEC not to proceed against these respondents due to equitable concerns 

that they did not have fair notice that the statute would be interpreted and applied in that manner. 

Lastly, the Court should reject plaintiffs’ argument that the Commission’s regulation is in 

conflict with the statute under the analysis of Chevron U.S.A., Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837 (1984). The statutory provision that the FEC’s regulation 

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3 

implements is ambiguous, and the regulation reasonably clarifies the meaning of the statute 

consistent with Congressional intent. While plaintiffs may wish that the Commission had 

interpreted the statute in a different manner to obtain more disclosure, it is not the role of the 

Court to substitute its own interpretation for that of the Commission as long as the FEC’s 

interpretation is reasonable. 

The Court should grant summary judgment to the Commission. 

BACKGROUND 

I. THE PARTIES 

 The FEC is a six-member federal independent agency with “exclusive jurisdiction” to 

administer, interpret, and civilly enforce FECA. See generally 52 U.S.C. §§ 30106, 30107. 

Congress authorized the FEC to “formulate policy” with respect to FECA, id. § 30106(b)(1); “to 

make, amend, and repeal such rules . . . as are necessary to carry out the provisions of [FECA],”

id. §§ 30107(a)(8), 30111(a)(8); and to investigate possible violations of the Act, id. 

§ 30109(a)(1)-(2). The FEC has exclusive jurisdiction to initiate civil enforcement actions for 

violations of the Act in the United States district courts. Id. §§ 30106(b)(1), 30109(a)(6). 

 Plaintiff CREW “is a non-profit, non-partisan corporation organized under Section 

501(c)(3) of the Internal Revenue Code.” (Compl. ¶ 7.) Among other things, CREW “monitors 

the activities of those who run for federal office as well as those groups financially supporting 

candidates for office or advocating for or against their election” and “files complaints with the 

FEC when it discovers violations of the FECA.” (Id. ¶¶ 10-11.) Plaintiff Nicholas Mezlak states 

that he is “a citizen of the United States and a resident of the state of Ohio.” (Id. ¶ 17.) 

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II. STATUTORY AND REGULATORY BACKGROUND 

A. FECA’s Requirements for Independent Expenditure Reporting by Persons 

That Are Not Political Committees 

FECA creates a comprehensive structure of disclosure requirements that vary depending 

upon who is reporting to the FEC and what activities the reporting entity has engaged in. 

Political committees, which have the major purpose of electing federal candidates, Buckley v. 

Valeo, 424 U.S. 1, 79 (1976), are required to report detailed information to the Commission on a 

regular basis regardless of their specific activities. See 52 U.S.C. § 30104(a). By contrast, 

groups that have not registered as (or otherwise been found by the FEC to be) political 

committees, such as Crossroads GPS, do not have such broad, regular disclosure requirements, 

but are required to file event-driven reports with the FEC if they engage in certain electionrelated spending such as independent expenditures, 52 U.S.C. § 30104(c), or electioneering 

communications, 52 U.S.C. § 30104(f). An independent expenditure is a communication made 

without coordination with a candidate, campaign, or political party that “expressly advocat[es] 

the election or defeat of a clearly identified candidate.” 52 U.S.C. § 30101(17)(A). 

The provision at issue in this case, 52 U.S.C. § 30104(c), involves the disclosure 

requirements for persons that are not political committees and that make independent 

expenditures.1

 FECA states that independent expenditure reports of such persons must include 

“the identification of each person who made a contribution in excess of $200 to the person filing 

such statement which was made for the purpose of furthering an independent expenditure.” 52 

U.S.C. § 30104(c)(2)(C) (emphasis added). Therefore, unlike political committees, which are 

generally required to report the identities of all their contributors who gave over $200 in a 

 

1

 “Person” as used in the statute includes both individuals and organizations like 

Crossroads GPS. 52 U.S.C. § 30101(11). 

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calendar year (52 U.S.C. § 30104(b)(3)(A)), groups that are not political committees are required 

under section 30104(c)(2)(C) only to identify a subset of contributors – those that gave for the 

purpose of furthering an independent expenditure. There is no requirement under that provision 

of FECA that such groups identify those that have contributed for some other purpose or for no 

particular purpose at all. The statute does not specify whether “an independent expenditure” 

refers to the specific independent expenditure that the group is reporting, or if it encompasses 

contributions that were made for the purpose of furthering independent expenditures in a general 

sense, but not any independent expenditure in particular. 

Another portion of 52 U.S.C. § 30104(c) also addresses reporting by groups that are not 

political committees but that make independent expenditures. That subpart states that “[e]very 

person (other than a political committee) who makes independent expenditures in an aggregate 

amount or value in excess of $250 during a calendar year shall file a statement containing the 

information required under subsection (b)(3)(A) of this section for all contributions received by 

such person.” 52 U.S.C. § 30104(c)(1). Subsection (b)(3)(A), in turn, describes how to report 

contributor information.2

 Section 30104(c)(1) may be read simply to specify the situations when 

such groups are required to file reports with the FEC (if they make at least $250 in independent 

expenditures during a calendar year), while section 30104(c)(2) describes what information 

should be included in those reports. See 52 U.S.C. § 30104(c)(2) (“Statements required to be 

filed by this subsection . . . shall include . . .”). However, the second half of section 30104(c)(1) 

might also be read to require such groups to include a comprehensive list of all contributors, 

whether their contributions were made for the purpose of furthering an independent expenditure 

 

2

 Political committees must identify anyone “who makes a contribution to the reporting 

committee during the reporting period, whose contribution or contributions have an aggregate 

amount or value in excess of $200 within the calendar year (or election cycle, in the case of an 

authorized committee of a candidate for Federal office) . . . .” 52 U.S.C. § 30104(b)(3)(A). 

Case 1:16-cv-00259-BAH Document 31 Filed 10/23/17 Page 16 of 62
6 

or not, whenever the reporting requirement is triggered. In essence, this interpretation would 

require all groups that are not political committees but that meet the $250 independentexpenditure-spending threshold in a calendar year to identify all their contributors in the same 

manner that political committees do, but also to go beyond what is required of political 

committees, by separately identifying contributors that gave for the purpose of furthering an 

independent expenditure in accord with subsection 30104(c)(2)(C), as discussed above. 

The provisions of FECA discussed above were originally promulgated as part of the 1979 

amendments to FECA, and although they have been recodified, their language has remained 

unaltered since that time. See Pub. L. 96-187, 93 Stat. 1339 (Jan. 8, 1980) (amending provision 

then codified at 2 U.S.C. § 434(c)(2) (now 52 U.S.C. § 30104(c)(2)). Before the passage of the 

1979 amendments, contributors to entities other than political committees and candidates were 

responsible for reporting their own contributions to the FEC. See 2 U.S.C. § 434(e) (1976). The 

1979 amendments changed disclosure to the current system in which the responsibility for 

reporting contributions is left solely to the recipients of those contributions. The independent 

expenditure reporting provisions discussed above were among those new provisions. 

B. The Commission’s Regulation Implementing FECA’s Requirements for 

Independent Expenditure Reporting by Persons That Are Not Political 

Committees 

The Commission promulgated a number of new and amended regulations in response to 

the 1979 Amendments. The passage of these regulations moved forward in an expedited 

process, as Congress had directed the FEC to transmit regulations to them in less than two 

months time. See 45 Fed. Reg. 15080 (Mar. 7, 1980) (AR1496) (noting that the 1979 

Amendments passed on January 8, 1980 and the Commission was required to transmit 

regulations prior to February 29, 1980). The Commission noticed draft regulations (AR1056-

Case 1:16-cv-00259-BAH Document 31 Filed 10/23/17 Page 17 of 62
7 

1080), received comments from the public (AR1081, 1213-1222, 1227-1261), and published the 

final versions of the regulations, with an explanation and justification (AR1495-1542). 

The independent expenditure disclosure regulation, then located at 11 C.F.R. § 109.2, 

was among the provisions modified as a result of the 1979 Amendments. See 45 Fed. Reg. 

15080, 15087 (Mar. 7, 1980) (AR1503). The process was uncontroversial. The regulation 

contains language almost identical to 52 U.S.C. § 30104(c)(2)(C), and it requires persons that are 

not political committees but that make independent expenditures to identify “each person who 

made a contribution in excess of $200 to the person filing the report, which contribution was 

made for the purpose of furthering the reported independent expenditure.” See 11 C.F.R. 

§ 109.10(e)(1)(vi). None of the commenters during the notice period commented on that 

particular provision. The Commission’s explanation for the regulation was as follows: 

§ 109.2 Reporting of independent expenditures by persons other 

than a political committee. 

This section has been amended to incorporate the changes set forth 

at 2 USC 434(c) (1) and (2) regarding reporting requirements for 

persons, other than a political committee, who make independent 

expenditures. 

(AR1503.) The regulation has not been changed substantively since it was promulgated in 

1980.3

 In practice, the regulation requires groups that engage in the minimum level of 

independent expenditures to file the FEC’s “Form 5” (https://www.fec.gov/resources/cmscontent/documents/fecfrm5.pdf) in any quarter in which they make independent expenditures, as 

 

3

 In 2003, the regulation was moved from section 109.2 to section 109.10 and slightly 

modified to make clear when and how those reports should be filed. FEC, Bipartisan Campaign 

Reform Act of 2002 Reporting, 68 Fed. Reg. 404, 415 (Jan. 3, 2003). The modifications that 

were made in 2003 are not at issue in this case. 

Case 1:16-cv-00259-BAH Document 31 Filed 10/23/17 Page 18 of 62
8 

well as more frequently if they reach certain dollar thresholds shortly before an election. Form 5 

Instructions at 1, https://www.fec.gov/resources/cms-content/documents/fecfrm5i.pdf. 

III. ADMINISTRATIVE PROCEEDINGS FOR MATTER UNDER REVIEW 6696 

 FECA permits any person to file an administrative complaint with the FEC alleging a 

violation of the Act. 52 U.S.C. § 30109(a)(1); see also 11 C.F.R. § 111.4. In November 2012, 

plaintiff CREW and two individuals filed an administrative complaint against Crossroads GPS 

and associated individuals alleging that Crossroads GPS had unlawfully failed to disclose 

contributors in violation of 52 U.S.C. § 30104 and 11 C.F.R. §§ 109.10(b)-(e). (AR1-AR52.)4 

The administrative complaint relied upon a press account by a reporter who had attended a 

fundraiser at which Senate campaign advertisements were shown to attendees and contributions 

were allegedly solicited for both Crossroads GPS and a political committee registered with the 

FEC called American Crossroads. (AR104-105.) 

The administrative complaint described three categories of contributors that the 

complainants alleged Crossroads GPS had unlawfully failed to disclose. First, the complaint 

alleged, based on the press account, that Karl Rove, who described himself as an 

“uncompensated advisor” to Crossroads GPS and American Crossroads (AR94), had stated that 

he had received a phone call from an “unnamed out-of-state donor” who indicated he would 

pledge $3 million for a “matching challenge” to help raise $6 million for Ohio Senate candidate 

Josh Mandel. (AR103-104.) Based on these facts, the administrative complaint alleged that 

Crossroads GPS had violated the disclosure statute and regulation by not identifying the 

unnamed donor. (AR108-112.) Second, based on the same facts, the administrative complaint 

alleged that Crossroads GPS had violated the disclosure requirements of FECA and the FEC 

 

4

 The administrative complaint was later supplemented to substitute plaintiff Nicholas 

Mezlak for one of the individual complainants. (AR98-159.) 

Case 1:16-cv-00259-BAH Document 31 Filed 10/23/17 Page 19 of 62
9 

regulation by not identifying any contributors that were part of the “matching challenge” 

described by Rove at the fundraiser and helped pay for the over $6 million in independent 

expenditures Crossroads GPS reportedly made in that Ohio Senate race. (AR108-112.) Third, 

based on the press account, the administrative complaint alleged that Crossroads GPS had 

violated FECA and the FEC regulation by not identifying any contributors that responded to the 

solicitations at the fundraiser and contributed to Crossroads GPS after having viewed the 

advertisements shown there. (AR 112-113.) In addition to these allegations against Crossroads 

GPS, the administrative complaint made related allegations against several individuals associated 

with Crossroads GPS. (AR 108-115.) The administrative complaint did not allege that any 

respondent had failed to disclose information pursuant to 52 U.S.C. § 30104(c)(1). 

 Crossroads GPS and the other respondents responded to the administrative complaint on 

January 17, 2013, and included an affidavit from Karl Rove. (AR73-95.) The response argued 

that Crossroads GPS was not obligated to identify its contributors. In particular, the response 

stated that Crossroads GPS was not required to identify the “unnamed out-of-state donor” 

because there was no evidence that “demonstrates that any contribution was made for the 

purpose of funding any particular advertisements, advertisements in general, or that the donor 

had any knowledge of any particular Crossroads GPS efforts.” (AR85.) Crossroads GPS also 

stated that it was not obligated to identify any of the “matching fund” contributors because they 

did not make those contributions for the purpose of “furthering the independent expenditures 

Crossroads GPS made in the Ohio Senate race” and there “is no evidence presented regarding 

any donor’s intent.” (AR90.) Similarly, the response stated that Crossroads GPS was not legally 

obligated to disclose contributors that had responded to solicitations at the fundraiser because 

Case 1:16-cv-00259-BAH Document 31 Filed 10/23/17 Page 20 of 62
10 

“Crossroads GPS did not solicit or receive, at any time, any contributions ‘for the purpose of . . . 

broadcasting other ads in those races.’” (AR92 (quoting AR14).) 

 After reviewing an administrative complaint and any responses filed by the respondents, 

the Commission considers whether there is “reason to believe” that FECA has been violated. 

52 U.S.C. § 30109(a)(2). If at least four of the FEC’s six Commissioners vote to find such 

reason to believe, the Commission may investigate the alleged violation; otherwise, the 

Commission dismisses the administrative complaint. Id. §§ 30106(c), 30109(a)(2). 

In this case, the Commission’s Office of General Counsel provided the Commission 

with a First General Counsel’s Report that recommended a finding of “no reason to believe” that 

Crossroads GPS had violated the regulation at 11 C.F.R. § 109.10(e)(1)(vi) or the statutory 

provision that is currently codified at 52 U.S.C. § 30104(c)(2)(C). With respect to the “unnamed 

out-of-state donor,” the Office of General Counsel recommended a finding of “no reason to 

believe” because “a donor’s general purpose to support an organization in its efforts to further 

the election of a particular federal candidate does not itself indicate that the donor’s purpose was 

to further ‘the reported independent expenditure’ – the requisite regulatory test.” (AR 174.) 

With respect to any contributors that might have participated in the “matching challenge,” the 

Office of General Counsel recommended no reason to believe because the mere fact that 

Crossroads GPS spent more than $6 million in independent expenditures in the Ohio Senate race 

“would not advance the claim that, as a result of the matching challenge, Crossroads received 

funds from a donor for the purpose of furthering Crossroads’ reported independent expenditures 

in Ohio.” (Id.) As for the alleged failure to identify contributors who saw advertisements at the 

fundraiser, the Office of General Counsel likewise recommended a finding of no reason to 

Case 1:16-cv-00259-BAH Document 31 Filed 10/23/17 Page 21 of 62
11 

believe because, among other reasons, “Crossroads represents that none of the contributions 

received at the event were for the purpose of furthering those communications.” (AR175.) 

Lastly, the Office of General Counsel discussed 52 U.S.C. § 30104(c)(1), which could 

be read to require groups that are not political committees but that make independent 

expenditures to disclose all contributors, not just those made for the purpose of furthering 

independent expenditures. (AR175-176.) This alternative statutory interpretation had not been 

raised in the administrative complaint, which had only argued that Crossroads GPS violated the 

law by failing to disclose contributions made for the purpose of furthering independent 

expenditures. (AR108-115.) Nonetheless, in the interest of providing comprehensive legal 

advice, the FEC’s Office of General Counsel raised the issue, without taking a position as to 

whether 52 U.S.C. § 30104(c)(1) actually imposed such a requirement. (AR176.) But that 

Office ultimately recommended that the Commission exercise its prosecutorial discretion and not 

pursue that legal theory here, explaining that doing so “could raise equitable concerns about 

whether a filer has fair notice of the requisite level of disclosure required by law,” due to the fact 

that the Commission’s regulation does not itself impose such a disclosure requirement and the 

Commission has not previously interpreted the statute in that manner. (Id.) 

The Commission voted on the matter on November 17, 2015, splitting 3-3 on each of 

the recommendations of the Office of General Counsel, as well as on an additional motion to 

find that Crossroads GPS should be deemed a political committee. (AR 193.) As a result of the 

split votes, the Commission closed the file in the matter and dismissed the administrative 

complaint. (AR 195.) The three Commissioners that voted in favor of the recommendations of 

the Office of General Counsel, who made up the controlling group because their position 

prevailed, did not issue a separate Statement of Reasons for their vote, and therefore the Office 

Case 1:16-cv-00259-BAH Document 31 Filed 10/23/17 Page 22 of 62
12 

of General Counsel’s First General Counsel’s Report serves as the basis for judicial review. See

FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992) (“NRSC”), 

966 F.2d 1471, 1476 (D.C. Cir. 1992) (Commissioners that voted to dismiss “constitute a 

controlling group for purposes of the decision, their rationale necessarily states the agency’s 

reasons for acting as it did.”); FEC v. Democratic Senatorial Campaign Comm. (“DSCC”), 454 

U.S. 27, 38 & n.19 (1981) (staff report may provide a basis for the Commission’s action). 

IV. PLAINTIFFS’ LAWSUIT AGAINST THE COMMISSION 

 FECA provides administrative complainants with a cause of action for judicial review if 

the Commission determines that no violation has occurred or decides to dismiss the 

administrative complaint for some other reason. See 52 U.S.C. § 30109(a)(8)(A) (detailing 

procedure and scope of judicial review of administrative dismissal). Judicial review is also 

available for FEC dismissals resulting from 3-3 votes. NRSC, 966 F.2d 1471, 1476 (D.C. Cir. 

1992) (“[A split vote] dismissal, like any other, is judicially reviewable under [§ 30109(a)(8)].”). 

Following the dismissal of plaintiffs’ administrative complaint, they brought this lawsuit, 

which asserts three claims. Count I contends that the Commission’s failure to find reason to 

believe that Crossroads GPS violated the Commission’s independent-expenditure disclosure 

regulation at 11 C.F.R. § 109.10(e)(1)(vi) was arbitrary, capricious, an abuse of discretion, and 

contrary to law. (Compl. ¶ 116.) Count II argues that 52 U.S.C. § 30104(c)(2)(C) actually 

requires greater disclosure of contributors than the Commission’s regulation, and therefore the 

FEC acted contrary to law by finding no reason to believe that Crossroad GPS violated the 

statute when it did not report the identity of its contributors. (Compl. ¶ 124.) This Count thus 

claims that the dismissal applying the regulation is contrary to law because the regulation is 

inconsistent with the statute, and plaintiffs seek to have the Court declare “that 11 C.F.R. § 

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13 

109.10(e)(1)(vi) is contrary to law, arbitrary and capricious, and invalid.” (Compl. Requested 

Relief ¶ 3). Plaintiffs, in addition to relying on section 30109(a)(8), bring their challenge to the 

interpretation of the regulation in the agency’s dismissal pursuant to the APA. (See id. ¶ 124 

(citing 5 U.S.C. § 706.) Lastly, Claim III asserts that 52 U.S.C. § 30104(c)(1) should be 

interpreted such that groups that are not political committees but that make at least $250 in 

independent expenditures annually are required to identify all persons who made contributions 

for the purpose of influencing a federal election generally, whether or not those contributions 

were made to further independent expenditures. (Compl. ¶ 127.) As a result, plaintiffs argue 

that the FEC acted contrary to law by exercising its prosecutorial discretion to dismiss the 

allegation that Crossroads GPS violated 52 U.S.C. § 30104(c)(1). 

The FEC moved to dismiss plaintiffs’ challenge to its regulation under the APA (Claim 

II), arguing that the claim was time-barred. (FEC’s Partial Mot. to Dismiss (Doc. No. 12). The 

Court disagreed, finding that “when an agency applies a regulation to dismiss an administrative 

complaint, the party whose complaint was dismissed may challenge the regulation after the 

statute of limitations has expired on the ground that the regulation conflicts with the statute from 

which it derives.” CREW v. FEC, 243 F. Supp. 3d 91, 101 (D.D.C. 2017). The Court also 

granted a motion by defendant-intervenor Crossroads GPS to dismiss claims under the APA 

from plaintiffs’ Counts I and III, but the Court denied the same motion as to Count II. Id. at 105. 

Because the APA challenge arises in the context of a dismissal under FECA, “[i]n the event that 

the plaintiffs ultimately prevail on their APA challenge to the regulation, however, the Court 

would remand this action to the FEC for reconsideration of the plaintiffs’ administrative 

complaint in light of the Court’s opinion.” Id. (citing 52 U.S.C. § 30109(a)(8)(C). 

The parties have now filed cross-motions for summary judgment. 

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14 

ARGUMENT 

I. THE COMMISSION’S PROMULGATION OF REGULATIONS AND ITS 

DISMISSAL OF ADMINISTRATIVE COMPLAINTS ARE ENTITLED TO 

JUDICIAL DEFERENCE 

Judicial review of both the Commission’s 2015 administrative complaint dismissal and 

its 1980 rulemaking are highly deferential. This Court may set aside an administrative dismissal 

order of the Commission only if it is “contrary to law,” a high standard. 52 U.S.C. § 

30109(a)(8)(C). The Commission receives even greater deference in judicial review of its 

decision not to proceed with an enforcement case in an exercise of its prosecutorial discretion, 

such as Claim III of the complaint in this case. See infra pp. 28-29. Review of plaintiffs’ 

challenge to the Commission’s regulation under the APA is also “highly deferential.” See infra

pp. 31-34 (quoting Sierra Club v. EPA, 353 F.3d 976, 978 (D.C. Cir. 2004)). In both contexts, 

the Court has the limited role of reviewing the Commission’s decision-making based on the 

administrative record, so the Court’s review must be based upon the record that was before the 

agency during its rulemaking. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 

402, 420 (1971). 

The Supreme Court has explained that the Commission “is precisely the type of agency to 

which deference should presumptively be afforded.” DSCC, 454 U.S. at 39. That judicial 

deference is based upon Congress’s delegation of discretion to an agency to implement a statute. 

See Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 740-41 (1996). Such deference is appropriate 

when “Congress has expressly delegated to [an agency] the authority to prescribe regulations 

containing such classifications, differentiations, or other provisions as, in the judgment of the 

[agency], are necessary or proper to effectuate the purposes of [the authorizing statute], to 

prevent circumvention or evasion thereof, or to facilitate compliance therewith.” Household 

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15 

Credit Servs., Inc. v. Pfennig, 541 U.S. 232, 238-39 (2004) (internal quotation marks omitted). 

And “Congress has legislated in no uncertain terms with respect to FEC dominion over the 

election law.” Common Cause v. Schmitt, 512 F. Supp. 489, 502 (D.D.C. 1980) (three-judge 

court), aff’d mem., 455 U.S. 129 (1982). Indeed, the Commission’s “express authorization to 

elucidate statutory policy in administering FECA ‘implies that Congress intended the FEC ... to 

resolve any ambiguities in statutory language,’” and so “‘the FEC’s interpretation of the Act 

should be accorded considerable deference.’” United States v. Kanchanalak, 192 F.3d 1037, 

1049 (D.C. Cir. 1999) (citation omitted). 

 The Commission’s decisions are particularly appropriate for judicial deference because 

the FEC is “[u]nique among federal administrative agencies” in that “its sole purpose [is] the 

regulation of core constitutionally protected activity — ‘the behavior of individuals and groups 

only insofar as they act, speak and associate for political purposes.’” AFL-CIO v. FEC, 333 F.3d 

168, 170 (D.C. Cir. 2003) (quoting FEC v. Machinists Non-Partisan Political League, 655 F.2d 

380, 387 (D.C. Cir. 1981)). “The [Federal Election] Commission has been vested with a wide 

discretion in order to guarantee that it will be sensitive to the great trust imposed in it to not 

overstep its authority by interfering unduly in the conduct of elections.” In re Carter-Mondale 

Reelection Comm., Inc., 642 F.2d 538, 545 (D.C. Cir. 1980). “Deference is particularly 

appropriate in the context of the FECA, which explicitly relies on the bipartisan Commission as 

its primary enforcer.” Common Cause v. FEC, 842 F.2d 436, 448 (D.C. Cir. 1988). 

II. THE COMMISSION’S DISPOSITION OF THE ADMINISTRATIVE 

COMPLAINT WAS LAWFUL 

In considering plaintiffs’ administrative complaint, the Commission reasonably and 

lawfully exercised its discretion. The Commission’s lack of consensus to find “reason to 

believe” that Crossroads GPS had violated either 11 C.F.R. § 109.10(e)(1)(vi) or 52 U.S.C. 

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§ 30104(c)(2)(C) was justified by the speculative nature of the allegations, most notably the 

absence of any evidence of contributions that were made “for the purpose of furthering” 

Crossroads GPS’s independent expenditures. The Commission’s dismissal of the allegation that 

Crossroads GPS violated 52 U.S.C. § 30104(c)(1) was permissible in light of the concern that the 

statute had not previously been applied to require such additional disclosure and it would present 

fairness concerns to do so against an entity like Crossroads that reasonably believed it was acting 

consistently with the law. Thus, the Commission did not act “contrary to law” in this matter. 

A. FEC Dismissals Must Be Affirmed Unless They Are “Contrary to Law” 

This Court may set aside the Commission’s dismissal order only if it is “contrary to law.” 

52 U.S.C. § 30109(a)(8)(C). Under that standard, the Commission’s decision to dismiss cannot 

be disturbed unless it was based on “an impermissible interpretation of the Act” or was otherwise 

“arbitrary or capricious, or an abuse of discretion.” Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 

1986). This standard simply requires that the Commission’s decision was “sufficiently 

reasonable to be accepted.” DSCC, 454 U.S. at 39. The Commission’s decision need not be “the 

only reasonable one or even the” decision “the [C]ourt would have reached” on its own “if the 

question initially had arisen in a judicial proceeding.” Id. Instead, the contrary-to-law standard 

is “[h]ighly deferential” to the Commission’s decision. Hagelin v. FEC, 411 F.3d 237, 242 (D.C. 

Cir. 2005) (internal quotation marks omitted); see also Orloski, 795 F.2d at 167 (noting that the 

contrary-to-law standard is “extremely deferential” to the agency’s decision (internal quotation 

marks omitted)).5

 

 

5

 In addition, although “an agency is required to adequately explain its decision” in such 

a matter, it need not do so with perfect precision. Van Hollen v. FEC, 811 F.3d 486, 496-97 

(D.C. Cir. 2016). “It is enough that a reviewing court can reasonably discern the agency’s 

analytical path,” id. at 497, even if the decision is “of ‘less than ideal clarity.’” Nader v. FEC, 

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B. It Was Reasonable, Based on the Facts Presented, Not to Find Reason to 

Believe That Crossroads GPS Violated 11 C.F.R. § 109.10(e)(1)(vi) 

The controlling group of Commissioners reasonably determined, based on the evidence 

presented, that there was no reason to believe Crossroads GPS received any of the alleged 

contributions for the purpose of furthering any of the independent expenditures it made. 

Plaintiffs claim that the Commission acted unlawfully by failing to find reason to believe that 

Crossroads GPS violated 11 C.F.R. § 109.10(e)(1)(vi). But that regulation requires reporting 

only of “[t]he identification of each person who made a contribution in excess of $200 to the 

person filing such report which contribution was made for the purpose of furthering the reported 

independent expenditure.” 11 C.F.R. § 109.10(e)(1)(vi) (emphasis added). There was evidence 

that donors intended to support certain candidates, but as noted in the First General Counsel’s 

Report, “a donor’s general purpose to support an organization in its efforts to further the election 

of a particular federal candidate does not itself indicate that the donor’s purpose was to further 

‘the reported independent expenditure’— the requisite regulatory test.” (AR174.) 

Plaintiffs point to three factual elements that they assert establish a reason to believe that 

Crossroads was in violation of the regulation (Pls.’ Mem. at 44-45), but even if correct, none of 

those would establish that contributions here were made for the purpose of furthering any 

specific reported independent expenditure. The first point plaintiffs make is that “Crossroads 

GPS took at least $3 million ‘to use to support the election of [Ohio Senate candidate] Josh 

Mandel.’” (Pls.’ Mem. at 44 (quoting AR174).) Karl Rove did confirm in an affidavit that the 

donor of these funds “intended the funds to be used in some manner that would aid the election 

of Josh Mandel” (AR95 ¶ 10), but Rove also explained that his conversations with the donor did 

 

823 F. Supp. 2d 53, 58 (D.D.C. 2011) (quoting Common Cause v. FEC, 906 F.2d 705, 706 (D.C. 

Cir. 1990)). 

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not include discussion of “any particular television advertisements, or television advertisements 

in general” (AR94 ¶ 6); “specific efforts that would or could be made by Crossroads GPS” 

(AR94 ¶ 7); “spending the donor’s funds on any specific methods of communication” (AR94 ¶ 

8); “independent expenditures” (AR94 ¶ 9); or spending of the pledged funds “in any particular 

manner or on any particular or specific efforts or projects” (AR95 ¶ 10). Rove also clarified that 

the donor did not actually donate $3 million, but instead “subsequently contributed a larger 

amount to Crossroads GPS that was not in any way earmarked for any particular use.” (AR95 ¶ 

14.) The mere fact that a contribution was made to help a particular candidate is not evidence 

that it was made for the purpose of furthering a reported independent expenditure. Plaintiffs may 

prefer that the regulation require more disclosure, but it does not. 

The second factual element plaintiffs identify is that Crossroads GPS received an 

additional $1.3 million in matching donations to aid the election of Josh Mandel (Pls.’ Mem. at 

44-45), but this point suffers from the same infirmity. As the Office of General Counsel noted, 

“that fact would not advance the claim that, as a result of the matching challenge, Crossroads 

received funds from a donor for the purpose of furthering Crossroads’ reported independent 

expenditures in Ohio.” (AR174.) It therefore provides no evidence that the regulation required 

Crossroads GPS to disclose the identity of those contributors. 

Plaintiffs’ third factual point is that attendees at the fundraiser “were shown independent 

expenditures, which the respondents admitted were used as ‘examples’ of the activities raised 

funds would support and which mirrored the ads that eventually ran.” (Pls.’ Mem. at 45.) But 

the fact that “example” TV advertisements were shown at a fundraiser does not indicate that 

contributions received were made for the purpose of furthering independent expenditures 

actually made. In fact, the administrative respondents indicated that all of the advertisements 

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19 

shown at the fundraiser had already been fully paid for and aired by the day of the fundraiser, 

with the exception of one that never aired. (AR77-78, AR175.) In any case, as the First General 

Counsel’s Report stated, “there is no basis to conclude on these facts that Crossroads received 

contributions from individuals at the fundraiser for the purpose of furthering Crossroads’ 

reported independent expenditures in Virginia, Montana, and Nevada as alleged.” (AR175.) 

Plaintiffs’ arguments seem to reflect a view that if a group like Crossroads GPS tells 

potential contributors that it is going to support certain candidates, provides some examples of 

how it might do so, and makes independent expenditures, 11 C.F.R. § 109.10(e)(1)(vi) requires 

the identities of the contributors to be reported. But the regulation plainly requires more of a link 

between the contributions and the expenditures, and it was reasonable for the controlling group 

of Commissioners to determine that the facts identified in the administrative complaint were 

insufficient to find reason to believe that Crossroads GPS had violated the regulation. 

C. It Was Reasonable, Based on the Facts Presented, Not to Find Reason to 

Believe That Crossroads GPS Violated 52 U.S.C. § 30104(c)(2)(C) 

Plaintiffs claim that the Commission’s dismissal of the alleged statutory violation was 

contrary to FECA even if respondents’ conduct did not violate the regulation (Pls.’ Mem. at 38-

39), but that is incorrect. Plaintiffs argue at length that there was reason to believe Crossroads 

GPS violated the allegedly greater disclosure requirements of 52 U.S.C. § 30104(c)(2)(C), 

asserting that the FEC’s regulation actually conflicts with the language in FECA. Plaintiffs 

emphasize that the statute requires contributors to be identified if their contributions are made for 

the purpose of furthering “‘an’ independent expenditure,” whereas the regulation states 

contributors should be identified if contributions are made for the purpose of furthering “‘the 

reported’ independent expenditure.” (Pls.’ Mem. at 30-33, 38-39 (emphasis added) (comparing 

52 U.S.C. § 30104(c)(2)(C) with 11 C.F.R. § 109.10(e)(1)(vi)).) The First General Counsel’s 

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Report addressed the distinction between the statutory and regulatory language, explaining that 

while the statutory language is “an arguably more expansive approach,” the regulation 

“constitutes the Commission’s controlling interpretation of the statutory provision it 

implements.” (AR175 n.57.) As discussed supra pp. 14-15, the Commission is entitled to great 

deference in this task and its regulation is a reasonable interpretation of the statute’s ambiguous 

language. Therefore, the FEC acted lawfully by dismissing the statutory allegations in the 

administrative complaint. 

But even if the regulation were invalid, the Commission would still not be in a position to 

proceed against Crossroads GPS for an independent statutory violation. First, any such 

enforcement proceeding would likely not be able to surmount the hurdle of Crossroads GPS 

interposing the defense that it had exhibited good faith reliance on that regulation. Congress 

placed a “safe harbor” provision in FECA, titled “Scope of protection for good faith reliance 

upon rules or regulations,” stating that “any person who relies upon any rule or regulation 

prescribed by the Commission in accordance with the provisions of this section and who acts in 

good faith in accordance with such rule or regulation shall not, as a result of such act, be subject 

to any sanction provided by this Act.” 52 U.S.C. § 30111(e). Here, if there is no reason to 

believe that Crossroads GPS violated the regulation, then under 52 U.S.C. § 30111(e) the 

Commission could not reasonably pursue Crossroads GPS for failing to comply with the terms of 

the statute it implements. There has been no indication here that Crossroads GPS did not rely in 

good faith on the regulation. And the report providing the basis for the controlling group’s 

dismissal cited the equitable concerns underlying the safe harbor. (See AR176 (“Because the 

record here does not suggest a basis to find a violation of the regulatory standard at 11 C.F.R. 

§ 109.10(e)(1)(vi) under its plain terms, a Respondent could raise equitable concerns about 

Case 1:16-cv-00259-BAH Document 31 Filed 10/23/17 Page 31 of 62
21 

whether a filer has fair notice of the requisite level of disclosure required by law if the 

Commission attempted to impose liability under Section [30104(c)(1)].”).) Indeed, that principle 

underlies any decision not to go forward when proceeding would involve revisiting a 

longstanding interpretive regulation. The controlling group was reasonable in declining to revisit 

a regulatory interpretation through an enforcement proceeding against Crossroads GPS. 

This Court therefore need not further consider any of plaintiffs’ claims. Because the 

controlling group reasonably found no reason to believe that Crossroads GPS violated the 

regulation, they also reasonably took a lack of notice into account on any contrary interpretations 

in light of FECA’s safe harbor provision. See Shays v. FEC, 414 F.3d 76, 95 (D.C. Cir. 2005) 

(“good-faith reliance on FEC regulations affords a defense against FEC sanction” (citing 2 

U.S.C. § 438(e), now codified as 52 U.S.C. § 30111(e)); McConnell v. FEC, 251 F. Supp. 2d 

176, 261–64 (D.D.C. 2003) (“as long as Plaintiffs abide by the regulations in good faith, they 

will not be subject to sanctions under FECA.”) The Commission can reasonably decline to 

proceed with an understanding that “sanction” is not just limited to monetary sanctions, but also 

extends to the injunctive and declaratory relief sought by plaintiffs here. See Factual and Legal 

Analysis, FEC Matter Under Review 7101 at 12 n.45, 

https://www.fec.gov/files/legal/murs/current/119538.pdf (concluding that “sanction” in the 

advisory opinion context extends to forms of equitable relief that might be sought in a later 

enforcement action); Alabama v. North Carolina, 560 U.S. 330, 340-41 (2010) (noting that “the 

imposition of a nonmonetary obligation” can be “one kind of ‘sanction’”); United States v. 

Alabama, 691 F.3d 1269, 1289 (11th Cir. 2012) (“A sanction is commonly understood to be ‘a 

restrictive measure used to punish a specific action or to prevent some future activity.’”). 

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Courts reviewing other similar federal statutes have concluded that Congress’s intent 

when passing such provisions is to prevent exactly what plaintiffs have urged the Commission to 

do here, namely, to pursue statutory violations that are not encompassed by the statute. These 

laws provide the public with security that they will not be subject to sanction so long as they 

comply with an agency’s guidance. Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 428–29 

(1990) (citing numerous such safe harbor statutes). For example, the Truth in Lending Act 

includes just such a provision to “promote reliance upon Federal Reserve pronouncements” and 

to “relieve the creditor of the burden of choosing ‘between the Board's construction of the Act 

and the creditor's own assessment of how a court may interpret the Act.’” Ford Motor Credit 

Co. v. Milhollin, 444 U.S. 555, 566–67 (1980). That provision “signals an unmistakable 

congressional decision to treat administrative rulemaking and interpretation under [Truth in 

Lending Act] as authoritative.” Id. at 567-78. The safe harbor laws also protect the public 

against unexpected changes in agency positions, because “an agency must also be cognizant that 

longstanding policies may have ‘engendered serious reliance interests that must be taken into 

account.’” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (quoting FCC v. 

Fox Television Stations, Inc., 556 U.S. 502, 515, (2009)); see also Encino Motorcars, 136 S. Ct. 

at 2128 n.2 (Ginsburg, J., concurring) (“an affirmative defense in the Fair Labor Standards Act 

(FLSA) protects regulated parties against retroactive liability for actions taken in good-faith 

reliance on superseded agency guidance, 29 U.S.C. § 259(a).”). 52 U.S.C. § 30111(e) serves the 

same interests by assuring participants in election activity that they will not be subject to 

unexpected and unpredictable sanctions by relying on the Commission’s regulations. 

Moreover, even in the absence of the disclosure regulation, plaintiffs have not shown that 

there was sufficient evidence to find reason to believe respondents violated the statutory 

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disclosure requirement at 52 U.S.C. § 30104(c)(2)(C). The evidence plaintiffs have cited does 

not show that the contributions Crossroads GPS actually reported were made to further “an 

independent expenditure,” but only that potential contributors were given information about the 

types of activities the group might conduct in order to support certain candidates. That does not 

establish the nexus between contribution and expenditure that the statute itself requires.

D. 52 U.S.C. § 30104(c)(1) Is an Ambiguous Statutory Provision and Therefore 

the Commission Properly Exercised Prosecutorial Discretion in Dismissing 

an Allegation That Crossroads GPS Violated It 

Claim Three of plaintiffs’ judicial Complaint asserts that the FEC acted contrary to law 

when it dismissed any allegation that Crossroads GPS violated 52 U.S.C. § 30104(c)(1) by not 

identifying all contributors of more than $200 in its independent expenditure reports. It is far 

from clear that Congress intended 52 U.S.C. § 30104(c)(1) to impose additional reporting 

requirements on groups that are not political committees but that engage in independent 

expenditures. However, even if the statute can be read in the manner that plaintiffs suggest, the 

Commission has wide discretion to exercise its prosecutorial authority to dismiss claims even in 

situations where there was an arguable violation of law. In this instance, where there is a 

significant question whether 52 U.S.C. § 30104(c)(1) even imposes the requirements that 

plaintiffs suggest and there is no record of FEC enforcement of that statutory provision in the 

manner sought by plaintiffs here, the controlling group acted well within its authority in deciding 

not to pursue an investigation against Crossroads GPS for the alleged violation. Furthermore, the 

“safe harbor” justification discussed above applies equally here – as long as Crossroads GPS was 

acting in good faith reliance on the regulation that has governed the disclosure at issue for 

decades, the FEC reasonably decided not to move forward against the group on a theory that 

another part of the statute requires more disclosure than the regulation. 

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1. Congress’s Intent When Passing 52 U.S.C. § 30104(c)(1) Is Unclear 

Plaintiffs argue that 52 U.S.C. § 30104(c)(1) requires the identification of all contributors 

over $200 and that that interpretation is “clear on the face of the statute” (Pls.’ Mem. at 41), but 

plaintiffs’ own administrative complaint did not make that claim, even though CREW is by any 

measure an experienced reader of FECA. (See, e.g., Compl. ¶ 8 (stating that CREW’s mission 

includes “seek[ing] to ensure that campaign finance laws are properly interpreted, enforced, and 

implemented”).) Rather, the sole legal theory in the administrative complaint was that 

Crossroads GPS was required to identify only those contributors that gave for the purpose of 

furthering independent expenditures, a theory that the complainants recited in 26 different 

paragraphs.6

 The Commission should not be found to have acted “contrary to law” for failing to 

pursue an allegation not even presented by CREW in the administrative complaint.7

In any case, the likely reason that the administrative complaint failed to argue that 

additional disclosure was required under 52 U.S.C. § 30104(c)(1) is that the meaning of that 

particular provision is unclear. The ambiguity of this provision is evident in the title of the entire 

 

6

 (See Amended Administrative Compl., AR 98-115 ¶ 31 (“None of the reports disclosed 

the names of any of the donors who made contributions for the purpose of broadcasting the 

advertisements shown to attendees at the fundraiser, or broadcasting other ads in those races.”); ¶ 

32 (“Crossroads GPS is aware of its obligations under the FECA and FEC regulations to disclose 

the names of its donors who made contributions for the purpose of broadcasting specific 

advertisements.”); ¶¶ 33, 36-40, 44-46, 50-54, 57, 59, 60-64, 66-67; Conclusion (FEC should 

“order Crossroads GPS to correct these violations by amending the relevant independent 

expenditure disclosure reports to identify and make public each person who made a contribution 

in excess of $200 made for the purpose of furthering the reported independent expenditures.”).) 

7

 Indeed, the failure of plaintiffs to press their current interpretation of 52 U.S.C. § 

30104(c)(1) in the administrative proceeding suggests that plaintiffs may not even have standing 

to bring the claim in this proceeding. 52 U.S.C. § 30109(a)(8) permits “[a]ny party aggrieved by 

an order of the Commission dismissing a complaint” to seek judicial review of that order in this 

district. But plaintiffs can hardly be considered “aggrieved” that the FEC dismissed an 

allegation that they did not even make. For that reason, the Court could grant summary 

judgment to the Commission on this claim on that ground alone and limit its substantive judicial 

review to alleged violations that were actually presented to the agency by plaintiffs. 

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25 

subsection, the cross-reference in the provision, and the provision’s uncertain relation to FECA’s 

reporting requirements as a whole. Plaintiffs’ appeal to the supposed plain language of the 

statute and to dicta from a non-controlling opinion of the Supreme Court are unavailing. 

There are three provisions in the subsection dealing with the reporting of independent 

expenditures by those other than political committees. The first part, the subject of disagreement 

here, begins with a description of who must file independent expenditure statements. 52 U.S.C. 

§ 30104(c)(1) (“Every person (other than a political committee) who makes independent 

expenditures in an aggregate amount or value in excess of $250 during a calendar year shall file 

a statement . . . .”). The second and third subsections are, respectively, about the contents of 

such statements and about indices that the FEC must prepare from those statements. See 52 

U.S.C. § 30104(c)(2) (“Statements required to be filed by this subsection . . . shall include . . .”); 

52 U.S.C. § 30104(c)(3) (“The Commission shall be responsible for expeditiously preparing 

indices . . .”). The structure of the subsection therefore matches the title of the subsection, which 

is “Statements by other than political committees; filing; contents; indices of expenditures.” 52 

U.S.C. § 30104(c). Under this reading, “Statements by other than political committees” refers to 

the subsection as a whole, while the three parts bracketed by semicolons refer to each individual 

provision. But section 30104(c)(1) also specifies that the filed statements should “contain[] the 

information required under subsection (b)(3)(A) of this section for all contributions received by 

such person.” 52 U.S.C. § 30104(c)(1). Interpreting this part of section 30104(c)(1) as a 

provision about the content of independent expenditures appears to conflict with the language in 

the title, but interpreting 30104(c)(1) as solely about “filing,” as the title suggests, arguably fails 

to give meaning to all of the words of the statute. 

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26 

In addition, the provision’s cross-reference stating that reports should “contain[] the 

information required under subsection (b)(3)(A)” is ambiguous. It is not clear that this crossreference creates an additional content requirement because subsection (b)(3)(A), which deals 

with the content of reports filed by political committees, includes language that is inapplicable to 

filers that are not political committees. The provision directs that statements should include 

contributions “to the reporting committee during the reporting period.” But independent 

expenditure statement filers under 52 U.S.C. § 30104(c) are often not “committees”; they may be 

individuals, corporations, or labor unions. Arguably, they are not “reporting” under the statute, 

because the law requires them to file independent expenditure or electioneering communication 

“statements,” not “reports.” Compare id. § 30104(a)(1) (“Each treasurer of a political committee 

shall file reports . . .”) with id. § 30104(c)(1) (“Every person (other than a political committee) 

who makes independent expenditures in an aggregate amount or value in excess of $250 during a 

calendar year shall file a statement . . .”). And unlike political committees that file reports at 

scheduled intervals for reporting periods, such filers have no “reporting period.” 

The structure of 52 U.S.C. § 30104(c) deepens the ambiguity. Section 30104(c)(1) states 

that filers that are not political committees and that spend over $250 in independent expenditures 

“shall file a statement containing the information required under subsection (b)(3)(A).” 52 

U.S.C. § 30104(c)(1) (emphasis added). But the following provision indicates that “[s]tatements 

required to be filed by this subsection . . . shall include” information that is dissimilar from what 

is required under subparagraph (b)(3)(A). 52 U.S.C. § 30104(c)(2). If Congress’s intent was 

that a single statement would be filed, it is unclear whether the content of that statement should 

be what is listed in 52 U.S.C. § 30104(b)(3)(A) or in 52 U.S.C. § 30104(c)(1). But if Congress 

intended that two different statements would be filed, it should not have said that filers “shall file 

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27 

a statement.” And if the directive to “file a statement” is read to only apply to a statement 

containing the information in section 30104(c)(1), then there is no provision in the statute 

directing the filing of the statement contemplated in section 30104(c)(2). 

Plaintiffs make several arguments that section 30104(c)(1) is a clear stand-alone 

disclosure requirement, but each of these arguments is flawed. As discussed above, the 

argument that such a reading is dictated by the plain language of the statute is untrue — reading 

the statute in that manner conflicts with the language and structure of other parts of the statute. 

Plaintiffs also rely on FEC v. Massachusetts Citizens for Life, Inc. (“MCFL”), 479 U.S. 238 

(1986), for the proposition that the Supreme Court has interpreted section 30104(c)(1) as 

requiring the identification of all contributors. Justice Brennan’s opinion in MCFL does contain 

a single sentence that appears to assume that the statute should be read in that manner, but that 

sentence was not essential to the holding of the case and in any event it was in a portion of the 

opinion only signed by four justices. MCFL, 479 U.S. at 262. Moreover, the very next year the 

Ninth Circuit interpreted section 30104(c)(1) in the opposite manner, and the Supreme Court 

denied certiorari. See FEC v. Furgatch, 807 F.2d 857, 859 n.2 (9th Cir. 1987) (stating that the 

contents of the statement contemplated by (c)(1) are specified in (c)(2)), cert. denied, 484 U.S. 

850 (1987). That reading is consistent with the ensuing 30 years of FECA enforcement.

Plaintiffs also claim that, although the language of (c)(1) and (c)(2) suggest statements 

need to be filed with different information, this “paired reporting is sensible” because it provides 

the public both with general information about all contributors and specific information about 

those contributions made to further independent expenditures. (Pls.’ Mem. at 40.) But plaintiffs 

make no attempt to explain why Congress would require this type of “paired reporting” for those 

that make independent expenditures other than political committees, but not for political 

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28 

committees, which are also capable of making independent expenditures. In fact, the statute 

states explicitly that political committees have a duty to report independent expenditures (see 52 

U.S.C. § 30104(g)(1)(A), (2)(A)), but that when they do so, the content of that statement need 

only “contain the information required by subsection (b)(6)(B)(iii),” a subsection that requires 

disbursement, not contributor information. 52 U.S.C. § 30104(g)(3)(B). 

In light of these issues, it is reasonable for the controlling group of FEC Commissioners 

to interpret 52 U.S.C. § 30104(c)(1) not to establish an anomalous, stand-alone reporting 

requirement for persons that are not political committees, over and above the clear event-driven 

reporting of 52 U.S.C. § 30104(c)(2). And to the extent the Commission’s regulation at 11 

C.F.R. § 109.10(e) was an implementation of both statutory provisions, that construction of 

arguably competing statutory commands — which may be debatable but has not been revised — 

is entitled to deference under step two of the Chevron framework. 467 U.S. at 842, 844. 

2. The Commission Properly Exercised Discretion in Dismissing the Allegation of a 

Violation of 52 U.S.C. § 30104(c)(1) 

The FEC is afforded great deference in judicial review of decisions not to proceed with 

enforcement cases as exercises of prosecutorial discretion. Heckler v. Cheney, 470 U.S. 821, 831 

(1985) (“[A]n agency’s decision not to prosecute or enforce . . . is a decision generally 

committed to an agency’s absolute discretion.”); see also La Botz v. FEC, 61 F. Supp. 3d 21, 33 

(D.D.C. 2014) (“The prosecutorial discretion afforded to the FEC is considerable.” (internal 

quotation marks omitted)). This is so because the “agency is in a unique — and authoritative — 

position to view its projects as a whole, estimate the prospects for each, and allocate its resources 

in the optimal way.” In re Barr Labs., Inc., 930 F.2d 72, 76 (D.C. Cir. 1991). Such “budget 

flexibility as Congress has allowed the agency is not for [the courts] to hijack.” Id. Courts have 

repeatedly applied these principles in affirming particular FEC decisions not to pursue 

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enforcement of FECA. See Nader v. FEC, 823 F. Supp. 2d at 65 (“[T]he Court believes that the 

FEC is in a better position to evaluate its own resources and the probability of investigatory 

difficulties than is [the plaintiff].”), vacated on other grounds, 725 F.3d 226 (D.C. Cir. 2013); 

Stark v. FEC, 683 F. Supp. 836, 840 (D.D.C. 1988) (“[I]t is . . . surely committed to the 

Commission’s discretion to determine where and when to commit its investigative resources.”) 

(citing Heckler, 470 U.S. at 831-32). Indeed, the FEC retains prosecutorial discretion to dismiss 

an administrative complaint even if it identifies a violation, because the “FEC is not required to 

pursue every potential violation of FECA.” La Botz, 61 F. Supp. 3d at 35; CREW. v. FEC, 475 

F.3d 337, 340 (D.C. Cir. 2007) (“The Supreme Court in Akins recognized that the Commission, 

like other Executive agencies, retains prosecutorial discretion.”). 

In this case, the FEC exercised its prosecutorial discretion and dismissed the 52 U.S.C. § 

30104(c)(1) allegation due to concerns that a “[r]espondent could raise equitable concerns about 

whether a filer has fair notice of the requisite level of disclosure required by law.” (AR176.) 

“A fundamental principle in our legal system is that laws which regulate persons or entities must 

give fair notice of conduct that is forbidden or required.” FCC v. Fox Television Stations, Inc., 

567 U.S. 239, 253 (2012) (setting aside orders against TV stations due to FCC’s lack of fair 

notice about its new interpretation of an indecency law). In an administrative proceeding, the 

Constitution’s due process clause requires that the agency provide the “precision and guidance 

[that] are necessary so that those enforcing the law do not act in an arbitrary or discriminatory 

way.” Friedman v. Sebelius, 686 F.3d 813, 831 (D.C. Cir. 2012) (quoting Fox, 567 U.S. at 254). 

The concern about a lack of fair notice here is clearly reasonable. The Commission had 

promulgated a regulation more than thirty years earlier that provided guidance to persons other 

than political committees about their reporting obligations. The agency never issued any 

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additional guidance suggesting that it intended to enforce 52 U.S.C. § 30104(c)(1) as a standalone reporting requirement going forward. It was clearly reasonable for the controlling group of 

FEC Commissioners to determine that the lack of enforcement of 52 U.S.C. § 30104(c)(1) as a 

separate reporting requirement, along with the absence of any other guidance since 1980 

suggesting that the FEC would interpret the statute in that manner, “fail[ed] to provide a person 

of ordinary intelligence fair notice of what is prohibited” if section 30104(c)(1) were used as a 

basis for enforcement as CREW seeks. Fox, 567 U.S. at 254 (quoting United States v. Williams, 

553 U.S. 285, 304 (2008)). Thus, it was reasonable to exercise prosecutorial discretion here. 

Plaintiffs attempt to distinguish these “fair notice” cases by asserting that Crossroads 

GPS had fair notice because the rule is “plainly stated in the statute” (Pls.’ Mem. at 43) and 

because Crossroads GPS stated in the administrative proceeding that it “is fully aware of its FEC 

reporting and disclosure obligations” (id. at 42 (quoting AR81). But as described supra pp. 23-

28, the idea that 52 U.S.C. § 30104(c)(1) requires disclosure of all contributors is far from 

“plainly stated.” And Crossroads GPS’s statements of familiarity with the reporting requirements 

are not evidence that it agreed with plaintiffs’ novel interpretation of FECA. 

Because there are competing demands on the FEC’s resources, it is not contrary to law 

for the agency to focus its law enforcement resources on other claims. Akins v. FEC, 736 F. 

Supp. 2d 9, 22 (D.D.C. 2010) (“Absent evidence that the Commission’s investigation was so 

inadequate as to constitute an abuse of discretion, it is not this Court’s place to direct the 

Commission how to expend its resources, and it is certainly not the plaintiffs’.”). And given the 

ambiguous state of the law here, pursuing such a claim against Crossroads GPS would very 

likely have led to lengthy and uncertain litigation over the proper reading of the statute. See 

CREW v. FEC, 236 F. Supp. 3d 378, 394 (D.D.C. 2017) (granting summary judgment to FEC for 

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31 

its exercise of prosecutorial discretion because “[t]he FEC had a rational basis for concluding 

that ‘novel legal issues’ existed in this case, and that resolving them in this forum would have 

been a ‘pyrrhic’ exercise fraught with litigation risk”). The Commission reasonably chose to 

focus its resources elsewhere. 

III. 11 C.F.R. § 109.10(E)(1)(VI) PROVIDED A REASONABLE BASIS FOR 

DISMISSAL AS A VALID REGULATION UNDER THE APA AND CHEVRON

The FEC regulation that plaintiffs have challenged is a reasonable rule that hews closely 

to the language of the statute, resolves ambiguities, and provides clear guidance to filers about 

what their reporting responsibilities are under FECA. The Commission adopted the regulation in 

1980 after a notice-and-comment period in which no commenters said anything about this issue. 

Under the highly deferential standard of review, this regulation satisfies the APA and the twostep analysis of Chevron. The statutory language at 52 U.S.C. § 30104(c) is ambiguous and 

cannot be resolved at Chevron step one, but consistent with Chevron step two, the Commission’s 

regulation reasonably attempts to resolve that ambiguity in a way that is consistent with 

Congressional intent and provides clear guidance to filers. The controlling group’s reliance on 

the regulation in its dismissal decision thus did not violate the APA. 

A. The Commission’s Dismissal Should Be Affirmed Under the APA Unless the 

Challenged Regulation Is Arbitrary, Capricious, or in Excess of Statutory 

Jurisdiction 

When reviewing a challenge to agency action under the APA, the “district court sits as an 

appellate tribunal” and the “entire case on review is a question of law.” Marshall Cty. Health 

Care Auth. v. Shalala, 988 F.2d 1221, 1225-26 (D.C. Cir. 1993). Under the APA, the Court may 

set aside 11 C.F.R. § 109.10(e)(1)(vi) only if it is “arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law,” or “in excess of statutory jurisdiction, authority, or 

limitations.” 5 U.S.C. §§ 706(2)(A) & (C). 

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The standard for judicial review in an APA challenge is “highly deferential,” Sierra Club, 

353 F.3d at 978 (D.C. Cir. 2004), and so the scope of review is narrow, see Motor Vehicle Mfrs. 

Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). In fact, the 

arbitrary and capricious standard “presumes the validity of agency action.” Volpe, 401 U.S. at 

415; see Cellco P’ship v. FCC, 357 F.3d 88, 93-94 (D.C. Cir. 2004). The Court is “not to 

substitute its judgment for that of the agency,” but instead is to satisfy itself that the agency has 

“examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including 

a rational connection between the facts found and the choice made.” State Farm, 463 U.S. at 43 

(citation and internal quotation marks omitted). Where the empowering provision of a statute 

authorizes the agency to “make . . . such rules [. . .] as are necessary to carry out the provisions 

of this Act,” as FECA does in 52 U.S.C. § 30107(a)(8), the “validity of a regulation promulgated 

thereunder will be sustained so long as it is ‘reasonably related to the purposes of the enabling 

legislation.’” Mourning v. Family Publ’ns Serv., Inc., 411 U.S. 356, 369 (1973) (citation 

omitted). And when, as here, an agency has made a determination that falls within its area of 

special expertise, deference is at its zenith. See Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, 

Inc., 462 U.S. 87, 103 (1983). 

Because plaintiffs here challenge a regulation that interprets a statute the FEC 

administers, the Court reviews the regulation not only under the APA but also under the two-step 

Chevron framework. The Court looks first to determine “whether Congress has directly spoken 

to the precise question at issue,” and if it has, “the [C]ourt, as well as the agency, must give 

effect to the unambiguously expressed intent of Congress.” 467 U.S. at 842-43. In this step-one 

analysis, “the term ‘precise question at issue’ [is] to be interpreted tightly.” See Cent. States 

Motor Freight Bureau v. ICC, 924 F.2d 1099, 1104 (D.C. Cir. 1991). Only if “an accepted 

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canon of construction illustrates that Congress had a specific intent on the issue in question” can 

the case “be disposed of under the first prong of Chevron.” Mich. Citizens for an Indep. Press v. 

Thornburgh, 868 F.2d 1285, 1292-93 (D.C. Cir. 1989) (emphasis in original). 

If Congress has not “directly spoken to the precise question at issue,” the Court proceeds 

to the second step of Chevron analysis. At that stage, the Court “may not substitute its own 

construction of a statutory provision for a reasonable interpretation made by the administrator of 

an agency.” Chevron, 467 U.S. at 842, 844.8 Instead, the Court is to “defer to the agency’s 

interpretation as long as it is ‘based on a permissible construction of the statute.’” Bluewater 

Network v. EPA, 372 F.3d 404, 410 (D.C. Cir. 2004) (quoting Chevron, 467 U.S. at 843. The 

“interpretation need not be the best or most natural one by grammatical or other standards . . . . 

[r]ather[, it] need be only reasonable to warrant deference.” Pauley v BethEnergy Mines, Inc., 

501 U.S. 680, 702 (1991) (citations omitted). “[U]nder Chevron, courts are bound to uphold an 

agency interpretation as long as it is reasonable — regardless whether there may be other 

reasonable, or even more reasonable, views.” FEC v. National Rifle Ass’n of Am., 254 F.3d 173, 

187 (D.C. Cir. 2001) (quoting Serono Labs, Inc. v. Shalala, 158 F.3d 1313, 1321 (D.C. Cir. 

1998)). A “permissible” construction means only “a construction that is ‘rational and consistent 

with the statute.’” Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) (quoting 

NLRB v. Food & Commercial Workers, 484 U.S. 112, 123 (1987)). If “the statute is ambiguous, 

then Chevron step two implicitly precludes courts picking and choosing among various canons 

 

8

 This step overlaps with the arbitrary and capricious standard of the APA, Chamber of 

Commerce of the U.S. v. FEC, 76 F.3d 1234, 1235 (D.C. Cir. 1996), because the question of 

whether an agency’s interpretation of a statute is unreasonable is “close analytically to the issue 

whether an agency’s actions under a statute are unreasonable,” Gen. Instrument Corp. v. FCC., 

213 F.3d 724, 732 (D.C. Cir. 2000). 

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of construction to reject reasonable agency interpretations.” Halverson v. Slater, 129 F.3d 180, 

184 (D.C. Cir. 1997) (citation and internal quotation marks omitted; emphasis in original). 

B. There Are Significant Ambiguities in the Statute Governing Independent 

Expenditure Reporting by Persons Other Than Political Committees 

52 U.S.C. § 30104(c)(2)(C) is ambiguous and the FEC was entitled to clarify it through 

11 C.F.R. § 109.10(e)(1)(vi). Under the first step of Chevron analysis, “the court examines 

whether the statute speaks ‘directly ... to the precise question at issue.’” Kanchanalak, 192 F.3d 

at 1047 (citation omitted). If so, the court must give effect to the clearly expressed intent of 

Congress. Chevron, 467 U.S. at 842. However, “[i]f the statute ‘has not directly addressed the 

precise question at issue,’ then the agency’s construction, if reasonable, should be honored.” 

Kanchanalak, 192 F.3d at 1047 (citation omitted). 

This statute does not directly address the question at issue here. The precise question is 

the circumstances in which a person other than a political committee must identify its 

contributors when it reports independent expenditures to the FEC. Because FECA is ambiguous 

on this question, as explained in the next two subsections, Congress did not clearly express its 

intent and the FEC had the authority to promulgate a regulation addressing that ambiguity. 

1. It Is Unclear What Congress Meant by “for the Purpose of Furthering 

an Independent Expenditure” 

Before examining the language of the statutory provision at issue for ambiguity, it is first 

helpful to look holistically at the overall structure of 52 U.S.C. § 30104. The first subsection, 52 

U.S.C. § 30104(a), describes how and when political committees make their regular disclosure 

reports to the FEC. Depending upon the type of political committee involved, the amount of 

money raised, and whether it is an election year, committees are required to file regular reports at 

specific times, either monthly or quarterly, with additional pre-election and post-election reports. 

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52 U.S.C. §§ 30104(a)(2), (3), (4). Section 30104(b) describes what must be disclosed in those 

reports. Among other things, political committees must disclose the identity of each contributor 

who contributes more than $200 and “who makes a contribution to the reporting committee 

during the reporting period.” 52 U.S.C. § 30104(b)(3)(A). 

 52 U.S.C. § 30104(c) describes the filing of reports by persons that are not registered as 

political committees, like Crossroads GPS, and that “make[] independent expenditures in an 

aggregate amount or value in excess of $250 during a calendar year.” Unlike the routine 

scheduled reporting required of political committees, the statutory provision governing such 

other groups does not contain any specific reporting schedule or periods. Rather, the reports 

filed by such other groups engaged in independent expenditures are triggered by particular 

events. For example, such a group that “makes or contracts to make independent expenditures 

aggregating $1,000” within a 20-day period before an election must file an “initial report” within 

24 hours after making or contracting to make those expenditures, and must file additional reports 

within 24 hours for each set of independent expenditures made during that time period that 

aggregate over $1,000. 52 U.S.C. §§ 30104(g)(1)(A), (B). A person that “makes or contracts to 

make independent expenditures aggregating $10,000 or more” at any time leading up to the 20-

day pre-election period must file an “initial report” within 48 hours of making or contracting to 

make those expenditures, and must file additional reports within 48 hours for each set of 

independent expenditures made before the 20-day pre-election period that aggregate over 

$10,000. 52 U.S.C. § 30104(g)(2)(A), (B). The FEC has established one reporting requirement 

for such groups that is not immediately triggered by an event: Under 11 C.F.R. § 109.10(b), a 

person other than a political committee that makes more than $250 in independent expenditures 

must file a quarterly report in any quarter in which it has made such expenditures. 

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 Thus, because political committees by their very nature are primarily concerned with 

influencing federal elections, Congress requires them to follow a routine pattern of disclosure, 

with specific reporting periods in which both contributions and expenditures are disclosed. By 

contrast, FECA requires entities that are not political committees to make disclosures only if and 

when they engage in particular spending levels of independent expenditures, and it does not set 

regular reporting periods for them. Rather, the deadlines for those reports are triggered by the 

specific act of making independent expenditures that reach those threshold amounts in the 

aggregate. Because of the $1,000 and $10,000 reporting thresholds, the aggregate reports can be 

filed at irregular intervals, and they can potentially include multiple independent expenditures 

over a period of time. The different reporting structures indicate that Congress wanted regular, 

comprehensive disclosure from political committees, but believed that event-driven disclosure 

was sufficient for the independent expenditures of groups that are not political committees. 

 Understanding these contrasting structures is critical to understanding the ambiguity in 

the statutory disclosure provision at the heart of this case. The relevant question is whether there 

is ambiguity in the indefinite article “an” within the requirement that entities other than political 

committees report “the identification of each person who made a contribution in excess of $200 

to the person filing such statement which was made for the purpose of furthering an independent 

expenditure.” 52 U.S.C. § 30104(c)(2)(C) (emphasis added.) Plaintiffs insist that “the use of the 

indefinite clearly covers the full category of independent expenditures the reporting party has 

created or may create.” (Pls.’ Mem. at 31-32.) But an indefinite article does not indicate that a 

full category is covered; rather, it only indicates “[s]ome undetermined or unspecified 

particular.” McFadden v. United States, 135 S. Ct. 2298, 2304 (2015) (quoting Webster’s New 

International Dictionary 1 (2d ed. 1954).) Because one or more independent expenditures may 

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be reported in a single statement, it is reasonable to interpret “an independent expenditure” as a 

reference to any one of the independent expenditures reported in a particular filing with the FEC.

 Interpreting “an” as simply referring to an unspecified independent expenditure from a 

particular report to the FEC is preferable in some ways to the interpretation plaintiffs favor. 

Plaintiffs propose that “an” should refer to “all contributions given for the purpose of furthering 

any independent expenditure, regardless of whether the contribution was given for the purpose of 

reporting the particular independent expenditure reported” (Pls.’ Mem. at 33), but that 

construction creates as many questions as it resolves. As noted above, independent expenditure 

statements are unlike political committee reports, for which the statute creates specific reporting 

periods and requires a political committee to report all of the expenditures they make and 

contributions they receive during that specific reporting period. 52 U.S.C. § 30104(a)(2)-(4). 

There are no such regular reporting periods for independent expenditure reports. So assuming a 

group that is not a political committee receives a contribution for the purpose of furthering an 

independent expenditure, it is unclear where and when that information should be reported under 

plaintiffs’ interpretation. The language of the statute suggests that all such reports “shall 

include” (52 U.S.C. § 30104(c)(2)) “the identification of each person who made a contribution in 

excess of $200 to the person filing such statement which was made for the purpose of furthering 

an independent expenditure” (id. § 30104(c)(2)(C) (emphasis added)). Taken literally, this 

would create the odd result that an organization like Crossroads GPS, which filed more than 100 

different independent expenditure reports in the two-year 2012 election cycle, would need to 

include on each report a recitation of all the contributors that had ever contributed to it for the 

purpose of furthering independent expenditures, possibly for its entire existence. It would be 

cumbersome and confusing to the public to provide such duplicative information. In addition, 

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plaintiffs’ interpretation could generate misleading information about particular contributions. 

For example, if a contributor gave a contribution with specific instructions to use it to further 

independent expenditures in a Ohio U.S. Senate race, but not in a Nevada Senate race, that 

contribution would nonetheless have to be reported on an independent expenditure form that 

reports spending in Nevada. 

Further problems with plaintiffs’ interpretation relating to timing are evident in light of 

their allegation that Crossroads GPS should have identified contributors who attended its 

fundraiser and watched “example” videos of independent expenditure ads. According to 

information from Crossroads GPS, 13 of the 14 advertisements that were shown at the fundraiser 

had already been broadcast and fully paid for before the fundraiser even took place. (AR78.) As 

a result, the independent expenditure statements for those 13 advertisements would have already 

been filed without the contributor information sought by plaintiffs. But if Crossroads GPS 

decided to run independent expenditures the next day that were for completely different races 

and took completely different positions from the ones taken in the ads shown at the fundraiser, 

the contributors at the fundraiser would be listed as having contributed in furtherance of those 

advertisements that they had never seen or had any awareness of. The only remaining 

advertisement shown at the fundraiser was apparently never broadcast at all. If a contributor had 

donated with the specific intention of paying for that advertisement that never ultimately aired, it 

is not clear which form or forms should identify that contributor. 

In short, while Congress intended the regular reports filed by a political committee to 

display all of that committee’s activities during a certain period, the event-driven independentexpenditure reports filed by other entities are intended to provide information only about the 

reported expenditure, not a wider range of activity. It is therefore reasonable, at a minimum, to 

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interpret the statutory term “an” to envision a match between the independent expenditure(s) 

reported in a statement and the contributors listed on that same statement. Because each 

independent expenditure statement is a stand-alone document that details one or more 

independent expenditures, the word “an” can be read to refer to any of the independent 

expenditures that are described in the actual report. Interpreting “an” in that manner eliminates 

the concern about cumbersome and confusing duplicative filings of contributor information over 

and over again on each statement. And it eliminates the concern that a contributor would be 

identified on a report of an independent expenditure that she did not make her contribution in 

furtherance of or even specifically instructed that her contribution not be used for. Because 

multiple independent expenditures can be described in a single report, reading the word “an” in 

this way preserves the match between the contributors listed on an independent expenditure 

statement and the independent expenditures that are the reason for filing that statement. 

 In Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016), the D.C. Circuit evaluated a 

comparable event-driven FEC disclosure regulation and concluded that even statutory language 

that might appear clear on its face nonetheless contained ambiguities that could reasonably be 

resolved by the Commission in promulgating a regulation. In Van Hollen, the plaintiff 

challenged a disclosure regulation promulgated by the FEC that dealt with the reporting of 

electioneering communications. “Electioneering communication[s]” are communications that do 

not qualify as independent expenditures under the statute but do “refer[ ] to a clearly identified 

candidate” and are “made within 60 days before a general [election]” or “30 days before a 

primary [election].” 52 U.S.C. §§ 30104(f)(3)(A)(i), (B)(ii). The statute at issue in that case, 

now codified at 52 U.S.C. § 30104(f), states that reports to the FEC about electioneering 

communications not made from a segregated fund must include “the names and addresses of all 

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contributors who contributed an aggregate amount of $1,000 or more to the person making the 

disbursement during the period beginning on the first day of the preceding calendar year and 

ending on the disclosure date.” 52 U.S.C. § 30104(f)(2)(F) (emphasis added). The Commission 

later promulgated a regulation to govern disclosure by a category of reporting entities 

(corporations and unions) that, like the reporting entities at issue here, were not political 

committees, and that Congress had not originally envisioned making such communications at all, 

but which gained the right to do so after a Supreme Court opinion. Van Hollen, 811 F.3d at 490–

91 (“The FEC was now left to decide how BCRA's disclosure requirements should apply to a 

class of speakers Congress never expected would have anything to disclose.”) 

Although the statutory language directed reporting of “all contributors who 

contributed,” the Commission regulation interpreted the contributor reporting requirement to 

apply, for that category of entities, only to contributions “made for the purpose of furthering 

electioneering communications.” 11 C.F.R. § 104.20(c)(9). That regulation was challenged as 

being in direct conflict with the language of the statute, but the D.C. Circuit held that the 

Commission had the authority to promulgate an interpretive rule because the panel “[did] not 

find that ‘Congress had an intention on the precise question at issue.” Ctr. for Individual 

Freedom v. Van Hollen, 694 F.3d 108, 111 (D.C. Cir. 2012) (quoting Chevron, 467 U.S. at 843 

n. 9). The same principle applies here, where there is no indication Congress had a clear intent 

about who should appear on an FEC report identifying those who “made a contribution in excess 

of $200 to the person filing such statement which was made for the purpose of furthering an

independent expenditure.” 52 U.S.C. § 30104(c)(2)(C) (emphasis added.) Plaintiffs try to 

distinguish Van Hollen in light of the different genesis of the regulation at issue (Pls.’ Mem. at 

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41 

32-33), but the key point is that context can render ambiguous even statutory text that may seem 

straightforward when viewed narrowly, and that is the case with section 30104(c)(2)(C). 

2. Congress’s General Desire for Disclosure on Other Subjects Does Not 

Mean It Intended to Mandate the Specific Disclosure Plaintiffs Favor 

FECA does not require the FEC to maximize disclosure in all contexts. Indeed, it is 

wrong to “assume[] that Congress’s primary goal was ipso facto its only goal,” because ‘“no 

legislation pursues its purposes at all costs.’” Student Loan Mktg. Ass’n v. Riley, 104 F.3d 397, 

408 (D.C. Cir. 1997) (quoting Rodriguez v. United States, 480 U.S. 522, 525-26 (1987) 

(emphasis added)). “Deciding what competing values will or will not be sacrificed to the 

achievement of a particular objective is the very essence of legislative choice — and it frustrates 

rather than effectuates legislative intent simplistically to assume that whatever furthers the 

statute’s primary objective must be the law.” Rodriguez, 480 U.S. at 526 (emphasis in original). 

Here, as in Riley, 104 F.3d at 408, there is “no evidence that [FECA] was the product of 

monomaniacs.” See also Office of Workers Comp. v. Newport News, 514 U.S. 122, 135 (1995) 

(Supreme Court has dismissed “the proposition that the statute at hand should be liberally 

construed to achieve its purposes” as the “last redoubt of losing causes.”) 

The Court in Van Hollen v. FEC rejected an argument that is virtually identical to the one 

plaintiffs now make about the statute’s independent expenditure reporting, holding that it was 

reasonable for the FEC to interpret the statute’s electioneering communications disclosure 

provision to refer only to those contributions made for the purpose of furthering electioneering 

communications, despite the absence of that specific language in the statute. 811 F.3d at 501-02. 

The Court of Appeals explained that although some might prefer the statute to be interpreted to 

require more disclosure, the Commission’s purpose-driven regulation — which was based in part 

on 52 U.S.C. § 30104(c)(2)(C), the same statutory provision at issue here — had reasonably 

Case 1:16-cv-00259-BAH Document 31 Filed 10/23/17 Page 52 of 62
42 

balanced FECA’s interests in disclosure with the needs of regulated entities. Id. at 499 (“And the 

FEC’s concerns about the competing interests in privacy and disclosure were legitimate.”). The 

Commission’s “tailoring was an able attempt to balance the competing values that lie at the heart 

of campaign finance law.” Id. at 501. 

Moreover, the very statutory provision on which plaintiffs here rely shows that Congress 

did not intend to pursue maximum disclosure at the expense of all other interests. The 

requirement at issue — that entities other than political committees identify those who gave a 

contribution “which was made for the purpose of furthering an independent expenditure,” 52 

U.S.C. § 30104(c)(2)(C) — contains undisputed limits on contributor disclosure, with its eventdriven and dollar-amount parameters, as discussed above. Had Congress been solely interested 

in providing the public with the greatest amount of information about the sources of funding 

used by such entities, it could have drafted the statute in a manner similar to the requirement that 

political committees identify all their contributors on a regular basis. It did not do so. 

C. The Commission’s Regulation Passes Chevron Step 2 Because It Reasonably 

Requires Disclosure Consistent with Congress’s Statutory Directive 

Under Chevron step two, “courts are bound to uphold an agency interpretation as long as 

it is reasonable — regardless of whether there may be other reasonable, or even more reasonable, 

views.” Nat’l Rifle Ass’n, 254 F.3d at 187. Agencies “must be given ample latitude to ‘adapt 

their rules and policies to the demands of changing circumstances.’” FDA v. Brown &

Williamson Tobacco Corp., 529 U.S. 120, 157 (2000) (quoting State Farm, 463 U.S. at 42). 11 

C.F.R. § 109.10(e)(1)(vi) is a reasonable interpretation of FECA’s reporting requirements for 

entities that are not political committees but that make independent expenditures. 

Case 1:16-cv-00259-BAH Document 31 Filed 10/23/17 Page 53 of 62
43 

1. The Commission’s Clarification That Contributions Be Disclosed If 

They Are for the Purpose of “the Reported” Independent 

Expenditure Is a Reasonable Statutory Interpretation 

The language of 11 C.F.R. § 109.10(e)(1)(vi) is virtually identical to the statutory 

language of 52 U.S.C. § 30104(c)(2)(C). The statute directs non-political committees to include 

on their independent expenditure reports “the identification of each person who made a 

contribution in excess of $200 to the person filing such statement which was made for the 

purpose of furthering an independent expenditure.” 52 U.S.C. § 30104(c)(2)(C) (emphasis 

added). The regulation requires “[t]he identification of each person who made a contribution in 

excess of $200 to the person filing such report, which contribution was made for the purpose of 

furthering the reported independent expenditure.” 11 C.F.R. § 109.10(e)(1)(vi) (emphasis 

added). Plaintiffs argue that the substitution of “the reported” for “an” causes conflict with the 

regulation, but the change simply clarifies ambiguity in the statute. See supra pp. 34-41. 

a. The Commission’s Decision to Substitute “the Reported” for 

“An” Was a Reasonable Interpretation That Provides Greater 

Guidance to Regulated Entities and Reduces the Chance of 

Misleading the Public About Political Spending 

In light of the ambiguity of the word “an” in the statute, see supra pp. 34-41, the 

Commission’s decision to substitute “the reported” in the regulation was a useful clarification, 

consistent with the intent of Congress, which sought to enhance the ability of the regulated 

community to comply with the law. Plaintiffs suggest that this modest alteration created a 

significant disconnect between the regulation and statute, but it is unclear whether it has even 

resulted in any significant difference in the amount of disclosure of contributors.

Had the FEC promulgated a rule with language identical to the statute, or not 

promulgated one at all, a group like Crossroads GPS making independent expenditures might not 

understand as clearly what contributors to include on its reports. It would not be unreasonable 

Case 1:16-cv-00259-BAH Document 31 Filed 10/23/17 Page 54 of 62
44 

for such a group to read 52 U.S.C. § 30104(c)(2)(C) as requiring the disclosure of contributors 

who gave for the purpose of furthering the independent expenditures listed on its FEC Form 5, 

nor would it be unreasonable for that filer to interpret the statute as requiring reporting of 

contributors who gave for the purpose of furthering any of the group’s independent expenditures. 

The Commission’s choice to resolve the ambiguity in favor of only reporting contributors that 

gave to further a particular independent expenditure retains the close connection that Congress 

appears to have intended between the independent expenditures reported and the contributors 

reported on that same FEC form. Under the statute, groups other than political committees do 

not file reports merely because they have received contributions, but only after they have used 

the contributions to pay for independent expenditures. And the statute does not provide for 

general reporting periods for such groups; rather, it provides that reports be filed within 24 or 48 

hours after an independent expenditure is made. 

Because a single organization can make independent expenditures in many different 

elections and with varying content, the Commission’s regulatory approach also results in the 

reporting of contributor data that is more likely to reflect accurate information. A contributor 

that gave for the purpose of furthering an expenditure for a Senate candidate in one state with a 

pro-business message might be dismayed to learn that his contribution was reported publicly on a 

form detailing an expenditure for another candidate with a message regarding a hot-button social 

issue. To the extent that the public used that information to learn which contributors were 

supporting particular candidates and messages, removing a specific link between contribution 

and expenditure would in some respects diminish the value of the information. 

Plaintiffs argue (Pls.’ Mem. at 28-30) that the Commission’s choice has meaningfully 

reduced the amount of disclosure in recent years, but that is not a proper subject of review here, 

Case 1:16-cv-00259-BAH Document 31 Filed 10/23/17 Page 55 of 62
45 

as explained infra pp. 47-49. But even if it were, plaintiffs have failed to produce evidence of it. 

A contributor that wishes to remain anonymous by making sure his contribution was not made 

for the purpose of a particular independent expenditure could just as easily make sure his 

contribution was not made for the purpose of any independent expenditure. For example, even 

though the report providing the Commission’s reasoning in this case analyzed Crossroads GPS’s 

compliance using the regulatory language rather than the statutory language, it is not clear that 

Crossroads GPS would have been legally required to file the contributor information sought by 

plaintiffs even if 52 U.S.C. § 30104(c)(2)(C) were read in the expansive manner urged by 

plaintiffs. For example, Karl Rove’s affidavit submitted in response to the administrative 

complaint stated that the contribution from the donor that pledged $3 million “was not in any 

way earmarked for any particular use” (AR95 ¶ 10) and prior discussions with that contributor 

included no mention of television advertisements or any other specific communication efforts 

(AR94-95 ¶¶ 6-10). To the extent that plaintiffs believe there is inadequate reporting, they 

would appear to be primarily taking issue with the link that 52 U.S.C. § 30104(c)(2)(C) requires 

between contributions and independent expenditures, not the implementing regulation. 

In this context, plaintiffs rely on misleading characterizations of certain statements by the 

FEC’s Office of General Counsel. The First General Counsel’s Report provided comprehensive 

legal advice to the Commission for its consideration, including discussion of different legal 

options and approaches. However, plaintiffs wrongly characterize that Report as having 

“acknowledged . . . that the disclosure requirements imposed by 11 C.F.R. § 109.10(e)(1)(vi) 

conflicted with statutory requirements imposed by FECA.” (Pls.’ Mem. at 24.) The Office of 

General Counsel did no such thing, but merely presented the Commission with possible legal 

approaches to the issue. The Office of General Counsel never even took a position about the best 

Case 1:16-cv-00259-BAH Document 31 Filed 10/23/17 Page 56 of 62
46 

manner to read the statute, noting only that the statute “may reasonably be construed” in a 

particular way. (AR173.) Similarly, the Office of General Counsel did not “recognize[]” that 

the statute and regulation were in conflict due to the presence of 52 U.S.C. § 30104(c)(1). (Pls.’ 

Mem. at 24.) Rather, it simply noted that it was possible to read them as being in conflict, 

without taking any position as to the correct interpretation of the statute. (AR175 (statute takes 

“an arguably more expansive approach” than the regulation (emphasis added)).) 

b. The Commission’s Regulation Does Not Make the Statute 

Redundant 

Plaintiffs argue that 11 C.F.R. § 109.10(e)(1)(vi) is unreasonable because it “makes 

subsection (c)(2)(C) redundant to other disclosure provisions of the FECA and FEC regulations” 

(Pls.’ Mem at 34-35; see generally id. at 34-38), but plaintiffs’ criticism is based on an apparent 

misreading of the regulation. Plaintiffs wrongly claim that “the FEC’s construction of 52 U.S.C. 

§ 30104(c)(2)(C) via 11 C.F.R. § 109.10(e)(1)(vi) would require such a close connection 

between the contributor and the independent expenditure that the contributor would in fact be the 

maker of the independent expenditure itself” (Pls.’ Mem. at 35), suggesting that a contributor 

must actually control an independent expenditure in order for identification to be required (id. at 

34-38). But a contribution can be made “for the purpose of furthering the reported independent 

expenditure” in a variety of ways that would not turn the contributor into the maker of an 

independent expenditure. A contributor might do so simply by responding to a solicitation or by 

earmarking a contribution. If, for example, a group solicits contributions for the purpose of 

making a particular independent expenditure, the contributor of any contribution over $200 made 

in response to that solicitation would need to be reported. Even without a solicitation, a 

contributor could indicate that she wanted her contribution to be used to pay for a particular 

Case 1:16-cv-00259-BAH Document 31 Filed 10/23/17 Page 57 of 62
47 

advertisement, and that contribution would need to be reported. In both of these scenarios, the 

maker of the independent expenditure retains control of the funds and the ad itself. 

2. The Court Should Not Consider Evidence That Post-Dates the 

Commission’s 1980 Rulemaking 

a. Review of the Regulation Is Limited to the Administrative 

Record That Existed When the FEC Issued the Regulation 

Plaintiffs rely on evidence about independent expenditure disclosure that post-dates the 

Commission’s 1980 rulemaking (see, e.g., Pls.’ Mem. at 13-17, 33-34 & 34 n.15), but the “focal 

point of judicial review” of a federal agency’s decision in a rulemaking challenged under the 

APA “should be the administrative record already in existence, not some new record made 

initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 141-142 (1973) (per curiam). See 

also, e.g., Volpe, 401 U.S. at 420 (“review is to be based on the full administrative record that 

was before the [agency] at the time [it] made [its] decision” (footnote omitted)). “To review 

more than the information before the [decision-maker] at the time she made her decision risks 

our requiring administrators to be prescient . . . .” Walter O. Boswell Mem'l Hosp. v. Heckler, 

749 F.2d 788, 793 (D.C. Cir. 1984); see also Vermont Yankee Nuclear Power Corp. v. Nat’l Res. 

Defense Council, Inc., 435 U.S. 519, 554-55 (1978) (internal quotation marks and citation 

omitted). “‘Were courts cavalierly to supplement the record, they would be tempted to secondguess agency decisions in the belief that they were better informed than the administrators 

empowered by Congress and appointed by the President.’” Amfac Resorts, L.L.C. v. Dep’t. of 

Interior, 143 F. Supp. 2d 7, 11 (D.D.C. 2001) (quoting Deukmejian v. NRC, 751 F.2d 1287, 

1325-26 (D.C. Cir. 1984), aff’d in relevant parts sub nom. San Luis Obispo Mothers for Peace v. 

NRC, 789 F.2d 26 (D.C. Cir. 1986) (en banc)). 

Case 1:16-cv-00259-BAH Document 31 Filed 10/23/17 Page 58 of 62
48 

Plaintiffs argue in a footnote that it is proper for the Court to consider material outside the 

record in certain circumstances (Pls.’ Mem. at 34 n.15), but none of the cases cited suggests that 

the Court can consider evidence about unforeseeable events that took place long after the 

Commission acted. This use of later evidence is precisely what is prohibited in a challenge of 

this type. See IMS, P.C. v. Alvarez, 129 F.3d 618, 624 (D.C. Cir. 1997); Boswell, 749 F.2d at 

793. A “judicial venture outside the record . . . can never, under Camp v. Pitts, examine the 

propriety of the decision itself.” Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 286 (D.C. Cir. 

1981) (footnote omitted).9 If plaintiffs believe that later events call for revisiting the challenged 

regulation, the proper recourse is to submit a rulemaking petition to the FEC. See Reytblatt v. 

U.S. Nuclear Regulatory Comm’n, 105 F.3d 715, 723 (D.C. Cir. 1997). 

b. Plaintiffs’ Complaints Here Are Largely the Result of Changes 

in the Legal Landscape That Were Unforeseeable in 1980 

As plaintiffs themselves note with regard to the non-record evidence they present here, 

“the impact of the new FEC regulation was very small, at least initially” and “[b]efore 2008, 

when only small non-profit corporations could engage in politicking, outside spending without 

disclosure of the source of the funds used was relatively nonexistent.” (Pls.’ Mem. at 14, 15.) 

When the FEC issued its rule, corporations and unions were barred from making independent 

expenditures or electioneering communications that contained express advocacy or its functional 

equivalent. See FEC v. Wisconsin Right To Life, Inc., 551 U.S. 449, 469-70 (2007). Only after 

Citizens United v. FEC held that corporations had a constitutional right to finance such 

communications with their general treasury funds did the FEC’s regulation apply to the vast 

 

9

 See also Nat’l Treasury Employees Union v. Hove, 840 F. Supp. 165, 169 (D.D.C. 

1994) (“consideration of outside evidence to determine the correctness or wisdom of the 

agency’s decisions is not permitted”); Nat’l Park and Conservation Ass’n v. Stanton, 54 F. Supp. 

2d 7, 11 n.2 (D.D.C. 1999) (refusing to consider extra-record and post-decisional evidence); 

Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 n.2 (D.D.C. 1995) (same). 

Case 1:16-cv-00259-BAH Document 31 Filed 10/23/17 Page 59 of 62
49 

number of independent expenditures by groups other than political committees that it does today. 

558 U.S. 310, 365 (2010). Such changes were unforeseeable when the FEC promulgated its 

regulation and the agency is not required to be “prescient.” Boswell, 749 F.2d at 792. The 

regulation reasonably interpreted the statute, as the law and binding precedent existed in 1980. 

IV. THE PROPER REMEDY FOR ANY FINDING THAT THE FEC ERRED BY 

DISMISSING THE ADMINISTRATIVE COMPLAINT OR THAT THE 

REGULATION IS UNLAWFUL WOULD BE REMAND TO THE COMMISSION 

If the Court determined that the FEC acted unlawfully in dismissing plaintiffs’ 

administrative complaint, the proper remedy would be to “direct the Commission to conform 

with such declaration within 30 days.” 52 U.S.C. § 30109(a)(8)(C). Plaintiffs suggest that if the 

Court finds the FEC acted unlawfully, it could authorize CREW to file a “citizen suit” against 

Crossroads GPS. (Pls.’ Mem. at 43-44.) But FECA only authorizes that remedy if the 

Commission first fails to obey a court’s order on remand. 52 U.S.C. § 30109(a)(8)(C). Plaintiffs 

also seek to have 11 C.F.R. § 109.10(e)(1)(vi) vacated, but they have not brought a freestanding 

challenge to it. They have only brought a claim (“Claim Two”) in connection with that 

regulation alleging that “The FEC’s Failure to Find Reason to Believe that Crossroads GPS 

Violated 52 U.S.C. § 30104(c)(2) was Arbitrary, Capricious, an Abuse of Discretion, and 

Contrary to Law.” (Compl., text above ¶ 117.) And they have only been deemed to have 

brought a challenge to the regulation that is not time-barred because they raised the claim in that 

context of being “affected” by the FEC’s dismissal. CREW, 243 F. Supp. 3d at 101. Indeed, the 

Court has already held that “[i]n the event that the plaintiffs ultimately prevail on their APA 

challenge to the regulation, . . . the Court would remand this action to the FEC for 

reconsideration of the plaintiffs’ administrative complaint in light of the Court’s opinion.” Id. at 

105. Plaintiffs make no effort to explain why that holding is no longer applicable. 

Case 1:16-cv-00259-BAH Document 31 Filed 10/23/17 Page 60 of 62
50 

In addition, even if this case had not arisen in the context of an enforcement dismissal, if 

the Court determined that 11 C.F.R. § 109.10(e)(1)(vi) was unlawful, the appropriate remedy 

would be a remand, not the unusual remedy of vacating the regulation, as plaintiffs urge. (Pls.’ 

Mem. at 45.) “The decision whether to vacate depends on [1] ‘the seriousness of the order’s 

deficiencies (and thus the extent of doubt whether the agency chose correctly) and [2] the 

disruptive consequences of an interim change that may itself be changed.’” Allied-Signal, Inc. v. 

U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150-51 (D.C. Cir. 1993) (quoting Int’l Union, 

United Mine Workers v. Fed. Mine Safety and Health Admin., 920 F.2d 960, 967 (D.C. Cir. 

1990)). The 2018 elections are approaching and, if there were no regulation for any significant 

time, entities engaged in independent expenditures might have inadequate guidance. It would 

therefore be advisable to remand to the FEC to give it the opportunity to reconsider the 

regulation and either compile an administrative record to support it or to amend it.10

CONCLUSION 

Because the Commission acted lawfully in dismissing plaintiffs’ administrative 

complaint, and because 11 C.F.R. § 109.10(e)(1)(vi) is not contrary to law, the Court should 

grant summary judgment to the Commission and deny plaintiffs’ motion for relief. 

 

10 Remand would also be the appropriate remedy if the Court accepted plaintiffs’ 

arguments that the FEC had inadequately explained its regulation. Fla. Power & Light Co. v. 

Lorion, 470 U.S. 729, 744 (1985); see also, e.g., Camp, 411 U.S. at 142-143 (proper remedy is 

remand, not de novo hearing, to obtain from agency additional explanation of its reasons when 

there is “such failure to explain administrative action as to frustrate effective judicial review”). 

Doing so would permit the Commission to more fully explain the existing regulation. See 

Heartland Reg’l Med. Ctr. v. Sebelius, 566 F.3d 193, 198 (D.C. Cir. 2009) (“When an agency 

may be able readily to cure a defect in its explanation of a decision, the [required analysis of the 

seriousness of the deficiencies of the agency’s action] counsels remand without vacatur.”); 

accord WorldCom, Inc. v. FCC, 288 F.3d 429, 434 (D.C. Cir. 2002) (remand without vacatur 

appropriate where “non-trivial likelihood” that agency would be able to justify rule on remand). 

Case 1:16-cv-00259-BAH Document 31 Filed 10/23/17 Page 61 of 62
51 

Respectfully submitted, 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

/s/ Seth Nesin 

Seth Nesin 

Attorney 

snesin@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

(202) 694-1650 

October 23, 2017 

Case 1:16-cv-00259-BAH Document 31 Filed 10/23/17 Page 62 of 62
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, et al., ) 

 ) Civ. No. 16-259 (BAH) 

 Plaintiffs, ) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant, ) 

 ) 

CROSSROADS GRASSROOTS POLICY ) 

STRATEGIES, ) [PROPOSED] ORDER 

 ) 

 Intervenor-Defendant. ) 

 ) 

[PROPOSED] ORDER 

 Upon consideration of the motions for summary judgment filed by plaintiffs Citizen for 

Responsibility and Ethics in Washington and Nicholas Mezlak and defendant Federal Election 

Commission, including all memoranda, oppositions and replies, it is hereby 

 ORDERED that the Federal Election Commission’s Motion for Summary Judgment is 

GRANTED, and it is further 

ORDERED that Citizen for Responsibility and Ethics in Washington and Nicholas 

Mezlak’s Motion for Summary Judgment is DENIED. 

Dated: _________________ ____________________________ 

 Honorable Beryl A. Howell 

United States District Court Chief Judge 

Case 1:16-cv-00259-BAH Document 31-1 Filed 10/23/17 Page 1 of 1
Attachment F

Crossroads GPS’s Reply Memorandum in Support of its Cross-Motion for Summary 

Judgment, 

CREW v. FEC (Civil Action No. 1:16-cv-00259-BAH) (Jan. 22, 2018)
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CITIZENS FOR RESPONSIBILITY AND 

ETHICS IN WASHINGTON, et al., 

 Plaintiffs, 

 v. 

FEDERAL ELECTION COMMISSION, 

 Defendant, 

CROSSROADS GRASSROOTS POLICY 

STRATEGIES, 

 

Intervenor-Defendant. 

Civil Action No. 1:16-cv-00259-BAH 

CROSSROADS GRASSROOTS POLICY STRATEGIES’ REPLY MEMORANDUM 

IN SUPPORT OF ITS CROSS-MOTION FOR SUMMARY JUDGMENT 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 1 of 59
i 

TABLE OF CONTENTS 

TABLE OF AUTHORITIES ......................................................................................................... iii 

LIST OF ABBREVIATIONS ....................................................................................................... xii 

INTRODUCTION ...........................................................................................................................1 

ARGUMENT ...................................................................................................................................4 

I. THE COURT SHOULD DISMISS CREW’S COMPLAINT BECAUSE CGPS 

COMPLIED WITH THE FEC’S REGULATION. .............................................................4 

A. CGPS Complied With the FEC’s Regulation, and the FEC Properly Declined to 

Open an Investigation ....................................................................................................4 

B. CGPS Was Entitled to Rely on the Regulation and Did So in Good Faith, Thereby 

Defeating CREW’s Claims Two and Three ...................................................................6 

1. CGPS Had a Statutory Right to Rely on the Regulation ..........................................6 

2. The Regulation Protects CGPS Against “Equitable” Remedies .............................9 

3. CGPS Had a Constitutional Right to Rely on the Regulation ...............................11 

II. THE COURT SHOULD DISMISS CREW’S CLAIMS TWO AND THREE BECAUSE 

CREW FAILED TO EXHAUST ADMINISTRATIVE REMEDIES ..............................14 

A. CREW’s Administrative Complaint Failed to Challenge the Regulation’s Validity or 

Claim any Violation of the FECA’s IE Coverage Provision .......................................14 

B. CREW Failed to Exhaust Administrative Remedies by Not Presenting These Claims 

in Its Administrative Complaint, as the FECA Required It to Do ...............................15 

C. The Fact That CREW Is Now Challenging a Regulation’s Validity Does Not Excuse 

Its Failure to Exhaust Administrative Remedies .........................................................18 

D. CREW Failed to Follow the Appropriate Procedure for Challenging the Validity of 

the FEC’s IE Reporting Regulation ............................................................................19 

III. THE COURT SHOULD DISMISS CREW’S CLAIM TWO BECAUSE CREW’S 

CHALLENGE TO THE REGULATION IS TIME-BARRED .........................................21 

IV. THE COURT SHOULD DISMISS CREW’S CLAIMS TWO AND THREE 

BECAUSE THE FEC’S EXPLANATION FOR THE REGULATION 

IMPLEMENTING THE STATUTE WAS SUFFICIENT ................................................23 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 2 of 59
ii 

V. THE COURT SHOULD DISMISS CREW’S CLAIMS TWO AND THREE 

BECAUSE THE REGULATION PROPERLY IMPLEMENTS THE STATUTE ..........24 

A. The FEC’s IE Reporting Regulation Properly Construes the Content Provision ........24 

1. The Statute Supports the FEC’s Interpretation Under Chevron Step One ............24 

2. The Regulation Is Proper Under Chevron Step Two .............................................27

i. Extrinsic post hoc campaign finance data cannot provide evidence of 

congressional intent or be considered in an APA challenge to the 

regulation’s validity .........................................................................................27 

ii. CREW’s extrinsic post hoc evidence fails to show the regulation has 

resulted in “no disclosure” of contributors on IE reports ................................29 

iii. The regulation is not redundant .......................................................................30 

B. The FEC’s IE Reporting Regulation Properly Construes the Coverage Provision, 

and CREW’s Alternative Reading Would Result in Misleading Reporting ................32 

C. Congress Has Ratified the FEC’s IE Reporting Regulation ........................................37 

VI. THE FEC’S DISMISSAL IS ENTITLED TO DEFERENCE ..........................................40 

VII. TO THE EXTENT THE COURT DOES NOT GRANT SUMMARY JUDGMENT 

TO THE FEC AND CGPS, THE APPROPRIATE REMEDY IS TO LEAVE THE 

REGULATION IN PLACE AND REMAND TO THE FEC FOR FURTHER 

PROCEEDINGS ................................................................................................................43

CONCLUSION ..............................................................................................................................45 

   

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 3 of 59
iii 

TABLE OF AUTHORITIES 

 Page(s) 

Cases 

A.L. Pharma, Inc. v. Shalala, 

62 F.3d 1484 (D.C. Cir. 1995) .................................................................................................44 

Abbott GmbH & Co. KG v. Yeda Research and Dev. Co., Ltd., 

516 F. Supp. 2d 1 (D.D.C. 2007) .............................................................................................26 

Abhe & Svoboda, Inc. v. Chao, 

508 F.3d 1052 (D.C. Cir. 2007) ...................................................................................12, 13, 14 

Abourezk v. Reagan, 

785 F.2d 1043 (D.C. Cir. 1986), aff’d, 484 U.S. 1 (1987) .......................................................38 

Akins v. FEC, 

101 F.3d 731 (D.C. Cir. 1996) ...........................................................................................40, 41 

Allied–Signal, Inc. v. NRC, 

988 F.2d 146 (D.C.Cir.1993) ...................................................................................................43 

Am. Iron & Steel Inst. v. EPA, 

526 F.2d 1027 (3d Cir. 1975), amended, 560 F.2d 589 (3d Cir. 1977) ...................................23 

Am. Wild Horse Pres. Campaign v. Salazar, 

859 F. Supp. 2d 33 (D.D.C. 2012) ...........................................................................................28

Armstrong v. Dist. of Columbia Pub. Library, 

154 F. Supp. 2d 67 (D.D.C. 2001) ...........................................................................................11

Assoc. of Flight Attendants-CWA v. Chao, 

493 F.3d 155 (D.C. Cir. 2007) ...........................................................................................20, 28 

AT&T v. FCC, 

978 F.2d 727 (D.C. Cir. 1992) .................................................................................................18 

Avocados Plus Inc. v. Veneman, 

370 F.3d 1243 (D.C. Cir. 2004) .........................................................................................17, 18

Banner Health v. Price, 

867 F.3d 1323 (D.C. Cir. 2017) ...............................................................................................43 

Bismullah v. Gates, 

551 F.3d 1068 (D.C. Cir. 2009) ...............................................................................................38 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 4 of 59
iv 

Buckley v. Valeo, 

424 U.S. 1 (1976) ............................................................................................................. passim

Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 

566 U.S. 399 (2012) .................................................................................................................25 

Citizens United v. FEC, 

558 U.S. 310 (2010) .................................................................................................................33 

Coburn v. McHugh, 

679 F.3d 924 (D.C. Cir. 2012) .................................................................................................15 

Combat Veterans for Cong. Political Action Comm. v. FEC, 

983 F. Supp. 2d 1 (D.D.C. 2013), aff’d, 795 F.3d 151 (D.C. Cir. 2015) .................................42 

CREW v. FEC, 

209 F. Supp. 3d 77 (D.D.C. 2016) ...........................................................................................41

Darby v. Cisneros, 

509 U.S. 137 (1993) .................................................................................................................18 

DSCC v. FEC, 

745 F. Supp. 742 (D.D.C. 1990) ......................................................................................4, 5, 40 

Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 

485 U.S. 568 (1988) .................................................................................................................34 

Encino Motorcars, LLC v. Navarro, 

136 S. Ct. 2117 (2016) .............................................................................................................21 

FEC v. Craig for U.S. Senate, 

70 F. Supp. 3d 82 (D.D.C. 2014), aff’d 816 F.3d 829 (D.C. Cir. 2016) ....................................8 

FEC v. DSCC, 

454 U.S. 27 (1981) ...............................................................................................................8, 37 

FEC v. Furgatch, 

807 F.2d 857 (9th Cir. 1987) ...................................................................................................12 

FEC v. Mass. Citizens for Life, 

479 U.S. 238 (1986) .................................................................................................................11 

FEC v. NRSC, 

966 F.2d 1471 (D.C. Cir. 1992) ...............................................................................................40 

FEC v. O’Donnell, 

209 F. Supp. 3d 727 (D. Del. 2016) .......................................................................................8, 9

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 5 of 59
v 

FEC v. Survival Educ. Fund, 

65 F.3d 285 (2nd Cir. 1995)...............................................................................................34, 36 

FEC v. Wis. Right to Life, Inc., 

551 U.S. 449 (2007) (Roberts, C.J.) ..........................................................................................6 

In re FECA Litigation, 

474 F. Supp. 1044 (D.D.C. 1979) ..............................................................................................5 

Foo v. Tillerson, 

244 F. Supp. 3d 17 (D.D.C. 2017) ...........................................................................................26

Ford Motor Credit Co. v. Milhollin, 

444 U.S. 555 (1980) .................................................................................................................10 

General Electric Co. v. EPA, 

53 F.3d 1324 (D.C. Cir. 1995) .................................................................................................11 

George E. Warren Corp. v. EPA, 

159 F.3d 616 (D.C. Cir. 1998) .................................................................................................22 

Good Samaritan Hosp. v. Shalala, 

508 U.S. 402 (1993) .................................................................................................................40 

Haig v. Agee, 

453 U.S. 280 (1981) .................................................................................................................38 

Heartland Reg’l Med. Ctr. v. Sebelius, 

566 F.3d 193 (D.C. Cir. 2009) .................................................................................................44 

Heckler v. Chaney, 

470 U.S. 821 (1985) .................................................................................................................42 

Honig v. Doe, 

484 U.S. 305 (1988) .................................................................................................................16 

Horvath v. Dodaro, 

160 F.Supp.3d 32 (D.D.C. 2015) .............................................................................................22

Int’l Union, United Mine Workers of Am. v. Fed. Mine Safety & Health Admin., 

920 F.2d 960 (D.C. Cir. 1990) .................................................................................................43 

John Glenn Presidential Comm., Inc. v. FEC, 

822 F.2d 1097 (D.C. Cir. 1987) ...............................................................................................10 

Jost v. Surface Transp. Bd., 

194 F.3d 79 (D.C. Cir. 1999) ...................................................................................................23 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 6 of 59
vi 

Keeffe v. Library of Congress, 

777 F.2d 1573 (D.C. Cir. 1985) ...............................................................................................11 

Kimble v. Marvel Entm’t, LLC, 

135 S. Ct. 2401 (2015) .............................................................................................................39 

La Botz v. FEC, 

61 F. Supp. 3d 21 (D.D.C. 2014) .............................................................................................42 

La. Fed. Land Bank Ass’n, FLCA v. Farm Credit Admin., 

336 F.3d 1075 (D.C. Cir. 2003) .........................................................................................43, 44

LaRouche v. FEC, 

28 F.3d 137 (D.C. Cir. 1994) ...................................................................................................10 

Level the Playing Field v. FEC, 

232 F. Supp. 3d 130 (D.D.C. 2017) .........................................................................................20 

Lujan v. Defenders of Wildlife, et al., 

504 U.S. 555 (2006) .................................................................................................................21 

Martin Tractor Co. v. FEC, 

627 F.2d 375 (D.C. Cir. 1980) ...................................................................................................9 

Maxcell Telecom Plus, Inc. v. FCC, 

815 F.2d 1551 (D.C. Cir. 1987) ...............................................................................................11 

McConnell v. FEC, 

540 U.S. 93 (2003) ...............................................................................................................6, 33 

McFadden v. U.S., 

135 S. Ct. 2298 (2015) .............................................................................................................25 

Miller v. Youakim, 

440 U.S. 125 (1979) .................................................................................................................40 

Mobil Expl. & Producing U.S., Inc. v. Babbitt, 

913 F. Supp. 5 (D.D.C. 1995) ..................................................................................................22 

Montgomery Cnty, Md., v. FCC, 

863 F.3d 485 (6th Cir. 2017) ...................................................................................................22 

Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto Ins. Co., 

463 U.S. 29 (1983) ...................................................................................................................23 

Multicultural Media, Telecom and Internet Council v. FCC, 

873 F.3d 932 (D.C. Cir. 2017) .................................................................................................23 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 7 of 59
vii 

Murphy Exploration and Production Company v. U.S. Department of Interior, 

270 F.3d 957 (D.C. Cir. 2001) .................................................................................................19 

Mylan Pharm., Inc. v. Shalala, 

81 F. Supp. 2d 30 (D.D.C. 2000) .......................................................................................24, 25 

N.H. Motor Transp. Ass’n v. Rowe, 

448 F.3d 66 (1st Cir. 2006) ................................................................................................25, 26 

Nat’l Ass’n for Home Care v. Shalala, 

135 F. Supp. 2d 161 (D.D.C. 2001) .........................................................................................24 

Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs., 

545 U.S. 967 (2005) ...........................................................................................................11, 12 

Nat. Res. Def. Council v. Nuclear Regulatory Comm’n, 

666 F.2d 595 (D.C. Cir. 1981) .................................................................................................23 

National Association of Manufacturers v. Taylor, 

549 F. Supp. 2d 33 (D.D.C. 2008) .....................................................................................13, 14 

Ne. Md. Waste Disposal Authority v. EPA, 

358 F.3d 936 (D.C. Cir. 2004) .................................................................................................21 

NLRB Union v. FLRA, 

834 F.2d 191 (D.C. Cir. 1987) ...........................................................................................21, 22 

Perez-Guzman v. Lynch, 

835 F.3d 1066 (9th Cir. 2016) ...........................................................................................21, 22 

Perot v. FEC, 

97 F.3d 553 (D.C. Cir. 1996) .................................................................................16, 17, 19, 42 

Pillsbury v. United Eng’g Co., 

342 U.S. 197 (1952) .................................................................................................................26 

Pub. Citizen v. Dep’t of Justice, 

491 U.S. 440 (1989) .................................................................................................................32 

Pub. Citizen v. FAA, 

988 F.2d 186 (D.C. Cir. 1993) .................................................................................................38 

Pub. Citizen v. Nuclear Regulatory Comm’n, 

901 F.2d 147 (D.C. Cir. 1990) .................................................................................................22 

Pub. Employees for Envtl. Responsibility v. U.S. Fish & Wildlife Serv., 

189 F. Supp. 3d 1, 3 (D.D.C. 2016), appeal dismissed, No. 16-5224, 2016 WL 

6915561 (D.C. Cir. Oct. 31, 2016) ..........................................................................................44

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 8 of 59
viii 

Pub. Serv. Co. of Ind., Inc. v. ICC, 

749 F.2d 753 (D.C. Cir. 1984) .................................................................................................40 

Radio Athens, Inc. v. FCC, 

401 F.2d 398 (D.C. Cir. 1968) .................................................................................................11 

Rapanos v. U.S., 

547 U.S. 715 (2006) .................................................................................................................38 

Rosenberg v. U.S. Dept. of Immigration and Customs Enforcement, 

956 F. Supp. 2d 32 (D.D.C. 2013) ...........................................................................................16

Satellite Broad. Co., Inc. v. FCC, 

824 F.2d 1 (D.C. Cir. 1987) .....................................................................................................11 

Shays v. FEC, 

414 F.3d 76 (D.C. Cir. 2005) .....................................................................................................9 

Sims v. Apfel, 

530 U.S. 103 (2000) .................................................................................................................17 

Spannaus v. U.S. Dep’t of Justice, 

643 F. Supp. 698 (D.D.C. 1986) ..............................................................................................22 

Spannaus v. U.S. Dep’t of Justice, 

824 F.2d 52 (D.C. Cir. 1987) ...................................................................................................22 

SpeechNow.org v. FEC, 

599 F.3d 686 (D.C. Cir. 2010) (en banc) .................................................................................12 

Sugar Cane Growers Co-op. of Florida v. Veneman, 

289 F.3d 89 (D.C. Cir. 2002) ...................................................................................................43 

Swift & Courtney & Beecher Co. v. U.S., 

105 U.S. 691 (1881) ...................................................................................................................9 

Teich v. FDA, 

751 F. Supp. 243 (D.D.C. 1990) ..............................................................................................13 

U.S. Sugar Corp. v. EPA, 

844 F.3d 268 (D.C. Cir. 2016) .................................................................................................43 

U.S. v. Cleveland Indians Baseball Co., 

532 U.S. 200 (2001) .................................................................................................................40 

U.S. v. Mead Corp., 

533 U.S. 218 (2001) .................................................................................................................41 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 9 of 59
ix 

U.S. v. Mosquera-Murillo, 

172 F. Supp. 3d 24 (D.D.C. 2016) ...........................................................................................32

United Transp. Union v. Lewis, 

711 F.2d 233 (D.C. Cir. 1983) .................................................................................................40 

Utility Workers Union of America, Local 369, AFL-CIO v. FEC, 

691 F. Supp. 2d 101 (D.D.C. 2010) .........................................................................................22 

Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 

425 U.S. 748 (1976) .................................................................................................................35 

Van Hollen, Jr. v. Fed. Election Comm’n, 

811 F.3d 486 (D.D.C. 2016) ..............................................................................................28, 35

Wilhelmus v. Geren, 

796 F. Supp. 2d 157 (D.D.C. 2011) ...................................................................................23, 24 

Woodford v. Ngo, 

548 U.S. 81 (2006) .............................................................................................................15, 16 

Statutes 

2 U.S.C. § 434(c)(1) .......................................................................................................................15 

2 U.S.C. § 434(c)(1) and (2) ......................................................................................................6, 24 

2 U.S.C. §§ 434(c)(2)(A)-(C) ........................................................................................................12 

2 U.S.C. § 434(e)(1) .......................................................................................................................31 

2 U.S.C. § 1601 et seq. (Lobbying Disclosure Act) ......................................................................13 

5 U.S.C. § 552 ................................................................................................................................13 

28 U.S.C. § 2401(a) .................................................................................................................21, 22 

40 U.S.C. § 3141 et seq. (Davis-Bacon Act) .................................................................................13 

52 U.S.C. § 30104(c) .................................................................................................................7, 39 

52 U.S.C § 30104(c)(1) .......................................................................................................... passim

52 U.S.C. § 30104(c)(2) ...........................................................................................................19, 26 

52 U.S.C. § 30104(c)(2)(C) ................................................................................................... passim

52 U.S.C. § 30104(f) ......................................................................................................................33 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 10 of 59
x 

52 U.S.C. § 30104(g)(1), (2) ............................................................................................................8 

52 U.S.C. § 30109 ..........................................................................................................................16 

52 U.S.C. § 30109(a)(1) .................................................................................................................17 

52 U.S.C. § 30109(a)(8) .................................................................................................................19 

52 U.S.C. § 30111(d) .....................................................................................................................37 

52 U.S.C. § 30111(e) .................................................................................................................6, 13 

Other Authorities 

11 C.F.R. § 104.20(c)(9) ................................................................................................................27 

11 C.F.R. § 109.2(b) ......................................................................................................................31 

11 C.F.R. § 109.5 ...........................................................................................................................31 

11 C.F.R. § 109.10(b) ....................................................................................................................15 

11 C.F.R. § 109.10(e)(1)(vi) ..........................................................................................1, 14, 24, 26 

11 C.F.R. § 114.2(f)(1), (2)(i) ........................................................................................................31 

11 C.F.R. § 116.3 ...........................................................................................................................31 

143 Cong. Rec. S10485-01 (Oct. 7, 1997) (Sen. Torricelli Amndt., No. 1308, to 

the Bipartisan Campaign Reform Act of 1997) .......................................................................39 

143 Cong. Rec. S10661-02 (Oct. 8, 1997) (Sen. Murray Amndt., No. 1315, to the 

Bipartisan Campaign Reform Act of 1997) .............................................................................39 

144 Cong. Rec. S884-02 (Feb. 24, 1998) ................................................................................38, 39 

145 Cong. Rec. S12734-02 (Oct. 18, 1999) ...................................................................................38

Cong. Research Svc. Rept. No. 97-589, Statutory Interpretation: General 

Principles and Recent Trends ..................................................................................................27 

CREW, Comments in Response to Advance Notice of Proposed Rulemaking on 

Earmarking, Affiliation, Joint Fundraising, Disclosure, and Other Issues (Jan. 

15, 2015) ....................................................................................................................................7 

CRP, 2012 Outside Spending, by Group .......................................................................................30

CRP, Outside Spending by Disclosure, Excluding Party Committees ..........................................29 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 11 of 59
xi 

FEC Adv. Op. No. 2008-10 (VoterVoter) ...............................................................................30, 31 

FEC Adv. Op. No. 2017-06 (Stein and Gottlieb) ..........................................................................31 

FEC MUR 4960 (Hillary Rodham Clinton for U.S. Senate Expl. Comm.), 

Statement of Reasons of Commissioners David M. Mason, Karl J. Sandstrom, 

Bradley A. Smith, and Scott E. Thomas ....................................................................................5 

FEC MUR 3503, First General Counsel’s Report .........................................................................36 

FEC MUR 6435 (Rangel), First General Counsel’s Report ............................................................5 

FEC, Request for Additional Information (RFAI)........................................................................7, 8 

First Amendment ...........................................................................................................................35 

H.R. Rep. No. 131, 107th Cong., 1st Sess., pt. 1 (2001) ...............................................................39 

Keating v. FEC, 

No. 10-145, 2010 WL 3777212 (U.S. Sept. 27, 2010) (Respondent’s Opp. Br.) ....................12 

Legislative History of Federal Election Campaign Act Amendments of 1974 ..............................37 

Legislative History of Federal Election Campaign Act Amendments of 1979 ............10, 24, 31, 32 

Lenora B. Fulani for President Comm. v. FEC, 

No. 97-1466, 1998 WL 35240588 (D.C. Cir. Feb. 20, 1998) (Respondent’s Br.) ..................10 

Rep. Van Hollen Petition for Rulemaking to Revise and Amend Regulations 

Relating to Disclosure of Independent Expenditures (Apr. 21, 2011) .....................................19 

Ronald M. Levin, “Vacation” at Sea: Judicial Remedies and Equitable Discretion 

in Administrative Law, 53 Duke L.J. 291 (2003) .....................................................................44 

Womble Carlyle, Don’t Sweat the Details . . . Unless You’re Filing at the Federal 

Election Commission (FEC), NAT’L L.J., May 9, 2014 .............................................................7 

 

 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 12 of 59
xii 

LIST OF ABBREVIATIONS 

APA – Administrative Procedure Act (5 U.S.C. § 500 et seq.) 

CGPS – Crossroads Grassroots Policy Strategies 

CREW – Citizens for Responsibility and Ethics in Washington 

EC – electioneering communication 

FEC – Federal Election Commission 

FECA – Federal Election Campaign Act of 1971, as amended (52 U.S.C. § 30101 et seq.) 

IE – independent expenditure 

MUR – FEC matter under review 

PAC – political committee 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 13 of 59
1 

INTRODUCTION 

Crossroads Grassroots Policy Strategies (“CGPS”), which takes seriously its obligation to 

carefully comply with applicable campaign finance laws, relied on a longstanding regulation 

promulgated by the Federal Election Commission (“FEC”) in 1980, 11 C.F.R. § 109.10(e)(1)(vi), 

to lawfully report its independent expenditures (“IEs”) in 2012. CGPS so clearly complied with 

the regulation that the controlling commissioners, at the FEC career staff’s recommendation, 

dismissed the administrative complaint in this matter filed by Citizens for Responsibility and 

Ethics in Washington (“CREW”). CREW hardly even contests this point. Instead, as its reply 

brief makes clear, CREW’s principal goal is to bootstrap a challenge to the validity of the 

underlying regulation to its complaint seeking judicial review of the FEC’s dismissal of this 

enforcement matter. CREW’s challenge must be rejected because it would violate CGPS’s 

statutory and constitutional right to rely on a long-accepted regulation; moreover, it fails to 

exhaust administrative remedies, it comes 30 years too late, and it essentially asks this Court to 

subvert congressional intent and the FEC’s considered judgment on this regulatory issue. 

In all of its briefing, CREW fails to identify a single contribution that CGPS omitted from 

its reports in violation of the controlling FEC regulation. CREW weakly speculates that perhaps 

some such funds “may” have required reporting. CREW Opp. Br. (Doc 33) at 45. But the 

FEC’s longstanding enforcement policy, which is backed by judicial precedent and was applied 

consistently here, is to dismiss unsubstantiated complaints based on mere speculation. CREW 

entirely fails to show that the FEC’s dismissal here was “contrary to law” – the demanding 

standard CREW must satisfy to overturn the FEC’s action. 

Beyond this basic factual point, CREW does not deny that the Federal Election Campaign 

Act of 1971, as amended (“FECA”), expressly provides a safe harbor for those who comply in 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 14 of 59
2 

good faith with applicable FEC regulations. CREW asserts that CGPS’s reliance was not in 

good faith because the regulation supposedly fell short of the statute’s requirements. However, 

the FECA explicitly made the regulation – not the statute – the measure of good faith. And 

where a party has dutifully complied with a regulation of more than 30 years’ standing, as CGPS 

has done here, objective good faith exists as a matter of law. 

CREW’s own reply brief makes clear that the asserted reporting violation by CGPS is 

merely a pretext for CREW’s real objective: to obtain facial judicial review of the underlying 

FEC regulation. CREW’s attempt to misuse the FECA’s enforcement process for this purpose 

fails even the most basic scrutiny. First, CREW failed to exhaust its administrative remedies by 

not alleging the regulation’s invalidity in its administrative complaint, and CREW also failed to 

participate altogether in an earlier petition for rulemaking concerning the regulation, which is the 

primary avenue for such challenges under the Administrative Procedure Act (“APA”). Second, 

CREW’s attacks on the regulation are time-barred. CREW’s procedural objection to the 

“[in]adequate” contemporaneous explanation for the regulation, CREW Opp. Br. (Doc 33) at 5, 

is categorically prohibited outside the six-year statute of limitations for challenges to FEC 

regulations. Moreover, CREW asks this Court not only to strike the regulation, but also for the 

extraordinary remedy of retroactively applying CREW’s reading of the law against CGPS for its 

2012 activity – a precedent that would also profoundly affect many other organizations’ past 

activities. Such an unprecedented retroactive remedy is statutorily and constitutionally barred in 

light of CGPS’s reasonable reliance on the regulation. Relatedly, because CREW’s requested 

remedy is unavailable, CREW lacks standing to challenge the regulation outside of the ordinary 

six-year statute of limitations, even if the regulation is considered to have been “applied” to 

CREW. 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 15 of 59
3 

 Even assuming that the merits of CREW’s challenge to the regulation are properly before 

this Court – and they are not – CREW cannot and does not deny that: (1) the FEC was actively 

involved in drafting the underlying statutory provisions passed in 1979; (2) the agency promptly 

drafted the regulation to implement the statute; (3) Congress then reviewed the regulation under 

a special procedure intended to ensure compliance with legislative intent; (4) Congress allowed 

the regulation to take effect; and (5) in the more than 30 years thereafter, Congress has 

repeatedly amended FECA’s reporting requirements, including specifically the IE reporting 

regime, but chose to leave the FEC’s regulations in this area intact. All this belies CREW’s outof-context, ahistorical, and incorrect readings of the Coverage and Content Provisions, 52 U.S.C. 

§ 30104(c)(1) and (c)(2)(C), respectively, of the FECA’s IE reporting section. 

 CREW attempts to refute this mountain of authority by using data from the 2010-2016 

election cycles to unilaterally claim the regulation is not implementing the statute properly. But 

CREW assumes too much about the statute’s purposes and fails to present any pertinent evidence 

countering the extensive legislative history CGPS recited in support of the regulation. And even 

assuming the FEC was required to exercise clairvoyance when promulgating the underlying 

regulation in 1980, CREW fails to explain why, if these new and changed circumstances call for 

further analysis, CREW should not be required to present these facts to the FEC first in the form 

of a direct challenge to the regulation – i.e., a rulemaking petition – thus exhausting its 

administrative remedies and giving the FEC a fair chance to address the supposed problem. 

 Below, CGPS refutes CREW’s various assertions in detail. But at the end of the day, the 

simple fact is that the FEC and its professional staff reasonably concluded that CGPS complied 

with a longstanding FEC regulation as it has been consistently interpreted by the agency over 

many decades. That is enough to dispose of the enforcement aspect of this case. CREW’s wideCase 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 16 of 59
4 

ranging attack on the regulation likewise should be dismissed to allow CREW to properly 

exhaust its administrative remedies. CGPS should not be subject to any additional enforcement 

or sanctions simply because CREW failed to follow the proper procedures.

ARGUMENT 

I. THE COURT SHOULD DISMISS CREW’S COMPLAINT BECAUSE CGPS 

COMPLIED WITH THE FEC’S REGULATION. 

CGPS’s compliance with the regulation poses a fundamental and insurmountable obstacle 

to CREW’s present complaint. In its reply, CREW tries to sidestep the facts by arguing for a 

lower threshold for initiating an FEC investigation and asserting that the FECA’s protection for 

good faith reliance on the regulation does not apply here. Neither argument has merit. 

A. CGPS Complied With the FEC’s Regulation, and the FEC Properly Declined to 

Open an Investigation. 

There is little question that CGPS complied with the underlying regulation as written, 

interpreted, and applied by the Commission for more than 30 years. In fact, CREW’s opening 

and reply briefs devote a scant two and three paragraphs, respectively, arguing the facts of the 

case. See CREW MSJ Br. (Doc 27) at 44-45; CREW Opp. Br. (Doc 33) at 50. 

Lacking any actual evidence of a violation, CREW erroneously attempts to lower its 

burden by recasting the FEC’s “reason to believe” threshold – the standard for deciding whether 

to move forward in the enforcement process – as “a low one that only asks whether there are 

‘credibl[e] alleg[ations]’ that a violation ‘may’ have occurred.” CREW Opp. Br. (Doc 33) at 50. 

But that is not the relevant test. 

The “reason to believe” standard entails “a minimum evidentiary threshold that require[s] 

at least ‘some legally significant facts’” that are “‘incriminating’ and not satisfactorily answered 

by the respondents.” DSCC v. FEC, 745 F. Supp. 742, 745-46 (D.D.C. 1990) (quoting 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 17 of 59
5 

Supporting Memorandum for the Statement of Reasons (Commissioner Josefiak)). Complaints 

that state charges “only in the most conclusory fashion,” without supporting evidence, are 

dismissed by the Commission. In re FECA Litigation, 474 F. Supp. 1044, 1047 (D.D.C. 1979). 

Consistent with these principles, the FEC’s policy is not to find “reason to believe” to 

open an investigation unless the alleged facts lead to “a reasonable inference that a violation has 

occurred,” and “evidence provided in the response” may defeat inferences that otherwise might 

be drawn. CGPS MSJ Br. (Doc 28) at 18. “[M]ere speculation,” as a bipartisan group of 

commissioners wrote, cannot form a basis for finding “reason to believe.” FEC, Matter Under 

Review (“MUR”) 4960 (Hillary Rodham Clinton for U.S. Senate Expl. Comm.), Statement of 

Reasons of Commissioners David M. Mason, Karl J. Sandstrom, Bradley A. Smith, and Scott E. 

Thomas, available at http://eqs.fec.gov/eqsdocsMUR/0000263B.pdf; see also, e.g., MUR 6435 

(Rangel), First General Counsel’s Report at 11-12 n.40 (citing and quoting MUR 4960 Statement 

of Reasons), available at http://eqs.fec.gov/eqsdocsMUR/14044364410.pdf. 

As the FEC’s General Counsel’s Report explained in this matter, “[n]othing in the record 

before the Commission indicated that a donor had made a contribution for the purpose of funding 

the reported independent expenditure[s]” at issue. AR173. In fact, 13 of the 14 ads that were 

shown at the August 30, 2012, American Crossroads meeting that CREW’s complaint focuses on 

had already been “broadcast and fully paid for before August 30, 2012,” and the remaining ad 

was never aired or intended to be aired. AR175. Thus, no one who donated to CGPS could have 

done so to further those ads, as CREW alleges. See CREW Compl. at ¶ 114. Thus, the FEC 

properly dismissed CREW’s allegation that CGPS violated the regulation. 

 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 18 of 59
6 

B. CGPS Was Entitled to Rely on the Regulation and Did So in Good Faith, 

Thereby Defeating CREW’s Claims Two and Three. 

 1. CGPS Had a Statutory Right to Rely on the Regulation. 

CREW attacks CGPS’s right to rely on 52 U.S.C. § 30111(e), the statutory protection for 

persons who rely in good faith upon an FEC regulation, as well as the scope of that protection. 

See CREW Opp. Br. (Doc 33) at 37-38. But CREW’s arguments here border on frivolous. 

As an initial matter, the FECA’s good faith reliance protection is to be evaluated by an 

objective standard: compliance with the applicable regulation. This is consistent with a basic 

tenet governing campaign finance law, which regulates the freedom of speech and therefore 

requires standards that “are both easily understood and objectively determinable,” McConnell v. 

FEC, 540 U.S. 93, 103 (2003), and that “entail minimal if any discovery . . . [a]nd . . . eschew the 

open-ended rough-and-tumble of factors, which invite[s] complex argument in a trial court and a 

virtually inevitable appeal.” FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 469 (2007) (internal 

citations, quotation marks, and brackets omitted) (Roberts, C.J.).1

 

Furthermore, even if CREW’s arguments about CGPS’s good faith were relevant – and 

they are not – they are all easily dispatched. 

First, CREW’s attacks on CGPS’s good faith ring hollow because CGPS complied with 

the regulation as it was universally understood. The opening paragraph of CREW’s reply brief 

acknowledges that, like CGPS, “the FEC relied on [the regulation] to find no reason to believe 

[CGPS] needed to disclose its contributors” under either 52 U.S.C § 30104(c)(1) or (c)(2)(C). 

CREW Opp. Br. (Doc 33) at 1. It is hard to accuse CGPS of operating in bad faith when, as 

CREW readily admits, the federal agency charged with enforcing the statute interprets the law 

                                                            

1

 CREW erroneously cites a case about the evidentiary principles for proving the common law defense of duress for 

its supposition that the burden to prove good faith reliance here will fall on CGPS. CREW Opp. Br. (Doc 33) at 37 

(citing Dixon v. U.S., 548 U.S. 1, 9 (2006)). 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 19 of 59
7 

the same way CGPS did. See also AR1503 (explaining that the FEC’s IE regulation “has been 

amended to incorporate the changes set forth at 2 USC §§ 434(c)(1) and (2)”) (emphasis added). 

Moreover, CREW itself represented to the FEC in 2015 that “under the Commission’s 

regulations, the identity of a contributor who gives to the organization for the broad purpose of 

influencing a federal election, or even the specific purpose of making independent expenditures, 

need not be disclosed.” CREW, Comments in Response to Advance Notice of Proposed 

Rulemaking on Earmarking, Affiliation, Joint Fundraising, Disclosure, and Other Issues (Jan. 

15, 2015) at 3, available at http://sers.fec.gov/fosers/showpdf.htm?docid=312990. “Only if the 

contributor makes a contribution with the purpose of furthering a specific advertisement or other 

independent expenditure must the organization identify the contributor.” Id. at 4 (emphasis in 

the original).2

 CREW cannot now turn around and argue unreasonable reliance when even it was 

espousing CGPS’s position regarding the regulation at issue well after the conduct giving rise to 

this case. 

Second, CREW claims the “FEC sent [CGPS] notices that it was failing to comply with 

its reporting obligations.” CREW Opp. Br. (Doc 33) at 37. But the letter CREW references is 

“quite common and rarely newsworthy.” Womble Carlyle, Don’t Sweat the Details . . . Unless 

You’re Filing at the Federal Election Commission (FEC), NAT’L L.J., May 9, 2014. It is not 

uncommon, nor does it signal that the FEC believes that an organization has failed to comply 

with its reporting obligations, when it sends a letter asking a filer to “explain report information 

for the public record [or to provide] an FEC Campaign Finance Analyst [with] additional 

                                                            

2

 CREW attacks CGPS’s “misleading representation” that “CREW has previously taken the position that the 

regulation accurately incorporates all of the reporting provisions under § 30104(c).” CREW Opp. Br. (Doc 33) at

24-25 (emphasis added). CGPS said no such thing. CGPS simply pointed out that CREW has conceded (and 

continues to concede in its reply brief) that the regulation purports to implement both statutory provisions (whether 

“accurately” or not). Compare id. with CGPS MSJ Br. (Doc 28) at 28-29. 

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8 

clarification.” FEC, Request for Additional Information (RFAI), available at

https://www.fec.gov/help-candidates-and-committees/request-additional-information/. The 

transmission of such a letter does not mean, as CREW categorically (and falsely) claims, that 

CGPS was “failing to comply with its reporting obligations.” See CREW Opp. Br. (Doc 33) at 

37. 

Third, CREW cites previous courts’ rejections of defendants’ good faith defenses in two 

other fact-intensive cases involving the FEC. CREW Opp. Br. (Doc 33) at 37. However, in the 

O’Donnell case, the court did not even apply Section 30111(e)’s good faith reliance provision to 

the facts of the case because the candidate did not rely on a “rule or regulation.” See FEC v. 

O’Donnell, 209 F. Supp. 3d 727, 743 n.12 (D. Del. 2016) (considering existence of disputed 

phone calls when assessing good or bad faith of candidate for penalty purposes). And in the 

Craig case, there were disputes about whether the legal authorities the defendant relied on 

actually covered the transactions in question and whether certain authority had been issued at the 

time of the relevant transactions. See FEC v. Craig for U.S. Senate, 70 F. Supp. 3d 82, 89, 91, 

98 (D.D.C. 2014), aff’d 816 F.3d 829 (D.C. Cir. 2016). No party disputes those issues here. 

Fourth, CREW claims that every party interested in sponsoring an IE – or, for that 

matter, engaging in any regulated activity – must familiarize itself not only with an 

administrative agency’s regulations, but also with all of the comments and rulemaking petitions 

ever filed, such as the 2011 Van Hollen petition, to see if someone at some time may have 

disagreed with the agency’s reading of a statute (even where the agency formally rejected such 

an alternative reading). See CREW Opp. Br. (Doc 33) at 37. That is absurd and also practically 

impossible in many instances, as many IE reports are required to be filed within 24 or 48 hours 

of an ad’s dissemination. See 52 U.S.C. § 30104(g)(1), (2). CREW’s position would effectively 

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9 

shut down almost all political speech, as few speakers could afford the legal research costs or 

could practically comply with such an onerous requirement. For this reason, the FEC “is 

precisely the type of agency to which deference should presumptively be afforded” in its 

rulemaking and adjudicative functions. FEC v. DSCC, 454 U.S. 27, 37 (1981). Even worse, 

CREW’s position would effectively give anyone who disagrees with an agency’s regulation a 

heckler’s veto, whereby they could impeach the validity of a regulation merely by voicing 

disagreement with it – regardless of the position’s merit. 

Fifth, CREW cites a nineteenth century case, Swift & Courtney & Beecher Co. v. U.S., 

105 U.S. 691 (1881), to say that CGPS was obliged to “read the statute” and, sua sponte, ignore 

the FEC’s decades-old regulation. CREW Opp. Br. (Doc 33) at 37-38. While there are many 

obvious problems with relying on this authority, including that its facts are readily 

distinguishable and the decision predates modern administrative agencies, the most glaring fault 

here is that Congress enacted a statute – Section 30111(e) – that directly contradicts CREW’s 

argument. 

 2. The Regulation Protects CGPS Against “Equitable” Remedies. 

CREW separately contends Section 30111(e)’s safe harbor does not prohibit “equitable 

remedies” against CGPS. CREW Opp. Br. (Doc 33) at 38. But the FECA’s protections for 

reliance on FEC regulations are unequivocally expansive: Section 30111(e) removes “certain 

conduct from any risk of enforcement,” establishes “‘legal rights’ to engage in that conduct,” 

Shays v. FEC, 414 F.3d 76, 95 (D.C. Cir. 2005) (internal citation omitted) (emphasis added), 

“insulates [such person] from liability,” O’Donnell, 209 F. Supp. 3d at 743 n.12, and “is a 

defense to criminal prosecution or civil suit,” Martin Tractor Co. v. FEC, 627 F.2d 375, 385 

(D.C. Cir. 1980) (interpreting analogous safe harbor for advisory opinion reliance). It would 

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10 

undermine the statute’s protections – and contradict clear legal precedent – if a court were to 

exclude FECA-derived equitable relief from the scope of this broad protection.3

 

Congress added the good faith regulatory reliance provision specifically so that a “person 

who relies upon such regulations in good faith will not be subject to subsequent enforcement 

action.” Legislative History of Federal Election Campaign Act Amendments of 1979 at 208 

(“1979 FECA History”), available at http://classic.fec.gov/pdf/legislative_hist/legislative_ 

history_1979.pdf. As the Supreme Court has explained concerning a similar provision in the 

Truth in Lending Act, 15 U.S.C. § 1640(f), such provisions “signal[] an unmistakable 

congressional decision to treat administrative rulemaking and interpretation under the [statute] as 

authoritative . . . Courts should honor that congressional choice.” Ford Motor Credit Co. v. 

Milhollin, 444 U.S. 555, 566-68 (1980).4

CREW’s reliance on LaRouche v. FEC, 28 F.3d 137 (D.C. Cir. 1994) to undermine the 

scope of Section 30111(e)’s protections also is unavailing. CREW Opp. Br. (Doc 33) at 38. 

LaRouche involved a presidential candidate’s obligation to repay funds under the Presidential 

Primary Matching Payment Account Act (“PPMPAA”) rather than imposition of a sanction 

under the FECA. See 28 F.3d at 142. A PPMPAA repayment determination is only a “statutory 

recoupment remedy,” John Glenn Presidential Comm., Inc. v. FEC, 822 F.2d 1097, 1098 (D.C. 

Cir. 1987), and is “more in the nature of an effort to collect upon debt than a penal sanction,” 

Respondent’s Br., Lenora B. Fulani for President Comm. v. FEC, No. 97-1466, 1998 WL 

35240588, at 27 n.16 (D.C. Cir. Feb. 20, 1998) (internal citation and quotation marks omitted). 

                                                            

3

 This is particularly true given CREW’s own characterization of its administrative complaint as “seeking immediate 

investigation and enforcement action against [CGPS].” AR098, 001 (emphasis added). 

4

 Similar to what CREW alleges here, Ford Motor Credit Co. involved an agency regulation that arguably required 

less disclosure on loan documents than what the statute required. See id. at 557 and 568. 

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11 

Thus, LaRouche is inapposite here because it did not involve a sanction. 

 3. CGPS Had a Constitutional Right to Rely on the Regulation. 

CGPS also has a constitutional right to fair notice that prohibits the retroactive 

application of the FECA’s IE reporting requirements in the manner CREW urges. See CGPS 

MSJ Br. (Doc 28) at 27-32. CREW’s response that “[a] lack of fair notice bars only criminal or 

criminal-like sanctions” is mistaken. CREW Opp. Br. (Doc 33) at 38. CREW’s own cited 

authority, General Electric Co. v. EPA (“GE”), 53 F.3d 1324 (D.C. Cir. 1995), and the cases 

discussed therein, directly contradict CREW’s position. In GE, the court explained that the “fair 

notice” requirement applies not only to cases “imposing civil or criminal liability,” but also to 

cases involving “the civil administrative context.” Id. at 1328-29.5

 CREW also incorrectly maintains that the FECA did in fact give CGPS fair notice here. 

But CREW’s cited authorities are either easily distinguishable or fail to support this proposition. 

See CREW Opp. Br. (Doc 33) at 37-39. For example, CREW states that FEC v. Mass. Citizens 

for Life (“MCFL”), 479 U.S. 238 (1986) gave notice that CGPS’s “reporting obligations were 

more than what it understood [the regulation] required” and, specifically, that “subsection (c)(1) 

imposed its own obligation to disclose ‘all contributors who annually provide in the aggregate 

$200 in funds intended to influence elections.’” CREW Opp. Br. (Doc 33) at 37, 26. But 

CREW’s conjecture about MCFL is on an island unto itself. For one thing, “[b]efore a judicial 

                                                            

5 See also, e.g., Maxcell Telecom Plus, Inc. v. FCC, 815 F.2d 1551 (D.C. Cir. 1987) (applying fair notice 

requirement to agency denial of cellphone license); Satellite Broad. Co., Inc. v. FCC, 824 F.2d 1 (D.C. Cir. 1987) 

(applying fair notice requirement to agency denial of broadcast license); Keeffe v. Library of Congress, 777 F.2d 

1573, 1575-76, 1582 (D.C. Cir. 1985) (applying fair notice requirement to agency’s enforcement of political conflict 

of interest rules in reassigning employee); Radio Athens, Inc. v. FCC, 401 F.2d 398 (D.C. Cir. 1968) (applying fair 

notice requirement to agency denial of broadcast license); Armstrong v. Dist. of Columbia Pub. Library, 154 F. 

Supp. 2d 67, 70, 81-82 (D.D.C. 2001) (applying fair notice requirement to public library’s ability to block patrons 

based on staff guidelines prohibiting “objectionable appearance”). Certainly, the administrative ramifications in 

these cases were not “criminal or criminal-like sanctions” by any means. Rather, they were equivalent to (or 

arguably less punitive than) the “equitable” remedy CREW asks this Court to impose on CGPS. 

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12 

construction of a statute . . . may trump an agency’s, the court must hold that the statute 

unambiguously requires the court’s construction.” Nat’l Cable & Telecommunications Ass’n v. 

Brand X Internet Servs., 545 U.S. 967, 985 (2005). The MCFL Court made no such 

proclamation. For another, after referencing various authorities (including MCFL), the en banc

D.C. Circuit has cited only the following disclosure requirement when discussing the reporting 

requirements applicable to non-PAC entities (like CGPS) that sponsor IEs: “2 U.S.C. 

§ 434(c)(2)(C) (requiring only the reporting of contributions ‘made for the purpose of furthering 

an independent expenditure’).” SpeechNow.org v. FEC, 599 F.3d 686, 698 (D.C. Cir. 2010) (en 

banc) (emphasis added). The FEC agreed, concluding that in “MCFL, the Court [required IE 

makers to] only identify each person who contributed more than $200 ‘for the purpose of 

furthering an independent expenditure.’ 2 U.S.C. §§ 434(c)(2)(A)-(C).” Respondent’s Opp. Br., 

Keating v. FEC, No. 10-145, 2010 WL 3777212, at *17-*18 (U.S. Sept. 27, 2010) (emphasis 

added). And, as discussed previously, see CGPS MSJ Br. (Doc 28) at 50, the Ninth Circuit 

confirmed post-MCFL that the IE reporting requirements were far less expansive than the ones 

CREW proposes here, see FEC v. Furgatch, 807 F.2d 857, 859 n.2 (9th Cir. 1987). So, if 

anything, CREW should have been on notice that its interpretation of MCFL was in error. 

As to CREW’s other cited authorities, unlike the situation here, Abhe & Svoboda did not 

involve any alleged conflict between an agency regulation and a statute, but rather examined 

whether the plaintiff had fair notice of how an agency would make an administrative 

determination. The court determined the plaintiff had fair notice of the law based on “[e]xisting 

administrative and judicial decisions and the [statute] itself.” Abhe & Svoboda, Inc. v. Chao, 508 

F.3d 1052, 1060 (D.C. Cir. 2007) (emphasis added). Here, more than 30 years of administrative 

and judicial decisions and practice pointed consistently to the opposite conclusion CREW draws. 

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13 

See CGPS MSJ Br. (Doc 28) at 27-28, 50. Thus, CGPS did not have the same agency-endorsed 

notice that was present in Abhe & Svoboda.

CREW’s fleeting attempt to cite National Association of Manufacturers v. Taylor 

(“NAM”), 549 F. Supp. 2d 33, 67 (D.D.C. 2008), for the general proposition that a statute 

“provides ‘fair notice of the type of activities encompassed by the section’s disclosure 

threshold’” also is in error. NAM involved the specific question of whether the statutory 

language at issue, on its face, provided sufficient “fair notice” so as not to be unconstitutionally 

vague. 549 F. Supp. 2d at 67.6 NAM also did not involve decades of agency precedent 

confirming the law’s narrow scope. 

Lastly, CREW cites Teich v. FDA, 751 F. Supp. 243 (D.D.C. 1990) for the general 

proposition that agency regulations provide no protection “if a court [subsequently] determines 

that the regulation is invalid.” CREW Opp. Br. (Doc 33) at 38-39. However, as CREW 

concedes, CREW Opp. Br. (Doc 33) at 39 n.24, Teich held that a judicial decision may not be 

applied “[]retroactive[ly]” if the decision “establish[es] a new principle of law, either by 

overruling clear past precedent . . . or by deciding an issue of first impression whose resolution 

was not clearly foreshadowed,” 751 F. Supp. at 249. For the reasons explained previously 

(CGPS MSJ Br. (Doc 28) at 27-28) and elsewhere in this brief (at 11-12 and 36), the remedy 

CREW asks the Court to impose here falls squarely into this area. Moreover, unlike here, where 

the statute, 52 U.S.C. § 30111(e), specifically provides a liability-free guarantee for good faith 

reliance on agency regulations, the Freedom of Information Act at issue in Teich contains no 

                                                            

6

 Using CREW’s method of cherry-picking language from cases, CGPS could just as easily (and illogically) cite a 

multitude of other authorities finding laws to be unconstitutionally vague for the general proposition that statutes do 

not provide “fair notice” to the public. See, e.g., Buckley v. Valeo, 424 U.S. 1, 77 (1976) (holding that the 

“ambiguity” in the FECA’s definitions of “contribution” and “expenditure” failed to provide “adequate notice”). 

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14 

such protection, see 5 U.S.C. § 552.7 

II. THE COURT SHOULD DISMISS CREW’S CLAIMS TWO AND THREE 

BECAUSE CREW FAILED TO EXHAUST ADMINISTRATIVE REMEDIES. 

CREW failed to exhaust administrative remedies in its administrative complaint by: (1) 

not squarely challenging the validity of 11 C.F.R. § 109.10(e)(1)(vi) – a claim which CREW first 

presented in its complaint for judicial review as Claim Two; and (2) not alleging CGPS violated 

52 U.S.C. § 30104(c)(1) (the Coverage Provision) – a claim which CREW first presented in its 

complaint for judicial review as Claim Three. CREW mistakenly contends it did not have to 

present these claims first to the FEC, but in reality, its failure to do so is fatal to both claims. 

A. CREW’s Administrative Complaint Failed to Challenge the Regulation’s 

Validity or Claim any Violation of the FECA’s IE Coverage Provision. 

CREW’s administrative complaint failed to squarely challenge the validity of the 

underlying regulation or to allege that CGPS violated the Coverage Provision of the FECA’s IE 

reporting requirement, 52 U.S.C. § 30104(c)(1). CREW’s administrative complaint only 

mentioned in passing in a footnote in the background section that the underlying regulation “fails 

to give full effect to th[e] [Coverage and Content P]rovisions” of the statute. None of the 

complaint’s five “counts” alleging violations of the law contended the regulation was invalid. 

Compare AR102, AR003-004 with AR108-115, AR010-016.8

 Similarly, CREW’s 

administrative complaint only included a passing recitation in the background section to 52 

U.S.C. § 30104(c)(1) (the Coverage Provision) as imposing a substantive donor reporting 

                                                            

7

 The same is true of the relevant statutes in Abhe & Svoboda (40 U.S.C. § 3141 et seq. (Davis-Bacon Act)) and 

NAM (2 U.S.C. § 1601 et seq. (Lobbying Disclosure Act)). 

8

 CGPS’s response to CREW’s administrative complaint did address CREW’s passing reference that “the statute and 

corresponding regulation are inconsistent.” AR083. However, that should not be read as anything more than simply 

a response to CREW’s attempt to have the FEC enforce 52 U.S.C. § 30104(c)(2)(C) – as CREW interprets it – in 

“disregard [of] the plain language of [the] regulation.” See id. CGPS did not respond to any claim about the 

regulation’s facial validity because CREW did not present such a claim. 

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15 

requirement, but it did not cite this provision in any of the claims it alleged against CGPS. 

Compare AR101, AR004 with AR108-115, AR010-016.9

 

 CREW’s fleeting commentary on the regulation and recitation of the Coverage Provision 

failed to give full (or even partial) effect to any claims on these issues and therefore were 

insufficient to serve as a basis for judicial review. See CGPS MSJ Br. (Doc 28) at 33-34. The 

Coburn case CREW cites on this point is not to the contrary and, in fact, goes against CREW’s 

position. Exactly like CREW’s administrative complaint, the appellant in Coburn discussed an 

agency action “as background” in its submission to the agency but did not assert the agency 

action “was unlawful in its ‘Discussion’” section of the submission. Coburn v. McHugh, 679 

F.3d 924, 930 (D.C. Cir. 2012). The D.C. Circuit held that the appellant had not properly 

presented to the agency its claim that the agency action was unlawful and therefore declined to 

review the claim. Id. at 931. 

B. CREW Failed to Exhaust Administrative Remedies by Not Presenting These 

Claims in Its Administrative Complaint, as the FECA Required It to Do. 

CREW does not meaningfully contest that it failed to exhaust administrative remedies by 

not presenting these issues to the FEC. Rather, CREW contends it “did not have to present” 

these issues because: (1) a plaintiff “may bypass the administrative process where [it] would be 

futile or inadequate”; (2) the FEC proceedings were “not adversarial”; and (3) judicial review 

under the FECA is “non-jurisdictional.” CREW Opp. Br. (Doc 33) at 33-34 and n.21. CREW is 

incorrect on all counts. 

“The doctrine [of exhaustion] provides that no one is entitled to judicial relief for a 

                                                            

9

 Significantly, CREW’s administrative complaint immediately thereafter described 52 U.S.C. § 30104(c)(1) as a 

coverage provision that merely provides an overview of what activity triggers the IE reporting requirement 

generally: “The FECA and FEC regulations require every person who is not a political committee who makes 

independent expenditures totaling more than $250 in a calendar year to file quarterly reports regarding the 

expenditures. 2 U.S.C. § 434(c)(1); 11 C.F.R. § 109.10(b).” AR102, AR005 (emphasis added). 

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16 

supposed or threatened injury until the prescribed administrative remedy has been exhausted.” 

Woodford v. Ngo, 548 U.S. 81, 88-89 (2006) (internal citation and quotation marks omitted). 

Importantly, “[c]ourts ‘will not read futility or other exceptions into statutory exhaustion 

requirements where Congress has provided otherwise.’” Rosenberg v. U.S. Dept. of Immigration 

and Customs Enforcement, 956 F. Supp. 2d 32, 40-41 (D.D.C. 2013) (internal citation and 

quotation marks omitted). This is just such a case. FECA’s enforcement provision, 52 U.S.C. § 

30109, “is as specific a mandate as one can imagine” that “exhaustion is required”; “the 

procedures it sets forth – procedures purposely designed to ensure fairness not only to 

complainants but also to respondents – must be followed before a court may intervene.” Perot v. 

FEC, 97 F.3d 553, 559 (D.C. Cir. 1996). 

Ignoring this clear precedent, CREW cites a hodgepodge of inapposite authorities 

purporting to create a number of exceptions to the exhaustion requirement. See CREW Opp. Br. 

(Doc 33) at 33-34 n.21. For example, CREW cites Honig as supporting a general futility 

exception to the exhaustion requirement. But Honig (and the authorities cited therein) 

specifically addressed dispensation of the exhaustion requirement under the federal Education of 

the Handicapped Act – not the FECA – and the decision only underscores that exhaustion is the 

default rule, subject to narrow exceptions that do not apply here. See Honig v. Doe, 484 U.S. 

305, 327 (1988). 

Moreover, even if futility were a valid excuse to the exhaustion requirement here – and it 

is not – CREW undermines its own futility claim. CREW cites the FEC’s 2011 vote not to 

proceed with a rulemaking petition to amend the IE reporting regulation as evidence of futility. 

CREW Opp. Br. (Doc 33) at 33-34 n.21. But as discussed later (at 29), CREW also purports to 

demonstrate the regulation is invalid based on data for the 2012, 2014, and 2016 election cycles. 

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17 

Compare CREW Opp. Br. (Doc 33) at 33-34 n.21 with id. at 18-20; CREW MSJ Br. (Doc 27) at 

15-17. While CREW’s recent data is not properly before the Court in this matter (as explained 

below at 27-28), its data post-dating the FEC’s 2011 rulemaking vote undercuts CREW’s 

categorical and speculative claim that presenting these issues and new data to the FEC would be 

futile. 

CREW also contends exhaustion is not required because the FEC’s administrative 

complaint process is “not adversarial.” CREW Opp. Br. (Doc 33) at 33 n.21. In support of this 

claim, CREW erroneously cites the Sims case involving informal Social Security benefits 

determinations, in which the agency decisionmakers are charged with “investigat[ing] the facts 

and develop[ing] the arguments both for and against granting benefits,” and reviewing “new and 

material evidence” at any point in the proceedings. Sims v. Apfel, 530 U.S. 103, 111 (2000). But 

those informal, “no[n-]adversarial” proceedings are a far cry from the FEC’s formal, adversarial 

administrative complaint process, in which the agency determines whether there is “reason to 

believe” a violation has occurred based solely on a written complaint and a response from the 

accused. Compare id. with 52 U.S.C. § 30109(a)(1). Therefore, under the FECA, CREW’s 

failure to present issues in its administrative complaint meant those issues were not properly 

before the FEC and, therefore, are not properly before this Court.10 

Because the FECA requires exhaustion, Perot, 97 F.3d at 559, CREW’s claim that the 

exhaustion requirement here is “non-jurisdictional” also is incorrect, CREW Opp. Br. (Doc 33) 

at 33-34 n.21. And even if exhaustion were “non-jurisdictional” here, the doctrine still requires 

                                                            

10 CREW attempts to bolster its claim that the FEC’s enforcement process is “not adversarial” by citing this Court’s 

observation that an FEC submission had argued that CREW was “not a party to the [enforcement] proceeding.” 

CREW Opp. Br. (Doc 33) at 33 n.21. However, the Court decided the question at hand “regardless of the plaintiff’s 

degree of involvement in the administrative process,” and thus did not determine the question of whether CREW 

was a party in the administrative proceeding. Mem. Op. at 16. 

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18 

CREW “to exhaust available administrative remedies before bringing [its] case to court.” 

Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247 (D.C. Cir. 2004). 

C. The Fact That CREW Is Now Challenging a Regulation’s Validity Does Not 

Excuse Its Failure to Exhaust Administrative Remedies. 

CREW also mischaracterizes authorities for the proposition that the exhaustion doctrine 

does not apply to CREW’s challenge to a regulation’s validity where CREW first raises such a 

claim in a complaint for judicial review of CREW’s administrative complaint. CREW Opp. Br. 

(Doc 33) at 33. In AT&T v. FCC, 978 F.2d 727 (D.C. Cir. 1992), exhaustion of administrative 

remedies was not even at issue, as the question of the regulation’s validity in that case was 

presented explicitly to the agency in an administrative adjudicative proceeding. See id. at 730 

(“AT&T contended [in an administrative filing that] [i]f the Fourth Report were a substantive 

rule . . . it was invalid . . . because it exceeded the FCC’s statutory authority”). By contrast, 

CREW’s administrative complaint failed to press any claim about the validity of the FEC’s IE 

reporting regulation. 

Darby v. Cisneros, 509 U.S. 137 (1993) is also inapposite. Darby specifically addressed 

the issue of finality of an agency action, and “whether [the Administrative Procedure Act, 5 

U.S.C. § 704], by providing the conditions under which agency action becomes ‘final for the 

purposes of’ judicial review, limits the authority of courts to impose additional exhaustion 

requirements as a prerequisite to judicial review.” 509 U.S. at 145. Here, there is no dispute 

over the finality of the FEC’s action, and the exhaustion requirement was also imposed by 

Congress. 

At bottom, CREW’s position is that it is entitled to attack the validity of the FEC’s IE 

reporting regulation by presenting such a claim for the first time to this Court. But CREW chose 

to bring this case as a complaint seeking judicial review of the FEC’s dismissal of CREW’s 

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19 

administrative enforcement complaint under 52 U.S.C. § 30109(a)(8). CREW’s Claim Two, 

which is the only claim in its complaint for judicial review under which CREW even raises the 

issue of the regulation’s validity, alleges “[t]he FEC’s Failure to Find Reason to Believe that 

Crossroads GPS violated 52 U.S.C. § 30104(c)(2) was Arbitrary, Capricious, an Abuse of 

Discretion, and Contrary to Law.” See Compl. at 24 and ¶ 123. In other words, CREW’s 

challenge to the validity of the underlying regulation is integral to and inseparable from its 

administrative complaint against CGPS and the FEC’s dismissal thereof.11

This is precisely the type of claim that a plaintiff alleging FECA violations is required to 

first present to the FEC. See supra at 16; Perot, 97 F.3d at 559. Because CREW failed to 

properly present its claim about the validity of the FEC’s IE reporting regulation in its 

administrative complaint, and therefore failed to exhaust its administrative remedies, this claim is 

not properly before this Court.12

D. CREW Failed to Follow the Appropriate Procedure for Challenging the Validity 

of the FEC’s IE Reporting Regulation. 

CREW does not contest that it failed to even participate (whether as a petitioner or 

commenter) in the 2011 petition for the FEC to open a rulemaking to revise the regulation at 

issue in this case. See Rep. Van Hollen Petition for Rulemaking to Revise and Amend 

Regulations Relating to Disclosure of Independent Expenditures (Apr. 21, 2011), available at

http://classic.fec.gov/pdf/nprm/citizensunited/van_hollen.pdf. Nor does CREW contest that it 

                                                            

11 For this reason, Murphy Exploration and Production Company v. U.S. Department of Interior, 270 F.3d 957 (D.C. 

Cir. 2001) also is of no help to CREW. Not only did Murphy reaffirm the general rule that exhaustion of 

administrative remedies is required when seeking judicial review of an agency action, but the exception Murphy

contemplates – i.e., that a party can raise an issue in a separate proceeding – is inapplicable here since CREW 

participated in the FEC enforcement process appealed from to this Court. See id. at 958. 12 Even if the Court determines CREW’s challenge to the regulation’s validity is proper – and it should not – CGPS 

still cannot be held liable because of its statutory and constitutional rights to rely on the regulation, as discussed 

above (at 6-14) and in CGPS’s opening brief. 

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20 

can, this very day, file its own rulemaking petition with the FEC. Nor does CREW contest that, 

if the FEC were to deny such a petition, CREW could seek judicial review of the agency’s action 

under the APA. 

Instead, CREW complains the APA-established rulemaking petition procedure would not 

be “an adequate forum for CREW to protect its rights” because an agency’s refusal to engage in 

rulemaking is “subject to only the most deferential review by a court.” CREW Opp. Br. (Doc 

33) at 32 n.20. This is not so. Judicial review of the FEC’s dispositions of a rulemaking petition 

and an enforcement matter are subject to the same “arbitrary, capricious, an abuse of discretion, 

or otherwise not in accordance with law” standard. Level the Playing Field v. FEC, 232 F. Supp. 

3d 130, 137 (D.D.C. 2017) (internal citation and quotation marks omitted). While this standard 

is “highly deferential,” the FEC has been found to have “acted arbitrarily and capriciously by 

refusing to engage in rulemaking” where the agency acted “without a thorough consideration of 

the presented evidence and without explaining its decision.” Id. at 148. 

Here, because CREW “may petition the [FEC] directly for the relief [CREW] seek[s] in 

this lawsuit” but has not done so, and “the [FEC]’s discretion to issue [or amend or repeal] 

regulations is left in the first instance to the [FEC], not the federal courts, [CREW] must first 

challenge the [FEC]’s exercise of that discretion before the agency.” Assoc. of Flight 

Attendants-CWA v. Chao (“CWA”), 493 F.3d 155, 158-59 (D.C. Cir. 2007).13 Accordingly, this 

Court should dismiss CREW’s Claims Two and Three. 

                                                            

13 Similar to the circumstances here, in CWA labor unions “sued to force the government to increase its regulation of 

aircraft working conditions” after the Federal Aviation Administration had denied a rulemaking petition eight years 

earlier, and where “[t]he union [that had filed the petition] did not seek judicial review of that [agency] decision.” 

Id. at 157-58. The D.C. Circuit held that the plaintiffs’ challenge to the agency’s regulatory posture without filing 

another rulemaking petition was improper because “the unions did not pursue – much less exhaust – any 

administrative remedies before bringing this case in federal court.” Id. at 158. The D.C. Circuit admonished that 

“the exhaustion rule does not contain an escape hatch for litigants who steer clear of established agency procedures 

altogether.” Id. at 159. 

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III. THE COURT SHOULD DISMISS CREW’S CLAIM TWO BECAUSE CREW’S 

CHALLENGE TO THE REGULATION IS TIME-BARRED. 

Both CREW’s substantive and procedural challenges to the underlying regulation’s 

validity are time-barred. With respect to CREW’s substantive challenge, its ability to assert such 

a claim outside of the usual statute of limitations for challenging the regulation’s validity 

depends on its having standing. NLRB Union v. FLRA, 834 F.2d 191, 195 (D.C. Cir. 1987). 

However, as the parties’ briefs have revealed, the relief CREW seeks is to retroactively impose a 

new reporting burden on CGPS – a remedy that is unavailable. See supra at 6-14. Absent a 

redressable injury in this matter, CREW does not have standing to challenge the validity of the 

regulation (Claim Two).14 See Lujan v. Defenders of Wildlife, et al., 504 U.S. 555, 561-62 

(2006). 

With respect to its procedural challenge, CREW does not contest that such a challenge is 

time-barred, but denies it raises a procedural challenge. See CREW Opp. Br. (Doc 33) at 35-36. 

CREW is mistaken on this. One of the principal points of contention CREW raises – nearly four 

decades after the actual rulemaking – is that the FEC should have written a lengthier explanation 

for the IE reporting rule. See id. at 1, 5. This is a procedural argument. As the Supreme Court 

has held, “[o]ne of the basic procedural requirements of administrative rulemaking is that an 

agency must give adequate reasons for its decisions.” Encino Motorcars, LLC v. Navarro, 136 

S. Ct. 2117, 2125 (2016) (emphasis added). Other courts agree that CREW’s challenge here is 

procedural, see, e.g., Ne. Md. Waste Disposal Authority v. EPA, 358 F.3d 936, 948 (D.C. Cir. 

2004) (explaining that agency’s failure to articulate a rulemaking rationale was a “procedural 

                                                            

14 Because the regulation implements both the Coverage Provision, 52 U.S.C. § 30104(c)(1), and the Content 

Provision, id. § 30104(c)(2)(C), see AR1503, to the extent CREW’s attack on the regulation fails, CREW’s Claim 

Three, which alleges a violation of the Coverage Provision, also fails. 

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22 

charge”),15 and that an agency’s failure “to adequately explain its reasoning” is “subject to the 

general six-year limitations period,” Perez-Guzman v. Lynch, 835 F.3d 1066, 1077 (9th Cir. 

2016). 

Under “this circuit’s long-standing rule . . . a statutory review period” – like the six-year 

limit applicable here, 28 U.S.C. § 2401(a) – “permanently limits the time within which a 

petitioner may claim that an agency action was procedurally defective.” Pub. Citizen v. Nuclear 

Regulatory Comm’n, 901 F.2d 147, 152 (D.C. Cir. 1990) (emphasis added). Put another way, 

procedural challenges are “forever barred” after expiration of the six-year review period. Mobil 

Expl. & Producing U.S., Inc. v. Babbitt, 913 F. Supp. 5, 12 (D.D.C. 1995).16 

Unlike “an ordinary statute of limitations, § 2401(a) is a jurisdictional condition attached 

to the government’s waiver of sovereign immunity, and as such must be strictly construed,” 

Spannaus v. U.S. Dep’t of Justice, 824 F.2d 52, 55 (D.C. Cir. 1987); see also Horvath v. Dodaro, 

160 F.Supp.3d 32, 43 (D.D.C. 2015) (noting same), and never “relaxed by the courts for 

equitable considerations,” Spannaus v. U.S. Dep’t of Justice, 643 F. Supp. 698, 700 (D.D.C. 

1986). Similar to CGPS’s right to rely in good faith on the FEC regulation, this limitation serves 

“the important purpose of imparting finality into the administrative process, thereby conserving 

                                                            

15 See also Montgomery Cnty, Md., v. FCC, 863 F.3d 485, 491 (6th Cir. 2017) (noting that a challenge to an 

administrative decision that contains “scarcely any explanation at all” is “procedural” under the APA); Utility 

Workers Union of America, Local 369, AFL-CIO v. FEC, 691 F. Supp. 2d 101 (D.D.C. 2010) (crafting a “detailed 

explanation and justification” is a “procedural” activity). For its part, CREW cites authority, such as George E. 

Warren Corp. v. EPA, 159 F.3d 616 (D.C. Cir. 1998), that is of little help because it uses the words “procedural” and 

“substantive” inconsistently. Id. at 622, 626 (discussing a “procedural challenge” under a heading labelled 

“Substantive challenges”). 

16 The Court’s earlier ruling on the FEC’s motion to dismiss on grounds of standing and statute of limitations is not 

to the contrary. Specifically, the Court held that, generally, “when an agency applies a regulation to dismiss an 

administrative complaint, the party whose complaint was dismissed may challenge the regulation after the statute of 

limitations has expired on the ground that the regulation conflicts with the statute from which it derives” – provided, 

of course, that the “party [] possesses standing.” Mem. Op. at 15 and13 (quoting NLRB Union, 834 F.2d at 195). 

The Court did not specifically address how the statute of limitations applies to CREW’s procedural attack on the 

regulation and CREW’s lack of standing where the retroactive relief it seeks against CGPS is unavailable. 

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23 

administrative resources and protecting the reliance interests of regulatees who conform their 

conduct to the regulations.” Nat. Res. Def. Council v. Nuclear Regulatory Comm’n, 666 F.2d 

595, 602 (D.C. Cir. 1981). Absent such a limitation, “procedural challenges [could] be brought 

twenty, thirty, or even forty years after the regulations were promulgated. No greater disregard 

for the principle of finality could be imagined.” Id. 

At bottom, this Court should not – and in fact jurisdictionally cannot – hear CREW’s 

procedural challenge to the adequacy of the FEC’s explanation for the underlying regulation. 

IV. THE COURT SHOULD DISMISS CREW’S CLAIMS TWO AND THREE 

BECAUSE THE FEC’s EXPLANATION FOR THE REGULATION 

IMPLEMENTING THE STATUTE WAS SUFFICIENT.

Even if it were not time-barred, CREW’s claim that the FEC failed to adequately explain 

and justify the regulation falls wide of the mark. For example, citing Motor Vehicle Mfrs. Ass’n 

of U.S. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983), CREW maintains its peculiar 

fixation with the number of words used to explain the regulation’s rationale. CREW Opp. Br. at 

4-5. “But State Farm does not require a word count; a short explanation can be a reasoned 

explanation.” Multicultural Media, Telecom and Internet Council v. FCC, 873 F.3d 932, 939 

(D.C. Cir. 2017) (internal citation and quotation marks omitted). All that is required is “that an 

agency take whatever steps it needs to provide an explanation that will enable the court to 

evaluate the agency’s rationale at the time of decision.” Jost v. Surface Transp. Bd., 194 F.3d 

79, 85 (D.C. Cir. 1999) (internal citation and quotation marks omitted). And even where an 

agency’s rationale is “not fully articulated” in writing, the regulation is valid when the court “can 

reasonably discern the basis for the agency’s action.” Am. Iron & Steel Inst. v. EPA, 526 F.2d 

1027, 1047 (3d Cir. 1975), amended, 560 F.2d 589 (3d Cir. 1977); see also Wilhelmus v. Geren, 

796 F. Supp. 2d 157, 161 (D.D.C. 2011) (“a decision that is not fully explained may be upheld if 

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24 

the agency’s path may reasonably be discerned”) (internal citation and quotation marks omitted). 

Where an agency “has merely followed Congress’s mandate, its ‘path may reasonably be 

discerned.’” Nat’l Ass’n for Home Care v. Shalala, 135 F. Supp. 2d 161, 169 (D.D.C. 2001). 

Here, Congress explained that the statute was intended to regulate a “person who receives the 

contribution, and subsequently makes the independent expenditure.” 1979 FECA History at 103, 

458 (emphasis added). It should surprise no one that when the FEC required the reporting of a 

contribution “made for the purpose of furthering the reported independent expenditure,” 11 

C.F.R. § 109.10(e)(1)(vi), the bipartisan Commission did not feel obliged to write an exhaustive 

treatise explaining its decision to follow congressional intent. Instead, given the integral role the 

FEC played in recommending the statutory revisions to Congress and assisting with the 

legislative drafting, see CGPS MSJ Brief (Doc 28) at 9-10, all that was necessary was for the 

FEC to state that the regulatory revisions “incorporate the changes set forth at 2 USC 434(c)(1) 

and (2)” that it helped enact into law, see AR1503.17 

V. THE COURT SHOULD DISMISS CREW’S CLAIMS TWO AND THREE 

BECAUSE THE REGULATION PROPERLY IMPLEMENTS THE STATUTE. 

A. The FEC’s IE Reporting Regulation Properly Construes the Content Provision. 

1. The Statute Supports the FEC’s Interpretation Under Chevron Step One. 

CREW cites Mylan Pharm., Inc. v. Shalala, 81 F. Supp. 2d 30 (D.D.C. 2000) for the 

proposition that Congress’s choice “to employ the indefinite article does not imply that 

                                                            

17 CREW contends the FEC’s 1979 legislative recommendations did not specifically ask to “limit the reporting of 

contributions” on IE reports. CREW Opp. Br. (Doc 33) at 22. This is not so, and CREW’s over-hyped “fabrication” 

rhetoric, id. at 13, is simply an attempt to distract from a legislative record that runs counter to its argument. The 

FEC’s recommendations, upon which Congress acted, were specifically crafted to “reduce the burdens on those 

required to comply with [the FECA],” and they emphasized that a person filing an IE report should only have to 

identify the sources of “any contributions . . . donated with a view toward bringing about an independent 

expenditure.” 1979 FECA History at 33, 25. Even assuming arguendo CREW’s reading of the FEC’s legislative 

recommendations has merit (which it does not), Congress’s decision to narrowly limit the reporting requirement was 

made while working closely with the FEC. See CGPS MSJ Br. (Doc 28) at 9. Thus, the Commission was wellpositioned to know Congress’s intent. 

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‘Congress has explicitly left a gap for the agency to fill.’” CREW Opp. Br. (Doc 33) at 9. 

However, this does not mean that CREW’s reading of the statute is correct, much less that the 

use of an indefinite article in 52 U.S.C. § 30104(c)(2)(C) (the Content Provision) leaves no room 

for the FEC’s interpretation.18 Quite to the contrary, as Mylan recognized, a statute containing 

an indefinite article cannot be read in isolation, and “an analysis of the text and structure of the 

statute” is needed to determine what is meant by the use of the indefinite article. 81 F. Supp. 2d 

at 38. In short, “context matters.” Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 566 U.S. 

399, 413-14 (2012). 

CREW’s attempt to distort CGPS’s New Hampshire Motor Transportation Association 

authority also backfires. As CREW acknowledges, CREW Opp. Br. (Doc 33) at 10, the court 

there recognized that “‘[a]ny’ means ‘one . . . of whatever kind,’ and ‘an’ means ‘one.’” N.H. 

Motor Transp. Ass’n v. Rowe, 448 F.3d 66, 72 (1st Cir. 2006) (emphasis added) (internal citation 

omitted). From this, CREW concludes the two are “synonymous” (when they clearly are not), 

and thus the Content Provision’s use of the indefinite article “an” means the filer of an IE report 

is required to identify donors who give for the purpose of funding “any” IE. CREW Opp. Br. 

(Doc 33) at 10. This does not follow. 

To illustrate the fallacy in CREW’s linguistic sleight of hand, suppose a customer is 

asked at a farmer’s market where several apple varieties are sold whether she would like “an 

apple.” A response of, “Yes, I would like one,” would be very different from a response of, 

“Yes, I would like ‘one . . . of whatever kind.’” Cf. N.H. Motor Transp. Ass’n, 448 F.3d at 72. 

While the former response will prompt a follow-up question as to which variety of apple the 

                                                            

18 CREW incorrectly suggests the Supreme Court held in McFadden v. U.S., 135 S. Ct. 2298 (2015) that a statute’s 

use of an indefinite article was “unambiguous.” CREW Opp. Br. (Doc 33) at 9-10. In fact, the Court’s discussion 

of whether the statute was ambiguous was in the context of the statute’s scienter requirement. McFadden, 135 S. Ct. 

at 2306-07. 

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customer would like, the latter response rather clearly means she would be just as happy with a 

Braeburn, Red Delicious, or Granny Smith. 

In the same manner, the purported language variance between the FEC’s IE reporting 

regulation, 11 C.F.R. § 109.10(e)(1)(vi), and the Content Provision, 52 U.S.C. § 30104(c)(2)(C), 

is consistent with congressional intent under Chevron Step One because the statute’s requirement 

that an IE report identify donors whose contributions were “made for the purpose of furthering 

an independent expenditure” begs the question: which IE?19 Relatedly, CREW attempts to 

deflect CGPS’s Foo v. Tillerson, 244 F. Supp. 3d 17 (D.D.C. 2017) and Abbott GmbH & Co. KG 

v. Yeda Research and Dev. Co., Ltd., 516 F. Supp. 2d 1 (D.D.C. 2007) authorities as cases that 

“merely show that the word modified by the indefinite article may be ambiguous” (in this case, 

the term “independent expenditure”). CREW Opp. Br. (Doc 33) at 10. But once again, this begs 

the question: which IE does a donor have to support in order to be reported under the Content 

Provision? The statute leaves this question open for interpretation. 

CREW suggests Congress’s choice to “use different articles in other sections” of 52 

U.S.C. § 30104(c)(2) indicates the Content Provision was meant to encompass reporting a broad 

universe of donors. Id. at 11. But CREW’s cited authority, Pillsbury v. United Eng’g Co., 342 

U.S. 197, 199 (1952), only supports the general canon of statutory interpretation that where 

“Congress knew the difference between [two different terms in a statute],” it is presumed to have 

                                                            

19 The court’s conclusion in N.H. Motor Transp. Ass’n that “if a state law is preempted as to one carrier, it is 

preempted as to all carriers” is not to the contrary because the statute at issue contained preemption provisions for 

both “any motor carrier” and “an air carrier.” 448 F.3d at 72 (emphases in the original). But while the more general 

term encompassed the more specific term in that case, the converse is not true. Here, the FECA’s Content Provision 

requires reporting of the more specific term – “an independent expenditure,” and does not necessarily encompass 

reporting of a more general universe of “any independent expenditures.” Indeed, N.H. Motor Transp. Ass’n 

acknowledged that had the statute only used the article “an” without a corresponding provision containing the article 

“any,” “an” may have been ambiguous. Id. at 72 n.8. At minimum, the interpretive question the FECA’s Content 

provision leaves open here with the indefinite article “an” should be resolved in favor of more specificity (as the 

FEC did) because the surrounding FECA provisions use the definite article “the.” See CGPS MSJ Br. (Doc 28) at 

38-40. 

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“used the words advisedly.” CREW’s attempt to characterize that case as addressing how to 

construe definite and indefinite articles in a statute fails in light of the cases discussed above that 

actually address this specific issue. 

Lastly, the fact that the FEC’s EC reporting regulation, 11 C.F.R. § 104.20(c)(9), was 

“modeled on” the Content Provision, 52 U.S.C. § 30104(c)(2)(C), has no bearing on whether the 

statute invites interpretation, as CREW suggests. CREW Opp. Br. (Doc 33) at 14. Even though 

the EC regulation is “modeled on” the statute in concept, the two provisions clearly use different 

language. Moreover, the fact that a controlling group of FEC commissioners has adopted a 

narrowing interpretation of the EC regulation, id. at 14 n.4, is just further evidence that, to the 

extent the EC regulation is modeled on the Content Provision, both provisions invite 

interpretation. 

2. The Regulation Is Proper Under Chevron Step Two. 

i. Extrinsic post hoc campaign finance data cannot provide evidence of 

congressional intent or be considered in an APA challenge to the regulation’s 

validity. 

CREW cites the Federal Rules of Evidence for a rather novel theory of statutory 

interpretation: that this Court should look to recent campaign finance data to divine the “proper 

meaning” of the FECA’s IE Content Provision and thereby determine whether the FEC’s 1980 

rulemaking was permissible under Chevron Step Two. CREW Opp. Br. (Doc 33) at 18. There is 

good reason why this not a recognized theory of statutory interpretation, see, e.g., Cong. 

Research Svc. Rept. No. 97-589, Statutory Interpretation: General Principles and Recent Trends, 

available at https://fas.org/sgp/crs/misc/97-589.pdf: it places the cart before the horse and would 

convert the Court into a legislature unto itself. 

Even under the “purposive” approach to statutory construction CREW appears to be 

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urging here, it is still first necessary to determine Congress’s purpose in enacting the Content 

Provision before looking to post hoc data to determine whether a law is being implemented to 

achieve its purposes. In other words, post-enactment facts do not shed light on Congress’s 

enacting intent unless Congress somehow could have known those facts at the time it legislated. 

CREW has simply pointed to no evidence of legislative intent supporting its theory. 

Nor has CREW adequately refuted the substantial legislative history CGPS has presented 

previously. See CGPS MSJ Br. (Doc 28) at 8-11. CREW’s broad statements about the FECA’s 

generic disclosure purposes also are unavailing, as CREW’s cited authorities do not specifically 

address the Content Provision at issue here. See CREW Opp. Br. (Doc 33) at 17. Moreover, 

although the FECA is, in large part, a reporting statute, it does not require the type of “maximal 

disclosure” CREW demands here. See Van Hollen, Jr. v. Fed. Election Comm’n, 811 F.3d 486, 

494 (D.D.C. 2016). 

 CREW also is not permitted to point to extrinsic contemporary evidence, see CREW 

Opp. Br. (Doc 33) at 18-19, to demonstrate the FEC’s enactment of a regulation in 1980 was in 

error. “Under the APA, the focal point for judicial review should be the administrative record 

already in existence, not some new record made initially in the reviewing court . . . [I]f a court is 

to review an agency’s action fairly, it should have before it neither more nor less information 

than did the agency when it made its decision . . . .” Am. Wild Horse Pres. Campaign v. Salazar, 

859 F. Supp. 2d 33, 41 (D.D.C. 2012) (internal citations and quotation marks omitted). If 

CREW wishes to introduce this type of extrinsic, post hoc evidence before the Court to 

demonstrate a decades-old regulation is no longer achieving the statute’s purposes, CREW must 

first present this evidence to the FEC in a rulemaking petition. Only if the agency denies the 

petition may CREW properly seek judicial review of the agency’s action. See CWA, 493 F.3d at 

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158-59. 

ii. CREW’s extrinsic post hoc evidence fails to show the regulation has resulted 

in “no disclosure” of contributors on IE reports. 

Even if CREW’s resort to contemporary evidence were proper, CREW – not CGPS –is 

the party mischaracterizing the cited evidence. See CREW Opp. Br. (Doc 33) at 19. According 

to CREW, CGPS claimed that “between 7.2% and 29.7% of contributions” by non-PAC entities 

making independent expenditures were reported in recent election cycles. See id. at 18 

(emphasis added). But CGPS said no such thing. Rather, CGPS merely cited the CRP website 

for the proposition that “the percentage of ‘outside spending’ by organizations that have publicly 

reported some of their donors in recent years has ranged between 7.2% (in 2010) to 29.7% (in 

2012).” CGPS MSJ Br. (Doc 28) at 46 (emphasis added).20

Moreover, CREW’s own characterization of the CRP website is erroneous. It is not true 

that the “CPR [sic] label[] [of] ‘some disclosure’ refers to the total spending by organizations 

that either report $5,000 in contributions or contributions equal to 5% of their total 

expenditures,” and “if [CGPS] reported only 5% of its contributors, the entirety of its more than 

$70 million in independent expenditures would be treated as ‘some disclosure.’” See id. In fact, 

CREW’s characterization of the CRP data applies only “[if] the entity is a super PAC”; for a 

501(c)(4) entity such as CGPS, the “some disclosure” label “means the group has disclosed some 

of the donors, either voluntarily or because the donor earmarked the funds for political 

expenditures.” CRP, Outside Spending by Disclosure, Excluding Party Committees, available at

https://www.opensecrets.org/outsidespending/disclosure.php (emphasis added). 

Nor is it clear where, as CREW claims, the CRP website indicates that, of “tax exempt 

                                                            

20 Again, this extrinsic post hoc data is not relevant to the regulation’s validity, and CGPS cited it arguendo for the 

sole purpose of refuting CREW’s claim about the regulation’s effects. See id. 

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501(c) groups like [CGPS] . . . reported contributions used to fund independent expenditures 

amounted to only about $8 million, or about 2.7%” in 2012. CREW Opp. Br. (Doc 33) at 19. 

The page on the CRP website that CREW cites only appears to show the group types and their 

total spending on IEs and ECs. It does not appear to provide any dollar or percentage amounts 

for their reported contributions. Compare id. with CRP, 2012 Outside Spending, by Group, 

available at http://bit.ly/2nm87vU. 

In short, notwithstanding CREW’s mischaracterizations, the CRP data still do not 

corroborate CREW’s claim that the FEC’s regulation has “effectively resulted in no disclosure of 

contributions used to fund independent expenditures.” CGPS MSJ Br. (Doc 28) at 46 (quoting 

CREW MSJ Br. (Doc 27) at 34) (emphasis in the original)). 

iii. The regulation is not redundant. 

CREW’s reply maintains the regulation is invalid under Chevron Step Two because it 

“[c]reates [r]edundancy” with “other reporting requirements.” CREW Opp. Br. (Doc 33) at 20. 

It appears CREW really means the regulation is internally inconsistent, but either way, CREW is 

mistaken. 

CREW’s argument hinges on a single FEC authority that has no bearing here. 

Specifically, CREW cites an FEC advisory opinion for the proposition that, when “a company 

that allowed individuals to fund already existing ads . . . the company would not be the one who 

makes the independent expenditure; rather it would be the person providing the funds who did 

so.” Id. at 21 (citing FEC Adv. Op. No. 2008-10 (VoterVoter)). From this out-of-context 

discussion of the VoterVoter advisory opinion, CREW concludes the FEC’s IE reporting 

regulation misreads the FECA’s Content Provision by requiring only the reporting of donors who 

choose to fund the specific IE being reported, since that would convert the donors into the IE’s 

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sponsors (and, in turn, the donors would have to file the IE reports, but would not be reported as 

contributors on any reports). See id. However, the VoterVoter advisory opinion CREW cites 

does not apply here because that opinion specifically addressed a commercial vendor selling 

existing political ads to individual clients. See FEC Adv. Op. No. 2008-10 (VoterVoter), 

available at http://saos.fec.gov/aodocs/AO%202008-10.pdf. It is axiomatic under the FEC’s 

regulations and precedents that commercial vendors are treated differently from groups engaged 

in regulated political speech; otherwise, every political consultant or ad vendor would be at risk 

of making excessive or prohibited contributions or having to file campaign finance reports. See, 

e.g., 11 C.F.R. §§ 114.2(f)(1), (2)(i), 116.3; FEC Adv. Op. No. 2017-06 (Stein and Gottlieb) at 6 

(collecting authority), available at http://saos.fec.gov/aodocs/AO%202017-

06%20(Stein%20Gottlieb)%20Final%20(09.14.17).pdf. 

Moreover, the extremely close nexus between funders and the particular ads identified on 

IE reports, which CREW contends is absurd, actually tracks closely with the legislative history 

behind the Content Provision of the FECA’s IE reporting requirement, and which is faithfully 

implemented in the FEC regulation. CREW’s suggestion to the contrary fails to acknowledge 

and grapple with how the Content Provision actually came to be. As CGPS has previously 

explained, prior to the 1979 amendments that enacted the Content Provision into the FECA, 

separate reports were, in fact, required to be filed by both: (1) donors to persons or groups 

sponsoring IEs; and (2) the IEs’ sponsors themselves. See CGPS MSJ Br. (Doc 28) at 8-9; see 

also 2 U.S.C. § 434(e)(1) (1976); 11 C.F.R. §§ 109.2(b) (1976) (“Reporting of independent 

expenditures”), 109.5 (1976) (“Reporting of independent contributions”). 

To eliminate the reporting burden on contributors, Congress (at the FEC’s 

recommendation) consolidated the separate reports by placing the reporting responsibility solely 

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on the IEs’ sponsors. 1979 FECA History at 24-25, 104, 145. This did not mean, however, as 

CREW suggests, that there no longer had to be “a direct link between the contribution and the 

independent expenditure” to require a donor to be reported. See CREW Opp. Br. (Doc 33) at 20. 

In fact, such a “direct link” is quite consistent with the logic and breadth of donor reporting 

under the pre-1979 reporting regime that even CREW concedes was carried over in the 1979 

amendments. See id. at 28-29. To wit, just as a donor was required to report her contribution for 

a specific IE on the pre-1979 “independent contribution” report, post-1979, the IE report is 

required to identify the donor making the contribution for the specific ad being reported. 

B. The FEC’s IE Reporting Regulation Properly Construes the Coverage Provision, 

and CREW’s Alternative Reading Would Result in Misleading Reporting. 

The FEC’s regulation interprets 52 U.S.C. § 30104(c)(1) (the Coverage Provision) as 

merely providing an overview of the scope of persons and activities covered by the FECA’s IE 

reporting requirement. See CGPS MSJ Br. (Doc 28) at 49-50. This reading is consistent with 

the relevant canons of statutory construction, which support consideration of the Coverage 

Provision within “the specific context in which that language is used” (here, the FECA’s IE 

reporting section), “and the context of the [FECA] as a whole.” U.S. v. Mosquera-Murillo, 172 

F. Supp. 3d 24, 30 (D.D.C. 2016). 

CREW, for its part, urges this Court to read the Coverage Provision in isolation from the 

surrounding context and the entire statute. Under CREW’s alternative reading, IE reports would 

need to include acontextual and misleading information about donors who have nothing to do 

with the reported independent expenditure. The Court should reject such an odd reading. See, 

e.g., Public Citizen v. Dep’t of Justice, 491 U.S. 440, 454 (1989). 

CREW contends its interpretation of the Coverage Provision merely requires reporting of 

donors “based on when the[ir] contribution was made” in a way that is consistent with the 

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33 

statutory scheme for electioneering communication (“EC”) reports. CREW Opp. Br. (Doc 33) at 

29. This is comparing apples to bananas. Specifically, CREW appears to suggest that because 

reporting of ECs under the FECA is “defined by time,” it is also appropriate to require sponsors 

of IEs to report their donors based on when they gave (under CREW’s misreading of the 

Coverage Provision), in addition to whether they gave to further the reported IE (under the 

Content Provision). See id.; see also id. at 6. However, this only scratches the surface of the 

statutory text while ignoring the legislative history for regulating ECs. The regulation of certain 

ads within pre-election time windows as ECs, 52 U.S.C. § 30104(f), was supported by a 

legislative record “over 100,000 pages long” indicating that “candidate advertisements 

masquerading as issue ads” were “almost all [] aired in the 60 days immediately preceding a 

federal election.” Citizens United v. FEC, 558 U.S. 310, 332 (2010) (internal citation and 

quotation marks omitted); McConnell, 540 U.S. at 127, 132 (internal quotation marks omitted). 

By contrast, CREW has pointed to no evidence whatsoever that “almost all” – or even 

most – donors who would be reported under its misreading of the Coverage Provision give for 

the purpose of supporting an organization’s IEs. Nor is it clear what the scope of donor reporting 

would even be under CREW’s misreading of the Coverage Provision. On the one hand, CREW 

contends the Coverage Provision imposes an “unbounded contributor disclosure requirement” 

under which filers “must report all of their contributions without regard to earmarking.” CREW 

Opp. Br. (Doc 33) at 30 n.19 (emphasis added). Yet, CREW also maintains that “a person who 

donates money . . . without ‘the purpose of influencing any election for Federal office’ . . . is not 

a contributor . . . under any reading of . . . [52 U.S.C. § 30104](c)(1) . . . and thus would not be 

disclosed.” Id. at 17-18. 

Despite these disparate understandings of what constitutes a “contribution” or 

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34 

“contributor,” CREW nonetheless contends “the statute’s reference to ‘contributions’ . . . is not 

ambiguous in [52 U.S.C. § 30104](c)(1).” This blithely ignores the Supreme Court’s holding, 

which has been undisturbed for more than 40 years, that the term “contribution,” even as 

statutorily defined, is laden with “ambiguity.” Buckley v. Valeo, 424 U.S. 1, 77 (1976). In fact, 

even Buckley’s attempt to clarify the “contribution” definition was not entirely satisfactory. In 

light of the remaining “hazards of uncertainty” in this term, the Second Circuit subsequently 

further construed “contributions” to mean only funds “that will be converted to expenditures 

subject to regulation under FECA. Thus, Buckley’s definition of independent expenditures that 

are properly within the purview of FECA provides a limiting principle for the definition of 

contributions . . . as applied to groups acting independently of any candidate or his agents and 

which are not ‘political committees’ under FECA.” FEC v. Survival Educ. Fund, 65 F.3d 285, 

295 (2nd Cir. 1995) (emphasis added). 

Therefore, even if the Coverage Provision is incorrectly read out of context as CREW 

does – i.e., to require a non-PAC entity such as CGPS to report its sources of “contributions” – 

the FEC could not have simply adopted CREW’s “unbounded” understanding, CREW Opp. Br. 

(Doc 33) at 30 n.19, without interpreting “contribution” in the unconstitutionally vague manner 

that Survival Education Fund confirmed was impermissible. Thus, it was reasonable – indeed, 

necessary – for the FEC’s IE reporting regulation to interpret and implement both the Coverage 

and Content Provisions, see AR1503, as requiring only the identification of those who give for 

the purpose of furthering the IE being reported, see Edward J. DeBartolo Corp. v. Fla. Gulf 

Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) (“where an otherwise 

acceptable construction of a statute would raise serious constitutional problems, the Court will 

construe the statute to avoid such problems unless such construction is plainly contrary to the 

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35 

intent of Congress”). 

CREW also claims “it is unconstitutional for the FEC to limit disclosure” to avoid the 

type of misleading donor reporting that CREW urges under its misreading of the Coverage 

Provision. CREW Opp. Br. (Doc 33) at 8. However, the authority CREW cites (at id.) does not 

support this proposition, as it addressed an outright ban on speech that was purportedly harmful 

to the public. See Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 

767-68 (1976). CREW’s authority does not address the type of compelled speech at issue here, 

and whether the government may define the parameters of the speech it compels to avoid 

creating public confusion. Nor is it valid for CREW to suggest that donors concerned about 

being associated misleadingly with certain IEs could simply “limit their contributions” and stop 

giving to certain groups, CREW Opp. Br. (Doc 33) at 12, as this would infringe upon their First 

Amendment right of association, Van Hollen, 811 F.3d at 500; Buckley, 424 U.S. at 15. 

CREW’s supposition that Congress intended non-PAC entities like CGPS to report “all of 

their contributions without regard to earmarking” on the same basis as PACs, CREW Opp. Br. 

(Doc 33) at 30 n.19, 6-7,21 also ignores the fact that PACs are organizations whose “major

purpose . . . is the nomination or election of a candidate,” Buckley, 424 U.S. at 79. Just as 

requiring PACs to report all of their spending “can be assumed to fall within the core area sought 

to be addressed by Congress” because “[t]hey are, by definition, campaign related,” id., requiring 

PACs to report all of their revenue sources serves the interests in public disclosure the Court 

                                                            

21 See also id. at 21 (“the FECA is not concerned solely with contributions earmarked to particular purposes” 

because “there is no dispute that political committee contributions need not be earmarked to their final use in order 

to be reported,” and “by referencing this requirement, [52 U.S.C. § 30104](c)(1) [the Coverage Provision] imposes a 

similar unconstrained reporting requirement on those making independent expenditures.” CREW Opp. Br. (Doc 33) 

at 21. 

CREW cites no legislative history, or any authority for that matter, for its claim that Congress intended non-PAC 

entities filing IE reports to identify their donors in a manner similar to the way PACs must report their contributors. 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 48 of 59
36 

identified in Buckley, see id. at 79-82. Conversely, non-PAC entities such as CGPS, by 

definition, do not have the “major purpose” of influencing elections, and thus not all donors to 

such entities may be presumed to have given for a purpose justifying their inclusion on IE 

reports. See Survival Education Fund, 65 F.3d at 295 (distinguishing regulable “contributions” 

for PAC and non-PAC entities based on Buckley’s “major purpose” test for PACs). 

CREW also mischaracterizes the FEC’s disposition of MUR 3503 (Perot Petition 

Committee) as evidence the agency has interpreted the Coverage Provision as creating a 

“standalone reporting obligation” for information about an IE sponsors’ donors. CREW Opp. 

Br. (Doc 33) at 26.22 MUR 3503 involved the reporting of independent expenditures made by an 

individual, and therefore the reporting of donor information was never at issue. See FEC MUR 

3503, First General Counsel’s Report at 3 (“Carmack Watkins stated that he alone placed the 

newspaper advertisements” at issue) (emphasis added). In fact, the FEC’s staff specifically 

recommended that the Commission find reason to believe there had been a violation of 52 U.S.C. 

§ 30104(c)(1) because “[t]he costs incurred by Mr. Watkins’ use of office space . . . along with 

the $100 for newspaper ads, may have exceeded $250, making the expenditures subject to [52 

U.S.C. § 30104](c)(1).” Id. at 4 (emphasis added). As CGPS has noted previously, the FEC’s 

enforcement precedents have actually dismissed the notion that subsection (c)(1) imposes a 

standalone donor reporting requirement. CGPS MSJ Br. (Doc 28) at 21; AR172-73. 

Ultimately, CREW’s arguments fail to demonstrate: (1) that the Coverage Provision, 52 

U.S.C. § 30104(c)(1), is unambiguous in the manner CREW suggests; and (2) that the FEC 

impermissibly and unreasonably interpreted (c)(1) and (c)(2)(C) (the Content Provision) in the 

agency’s implementing regulation by reading the provisions together to not require misleading 

                                                            

22 CREW mistakenly refers to this matter as “MUR 5303.” However, it is clear from CREW’s description of the 

matter and the “short URL” CREW provides that it is referring to MUR 3503. 

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37 

and unconstitutionally vague and overbroad reporting of donor information.

C. Congress Has Ratified the FEC’s IE Reporting Regulation. 

Ironically, while CREW relies on subsequent developments to attack the underlying FEC 

regulation (see supra at 29), CREW urges this Court to ignore the one legitimate way in which 

post hoc events are relevant here: Congress’s subsequent ratification of the FEC’s regulation. 

See CGPS MSJ Br. (Doc 28) at 43-45; CREW Opp. Br. (Doc 33) at 21-23. While CREW 

heavily downplays this development, its significance is unavoidable. 

To begin, none of CREW’s authorities that purport to negate the significance of 

congressional acquiescence in agency regulations, see CREW Opp. Br. (Doc 33) at 22-23, 

discusses FECA’s special congressional review provision, 52 U.S.C. § 30111(d). Congress 

adopted this provision specifically to assure that FEC regulations would not “depart[] . . . from 

Congressional intent” and would “conform to the campaign finance laws.” Legislative History of 

Federal Election Campaign Act Amendments of 1974 at 643, available at https://transition. 

fec.gov/pdf/legislative_hist/legislative_history_1974.pdf.23 Moreover, Congress used this 

special review provision repeatedly prior to 1980 to disapprove FEC regulations. See CGPS 

MSJ Br. (Doc 28) at 13. The Supreme Court also validated an FEC regulation, in part, because 

“neither House [of Congress] expressed disapproval” pursuant to this process. See FEC v. 

DSCC, 454 U.S. 27, 34 (1981). CREW fails to explain why this Court should not do likewise 

here.24 

                                                            

23 The Committee on House Administration’s Report ultimately was incorporated into the final Conference 

Committee Report. See id. at 1065. 

24 CREW observes in passing that the special congressional review provision should be discounted because 

“§ 109.10 was one of over a hundred regulations spanning thirty pages sent to Congress for review.” CREW Opp. 

Br. (Doc 33) at 23. The inconsistency with such an “overworked” argument is, of course, that CREW’s brief also 

demands that the FEC – which had to actually write (and not just read) the hundred-plus regulations and 

accompanying explanations – should have written more content during the narrow window Congress gave it for 

promulgating the regulations. 

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38 

Nor does CREW adequately justify disregarding Congress’s longstanding acquiescence 

in the FEC’s 1980 rulemaking, even as it repeatedly amended FECA in other respects. See Pub. 

Citizen, Inc. v. FAA, 988 F.2d 186, 194 (D.C. Cir. 1993) (where Congress had amended a statute 

on several occasions over two decades without disturbing an agency’s preexisting authority to 

regulate, Congress is presumed to adopt the agency’s interpretation of the statute when it 

reenacts the statute without change). Such acquiescence is “a significant indicator of the 

legislature’s will,” Abourezk v. Reagan, 785 F.2d 1043, 1055 (D.C. Cir. 1986), aff’d, 484 U.S. 1 

(1987) and, indeed, such “a consistent administrative construction of that statute must be 

followed by the courts unless there are compelling indications that it is wrong.” Haig v. Agee, 

453 U.S. 280, 291 (1981) (emphasis added, internal citation and quotation marks omitted). 

CREW points to language in Rapanos v. U.S., 547 U.S. 715, 749 (2006) expressing 

“skepticism . . . of congressional inaction” as a basis for concluding congressional acquiescence 

to a regulation. CREW Opp. Br. (Doc 33) at 22. But CREW fails to mention that the foregoing 

language did not garner the support of a Court majority. See Rapanos, 547 U.S. at 758 (Roberts, 

J., concurring) (“no opinion commands a majority of the Court . . .”). Moreover, that same 

plurality opinion (and other authorities CREW cites) fully acknowledges that the Court has 

“recognized congressional acquiescence to administrative interpretations of a statute,” id. at 749, 

including where, as here, legislative inaction is “long-standing,” Bismullah v. Gates, 551 F.3d 

1068, 1074 (D.C. Cir. 2009). 

Nowhere are these legal principles more compelling than in this case. After all, members 

of Congress are acutely aware and concerned about the process by which they are elected. 

During the nearly 40 years the FEC IE reporting regulation has been in effect, Congress has 

repeatedly debated independent expenditures and the reporting thereof. See, e.g., 144 Cong. Rec. 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 51 of 59
39 

S884-02 (Feb. 24, 1998) (Sen. Baucus) (discussing “unreported, undisclosed contributions spent 

by ‘independent expenditure’ campaigns”); 145 Cong. Rec. S12734-02 (Oct. 18, 1999) (Sen. 

Murray) (discussing the “right to know who is funding these so-called ‘independent 

expenditures’”). And some Senators even introduced amendments designed specifically to force 

501(c)(4) organizations like CGPS that sponsor IEs to report their donors in the more expansive 

manner that CREW urges the Court to impose here. See, e.g., 143 Cong. Rec. S10485-01 (Oct. 

7, 1997) (Sen. Torricelli Amndt., No. 1308, to the Bipartisan Campaign Reform Act of 1997); 

143 Cong. Rec. S10661-02 (Oct. 8, 1997) (Sen. Murray Amndt., No. 1315, to the Bipartisan 

Campaign Reform Act of 1997). 

Yet through it all, Congress never actually amended the FECA to impose the sweeping IE 

donor reporting regime CREW now asks the Court to graft onto the statute. In fact, Congress 

specifically amended the IE reporting statute six times since the FEC’s 1980 rulemaking. See

CGPS MSJ Br. (Doc 28) at 44. As part of the 2002 major overhaul of the FECA, Congress even 

made a change to 52 U.S.C. § 30104(c) to alter the IE reporting regime, but did not change the 

language of (c)(1) and (c)(2)(C) at issue here, see H.R. Rep. No. 131, 107th Cong., 1st Sess., pt. 

1, at 23 (2001), thereby further ratifying the FEC’s regulation, which implements both of those 

provisions, see AR1503. 

 As the Supreme Court has held in reviewing similar legislative efforts, Congress 

“spurned multiple opportunities to reverse [the FEC’s rulemaking] – openings as frequent and 

clear as this Court ever sees. . . . Congress’s continual reworking of the [IE reporting] laws – but 

never of the [the FEC’s regulation –] supports leaving the decision in place.” Kimble v. Marvel 

Entm’t, LLC, 135 S. Ct. 2401, 2409-10 (2015). CREW fails to show why this compelling 

evidence of legislative intent should be discounted here. 

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CREW also makes a fleeting attempt to downplay the value of the FEC’s 

contemporaneous rulemaking. CREW Opp. Br. (Doc 33) at 22 n.9. But a close-in-time 

interpretation is a “particularly persuasive” indicator of congressional intent, United Transp. 

Union v. Lewis, 711 F.2d 233, 242 (D.C. Cir. 1983), that can even “carry the day against doubts 

that might exist from a reading of the bare words of a statute,” Good Samaritan Hosp. v. Shalala, 

508 U.S. 402, 414 (1993). In fact, “[u]nder Supreme Court precedent, it is well-established that 

a court should defer to the [agency’s] interpretation . . . when the administrative practice at stake 

involves contemporaneous construction of a statute by the [agency] charged with a responsibility 

with setting its machinery in motion, of making the parts work efficiently and smoothly while 

they are yet untried and new.” Pub. Serv. Co. of Ind., Inc. v. ICC, 749 F.2d 753, 765 (D.C. Cir. 

1984) (internal citation, brackets, and quotation marks omitted).25

VI. THE FEC’S DISMISSAL IS ENTITLED TO DEFERENCE. 

Courts accord a high degree of deference to the FEC’s dismissals of enforcement matters. 

See CGPS MSJ Br. (Doc 28) at 22-23. Despite CREW’s bizarre claim to the contrary, CREW 

Opp. Br. (Doc 33) at 42-43, this is true even in 3-3 deadlocks like the one at issue here: “[W]hen 

the Commission deadlocks 3-3 . . . the three Commissioners who voted to dismiss must provide a 

statement of their reasons for so voting . . . [and] their rationale necessarily states the agency’s 

reasons for acting as it did,” FEC v. NRSC, 966 F.2d 1471, 1476 (D.C. Cir. 1992) (internal 

citations omitted) (emphasis added), and “if the meaning of the statute is not clear, a reviewing 

court should accord deference to the Commission’s rationale,” id.; see also DSCC, 745 F. Supp. 

at 745 (“the Commission’s split vote [does not] make its decision unreasonable”). 

                                                            

25 See also U.S. v. Cleveland Indians Baseball Co., 532 U.S. 200, 219 (2001) (noting the “particular force” a 

regulation can have “if it is a substantially contemporaneous construction of the statute by those presumed to have 

been aware of congressional intent”); Miller v. Youakim, 440 U.S. 125, 144 (1979) (an agency’s construction is 

“especially persuasive” where “the agency participated in developing the provision”). 

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41 

CREW mischaracterizes the authorities it contends are to the contrary. CREW 

erroneously cites Akins and even its own eponymous case for the categorical proposition that 

courts afford no deference to the FEC’s dismissal of enforcement matters. CREW Opp. Br. (Doc 

33) at 42. In fact, those authorities simply state the “fairly intuitive principle, that courts need 

not, and should not, defer to agency interpretations of opinions written by courts,” CREW v.

FEC, 209 F. Supp. 3d 77, 87 (D.D.C. 2016) (emphasis added), or “an agency’s interpretation of 

Supreme Court precedent” when reviewing FEC dismissals, Akins v. FEC, 101 F.3d 731, 740 

(D.C. Cir. 1996) (emphasis added). Those authorities do not apply where, as here, the FEC’s 

dismissal is based on the agency’s interpretation of its own regulations and the statute. 

It is similarly disingenuous for CREW to cite U.S. v. Mead Corp., 533 U.S. 218 (2001) to 

negate the deference accorded to the FEC’s dismissal of administrative complaints. CREW Opp. 

Br. (Doc 33) at 42, 43 n.26. In fact, Mead specifically reaffirmed that Chevron deference is 

“merit[e]d” in cases involving “express congressional authorizations to engage in the process of 

rulemaking or adjudication” by agencies. 533 U.S. at 229 (emphasis added). This deference was 

held unwarranted in Mead because the government agency was acting far afield from the 

anticipated area of congressional delegation. Id. at 231. Here, by contrast, the FEC indisputably 

has “primary and substantial responsibility for administering and enforcing” the FECA. Buckley

424 U.S. at 109 (emphasis added). 

CREW’s attempt to call into question the “extremely deferential” review accorded to the 

FEC’s exercise of its prosecutorial discretion in this matter also attacks a strawman. According 

to CREW, no deference is warranted “[i]f the agency makes a legal error in the course of 

exercising its prosecutorial discretion.” CREW Opp. Br. (Doc 33) at 43. CREW appears to 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 54 of 59
42 

imply that the FEC’s Heckler dismissal26 of the agency’s self-initiated hypothetical theory 

regarding the FECA’s IE Coverage Provision, see CGPS MSJ Br. (Doc 28) at 34, was based on 

an error of law. However, the FEC’s dismissal of this theory was based on the fair notice 

concerns discussed above arising from the agency’s previous practice of not enforcing the 

Coverage Provision as a separate and additional reporting requirement. AR176; see also supra

at 36; CGPS MSJ Br. (Doc 33) at 27-28. In exercising the agency’s prosecutorial discretion, the 

Commission made no determination on the merits of the legal question CREW now alleges (for 

the first time) regarding the Coverage Provision. In fact, CREW’s reply brief contradicts itself 

on this point by later characterizing the FEC’s Heckler dismissal as a “prudential decision” as 

opposed to a “decision on the merits.” CREW Opp. Br. (Doc 33) at 49. 

Related to this point about the FEC’s discretion, CREW also prematurely and incorrectly 

declares that if the Court were to remand this matter to the FEC and the agency still does not 

proceed with enforcement, “CREW will have the authority to bring its own suit to protect its 

own rights.” CREW Opp. Br. (Doc 33) at 44. This is not true. The FEC’s exercise of 

prosecutorial discretion “is a decision generally committed to [its] absolute discretion” and is 

“presumptively unreviewable.” Heckler, 470 U.S. at 831-32. “The FEC is not required to 

pursue every potential violation of FECA,” La Botz v. FEC, 61 F. Supp. 3d 21, 35 (D.D.C. 

2014), and its Heckler dismissals “are entitled to great deference,” Combat Veterans for Cong. 

Political Action Comm. v. FEC, 983 F. Supp. 2d 1, 15 (D.D.C. 2013), aff’d, 795 F.3d 151 (D.C. 

Cir. 2015). And outside of the FEC’s enforcement process, “there is no private right of action to 

enforce the FECA against an alleged violator.” Perot, 97 F.3d at 558 n.2.27 

                                                            

26 Heckler v. Chaney, 470 U.S. 821 (1985). 

27 Moreover, even if – contrary to all of the reasons CGPS has provided – the Court were to adopt CREW’s reading 

of the FECA’s IE Coverage and Content Provisions, that still would not enable CREW in a separate suit to seek 

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43 

VII. TO THE EXTENT THE COURT DOES NOT GRANT SUMMARY JUDGMENT 

TO THE FEC AND CGPS, THE APPROPRIATE REMEDY IS TO LEAVE THE 

REGULATION IN PLACE AND REMAND TO THE FEC FOR FURTHER 

PROCEEDINGS. 

While CGPS remains confident in its position, because CREW raises the issue of remedy, 

CREW Opp. Br. (Doc 33) at 39-41, a brief response is in order. Contrary to CREW’s plea for 

this Court to strike the FEC’s IE reporting regulation, “[i]f the record before the agency does not 

support the agency action . . . the proper course, except in rare circumstances, is to remand to the 

agency for additional investigation or explanation.” Banner Health v. Price, 867 F.3d 1323, 

1356 (D.C. Cir. 2017). This is because an “agency must first be afford[ed] . . . an opportunity to 

articulate, if possible, a better explanation.” Id. (internal citation and quotation marks omitted). 

Vacatur need not accompany the remand of an inadequately supported rule. See Allied–

Signal, Inc. v. NRC, 988 F.2d 146, 150 (D.C.Cir.1993). Courts have “commonly remanded 

without vacating an agency’s rule . . . where the failure lay in lack of reasoned decisionmaking 

[or where the agency’s action] was otherwise arbitrary and capricious.” Int’l Union, United 

Mine Workers of Am. v. Fed. Mine Safety & Health Admin., 920 F.2d 960, 966–67 (D.C. Cir. 

1990). In fact, “remanding without vacating” is the “established administrative practice,” Sugar 

Cane Growers Co-op. of Florida v. Veneman, 289 F.3d 89, 98 (D.C. Cir. 2002), and is warranted 

even in circumstances that “invite prejudicial agency delay.” U.S. Sugar Corp. v. EPA, 844 F.3d 

268, 270 (D.C. Cir. 2016). 

Ultimately, the decision to vacate depends on two factors: (1) “the seriousness of the 

order’s deficiencies (and thus the extent of doubt whether the agency chose correctly)”; and 

(2) “the disruptive consequences of an interim change that may itself be changed.” La. Fed. 

                                                            

enforcement of these provisions post hoc against CGPS in a manner contrary to the FEC’s regulation and 

longstanding prior interpretation. See supra at 6-14. 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 56 of 59
44 

Land Bank Ass’n, FLCA v. Farm Credit Admin., 336 F.3d 1075, 1085 (D.C. Cir. 2003) 

(concluding that vacatur was inappropriate) (internal citation and quotation marks omitted). 

With regard to the first factor, “[w]hen an agency may be able readily to cure a defect in 

its explanation of a decision, the first factor . . . counsels remand without vacatur.” Heartland 

Reg'l Med. Ctr. v. Sebelius, 566 F.3d 193, 198 (D.C. Cir. 2009). This is particularly true “if the 

basis for remand is a gap in the agency’s reasoning that the court finds troubling but thinks the 

agency may well be able to cure, or to ameliorate with minor changes in the rule or order.” 

Ronald M. Levin, “Vacation” at Sea: Judicial Remedies and Equitable Discretion in 

Administrative Law, 53 Duke L.J. 291, 379 (2003). Again, while not conceding the regulation 

needs further explanation, CGPS believes the FEC could take any steps the Court requests to 

remedy any concerns the Court may have about the regulation. 

As to the second factor, courts “consider disruptive impacts to the regulated industry.” 

Pub. Employees for Envtl. Responsibility v. U.S. Fish & Wildlife Serv., 189 F. Supp. 3d 1, 3 

(D.D.C. 2016), appeal dismissed, No. 16-5224, 2016 WL 6915561 (D.C. Cir. Oct. 31, 2016). It 

is hard to believe that the 2018 elections will be irreparably compromised if a regulation that has 

existed for almost 40 years now – and lasted through nearly 20 election cycles – is allowed to 

remain in place until the FEC issues a more detailed explanation for its 1980 rulemaking. Cf. 

A.L. Pharma, Inc. v. Shalala, 62 F.3d 1484, 1492 (D.C. Cir. 1995) (remanding, but not vacating, 

agency decision relied on “in good faith for over thirteen years”). 

As even CREW acknowledges, the “2018 election is quickly approaching and there have 

already been significant independent expenditures this year.” CREW Opp. Br. (Doc 33) at 40. 

The corollary to this, of course, is that there likely have been significant donations to 

organizations already made in reliance on the FEC’s regulation. It is not hard to see how, 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 57 of 59
45 

without warning or an opportunity to adjust their giving habits, a Republican who donated to the 

Sierra Club or a Democrat who donated to the National Rifle Association for those 

organizations’ general programs will suddenly find themselves involuntarily identified on public 

campaign finance reports because they did not retain a lawyer to read the FEC’s regulation, 

analyze whether it comports with the statute, and then survey third-party resources to see who 

might still question the rule’s validity. 

Immediate vacatur of the rule also would open up a Pandora’s Box of other problems. 

For example, the political and non-profit worlds would be thrown into chaos the moment a 

vacatur takes effect, as any entity that spent money on an IE within the five-year statute of 

limitations period (for enforcement matters) could immediately find itself the subject of an FEC 

complaint. Moreover, vacatur means the burden would fall on this Court in the first instance – 

rather than the FEC – to weigh the relevant constitutional and other issues in deciding which of 

the reporting standards suggested by CREW is the correct one – i.e., is the reporting limited only 

to those who gave for the purpose of funding IEs generally, does it extend to all those who gave 

for “political purposes,” or does it cover any donor who gave any money to an organization 

making IEs? Rather than the Court getting into these regulatory thickets, the best remedy would 

be to keep the existing regulation in place and either (a) let the FEC offer a revised explanation 

or (b) give the agency time to conduct further rulemaking proceedings and offer its guidance on 

the most appropriate way forward. 

CONCLUSION 

For the foregoing reasons, CGPS respectfully requests this Court deny CREW’s Motion 

for Summary Judgment and grant CGPS’s Cross-Motion for Summary Judgment. 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 58 of 59
46 

Respectfully submitted, 

/s/ Thomas W. Kirby 

Thomas J. Josefiak Michael E. Toner (D.C. Bar No. 439707) 

J. Michael Bayes (D.C. Bar No. 501845) Thomas W. Kirby (D.C. Bar No. 915231) 

HOLTZMAN VOGEL JOSEFIAK TORCHINSKY PLLC Andrew G. Woodson (D.C. Bar No. 494062) 

45 North Hill Drive, Suite 100 Eric Wang (D.C. Bar No. 974038) 

Warrenton, VA 20186 WILEY REIN LLP 

Tel.: 540.341.8808 1776 K Street, NW 

Fax: 540.341.8809 Washington, DC 20006 

Tel.: 202.719.7000 

Fax: 202.719.7049 

Counsel for Crossroads Grassroots Policy 

January 22, 2018 Strategies

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 59 of 59
Attachment G

FEC’s Reply in Support of its Motion for Summary Judgment, 

CREW v. FEC (Civil Action No. 1:16-cv-00259-BAH) (Jan. 24, 2018)
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, et al., ) 

 ) Civ. No. 16-259 (BAH) 

 Plaintiffs, ) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant, ) 

 ) 

CROSSROADS GRASSROOTS POLICY ) 

STRATEGIES, ) REPLY IN SUPPORT OF 

 ) SUMMARY JUDGMENT 

 Intervenor-Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S REPLY 

IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

Kevin Deeley 

Associate General Counsel 

January 24, 2018 

Harry J. Summers 

Assistant General Counsel 

Seth Nesin 

Attorney 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

(202) 694-1650 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 1 of 53
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TABLE OF CONTENTS 

 

 Page 

I. THE DISMISSAL OF THE ADMINISTRATIVE COMPLAINT WAS 

LAWFUL .......................................................................................................................2

A. The FEC’s Dismissal of the Administrative Complaint Is Entitled 

to Deference .......................................................................................................2 

B. It Was Reasonable for the Controlling Group to Find That the Facts 

CREW Alleged Did Not Create a Reason to Believe Crossroads GPS 

Violated 52 U.S.C. § 30104(c)(2)(C) or 11 C.F.R. § 109.10(e)(1)(vi) ..............5 

C. The FEC Properly Exercised Prosecutorial Discretion as to Any 

Potential Violation of 52 U.S.C. § 30104(c)(1), and in Any Event 

Plaintiffs Failed to Timely Raise Their Arguments With Respect to 

Such a Claim ......................................................................................................7 

D. Equitable Concerns and FECA’s Safe Harbor Provision Would 

Likely Have Presented Barriers to Pursuit of an Alleged Section 

30104(c)(1) Violation ......................................................................................12 

E. The Commission’s Exercise of Prosecutorial Discretion Does Not 

Automatically Confer on CREW the Authority to Sue Crossroads GPS 

in Its Own Capacity .........................................................................................15 

II. THE COMMISSION’S REGULATION AT 11 C.F.R. § 109.10(e)(1)(vi) WAS 

LAWFULLY PROMULGATED AND IT REMAINS VALID .................................18 

A. Judicial Review of the Commission’s Regulation Is Deferential ....................19 

B. Plaintiffs’ Challenge to the Sufficiency of the Regulation’s 

Explanation and Justification Is Untimely and Erroneous ...............................20 

C. The Regulation Passes Chevron Step One Because the Ambiguity 

of the Statute Provided the Commission With Authority to Promulgate 

11 C.F.R. § 109.10(e)(1)(vi) ............................................................................23 

D. The Regulation Passes Chevron Step Two Because It Reasonably 

Clarifies the Language of 52 U.S.C. § 30104(c)(2)(C) ...................................28 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 2 of 53
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1. Evidence Regarding the Extent of Disclosure Today Cannot 

Be Considered in Determining Whether the Commission Acted 

Reasonably in Passing the Regulation in 1980 ....................................29 

2. The Interpretation of the Statute in the Regulation Does 

Not Create Redundancies .....................................................................31 

3. Congress Has Not Acted on This Issue Despite CREW’s 

Argument That the Regulation Has Been in Conflict With the 

Statute for 38 Years .............................................................................32 

E. It Is Reasonable to Interpret Section 30104(c)(1) as Too Ambiguous, 

in the Overall Context of the Statute, to Treat as an Independent 

Reporting Requirement ....................................................................................33 

1. Interpreting Section 30104(c)(1) as an Independent Reporting 

Requirement Creates Tension With the Language and Structure 

of the Law ............................................................................................34 

2. The Duplicative Reporting CREW Envisions Would Be 

Dissimilar to Other Provisions of FECA .............................................36 

3. No Court Has Held That Section 30104(c)(1) Imposes an 

Independent Reporting Requirement, Nor Has the Commission 

Itself Ever Enforced the Statute in Accord With That 

Interpretation ........................................................................................39 

4. FECA Treats Persons That Are Not Political Committees 

Differently from Political Committees ................................................40 

III. REMAND TO THE COMMISSION WOULD BE THE APPROPRIATE 

REMEDY IF THE COURT DETERMINED THAT THE COMMISSION 

ERRED ........................................................................................................................42 

CONCLUSION ........................................................................................................................43 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 3 of 53
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TABLE OF AUTHORITIES 

Cases 

AFL-CIO v. Chao, 496 F. Supp. 2d 78 (D.D.C. 2007) ...................................................... 21-22 

Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 

988 F.2d 146 (D.C. Cir. 1993) ...............................................................................42, 43 

Bhd. of R.R. Trainmen v. B&O R.R. Co., 331 U.S. 519 (1947) ...............................................34 

Bob Jones Univ. v. United States, 461 U.S. 574 (1983) ..........................................................33 

Buckley v. Valeo, 424 U.S. 1 (1976) ........................................................................................40 

Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 

 467 U.S. 837 (1984) .................................................................. 3, 19, 22, 23, 28, 42-43 

Cnty. of San Miguel v. Kempthorne, 587 F. Supp. 2d 64 (D.C. Cir. 2008) .............................30 

Coburn v. McHugh, 679 F.3d 924 (D.C. Cir. 2012) ..................................................................8 

Combat Veterans for Cong. Political Action Comm. v. FEC, 

795 F.3d 151 (D.C. Cir. 2015) .....................................................................................17 

Common Cause v. FEC, 906 F.2d 705 (D.C. Cir. 1990) .........................................................23 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) ...........................................................3 

CREW v. FEC, 209 F. Supp. 3d 77 (D.D.C. 2016), appeal dismissed, 

No. 16-5300, 2017 WL 4957233 (D.C. Cir. Apr. 4, 2017)..................................3, 4, 18 

CREW v. FEC, 475 F.3d 337 (D.C. Cir. 2007) ..........................................................................4 

CREW v. FEC, 243 F. Supp. 3d 91 (D.D.C. 2017) ..................................................................21 

Ctr. for Individual Freedom v. Van Hollen, 694 F.3d 108 (D.C. Cir. 2012) .....................25, 26 

Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131 (D.C. Cir. 1987) .....................16 

Democratic Senatorial Campaign Comm. v. Nat’l Republican Senatorial Comm., 

No. 1:97-cv-1493 (D.D.C. filed June 30, 1997) ..........................................................18 

Dist. Hosp. Partners, L.P. v. Sebelius, 971 F. Supp. 2d 15 (D.D.C. 2013) .............................30 

Dolan v. U.S. Postal Serv., 546 U.S. 481 (2006) .....................................................................25 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 4 of 53
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Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) ..................................................22 

Esch v. Yeutter, 876 F.2d 976 (D.C. Cir. 1989) .......................................................................30 

FEC v. Akins, 524 U.S. 11 (1998) ........................................................................................4, 16 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981) ..................................17 

FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987) ......................................................................39 

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) .................................... 14, 26-28, 39 

FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471 (D.C. Cir. 1992) .........................3 

FEC v. Rose, 806 F.2d 1081 (D.C. Cir. 1986) .........................................................................18 

Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985) ...................................................42 

Fritch v. U.S. Dept. of State, 220 F. Supp. 3d 51 (D.D.C. 2016) ..............................................8 

George E. Warren Corp. v. E.P.A., 159 F.3d 616 (D.C. Cir. 1998) ........................................21 

Gill v. U.S. Dept. of Justice, 875 F.3d 677 (D.C. Cir. 2017) .....................................................8 

Hagelin v. FEC, 411 F.3d 237 (D.C. Cir. 2005) ........................................................................2 

Heckler v. Chaney, 470 U.S. 821 (1985) .............................................................................2, 16 

Hispanic Affairs Project v. Acosta, 263 F. Supp. 3d 160 (D.D.C. 2017) ............................9, 12 

In re Fed. Election Campaign Act Litig., 474 F. Supp. 1051 (D.D.C. 1979) ..........................15 

In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000) .................................................................3, 4 

JEM Broad. Co., Inc. v. FCC, 22 F.3d 320 (D.C. Cir. 1994) ..................................................21 

Koretoff v. Vilsack, 707 F.3d 394 (D.C. Cir. 2013) ...................................................................9 

La Botz v. FEC, 61 F. Supp. 3d 21 (D.D.C. 2014) ..........................................................2, 4, 17 

Marsh v. J. Alexander's LLC, 869 F.3d 1108 (9th Cir. 2017) .................................................22 

McConnell v. FEC, 540 U.S. 93 (2003) ...................................................................................38 

N.Y. State Dep’t of Law v. FCC, 984 F.2d 1209 (D.C. Cir. 1993) ..........................................18 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 5 of 53
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Nader v. FEC, 823 F. Supp. 2d 53 (D.D.C. 2011) ...................................................................23 

Nat’l Wildlife Fed’n v. EPA, 286 F.3d 554, 562 (D.C. Cir. 2002) ..........................................10 

Nuclear Energy Inst. Inc., v. EPA, 373 F.3d 1251 (D.C. Cir. 2004) .....................................8, 9 

Omnipoint Corp. v. FCC, 78 F.3d 620 (D.C. Cir. 1996) ..........................................................8 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) ...................................................................2, 16 

Pacific Ranger, LLC v. Pritzker, 211 F. Supp. 3d 196 (D.D.C. 2016) ......................................9 

Perez-Guzman v. Lynch, 835 F.3d 1066 (9th Cir. 2016), 

cert. denied, No. 17-302, 2018 WL 410912 (Jan. 16, 2018) .......................................22 

Public Citizen, Inc. v. FAA, 988 F.2d 186 (D.C. Cir. 1993) ....................................................20 

Salt Lake Cmty. Action Program v. Shalala, 11 F.3d 1084 (D.C. Cir. 1993) ............................9 

Sanders v. Kerry, 180 F. Supp. 3d 35 (D.D.C. 2016) ........................................................29, 30 

Schiller v. Tower Semiconductor Ltd., 449 F.3d 286 (2d Cir. 2006) .......................................21 

Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008) .........................................................................30 

Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) ...........................................................................20 

Shays v. FEC, 508 F. Supp. 2d 10 (D.D.C. 2007) ...................................................................43 

Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004) .............................................................42, 43 

Sierra Club v. EPA, 353 F.3d 976 (D.C. Cir. 2004) ................................................................19 

Silver State Land, LLC v. Beaudreau, 59 F. Supp. 3d 158 (D.D.C. 2014) ..............................30 

Sims v. Apfel, 530 U.S. 103 (2000) ............................................................................................9 

United States v. Hagler, 700 F.3d 1091 (7th Cir. 2012) ....................................................24, 25 

United States v. Kanchanalak, 192 F.3d 1037 (D.C. Cir. 1999) ...............................................4 

United States v. L.A. Truck Lines, Inc., 344 U.S. 33 (1952) ......................................................8 

United States v. Mead Corp., 533 U.S. 218 (2001) ...............................................................3, 4 

United States v. Torres, 115 F.3d 1033 (D.C. Cir. 1997) ..........................................................4 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 6 of 53
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U.S. Telecom Ass’n v. FCC, 825 F.3d 674 (D.C. Cir. 2016) ...................................................21 

Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016) ..........................................................17, 23 

Wallaesa v. FAA., 824 F.3d 1071 (D.C. Cir.), cert. denied, 137 S. Ct. 389 (2016) ..................8 

Walter O. Boswell Mem'l Hosp. v. Heckler, 749 F.2d 788 (D.C. Cir. 1984) ...........................29 

WorldCom, Inc. v. FCC, 288 F.3d 429 (D.C. Cir. 2002) .........................................................43 

Statutes and Regulations 

Bipartisan Campaign Reform Act of 2002, 

Pub. L. No. 107-155, 116 Stat. 81 (2002) §§ 201, 203, 204 ........................................38 

Federal Election Campaign Act Amendments of 1976, 

Pub. L. No. 94-283, 90 Stat. 475 (1976) ......................................................................37 

H.R. Rep. No. 94-917 (1976) ...................................................................................................17 

42 U.S.C. § 2000e-5(f)(1) ........................................................................................................17 

52 U.S.C. § 30104(a) ...............................................................................................................41 

52 U.S.C. § 30104(b) ...............................................................................................................41 

52 U.S.C. § 30104(b)(3)(A) .....................................................................................................35 

52 U.S.C. § 30104(c) ...................................................................................................12, 24, 41 

52 U.S.C. § 30104(c)(1) ................................................................................................... passim

52 U.S.C. § 30104(c)(2)(C) ............................................................................................. passim

52 U.S.C. § 30104(f)(3)(A)......................................................................................................38 

52 U.S.C. § 30104(f)(3)(B) ......................................................................................................37 

52 U.S.C. § 30107 ....................................................................................................................17 

52 U.S.C. § 30107(e) ...............................................................................................................15 

52 U.S.C. § 30109(a)(8) ...........................................................................................................10 

52 U.S.C. § 30109(a)(8)(C) .........................................................................................15, 16, 17 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 7 of 53
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52 U.S.C. § 30111(e) ...............................................................................................................12 

11 C.F.R. § 109.10(e)(1)(vi) ............................................................................................ passim

Miscellaneous 

Briefs from FEC v. Mass. Citizens for Life, Inc., No. 85-701 479 U.S. 238 (1986): 

 Brief for Appellant FEC, 1986 WL 727481 (Feb. 27, 1986) .......................................27 

 Amicus Brief for the Home Builders Association of Massachusetts, 

1986 WL 727491(Apr. 4, 1986) ..................................................................................27 

 Amicus Brief for the National Rifle Association of America, 

1986 WL 727486 (Apr. 4, 1986) .................................................................................27 

 Amicus Brief of the ACLU, et al., 1986 WL 727489 (Apr. 4, 1986) ..........................27 

 Amicus Brief of the Reporters Committee for Freedom of the Press et al., 

1986 WL 727484 (Apr. 4, 1986) .................................................................................27 

 Brief for the Appellee MCFL, 1986 WL 727495 (Apr. 4, 1986) ................................27 

 Reply Brief for the Appellant FEC, 1986 WL 727498 (Sept. 30, 1986) .....................27 

FEC Advisory Opinion 2008-10 (VoterVoter.com) (Oct. 24, 2008), 

https://www.fec.gov/files/legal/aos/73731.pdf ...................................................... 31-32 

DISCLOSE Act, H.R. 430, 114th Cong. § 324(a)(2)(F) (2015), 

https://www.congress.gov/bill/114th-congress/house-bill/430/text ............................33 

FEC Form 5, https://www.fec.gov/resources/cms-content/documents/fecfrm5.pdf. ..............13 

Fed. R. Evid. 201 (cmmt..).......................................................................................................29 

First General Counsel’s Report, MUR 6021 (Democratic National Committee, et al.), 

Dec. 1, 2009, https://www.fec.gov/files/legal/murs/current/80542.pdf .........................6 

Guidebook for Complainants and Respondents on the FEC Enforcement Process, 

https://transition.fec.gov/em/respondent_guide.pdf .....................................................10 

Instructions for Preparing FEC Form 5, https://www.fec.gov/resources/cmscontent/documents/fecfrm5i.pdf. .................................................................................13 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 8 of 53
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FEC Matter Under Review 3503 (Perot Petition Committee): 

 Certification, https://www.fec.gov/files/legal/murs/3503.pdf .....................................40 

 First General Counsel’s Report, 

https://www.fec.gov/files/legal/murs/3503.pdf ..................................................... 39-40 

Edmund M. Morgan, Judicial Notice, 57 Harv. L. Rev. 269 (1944) .......................................30 

Statement of Reasons, MUR 4960 (Hillary Rodham Clinton for Senate 

Exploratory Committee), Dec. 21, 2000, 

https://www.fec.gov/files/legal/murs/current/38206.pdf) ..............................................6 

Statement of Reasons of Chairman Matthew S. Petersen and Commissioners 

Caroline C. Hunter and Donald F. McGahn, MUR 6002 

(In the Matter of Freedom’s Watch, Inc.), August 13, 2010, 

https://www.fec.gov/files/legal/murs/current/80943.pdf. ............................................26 

RFAI, http://docquery.fec.gov/pdf/481/13330028481/13330028481.pdf (Apr. 9, 2013) ......14 

RFAI, http://docquery.fec.gov/pdf/945/12330014945/12330014945.pdf (Oct. 5, 2012)........14 

RFAI, http://docquery.fec.gov/pdf/455/11330010455/11330010455.pdf (June 14, 2011) .....13 

RFAI, http://docquery.fec.gov/pdf/453/11330010453/11330010453.pdf (June 14, 2011) .....13 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 9 of 53
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The Federal Election Commission (“Commission” or “FEC”) lawfully dismissed the 

administrative complaint filed by plaintiffs Citizens for Responsibility and Ethics in Washington 

(“CREW”) and Nicholas Mezlak against Crossroads Grassroots Policy Strategies (“Crossroads 

GPS”). Three members of the Commission, representing a controlling group, found no reason to 

believe that Crossroads GPS had violated the disclosure requirements of the Federal Election 

Campaign Act (“FECA” or “Act”) or the relevant FEC regulation. The FEC’s opening brief 

explained that both the statutory provision and regulation require entities like Crossroads GPS 

only to disclose those contributions that are made “for the purpose of furthering” an independent 

expenditure. But the facts alleged did not provide evidence that any contributions here were 

made for that specific purpose. The agency also exercised its prosecutorial discretion to dismiss 

an additional potential allegation, which plaintiffs did not raise in their administrative complaint, 

that relied on a novel statutory interpretation and therefore raised equitable concerns. 

Plaintiffs’ opposition primarily argues that the Commission has misinterpreted the 

meaning of two FECA provisions since the time they were enacted in 1980, and that under 

plaintiffs’ preferred legal interpretation, Crossroads GPS should have disclosed its contributors. 

Plaintiffs ask the Court not only to reverse the decision to dismiss the administrative complaint 

but also to strike down the agency’s longstanding regulatory interpretation of FECA. They claim 

that the statute lacks any ambiguity and that the FEC is misrepresenting the facts and the law. 

But plaintiffs’ opposition itself relies on distortions and misplaced policy arguments that obscure 

the true issues before the Court. It was reasonable to dismiss plaintiffs’ administrative complaint 

and the agency’s regulatory interpretation of the statute is permissible, particularly given the 

highly deferential standard of review that applies to agency decisions like this. The Court should 

grant summary judgment to the Commission. 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 10 of 53
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I. THE DISMISSAL OF THE ADMINISTRATIVE COMPLAINT WAS LAWFUL 

 In the relatively short portion of plaintiffs’opposition brief devoted to challenging the 

actual dismissal of their administrative complaint, plaintiffs primarily argue that the conclusions 

of the controlling group of Commissioners are entitled to little or no deference and that the 

Commissioners relied on flawed legal reasoning when dismissing plaintiffs’ claims. (Pls.’ Mem. 

of P&As in Opp’n to Def. FEC’s and Intervenor Def. Crossroads GPS’s Cross-Mots. for Summ. 

J. and in Supp. of Pls.’ Mot. for Summ. J. (“Pls.’ Opp.”) at 41-50 (Docket No. 33).) These 

arguments lack merit and largely ignore the factual information on which the controlling group 

of Commissioners based their decision. 

A. The FEC’s Dismissal of the Administrative Complaint Is Entitled to 

Deference 

This Court may set aside an administrative dismissal order of the Commission only if it is 

“contrary to law.” 52 U.S.C. § 30109(a)(8)(C). As the Commission explained in its opening 

brief, the contrary to law standard is highly deferential. See FEC’s Mem. of P&As in Supp. of its 

Mot. for Summ. J. and in Opp’n to Pls.’ Mot. for Summ. J. (“FEC Mem.”) at 14-16 (Docket No. 

31); Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986); Hagelin v. FEC, 411 F.3d 237, 242 

(D.C. Cir. 2005). When the Commission exercises its prosecutorial discretion to dismiss, that 

determination is subject to even greater deference from the Court. See FEC Mem. at 28; Heckler 

v. Chaney, 470 U.S. 821, 831 (1985); La Botz v. FEC, 61 F. Supp. 3d 21, 33 (D.D.C. 2014). 

Despite the abundant authority affirming the Commission’s deference, plaintiffs make 

several arguments that the agency is entitled to little or no deference in this particular case. First, 

plaintiffs claim that no deference is warranted here because the Commission’s determination was 

the result of an evenly divided vote by Commissioners. (Pls.’ Opp. at 42.) But this argument 

conflates deference in the judicial review of an administrative action with the precedential value 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 11 of 53
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of that action. Plaintiffs cite Common Cause v. FEC for the proposition that a statement of only 

three FEC Commissioners is not binding precedent. 842 F.2d 436, 449 n.32 (D.C. Cir. 1988). 

But that very case, which involved the dismissal of an administrative complaint due to a 3-3 

split, confirms that “[d]eference is particularly appropriate in the context of the FECA, which 

explicitly relies on the bipartisan Commission as its primary enforcer.” Id. at 448. Other cases 

involving evenly divided Commission votes have stated the same principle. See, e.g., In re 

Sealed Case, 223 F.3d 775, 779 (D.C. Cir. 2000) (“We have . . . held that we owe deference to a 

legal interpretation [issued by the FEC] supporting a negative probable cause determination that 

prevails on a 3-3 deadlock.”); FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471, 1476 

(D.C. Cir. 1992) (citations omitted) (“[I]f the meaning of [FECA] is not clear, a reviewing court 

should accord deference to the Commission’s rationale . . . [even in] situations in which the 

Commission deadlocks and dismisses.”). 

 Plaintiffs wrongly argue that the ample precedent in favor of deference for split 

decisions was overturned in 2001 by United States v. Mead Corp., 533 U.S. 218, 221 (2001), 

which held that certain administrative decisions that do not carry the “force of law” are not 

entitled to deference under Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 

(1984). Plaintiffs claim that because the decisions of a divided Commission are not precedential, 

they are entitled to no deference (Pls.’ Opp. at 42), but a different court in this district recently 

rejected that same argument when CREW made it. In CREW v. FEC, Judge Cooper reaffirmed 

that deference was appropriate because “the prospective, binding nature of an agency’s 

interpretation is not the sole consideration” when determining whether an agency decision should 

be afforded deference. 209 F. Supp. 3d 77, 85 n.5 (D.D.C. 2016), appeal dismissed, No. 16-

5300, 2017 WL 4957233 (D.C. Cir. Apr. 4, 2017). As that CREW opinion noted, Mead itself 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 12 of 53
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explained that “an agency’s power to engage in an adjudication” can be sufficient to show the 

delegated authority required for deference. Id. (citing United States v. Mead, 533 U.S. 218, 227 

(2001)). The CREW opinion noted that In re Sealed Case had observed that FEC enforcement 

actions, even those that result from evenly divided votes, are “analogous to a formal 

adjudication” and therefore entitled to deference. Id. (quoting In re Sealed Case, 223 F.3d at 

780). Thus, “seeing nothing in Mead that directly contradicts Sealed Case, the Court 

[determined that it would] abide its ‘obligat[ion] to follow controlling circuit precedent.’” 

CREW, 209 F. Supp. 3d at 85 n.5 (quoting United States v. Torres, 115 F.3d 1033, 1036 (D.C. 

Cir. 1997)). This Court should reach the same conclusion and afford the Commission deference. 

 With respect to the Commission’s exercise of prosecutorial discretion to not pursue a 

theory that Crossroads GPS violated 52 U.S.C. § 30104(c)(1) — an allegation not raised in the 

administrative complaint — CREW argues that that decision was based on an erroneous 

interpretation of law and is therefore not entitled to deference. But the agency plainly does 

receive deference in interpreting the very statute it administers, United States v. Kanchanalak, 

192 F.3d 1037, 1049 (D.C. Cir. 1999), and in any event, the notion of prosecutorial discretion 

itself means that the Commission can dismiss an administrative complaint even if it identifies a 

possible violation, because the “FEC is not required to pursue every potential violation of 

FECA.” La Botz, 61 F. Supp. 3d at 35. The Supreme Court has expressly recognized that the 

Commission may decline to pursue an enforcement matter even if that means some potential 

FECA violations go unpunished. FEC v. Akins, 524 U.S. 11, 25 (1998) (The Commission could 

“still have decided in the exercise of its discretion not to require” certain disclosures “even had

the FEC agreed with respondents’ view of the law” that FECA required such disclosure 

(emphasis added)); CREW v. FEC, 475 F.3d 337, 340 (D.C. Cir. 2007) (“No one contends that 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 13 of 53
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the Commission must bring actions in court on every administrative complaint. The Supreme 

Court in Akins recognized that the Commission, like other Executive agencies, retains 

prosecutorial discretion.”). Prosecutorial discretion means that an agency receives judicial 

deference in making decisions on whether to pursue particular enforcement matters. 

B. It Was Reasonable for the Controlling Group to Find That the Facts CREW 

Alleged Did Not Create a Reason to Believe Crossroads GPS Violated 52 

U.S.C. § 30104(c)(2)(C) or 11 C.F.R. § 109.10(e)(1)(vi) 

As the FEC explained (FEC Mem. at 17-23), it was reasonable based on the facts before 

the Commission not to find that Crossroads GPS violated the independent expenditure disclosure 

statute and regulation at issue here. Plaintiffs’ administrative complaint relied upon press reports 

about a phone call in which a contribution was allegedly promised and a fundraiser at which 

contributions were allegedly solicited, and that complaint noted that Crossroads GPS identified 

no contributors in its disclosures to the FEC. (See generally FEC Mem. at 8-12.) The complaint 

suggested there was reason to believe that this lack of disclosure violated FECA because the 

circumstances suggested that those contributions were made for the purpose of furthering 

independent expenditures. (See AR108-115.) But after considering all information before the 

FEC, including the response to the allegations provided by Crossroads GPS, the controlling 

group of Commissioners agreed with the FEC’s Office of General Counsel that there was “no 

reason to believe” Crossroads GPS had violated the regulation at 11 C.F.R. § 109.10(e)(1)(vi) or 

the statutory provision that is currently codified at 52 U.S.C. § 30104(c)(2)(C). A key basis for 

this decision was the lack of evidence that any particular contribution met the applicable legal 

standard, which requires that it be made “for the purpose of furthering” an independent 

expenditure by Crossroads GPS. (AR185-187, 187 n. 52.) The controlling group acted 

reasonably in relying on this lack of evidence. (See FEC Mem. at 17-19.) 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 14 of 53
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Plaintiffs’ opposition makes only a cursory argument that the facts available to the 

Commission required a finding of reason to believe that Crossroads GPS violated the statute or 

the regulation. Plaintiffs’ argument amounts to claims that: 1) the “reason to believe” standard is 

very low; 2) Crossroads GPS received contributions from individuals interested in electing 

certain candidates; and 3) Crossroads GPS made a lot of independent expenditures, so those 

contributors should have expected that their contributions would be used to further independent 

expenditures. (Pls.’ Opp. at 45-46.) 

These claims miss the mark. As an initial matter, the “reason to believe” standard is not a 

trivial or de minimis one. On the contrary, “[u]nwarranted legal conclusions from asserted facts . 

. ., or mere speculation, . . . will not be accepted as true” and “[s]uch purely speculative charges, 

especially when accompanied by a direct refutation, do not form an adequate basis to find reason 

to believe that a violation of the FECA has occurred.” Statement of Reasons, Matter Under 

Review (“MUR”) 4960 (Hillary Rodham Clinton for U.S. Senate Exploratory Committee, et al.), 

Dec. 21, 2000, at 2-3, https://www.fec.gov/files/legal/murs/current/38206.pdf (citations 

omitted)); First General Counsel’s Report, MUR 6021 (Democratic National Committee, et al.), 

Dec. 1, 2009 at 15, https://www.fec.gov/files/legal/murs/current/80542.pdf (providing the 

reasoning for the agency’s actions accepting the staff recommendation). In this case, plaintiffs 

simply speculate that because Crossroads GPS received contributions and made independent 

expenditures, those contributions must have been made with the purpose of furthering those 

expenditures. That is not enough to show that it was unlawful for the FEC to decline to make a 

reason to believe finding here. 

Plaintiffs argue that the facts “clearly give rise to the possibility that contributors ‘may’ 

have given to Crossroads GPS to further an independent expenditure and that Crossroads GPS 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 15 of 53
7 

violated the law by not reporting them” (Pls.’ Opp. at 45-46 (emphasis added)), but this assertion 

suggests that there is reason to believe a violation occurred every time an entity makes 

independent expenditures using undisclosed contributions. A primary inquiry in determining 

whether 11 C.F.R. § 109.10(e)(1)(vi) or 52 U.S.C. § 30104(c)(2)(C) was violated involves 

learning the purpose of possibly relevant contributions. It is not enough to point to such 

contributions and expenditures generally and assert that an investigation is warranted because 

some of the contributions might meet FECA’s “purpose of furthering” independent-expenditure 

reporting standard. And while communications between the parties involved are relevant to that 

standard, it does not follow that the FEC should be required to investigate an entity simply 

because of the possibility that it has not disclosed contributor information. 

In this case, Crossroads GPS denied any knowledge of a contribution made for the 

purpose of furthering the independent expenditures at issue. While it is possible that an 

investigation would have turned up evidence that a particular contribution was made for the 

purpose of furthering an independent expenditure, under the deferential standard of review that 

mere possibility is not enough to support a judicial determination that it was unlawful for the 

agency to decline to go forward here. 

C. The FEC Properly Exercised Prosecutorial Discretion as to Any Potential 

Violation of 52 U.S.C. § 30104(c)(1), and in Any Event Plaintiffs Failed to 

Timely Raise Their Arguments With Respect to Such a Claim

As the FEC explained (FEC Mem. at 23-31), 52 U.S.C. § 30104(c)(1) is ambiguous and 

the agency properly exercised its considerable discretion not to pursue a claim based on that 

provision in this case. Moreover, plaintiffs did not even argue in their administrative complaint 

that Crossroads GPS had violated section 30104(c)(1). As the Commission pointed out in its 

opening brief, that failure means plaintiffs appear to lack standing to pursue such a claim now, a 

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8 

defect that is by itself sufficient for the Court to grant summary judgment to the Commission on 

the plaintiffs’ claim under that legal theory. (FEC Mem. at 24 n.7 (Court should “limit its 

substantive judicial review to alleged violations that were actually presented to the agency by 

plaintiffs.”) Plaintiffs claim (Pls.’ Opp. at 46-48) that they were not required to exhaust their 

administrative remedies by presenting the section 30104(c)(1) violation theory to the 

Commission and that they actually did raise the theory, but those arguments are unavailing. 

It is well-settled that theories not raised before the Commission cannot be raised in 

subsequent litigation. “Simple fairness to those who are engaged in tasks of administration, and 

to litigants, requires as a general rule that courts should not topple over administrative decisions 

unless the administrative body not only has erred but has erred against the objection made at the 

time appropriate under its practice.” United States v. L.A. Truck Lines, Inc., 344 U.S. 33, 37 

(1952), cited in Gill v. U.S. Dept. of Justice, 875 F.3d 677, 682 (D.C. Cir. 2017). Thus, it is “a 

hard and fast rule of administrative law, rooted in simple fairness, that issues not raised before an 

agency are waived and will not be considered by a court on review.” Coburn v. McHugh, 679 

F.3d 924, 929 (D.C. Cir. 2012); accord, Nuclear Energy Inst. Inc. v. EPA, 373 F.3d 1251, 1297 

(D.C. Cir. 2004); Omnipoint Corp. v. FCC, 78 F.3d 620, 635 (D.C. Cir. 1996) (“As a general 

rule, claims not presented to the agency may not be made for the first time to a reviewing 

court.”). The rule holds “special force where, as here, an appeal follows an adversarial 

administrative proceeding in which parties are expected to present issues material to their case. 

In that setting, the rationale for requiring issue exhaustion is at its greatest.” Fritch v. U.S. Dept. 

of State, 220 F. Supp. 3d 51, 62 (D.D.C. 2016); Wallaesa v. FAA., 824 F.3d 1071, 1078 (D.C. 

Cir.), cert. denied, 137 S. Ct. 389 (2016). The “principle policy underlying the waiver rule is 

that judicial review might be hindered by the failure of the litigant to allow the agency to make a 

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9 

factual record, exercise its discretion, or apply its expertise.” Pacific Ranger, LLC v. Pritzker, 

211 F. Supp. 3d 196, 224 (D.D.C. 2016) (internal quotation marks omitted), citing Salt Lake 

Cmty. Action Program v. Shalala, 11 F.3d 1084, 1087 (D.C. Cir. 1993). Moreover, courts 

“require the argument [petitioner] advances here to be raised before the agency, not merely the 

same general legal issue.” Koretoff v. Vilsack, 707 F.3d 394, 398 (D.C. Cir. 2013) (internal 

quotation marks omitted), citing Nuclear Energy Inst., 373 F.3d at 1291. “The question is 

whether the specific argument advanced by the plaintiffs – rather than the same general legal 

issue – was raised before the agency.” Hispanic Affairs Project v. Acosta, 263 F. Supp. 3d 160, 

186 (D.D.C. 2017) (internal quotations removed). 

Plaintiffs cite Sims v. Apfel, which stands for the proposition that when “an administrative 

proceeding is not adversarial, . . . the reasons for a court to require issue exhaustion are much 

weaker,” 530 U.S. 103, 110 (2000), but that case is inapposite. Sims considered an 

administrative process before the Social Security Administration which plaintiffs here argue is 

similar to the FEC enforcement process (Pls.’ Opp. at 47), but the Sims opinion reveals key 

differences justifying the decision not to apply issue exhaustion there. The Sims court noted that 

the form to submit a claim to that agency “provides only three lines for the request for review, 

and a notice accompanying the form estimates that it will take only 10 minutes to ‘read the 

instructions, gather the necessary facts and fill out the form’” and that “a large portion of Social 

Security claimants either have no representation at all or are represented by non-attorneys.” 

Sims, 530 U.S. at 111–12. Given those circumstances, the court found that it would be unfair to 

apply issue exhaustion to individuals seeking benefits. By contrast, a “complete and proper” 

administrative complaint to the Commission must “[c]learly recite the facts that describe a 

violation of a statute or regulation under the Commission’s jurisdiction,” “[c]learly identify each 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 18 of 53
10 

person, committee or group that is alleged to have committed a violation,” “[i]nclude any 

documentation supporting the allegations, if available[,]” and “[d]ifferentiate between statements 

based on the complainant’s personal knowledge and those based on information and belief.” 

Guidebook for Complainants and Respondents on the FEC Enforcement Process at 6, 

https://transition.fec.gov/em/respondent_guide.pdf. Plaintiffs’ administrative complaint in this 

matter was twenty-pages long with extensive legal argument and fourteen separate exhibits. 

(AR98-159.) It was responded to by attorneys. (AR73-98, AR162-163) The situation is in no 

way analogous to the three-line form at issue in Sims. Thus, because there is “a near absolute bar 

against raising new issues – factual or legal – on appeal in the administrative context,” Nat’l 

Wildlife Fed’n v. EPA, 286 F.3d 554, 562 (D.C. Cir. 2002), and plaintiffs here failed to raise 

arguments based on section 30104(c)(1) in the FEC’s administrative process, the Court should 

deem such arguments to have been waived.1 

Plaintiffs also claim that they actually did raise the issue of how section 30104(c)(1) 

should be interpreted during the administrative proceedings (Pls.’ Opp. at 33), but they did no 

such thing. Plaintiffs’ administrative complaint was organized in several sections: 

“Complainants” (AR98-100), “Respondents” (AR100-01), “Legal Framework” (AR101-02), 

 

1

 Although plaintiffs failed to clearly allege a subsection 30104(c)(1) violation in the 

administrative complaint, the FEC’s Office of General Counsel did briefly raise that issue in its 

First General Counsel’s Report (“FGCR”). However, the FGCR merely noted that while section 

30104(c)(1) might be read to require additional disclosure, the Commission should not pursue 

such a theory because of equitable concerns. (AR176.) The Commission was not on notice that 

the complainants might pursue the issue, and it was not presented with any argument in support 

of going forward under that theory. The controlling group of Commissioners adopted the 

General Counsel’s recommendation on the issue without further comment. The doctrine of 

administrative exhaustion serves the important policy of ensuring that administrative 

complainants raise all issues they may pursue judicially, a policy interest that remains critical 

even if an agency happens to give an issue some level of consideration for an independent 

reason, as in this case. Plaintiffs should not obtain section 30109(a)(8) review of an issue simply 

because the Commission’s attorneys engaged in a thorough review of relevant legal questions. 

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11 

“Factual Allegations” (AR103-08), “Count[s I-V]” (AR 108-115), and “Conclusion” (AR115). 

Within the section identified as “Legal Framework,” plaintiffs quoted various provisions of 

FECA and the FEC regulations interpreting the disclosure of independent expenditures. 

(AR101-02.) For example, plaintiffs discussed what an independent expenditure is (AR101 ¶ 

13), what constitutes a “person” under the statute (AR101 ¶ 14), and when disclosure reports are 

due (AR102 ¶ 17). None of these topics was at issue in the administrative complaint; they were 

presumably included as background so that readers could understand the nature of the complaint 

and how the allegations fit into the overall legal landscape. It was in this “Legal Framework” 

section that plaintiffs made their sole reference to 30104(c)(1) and their belief that the provision 

contains an independent reporting requirement. (AR101 ¶14.) In a footnote in this background 

section, plaintiffs asserted generally that “[t]he FEC’s interpretation of the statute fails to give 

full effect to these provisions” and that “[a]t a minimum,” the regulatory language of “the

reported independent expenditure” differed from the use of “an independent expenditure” in 52 

U.S.C. § 30104(c)(2)(C). (AR102 n.1.) 

Plaintiffs now suggest that this footnote was enough to raise the claim that section 

30104(c)(1) contained an independent reporting requirement. But neither that footnote nor any 

other part of the brief suggests that Crossroads GPS violated FECA by failing to identify all of 

its contributors over $200. Instead, each Count of the administrative complaint alleges that 

Crossroads violated FECA by failing to disclose contributions made for the purpose of furthering 

independent expenditures, a reference to the requirement in 30104(c)(2)(C). (AR108 ¶ 40 

(referring to the purpose requirement in section 30104((c)(2)(C)); AR109 ¶ 44 (same); AR109 ¶ 

45 (same); AR110 ¶ 46 (same); AR110 ¶ 50 (same); AR110-11 ¶ 51 (same); AR111 ¶ 52 (same); 

AR111 ¶ 53 (same); AR112 ¶ 54 (same); AR112 ¶ 57 (same); AR113 ¶ 59 (same); AR113 ¶ 60 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 20 of 53
12 

(same); AR113 ¶ 61 (same); AR114 ¶ 62 (same); AR114 ¶ 63 (same), AR114 ¶ 64 (same), 

AR114 ¶ 66 (same).) 

In summary, the administrative complaint explicitly alleges numerous times that 

Crossroads GPS violated FECA by failing to disclose donors that gave for the purpose furthering 

independent expenditures, but none of the complaint’s counts even suggest that Crossroads GPS 

violated FECA by failing to disclose all of its over-$200 contributors. Plaintiffs failed to raise 

even the “same general legal issue” as an issue to be addressed in the administrative enforcement 

proceeding, much less the “specific argument” they now seek to advance. Hispanic Affairs 

Project, 263 F. Supp. 3d at 186. They have failed to preserve the section 30104(c)(1) issue here. 

D. Equitable Concerns and FECA’s Safe Harbor Provision Would Likely Have 

Presented Barriers to Pursuit of an Alleged Section 30104(c)(1) Violation 

 Contrary to plaintiffs’ claims (Pls.’ Opp. at 44-45), the Commission’s controlling group 

properly exercised its prosecutorial discretion regarding any 52 U.S.C. § 30104(c) claim here 

because moving forward with the claim raised equitable concerns that the Commission’s 

regulation did not give fair notice of the requisite level of disclosure if section 30104(c)(1) were 

to be interpreted as an independent disclosure provision. (AR176.) These equitable concerns are 

based on the same rationale as the “safe harbor” provision in FECA, which provides that “any 

person who relies upon any rule or regulation prescribed by the Commission in accordance with 

the provisions of this section and who acts in good faith in accordance with such rule or 

regulation shall not, as a result of such act, be subject to any sanction provided by this Act.” 52 

U.S.C. § 30111(e). Although the controlling group did not specifically cite that provision, it was 

therefore reasonable to exercise prosecutorial discretion based on these concerns. 

Plaintiffs argue that the safe harbor provision would not be an obstacle to pursuing a 

claim that Crossroads GPS violated 52 U.S.C. § 30104(c)(1) because “there are significant 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 21 of 53
13 

reasons to believe Crossroads GPS’s reliance is not in good faith.” (Pls.’ Opp. at 37.) But 

plaintiffs present no affirmative evidence that Crossroads GPS failed to act in good faith. 

Rather, plaintiffs rely on theories that assume Crossroads GPS shared plaintiffs’ flawed view of 

the relevant reporting requirements. First, plaintiffs argue that Crossroads GPS had notice that 

section 30104(c)(1) imposed a stand-alone reporting requirement due to a Request for Additional 

Information that the FEC sent the group stating that it had failed to include contributor 

information in its disclosures. (Id. (citing AR42).) But such a letter is merely an “opportunity to 

correct or explain report information for the public record.” Request for Additional Information 

(“RFAI”), https://www.fec.gov/help-candidates-and-committees/request-additional-information/ 

(emphasis added). The instructions for the independent expenditure reporting form state that 

reporting entities must disclose “each contribution over $200 that was made for the purpose of 

furthering the independent expenditures” (Instructions for Preparing FEC Form 5, 

https://www.fec.gov/resources/cms-content/documents/fecfrm5i.pdf), but the form itself does not 

provide an opportunity for a reporting entity to clarify whether contributors are undisclosed due 

to an oversight or due to the fact that none contributed for the purpose of furthering an 

independent expenditure. See FEC Form 5, https://www.fec.gov/resources/cmscontent/documents/fecfrm5.pdf. FEC Campaign Finance Analysts routinely send out RFAIs to 

filers without contributor information so that such filers can either provide the information or 

explain the reason why information was not provided. Crossroads GPS received several such 

letters.2

 But none provided notice that the organization “was failing to comply with its reporting 

obligations,” as plaintiffs claim. (Pls.’ Opp. at 37.) 

 

2

 RFAI, http://docquery.fec.gov/pdf/455/11330010455/11330010455.pdf (June 14, 

2011); RFAI, http://docquery.fec.gov/pdf/453/11330010453/11330010453.pdf (June 14, 2011); 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 22 of 53
14 

Plaintiffs’ other arguments are no stronger. They next point to FEC v. Massachusetts 

Citizens for Life, Inc. (“MCFL”), 479 U.S. 238 (1986), a case that plaintiffs believe makes clear 

that 52 U.S.C. § 30104(c)(1) is an independent reporting requirement, as evidence that 

Crossroads GPS had notice. (Pls.’ Opp. at 37.) But as discussed infra pp. 26-28, MCFL is not 

controlling authority on this issue, and language from a 32-year-old case that has not been 

followed or definitively explained in the intervening time can hardly be considered such clear 

notice as to make the Commission’s determination unreasonable. Plaintiffs also point to a 

petition for rulemaking filed by then-Congressman (now Senator) Christopher Van Hollen in 

2011, which requested that the FEC amend its regulation to reflect the interpretation that section 

30104(c)(1) is an independent reporting requirement. (Opp. at 37.) But Van Hollen’s petition 

for rulemaking cannot be considered much notice to Crossroads about the state of the law 

because the Commission did not ultimately decide to open a rulemaking in response to Van 

Hollen’s request. Lastly, plaintiffs assert that if only a lawyer for Crossroads GPS had read the 

statute, that would have provided notice. (Id.) But given the ambiguity of the relevant provision 

and regulatory framework (see infra pp. 33-41), simply reading the statute would not have 

provided adequate notice in this case. 

Indeed, the FEC has never interpreted 52 U.S.C. § 30104(c)(1) as a stand-alone reporting 

requirement in the 38 years of the provision’s existence. See infra pp. 38-40. Plaintiffs’ claim 

that Crossroads failed to act in good faith is thus completely unsupported. The controlling group 

reasonably exercised its prosecutorial discretion to not pursue such a theory for the first time in 

this enforcement matter. 

 

RFAI, http://docquery.fec.gov/pdf/945/12330014945/12330014945.pdf (Oct. 5, 2012); RFAI, 

http://docquery.fec.gov/pdf/481/13330028481/13330028481.pdf (Apr. 9, 2013). 

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15 

E. The Commission’s Exercise of Prosecutorial Discretion Does Not 

Automatically Confer on CREW the Authority to Sue Crossroads GPS in Its 

Own Capacity 

As explained earlier, the Commission has considerable discretion in determining whether 

to pursue an investigation against a party accused of wrongdoing. (FEC Mem. at 14-16.) 

Plaintiffs concede that the Commission has prosecutorial discretion, but they argue that 

exercising that discretion in a case in which there is reason to believe a violation occurred is 

“contrary to law.” (Pls.’ Opp. at 43-44 & n.27.) According to plaintiffs, FECA’s provision 

stating that the FEC “shall make an investigation” of any complaint as to which it finds reason to 

believe a violation occurred means that the FEC acts contrary to law every time it exercises its 

discretion not to pursue a claim, and that CREW is therefore entitled to bring a private action 

pursuant to FECA’s citizen-suit provision, 52 U.S.C. § 30109(a)(8)(C). (Pls.’ Opp. at 43, 44 n. 

27.) But in the forty-year history of the citizen-suit provision — which includes many 

challenges to discretionary FEC dismissals — no court has adopted CREW’s view of the law. 

FECA’s text squarely contradicts CREW’s argument. Three statutory conditions must be 

met before a private litigant may bring its own civil action to redress alleged FECA violations. 

First, the litigant must file an administrative complaint with the Commission, which may either 

act on the complaint or choose not to do so. See 52 U.S.C. § 30107(e); In re Fed. Election 

Campaign Act Litig., 474 F. Supp. 1051, 1053 (D.D.C. 1979). Second, if the FEC elects to 

dismiss the administrative complaint, the private litigant must obtain a declaration from the 

district court that the dismissal was contrary to law. 52 U.S.C. § 30109(a)(8)(C). Third, the FEC 

must fail “to conform with such declaration within 30 days.” Id. Then, and only then, may a 

private litigant bring a lawsuit in her own name to redress an alleged FECA violation. Id.

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16 

Recognizing the FEC’s prosecutorial discretion does not invalidate any portion of this 

statutory scheme. That is because Commission decisions not to prosecute, unlike those of most 

agencies, remain subject to judicial review. Akins, 524 U.S. at 26; see Heckler, 470 U.S. at 832. 

When the Commission dismisses an administrative complaint, even as an exercise of 

prosecutorial discretion, it must explain its rationale for doing so. See Democratic Cong. 

Campaign Comm. v. FEC, 831 F.2d 1131, 1135 (D.C. Cir. 1987). On judicial review of that 

decision, courts evaluate the Commission’s exercise of discretion to determine whether it 

depends on any errors of law or is otherwise unreasonable. Orloski, 795 F.2d at 161; see also 

CREW, 475 F.3d at 340 (“At this stage, judicial review of the Commission’s refusal to act on 

complaints is limited to correcting errors of law.”). 

If the Commission supplies reasonable grounds for invoking its discretion not to pursue 

an enforcement matter, its decision is not contrary to law and the condition precedent for a 

private right of action is never triggered. See 52 U.S.C. § 30109(a)(8)(C). In the event the 

Commission’s rationale for not pursuing a case is unreasonable — or if the Commission makes 

errors of law in its analysis — that exercise of discretion would be rejected on judicial review 

and the matter would be remanded to the agency. Id. If the Commission failed to conform to 

such a court declaration, a complainant could bring a civil action in its own name. Id. Each 

potential court determination and resulting circumstance is fully consistent with the plain 

statutory text. In contrast, CREW’s argument is inconsistent with FECA’s text because it would 

permit a private right of action even when the Commission acted reasonably in exercising its 

discretion to dismiss and its analysis did not depend on any impermissible legal judgments. 

The fact that Commission dismissals based on prosecutorial discretion remain subject to 

reasonableness review is sufficient to respond to plaintiffs’ contention here. If the Commission 

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17 

relied on an arbitrary or otherwise impermissible rationale for invoking its discretion, that 

dismissal would be declared contrary to law on judicial review. See La Botz v. FEC, 61 F. Supp. 

3d at 33 n.5 (rejecting hypothetical argument that the Commission could use its prosecutorial 

discretion in a way that was racially discriminatory because the “hypothetical would likely not 

survive an arbitrary and capricious challenge”). 

The extremely limited circumstances that trigger a private action under FECA make 

clear that Congress intended such suits to be rare. See 52 U.S.C. § 30109(a)(8)(C). The 

Commission has the sensitive task of regulating political activities of the nation’s elected 

officials and other political actors. See FEC v. Democratic Senatorial Campaign Comm., 454 

U.S. 27, 37 (1981) (noting that the Commission must decide “issues charged with the dynamics 

of party politics”); Van Hollen v. FEC, 811 F.3d 486, 499 (D.C. Cir. 2016) (describing the 

unique role of the FEC in having the sole purpose of regulating “core constitutionally protected 

activity”). The Commission’s authority is “considerable” and its power “potentially enormous,” 

including the authority to “conduct investigations, authorize subpoenas, . . . and initiate civil 

actions.” Combat Veterans for Cong. Political Action Comm. v. FEC, 795 F.3d 151, 153 (D.C. 

Cir. 2015) (citing 52 U.S.C. § 30107). Congress provided for an independent commission and 

procedural safeguards to ensure that enforcement actions in this area would not be used as a 

partisan or political weapon. See id.; H.R. Rep. No. 94-917, at 3 (1976) (“It is . . . essential in 

this sensitive area that the system of administration and enforcement enacted into law does not 

provide room for partisan misuse . . . .”). Had Congress intended to provide for citizen suits 

upon the mere discretionary decision of the FEC not to pursue a matter, it could easily have done 

so, as it has in other contexts. See, e.g., 42 U.S.C. § 2000e-5(f)(1) (explicitly permitting 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 26 of 53
18 

“persons aggrieved” to file employment discrimination lawsuits if the Equal Employment 

Opportunity Commission dismisses or fails to act on a charge within a specified time).3 

Plaintiffs provide no citation to any principle of law that an agency is required to 

resolve the merits of every case presented to it. See, e.g., FEC v. Rose, 806 F.2d 1081, 1091 

(D.C. Cir. 1986); cf. N.Y. State Dep’t of Law v. FCC, 984 F.2d 1209, 1214 (D.C. Cir. 1993) 

(upholding agency’s decision to settle “an enforcement action without resolving any of the legal 

issues raised in the Order to Show Cause initiating that action”). And the FEC is aware of no 

such authority. 

The Court should grant summary judgment to the Commission on plaintiffs’ claims that 

the agency acted unlawfully by dismissing plaintiffs’ administrative complaint. 

II. THE COMMISSION’S REGULATION AT 11 C.F.R. § 109.10(e)(1)(vi) WAS 

LAWFULLY PROMULGATED AND IT REMAINS VALID 

The FEC regulation that plaintiffs challenge, 11 C.F.R. § 109.10(e)(1)(vi), was 

reasonable when promulgated in 1980 and continues to be reasonable today. (See FEC Mem. at 

31-50.) Plaintiffs make a procedural argument that the regulation should be struck down due to a 

purportedly inadequate explanation, but that argument is untimely and should not be considered 

by the Court. In any case, under the deferential standards of review, the Commission’s 

explanation was sufficient, the agency had authority to promulgate the regulation, and the 

regulation itself is a reasonable interpretation of the ambiguous requirement for disclosure of 

 

3

 The long history of judicial review of the Commission’s handling of enforcement cases 

indicates that Congress’s statutory scheme is operating as intended. Although judicial review of 

Commission dismissals is appropriately deferential, courts have on occasion declared such 

dismissals contrary to law. See, e.g., CREW v. FEC, 209 F. Supp. 3d 77, 95 (D.D.C. 2016). 

When they have done so, the Commission has almost always fulfilled its duty to conform to 

those decisions in the first instance. And although the conferral of a private right of action under 

FECA is accordingly rare, it has happened. See Democratic Senatorial Campaign Comm. v. 

Nat’l Republican Senatorial Comm., No. 1:97-cv-1493 (D.D.C. filed June 30, 1997). 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 27 of 53
19 

contributor information in 52 U.S.C. § 30104(c)(2)(C). Furthermore, it is reasonable for the 

Commission’s independent expenditure regulation not to encompass plaintiffs’ reading of 52 

U.S.C. § 30104(c)(1) as a separate reporting requirement. The Court should thus reject 

plaintiffs’ efforts to strike down this longstanding regulation. 

A. Judicial Review of the Commission’s Regulation Is Deferential 

The Commission’s earlier brief explained that the Court’s review of plaintiffs’ challenge 

to the regulation under the Administrative Procedure Act (“APA”) and under Chevron is “highly 

deferential” and based solely on the administrative record before the Commission when 

promulgating the regulation. (FEC Mem. at 31-34 (quoting Sierra Club v. EPA, 353 F.3d 976, 

978 (D.C. Cir. 2004).) Plaintiffs now argue that this routine deference is unwarranted because 

the explanation the FEC gave for the regulation when it was promulgated was purportedly 

inadequate. (Pls.’ Opp. at 4.) Plaintiffs’ argument is flawed, both because it is foreclosed by the 

statute of limitations and because the Commission’s explanation was sufficient to explain the 

modest clarification made to the statutory language by the regulation. See infra pp. 20-23. 

Plaintiffs argue that deferential review predicated on the FEC’s expertise is also undeserved, but 

there is little doubt that, as the agency responsible for receiving and analyzing campaign finance 

reports of various types, the agency is the entity in the best position to identify ambiguities that 

could be problematic in implementing FECA. Nothing about this case would justify depriving 

the FEC of the ample deference routinely accorded to federal agency rulemaking.4

 

 

4

 Plaintiffs also claim that the FEC argued it could adopt rules “contravening the statute” 

(Pls.’ Opp. at 4 n.1), but of course the agency argued no such thing (see FEC Mem. at 32). 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 28 of 53
20 

B. Plaintiffs’ Challenge to the Sufficiency of the Regulation’s Explanation and 

Justification Is Untimely and Erroneous

The regulation at issue in this case, passed as a result of the 1979 FECA amendments, 

contains language almost identical to the statutory language in 52 U.S.C. § 30104(c)(2)(C). The 

statute requires entities other than political committees who make independent expenditures to 

report “each person who made a contribution in excess of $200 to the person filing such 

statement which was made for the purpose of furthering an independent expenditure.” 52 U.S.C. 

§ 30104(c)(2)(C) (emphasis added.) The regulation simply requires such filers to report “each 

person who made a contribution in excess of $200 to the person filing the report, which 

contribution was made for the purpose of furthering the reported independent expenditure.” 11 

C.F.R. § 109.10(e)(1)(vi) (emphasis added). At the time the regulation was promulgated in 

1980, the Commission explained that “[t]his section has been amended to incorporate the 

changes set forth at 2 USC 434(c)(1) and (2) [now 52 U.S.C. § 30104(c)(1) and (c)(2)] regarding 

reporting requirements for persons, other than a political committee, who make independent 

expenditures.” (AR1503.) 

Plaintiffs argue that this explanation was insufficient and so the regulation is invalid on 

that basis alone. (Pls.’ Opp. at 6 (citing Public Citizen, Inc. v. FAA, 988 F.2d at 186, 197 (D.C. 

Cir. 1993) and Shays v. FEC, 414 F.3d 76, 100 (D.C. Cir. 2005)).) But as an initial matter, the 

relevant statute of limitations precludes bringing procedural challenges like this more than six 

years after the regulation’s promulgation. And in any case the Commission’s explanation, while 

concise, is adequate given that the language of the statute and regulation are virtually identical. 

This Court previously held that there is jurisdiction for plaintiffs to challenge 11 C.F.R. 

§ 109.10(e)(1)(vi) here because “when an agency applies a regulation to dismiss an 

administrative complaint, the party whose complaint was dismissed may challenge the regulation 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 29 of 53
21 

after the statute of limitations has expired on the ground that the regulation conflicts with the 

statute from which it derives.” CREW v. FEC, 243 F. Supp. 3d 91, 101 (D.D.C. 2017) (emphasis 

added). The Court’s description of permissible challenges as those involving conflicts between a 

regulation and statute is consistent with a line of cases distinguishing between substantive 

challenges brought to regulations after the statutory period (which are permitted) and procedural 

challenges (which are not permitted). “[C]hallenges to the procedural lineage of agency 

regulations, whether raised by direct appeal, by petition for amendment or rescission of the 

regulation or as a defense to an agency enforcement proceeding, will not be entertained outside 

the [time] period provided by statute.” JEM Broad. Co., Inc. v. FCC, 22 F.3d 320, 325 (D.C. 

Cir. 1994); Schiller v. Tower Semiconductor Ltd., 449 F.3d 286, 293 (2d Cir. 2006). The very 

purpose of the statutory limitations period is to promote the agency’s interest in prompt review 

and to provide “finality in administrative processes.” JEM Broad. Co., Inc., 22 F.3d at 325.

“While an agency’s ultra vires or unconstitutional act might outweigh these policy concerns and 

therefore justify reaching an otherwise time-barred challenge to agency action, a mere procedural 

defect does not.” Schiller, 449 F.3d at 293. 

Plaintiffs do not challenge the caselaw distinguishing between jurisdiction for procedural 

challenges and substantive challenges. However, they argue that a challenge to an agency’s 

explanation and justification for a regulation is substantive, not procedural, and therefore their 

challenge to the regulation on that basis is not barred by the statute of limitations. (Pls.’ Opp. at 

35-36.) Plaintiffs cite several cases that describe an explanation for a rule as “substantive.” (Id. 

(citing U.S. Telecom Ass’n v. FCC, 825 F.3d 674, 701 (D.C. Cir. 2016); George E. Warren Corp. 

v. E.P.A., 159 F.3d 616, 620 (D.C. Cir. 1998); and AFL-CIO v. Chao, 496 F. Supp. 2d 76, 78 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 30 of 53
22 

(D.D.C. 2007).) But none of those cases is about a statute of limitations, nor does any use the 

term “substantive” to distinguish between justiciable and non-justiciable regulatory challenges. 

By contrast, in Perez-Guzman v. Lynch, the Ninth Circuit actually examined the question 

of whether an allegedly inadequate explanation for a federal regulation was procedural or 

substantive for the purpose of applying the statute of limitations. 835 F.3d 1066, 1077–78 (9th 

Cir. 2016), cert. denied, No. 17-302, 2018 WL 410912 (Jan. 16, 2018). The appellant in PerezGuzman argued that the Attorney General had based an immigration regulation on a flawed 

interpretation of law. Id. at 1077. The appellant also argued that the regulation was not entitled 

to Chevron deference because “the agency allegedly failed to explain its interpretation of [the 

law] when it originally promulgated the regulation.” Id. The court found that the argument that 

the Attorney General had unreasonably interpreted the law was timely, but that the argument that 

the government had failed to explain the interpretation could not be considered because it was a 

“procedural error[]” and had to be brought within the six-year statute of limitations. Id. at 1077-

78; see also Marsh v. J. Alexander's LLC, 869 F.3d 1108, 1118 n.11 (9th Cir. 2017) (declining to 

reach challenge to regulation based in part on fact that it was promulgated “without reasoned 

explanation or forewarning” because “this objection comes well after the statute of limitations 

period for procedural challenges to agency actions”). In support of its holding, Perez-Guzman 

cited the Supreme Court’s opinion in Encino Motorcars, LLC v. Navarro, which stated that 

“[o]ne of the basic procedural requirements of administrative rulemaking is that an agency must 

give adequate reasons for its decisions.” 136 S. Ct. 2117, 2125 (2016) (emphasis added). This 

Court therefore should not consider plaintiffs’ arguments about the sufficiency of the FEC’s 

explanation and justification. 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 31 of 53
23 

Even if the Court did consider the explanation, however, it should reject plaintiffs’ 

challenge because the Commission’s explanation was adequate given the circumstances. While 

“an agency is required to adequately explain its decision,” it need not do so with perfect 

precision. Van Hollen, 811 F.3d at 496-97. “It is enough that a reviewing court can reasonably 

discern the agency’s analytical path,” id. at 497, even if the decision is “of ‘less than ideal 

clarity,’” Nader v. FEC, 823 F. Supp. 2d 53, 58 (D.D.C. 2011) (quoting Common Cause v. FEC, 

906 F.2d 705, 706 (D.C. Cir. 1990)). As discussed infra pp. 23-25, the indefinite article “an” 

created ambiguity in the statute, and the Commission’s regulation was a reasonable clarification 

of that ambiguity. The reason for this modest change to the statutory language is not 

“[i]nexplicable” (Pls.’ Opp. at 5); rather, it is readily apparent if one compares the language of 

the statute to that of the regulation. Finally, as discussed in the Commission’s prior brief, even if 

the Court were to find this issue justiciable and agree with plaintiffs that the Commission’s 

explanation was inadequate, the appropriate remedy would be to remand to the Commission to 

obtain additional explanation. (FEC Mem. at 50 n.10.) 

C. The Regulation Passes Chevron Step One Because the Ambiguity of the 

Statute Provided the Commission With Authority to Promulgate 11 C.F.R. § 

109.10(e)(1)(vi)

The first step of Chevron analysis considers whether the statute unambiguously expresses 

Congressional intent, and if so, the court must give effect to that statutory intent. Chevron, 

467 U.S. at 842; see FEC Mem. at 31-34. Plaintiffs argue that 52 U.S.C. § 30104(c)(2)(C) is 

unambiguous, that the Commision’s regulation differs from the statutory text, and that therefore 

the Commission’s regulation should be invalidated. But as the Commission has explained, the 

requirement in the statute that a specific report filed with the FEC identify contributions “made 

for the purpose of furthering an independent expenditure” is inherently ambiguous because the 

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24 

scope of independent expenditures contemplated by the word “an” is undefined. 52 U.S.C. 

§ 30104(c)(2)(C); see FEC Mem. at 34-41. 

As an analogy, imagine that you have a parent or friend who is worried about what you 

are eating in the morning. This breakfast monitor asks you to do the following: (1) If you eat 

more than five omelets in a year, you should send a letter that; (2) contains the following 

information — (A) what ingredients were in the omelet, (B) whether anyone helped you make 

such omelet, and (C) the number and brand of eggs that you got for the purpose of making an

omelet. The articles italicized above are identical to the articles used in 52 U.S.C. § 30104(c), 

and the ambiguity in part (C) is evident. In each letter your breakfast monitor has asked you to 

send, are you to identify the number and brand of eggs that you obtained for the purpose of 

making the omelet (or omelets) that are being described in the rest of the letter? Or should you, 

in each letter, list the number and brand of every egg that you have ever obtained for the purpose 

of making any omelet? And even determining the precise meaning of “an” would not resolve the 

ambiguity, because “an” merely refers to an unspecified omelet within a group, but the size of 

the group is undefined. It would be entirely reasonable to interpret your monitor’s instructions to 

mean that the group envisioned by “an” in subsection (C) is limited to the omelets that are being 

reported in subsections (A) and (B). That is precisely what the Commission’s regulation does. 

In addressing this issue, plaintiffs’ opposition tries to distinguish United States v. Hagler, 

a case cited by Crossroads GPS. (Pls.’ Opp. at 10 n.3 (citing Hagler, 700 F.3d 1091 (7th Cir. 

2012)).) In that case, the defendant argued that the use of “an identified person” in one part of a 

criminal statute involving DNA evidence should be interpreted broadly to mean any identified 

person. Id. at 1097. But the Seventh Circuit rejected that argument, because “the rest of the 

statute is written using definite articles” and “[t]aken together, these words all suggest that the 

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25 

DNA evidence in question must be much more specific.” Id. (“statutory interpretation also 

‘depends upon reading the whole statutory text . . .’” (quoting Dolan v. U.S. Postal Serv., 546 

U.S. 481, 486 (2006))). 

The statute at issue in this case, just like the statute at issue in Hagler, contains both 

definite articles and indefinite articles. It is therefore reasonable to interpret “an independent 

expenditure” in subsection 30104(c)(2)(C) to be constrained by “the independent expenditure” in 

30104(c)(2)(A) and “such independent expenditure” in 30104(c)(2)(B).5

 As the Commission 

noted previously, because the other parts of the provision make clear that independent 

expenditure reports describe one or more specific independent expenditures, “the word ‘an’ can 

be read to refer to any of the independent expenditures that are described in the actual report.” 

(FEC Mem. at 39.) 

Plaintiffs also fail to distinguish Ctr. for Individual Freedom v. Van Hollen, a case 

involving a similar reporting provision of FECA. (Pls.’ Opp. at 13-14 (discussing Van Hollen, 

694 F.3d 108 (D.C. Cir. 2012).) In Van Hollen, the D.C. Circuit held that the statutory language 

requiring “the names and addresses of all contributors who contributed” to the person making an 

electioneering communication was sufficiently ambiguous that it was reasonable for the 

Commission to draft an implementing regulation requiring reporting of contributions “made for 

the purpose of furthering electioneering communications.” Van Hollen, 694 F.3d at 108, 109 

(citing 52 U.S.C. § 30104(f)(2)(F) and 11 C.F.R. § 104.20(c)(9)). The Van Hollen court held 

that Congress had not expressed a clear intention as to what had to reported, explaining that the 

context of a statute can make seemingly plain text ambiguous. 

 

5

 Plaintiffs repeatedly, but wrongly, claim that the FEC contends plaintiffs’ interpretation 

of the statute is “absurd.” (Pls.’ Opp. at 6, 11, 12, 25, 29, 30.) The Commission’s position is 

merely that the statutory language is ambiguous, and that it was reasonable for the Commission 

to have interpreted it as the agency does in the regulation. That is the relevant inquiry here. 

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Plaintiffs attempt to distinguish Van Hollen by arguing that the regulation there was 

interpreting a statute “[w]ithout a scope of reporting specified” but that the statute at issue in this 

case has “no unspecified scope.” (Pls.’ Opp. at 13-14.) Plaintiffs’ position seems to be that it is 

acceptable for the FEC to clarify that “contributors who contributed” means contributions “made 

for the purpose of furthering electioneering communications,” but not that “made for the purpose 

of furthering an independent expenditure” means “made for the purpose of furthering the 

reported independent expenditure.” That argument is unpersuasive. If the Commission has the 

authority to make a significant clarifying alteration to resolve ambiguity in the electioneering 

communication provision, it has the authority to make the modest clarification at issue here.6

Lastly, plaintiffs assert that the independent expenditure reporting statute was definitively 

interpreted more than 30 years ago in MCFL, 479 U.S. 238 (1986), to require broader disclosure 

than the FEC’s regulation does and therefore this Court is bound by that Supreme Court 

precedent. (Pls.’ Opp. at 14-15). But that is a gross mischaracterization of the MCFL decision. 

(See FEC Mem. at 27.) 

MCFL was not about disclosure. The case examined whether FECA’s prohibition on 

corporations using general treasury funds for independent expenditures was constitutional as 

 

6

 Plaintiffs also argue that the Commission’s regulation at issue in Van Hollen is 

inconsistent with the agency’s position that 52 U.S.C. § 30104(c)(2)(C) is ambiguous, claiming 

that the Commission would not have drafted a regulation using the phrase “for the purpose of 

furthering electioneering communications” if it believed that “for the purpose of furthering an 

independent expenditure” was unclear. (Pls.’ Opp. at 14.) However, there are meaningful 

differences in the language and surrounding context of those two phrases, including the word 

“an” as discussed above. Some Commissioners have taken the view that the electioneering 

communications regulation should be interpreted in the same manner as the independent 

expenditure regulation — including only contributions made for the purpose of furthering “the 

communication that is the subject of the report.” Statement of Reasons of Chairman Matthew S. 

Petersen and Commissioners Caroline C. Hunter and Donald F. McGahn at 5, MUR 6002 (In the 

Matter of Freedom’s Watch, Inc.), August 13, 2010, 

https://www.fec.gov/files/legal/murs/current/80943.pdf. 

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27 

applied to a non-profit corporation with certain distinct characteristics, including that it was not a 

political committee and that it received no funding from corporations or labor unions. MCFL, 

479 U.S. at 264. The Court held that the law as applied to such organizations violated the First 

Amendment because it infringed on protected speech without a compelling justification. Id. at 

263. Because the law had previously prohibited entities like MCFL from making such 

independent expenditures at all, neither the parties nor the Court paid much attention to what 

MCFL’s disclosure requirements would look like if it were permitted to make such expenditures. 

Neither the FEC’s initial brief in that case nor any of the four amicus briefs even mentioned the 

provision at issue in this case. See Brief for Appellant FEC, MCFL, No. 85-701, 1986 WL 

727481 (Feb. 27, 1986); Amicus Brief of the Reporters Committee for Freedom of the Press et 

al., MCFL, No. 85-701, 1986 WL 727484 (Apr. 4, 1986); Amicus Brief for the National Rifle 

Association of America, MCFL, No. 85-701, 1986 WL 727486 (Apr. 4, 1986); Amicus Brief for 

the Home Builders Association of Massachusetts, MCFL, 1986 WL 727491 (Apr. 4, 1986); 

Amicus Brief of the ACLU, et al., MCFL, No. 85-701, 1986 WL 727489 (Apr. 4, 1986). The 

two remaining Supreme Court briefs touched briefly on disclosure but made no specific 

arguments about how the provision at issue here should be interpreted. See Brief ofor the 

Appellee MCFL at 36, 45, MCFL, No. 85-701, 1986 WL 727495 (Apr. 4, 1986); Reply Brief for 

Appellant FEC at 31, MCFL, No. 85-701, 1986 WL 727498 (Sept. 30, 1986). 

Unsurprisingly, the MCFL Court’s opinion likewise did not focus on the independent 

expenditure reporting provision.7

 The Court determined first that the law’s prohibition on 

 

7

 The Commission’s previous brief mistakenly argued that the reference to the 

independent expenditure reporting provision in MCFL “was in a portion of the opinion only 

signed by four justices.” (FEC Mem. at 27.) As plaintiffs have pointed out (Pls.’ Opp. at 15), 

five Justices did sign that portion of the opinion. Nonetheless, for the additional reasons stated in 

this brief and the FEC’s prior brief, MCFL is not controlling on the issues in dispute here. 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 36 of 53
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independent expenditures applied to MCFL (MCFL, 479 U.S at 245-51), then that this 

prohibition infringed on the First Amendment (id. at 251-56), and then that the government 

lacked a compelling interest for infringing on that right (id. at 256-63). In that last part of its 

opinion, the Court examined several possible government interests for the law and found them 

lacking. In particular, the Court was unpersuaded that entities such as MCFL could be used as a 

conduit by other corporations and unions wishing to engage in political activities because MCFL 

would have disclosure requirements under FECA. Id. at 262. Without stating that any particular 

disclosure requirement was sufficient to alleviate the concern about MCFL-type organizations 

being used as conduits, the Court briefly described what it believed to be those disclosure 

requirements. Plaintiffs now rely on those few sentences to argue that subsection 30104(c)(2)(C) 

is unambiguous (and that subsection (c)(1) is a standalone reporting requirement, see infra p. 

38). But in fact those issues were peripheral to the decision in MCFL, were not contested by the 

parties there, and do not appear to have made a significant difference in the case’s outcome.8

 

D. The Regulation Passes Chevron Step Two Because It Reasonably Clarifies 

the Language of 52 U.S.C. § 30104(c)(2)(C) 

The regulation at 11 C.F.R. § 109.10(e)(1)(vi) is a reasonable interpretation of ambiguous 

statutory language. Plaintiffs argue that the regulation fails even the deferential standards of 

Chevron Step Two review primarily because it “frustrates the purposes of the FECA and creates 

redundancies with other provisions of the law.” (Pls.’ Opp. at 16.) These arguments lack merit. 

 

8

 Plaintiffs incorrectly claim that the FEC “concedes” that 11 C.F.R. § 109.10(e)(1)(vi) 

“requires less disclosure than” 52 U.S.C. § 30104(c)(2)(C). (Pls.’ Opp. at 16 (citing FEC Mem. 

at 37).) In fact, the FEC’s consistent position has been that the statute is ambiguous and the 

regulation is a reasonable interpretation of the statute. (FEC Mem. at 43 (“[T]he regulation was 

a useful clarification, consistent with the intent of Congress . . .”).) 

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1. Evidence Regarding the Extent of Disclosure Today Cannot Be 

Considered in Determining Whether the Commission Acted 

Reasonably in Passing the Regulation in 1980

As the Commission explained in its opening brief, judicial review of agency action is 

based upon the administrative record before the agency when it acted. (FEC Mem. at 47-49.) 

Any other standard would “require[] administrators to be prescient.” Walter O. Boswell Mem’l 

Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984). Despite this well-established rule of 

judicial review, plaintiffs continue to argue that this Court should take the extraordinary step of 

considering information about the amount of disclosure regarding contributions to those making 

independent expenditures in recent election cycles. (Pls.’ Opp. at 18-19.) Plaintiffs make no 

attempt to respond to the numerous cases cited by the Commission and Crossroads GPS in their 

prior briefs about this bedrock principle of administrative law. Plaintiffs do rely on a comment 

from the Federal Rules of Evidence and a case that discusses judicial notice, but that reliance is 

misplaced. (See Pls.’ Opp. at 18 (citing Fed. R. Evid. 201 (cmmt..) and Sanders v. Kerry, 180 F. 

Supp. 3d 35, 41 (D.D.C. 2016)).) The principle of judicial notice concerns the reliability of 

evidence. While under most circumstances a court will only consider evidence that is properly 

introduced and authenticated by the parties to a lawsuit, there are certain circumstances in which 

facts in the public domain can be considered to be so beyond doubt that a court can rely upon 

them even though they have not been introduced or authenticated by the parties. However, the 

reason for excluding information unavailable to the Commission when it promulgated the rule 

involves fairness to administrators about the reasonableness of their determination based on the 

information available to them at the time and is not limited to concerns regarding reliability.9

 

9

 In any case, neither the rule comment nor the case plaintiffs cite are relevant here. The 

quoted language from the commentary to Rule 201 originally comes from a 1944 Harvard Law 

Review article that merely recites the unremarkable proposition that if a judge is unfamiliar with 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 38 of 53
30 

This Court considered and rejected the same judicial notice argument plaintiffs now make 

in Silver State Land, LLC v. Beaudreau, 59 F. Supp. 3d 158 (D.D.C. 2014) (Howell, J.). In that 

case, the plaintiff asked the Court to take judicial notice of a state court order that was not part of 

the administrative record in the case. But the Court explained: 

Judicial notice is “typically an inadequate mechanism” for a court to consider 

extra-record evidence in reviewing an agency action. Dist. Hosp. Partners, L.P. 

v. Sebelius, 971 F. Supp. 2d 15, 32 n. 14 (D.D.C. 2013). “Instead, a court may 

only consider an adjudicative fact subject to judicial notice that is not part of the 

administrative record if it qualifies for supplementation as extra-record evidence 

under [Esch v. Yeutter, 876 F.2d 976 (D.C. Cir. 1989)].” Id. (citing Cnty. of San 

Miguel v. Kempthorne, 587 F. Supp. 2d [64,] 78–79 [(D.D.C. 2008)]) (emphasis 

in original). As the Nevada Order does not qualify for supplementation of the 

administrative record or extra-record review, for the reasons set forth above, the 

plaintiff's request for judicial notice of the Nevada Order is also denied. 

Silver State Land, LLC, 59 F. Supp. 3d at 172. 

Plaintiffs’ final argument is that the Court should consider evidence about independent 

expenditure disclosure that post-dates the Commission’s 1980 rulemaking because such 

information “shows how the regulation is frustrating the purpose of the statute” and shows that 

the FEC did not consider all factors in its rulemaking. (Pls.’ Opp. at 18 n.7.) Plaintiffs rely on 

Shays v. FEC, but that case does not support the proposition that a court can look at data from 

thirty years after a regulation was passed to determine if it is reasonable, because Shays merely 

considered information about the foreseeable consequences of a regulation that had recently been 

promulgated, not information about what actually happened long afterwards. 528 F.3d 914, 925 

(D.C. Cir. 2008). The notion that evidence post-dating the FEC’s rulemaking should be 

 

an area of the law or how it should be applied to the facts of a case, she can use information not 

presented by the parties to inform herself. See Edmund M. Morgan, Judicial Notice, 57 Harv. L. 

Rev. 269, 272 (1944) (a judge “must take judicial notice of what everyone knows and uses in the 

ordinary process of reasoning about everyday affairs.”). And the case plaintiffs cite simply notes 

that a court can consult certain information “without converting a motion to dismiss into a 

motion for summary judgment because such records are public document[s] of which a court 

may take judicial notice.” Sanders, 180 F. Supp. at 41 (internal quotation marks omitted). 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 39 of 53
31 

considered because it shows the agency failed to examine all relevant factors is illogical and 

would swallow the rule against consideration of facts outside the administrative record. The 

Court therefore cannot consider the evidence that plaintiffs have put forward about disclosure 

after the regulation was issued.10

2. The Interpretation of the Statute in the Regulation Does Not Create 

Redundancies 

The language of 11 C.F.R. § 109.10(e)(1)(vi) requires a filer of an independent 

expenditure report to include “[t]he identification of each person who made a contribution in 

excess of $200 to the person filing such report, which contribution was made for the purpose of 

furthering the reported independent expenditure.” 11 C.F.R. § 109.10(e)(1)(vi) (emphasis 

added). Plaintiffs have argued that interpreting subsection 30104(c)(2)(C) of the statute in this 

manner makes the provision redundant with requirements that makers of independent 

expenditures file their own reports, but the FEC pointed out multiple scenarios in which a 

contributor would be disclosed under the regulation but not be considered the maker of an 

independent expenditure required to file his own statement. (FEC Mem. at 46-47.) 

Plaintiffs now assert (Pls.’ Opp. at 20-21) that a 2008 Advisory Opinion by the 

Commission supports their position. It does not. In that Advisory Opinion, the Commission 

considered VoterVoter.com, a for-profit non-partisan internet service that allowed individuals to 

pay to have existing advertisements on the website aired on television. AO 2008-10 

(VoterVoter.com) (Oct. 24, 2008), https://www.fec.gov/files/legal/aos/73731.pdf. The 

Commission’s Advisory Opinion stated that the person paying for the advertisement would be 

the person responsible for reporting that independent expenditure. Id. at 7. The Commission 

 

10 In addition, as discussed in the FEC’s prior brief, it is by no means clear that the FEC’s 

regulation, rather than the statute itself, is responsible for any lack of disclosure of contributions 

to those engaged in independent expenditures. (FEC Mem. at 43-44.) 

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32 

stated its determination was based on the facts that VoterVoter.com “will be acting as a 

commercial vendor engaging in the proposed activity for genuinely commercial purposes and not 

for the purpose of influencing any Federal election” and that it would “accept and post ads on a 

non-partisan basis.” Id. That is a very particular commercial context far afield from the activity 

at issue in this case. 

The overwhelming majority of groups engaged in independent expenditures are partisan 

ideological entities doing so for the purpose of influencing federal elections. Under neither the 

regulation nor the statute does an individual become the maker of an independent expenditure 

merely because she gave a contribution to a group for the purpose of that group running an 

independent expenditure. There is no merit to plaintiffs’ claim that the regulation makes the 

statute redundant. 

3. Congress Has Not Acted on This Issue Despite CREW’s Argument 

That the Regulation Has Been in Conflict With the Statute for 38 

Years

Although plaintiffs argue that the FEC’s regulation has been misinterpreting FECA’s 

disclosure requirements since 1980, Congress has taken no action to correct this purported 

misinterpretation, despite the fact that there are few areas of the law more familiar to Members 

of Congress than campaign finance law. And Congress has had ample opportunity to overturn 

11 C.F.R. § 109.10(e)(1)(vi) since its promulgation in 1980. Indeed, some members of Congress 

have tried and failed several times to enact legislation to change the disclosure requirements for 

independent expenditures. For example, starting in 2010 and continuing in subsequent 

Congressional sessions, a bill known as the “DISCLOSE Act,” would have required persons that 

meet certain thresholds of independent expenditure activity using their general funds to disclose

all of their contributors, without regard to whether those contributions were made for the purpose 

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33 

of furthering independent expenditures. See, e.g., H.R. 430, 114th Cong. § 324(a)(2)(F) (2015), 

https://www.congress.gov/bill/114th-congress/house-bill/430/text. The DISCLOSE Act, 

however, has not been enacted despite being reintroduced multiple times. While this inaction is 

of course not dispositive regarding whether Congress believes the FEC’s regulation is consistent 

with the statute in the circumstances of this case, it is appropriate to consider this inaction as an 

indication of tacit approval by Congress. See Bob Jones Univ. v. United States, 461 U.S. 574, 

600-01 (1983) (upholding regulation in part due to Congressional acquiescence both because the 

subject matter was one with which Congress was intimately familiar and because Congress made 

several unsuccessful attempts to override the regulation). 

E. It Is Reasonable to Interpret Section 30104(c)(1) as Too Ambiguous, in the 

Overall Context of the Statute, to Treat as an Independent Reporting 

Requirement

The Commission’s opening brief showed why 52 U.S.C. § 30104(c)(1) is an ambiguous 

statutory provision that can be read in multiple ways. (FEC Mem. at 23-28.) The FEC explained 

that each plausible interpretation of the provision has some flaws, and so it is reasonable for the 

Commission to interpret section 30104(c)(1) as a description of who should file independent 

expenditure statements rather than an independent requirement about the content of those 

statements. 

Plaintiffs argue repeatedly, however, that 52 U.S.C. § 30104(c)(1) can only be interpreted 

as a stand-alone requirement that filers identify all persons who made contributions of more than 

$200 generally, even those that were not made to further an independent expenditure. (Pls.’ 

Opp. at 24-30; see, e.g., id. at 24 (“the clear language of the statute”), id. at 25 (“there is no 

ambiguity about what subsection (c)(1) requires”), id. at 26 (“subsection (c)(1) unambiguously 

requires reporting all those who contribute more than $200 annually”).) According to plaintiffs, 

Case 1:16-cv-00259-BAH Document 37 Filed 01/24/18 Page 42 of 53
34 

“no honest attempt can be made to reconcile the regulation with what is required by Congress 

under subsection (c)(1).” (Id. at 30.) Yet despite such rhetoric, nowhere do plaintiffs resolve the 

fundamental ambiguities in the statute; indeed, their efforts to explain away those ambiguities 

would seem to make the meaning of the statutory provision even murkier.11

1. Interpreting Section 30104(c)(1) as an Independent Reporting 

Requirement Creates Tension With the Language and Structure of 

the Law 

Plaintiffs’ arguments for their preferred interpretation of subsection 30104(c)(1) simply 

underscore the statute’s ambiguity. For example, the Commission noted that the list of three 

subparts in the title of the subsection (“filing; contents; indices of expenditures”) fits with an 

interpretation that (c)(1) is about filing statements, (c)(2) is about the content of those statements, 

and (c)(3) is about indices. (FEC Mem. at 25.) In response, plaintiffs cite cases for the 

proposition that “the title of a statute and the heading of a section cannot limit the plain meaning 

of the text.” (Pls.’ Opp. at 26 (quoting Bhd. of R.R. Trainmen v. B&O R.R.. Co., 331 U.S. 519, 

528-29 (1947)).) But plaintiffs’ argument simply assumes without justification that the text 

actually has a plain meaning. And the same case plaintiffs cite explains that titles and headings 

are not useless for statutory interpretation, as they can “shed light on some ambiguous word or 

phrase” and can be “tools available for the resolution of a doubt.” Bhd. of R.R. Trainmen, 331 

U.S. at 529. For all of the reasons the FEC has explained, there are significant doubts about the 

meaning of the provision and so the title can be a useful interpretative tool. Plaintiffs suggest 

 

11 Plaintiffs suggest that the Commission is evasive on the issue of whether 11 C.F.R. § 

109.10(e)(1)(vi) incorporates 52 U.S.C. § 30104(c)(1). (Pls.’ Opp. at 30 (“no honest attempt can 

be made to reconcile the regulation with what is required by Congress under subsection (c)(1). 

This is why the FEC does not even attempt to do so here, instead merely arguing that the 

subsection (c)(1) is ambiguous without arguing 11 C.F.R. § 109.10(e)(1)(vi) reasonably 

interprets it.”).) But that is a red herring: The Commission’s regulation interprets an ambiguous, 

multi-provision statutory reporting structure of which subsection (c)(1) is an interdependent part. 

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35 

that the heading does not perfectly encompass the meaning of each subpart (Pls.’ Opp. at 27 & 

n.13), but they make no attempt to explain how the title fits with their favored interpretation. 

Similarly, the Commission pointed out the confusion stemming from the cross-reference 

in 52 U.S.C. § 30104(c)(1) to subsection (b)(3)(a), which includes terms that are solely 

applicable to political committees, despite the fact that subsection 30104(c)(1) only applies to 

persons that are not political committees. (FEC Mem. at 26.) Plaintiffs respond by simply 

observing that subsection (b)(3)(a) is contained in a section relating to political committee 

reporting, so of course it would contain language applicable to political committees. (Pls.’ Opp. 

at 28.) But this is unresponsive to the actual issue here. If Congress’s intent was to make 

subsection (c)(1) a reporting requirement to identify all persons who made over $200 in 

contributions, it is not clear why it would do so by cross-referencing a provision that contains 

inapplicable language instead of by simply describing the requirements directly. Plaintiffs make 

no attempt to provide a reason. 

The Commission also noted that 52 U.S.C. § 30104(c)(1) states that “a” statement should 

be filed, but that reading (c)(1) and (c)(2) in the manner suggested by plaintiffs would result in 

multiple statements being filed, containing different but overlapping information. (FEC Mem. at 

26-27.) Furthermore, if the requirement to file a statement in (c)(1) was intended to apply to a 

statement with the content described in subsection (b)(3)(a), as plaintiffs argue, then there is no 

provision in the law that requires the filing of a statement with the contents described in 

subsection (c)(2). (FEC Mem. at 26-27.) Plaintiffs argue that it is possible to resolve these 

issues by reading “a statement” to refer to multiple statements and by reading the filing 

requirement in (c)(1) to apply to statements with the content described in both (b)(3)(a) and 

(c)(2). (Pls.’ Opp. at 27.) But once again this ignores the question of why Congress would draft 

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36 

the provision in this manner when there are simpler ways to accomplish what plaintiffs claim 

was the Congressional intent.12 

2. The Duplicative Reporting CREW Envisions Would Be Dissimilar to 

Other Provisions of FECA

Plaintiffs’ position is that subsections 30104(c)(1) and (c)(2)(C) contain separate 

reporting requirements involving some distinct and some duplicative information. The 

Commission has noted, however, that interpreting these provisions to include dual reporting 

requirements would be redundant and inconsistent with comparable other provisions in FECA, 

and therefore it is reasonable not to read subsection (c)(1) in that manner. (FEC Mem. at 27-28.) 

Plaintiffs argue that the provisions are not redundant and that they are similar to the “paired 

reporting mechanism” for independent expenditures and electioneering communications. (Pls.’ 

Opp. at 29.) Both arguments are incorrect. 

Plaintiffs argue first that their interpretation of subsections 30104(c)(1) and (c)(2) is not 

duplicative because the two provisions “target two complimentary [sic] sets of contributors, one 

based on the purpose of the contribution (52 U.S.C. § 30104(c)(2)([C])) and one based on when 

the contribution was made ([52 U.S.C.] § 30104(c)(1)).” (Pls.’ Opp. at 29.) But the two 

provisions clearly are duplicative, because every contribution that is reported under section 

30104(c)(2)(C) would also need to be reported pursuant to plaintiffs’ interpretation of section 

 

12 Plaintiffs also assert that interpreting subsection (c)(1) to require disclosure of all those 

who contribute over a certain threshold makes sense because it is similar to the disclosure 

requirement prior to the 1979 FECA Amendments and Congress did not intend that the 

amendments would make significant changes. (Pls.’ Opp. at 28-29.) But this reflects an 

insufficiently broad perspective. The law prior to the 1979 amendments had no equivalent to 52 

U.S.C. § 30104(c)(2)(C). As a result, reading the whole law as plaintiffs suggest means that 

Congress made a very significant change — one reporting requirement was replaced with two 

reporting requirements of different and overlapping information. By contrast, if (c)(1) is not read 

as a separate reporting requirement, then the overall change to reporting is far less significant, 

because in that event it merely clarified the type of contributions that persons other than political 

committees need to report. 

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30104(c)(1). Thus, the two reporting provisions would not be complementary at all, under 

plaintiffs’ interpretation, but instead one reporting provision would be simply a subset of the 

other reporting provision. Plaintiffs fail to explain why Congress would create a scheme in 

which the same contributions to those making independent expenditures are being reported 

multiple times, and if Congress did create such a scheme, why it would have drafted a single 

statutory provision stating clearly that all contributions should be reported and those made for the 

purpose of furthering an independent expenditure should be separately designated. 

Next, plaintiffs suggest that the dual reporting mechanism they describe is not unique 

because FECA also has a “paired reporting mechanism” for independent expenditures and 

electioneering communications. (Pls.’ Opp. at 29.) But there are key differences between these 

two sets of reporting requirements. Most importantly, while plaintiffs’ statutory interpretation 

would cause duplicative reporting, the “paired reporting” of independent expenditures and 

electioneering communications does not, because the statute makes the two types of 

communication mutually exclusive. See 52 U.S.C. § 30104(f)(3)(B) (“The term ‘electioneering 

communication’ does not include . . . (ii) a communication which constitutes an expenditure or 

an independent expenditure under this Act”). While the same entity may need to separately 

report its independent expenditures and its electioneering communications, there is no overlap 

between those two reports—no communication is, or should be reported as, both an independent 

expenditure and an electioneering communication. 

Furthermore, Congress designed the dual reporting scheme for independent expenditures 

and electioneering communications to address a specific problem. While the term “independent 

expenditures” dates back to the era of FECA’s original passage, Federal Election Campaign Act 

Amendments of 1976, Pub. L. No. 94-283, 90 Stat. 475 (1976), there was no such thing as 

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“electioneering communications” until 2002. Prior to that time, independent groups had begun 

to spend millions of dollars on so-called “issue ads” — ads that avoided express advocacy but, 

under the guise of advocating for or against an issue, actually supported or opposed the election 

of federal candidates. See McConnell v. FEC, 540 U.S. 93, 126-128 (2003). Congress 

determined that because the express advocacy standard was easy to evade, entities were funding 

broadcast ads designed to influence federal elections “while concealing their identities from the 

public.” Id. at 196-97. To address this and other developments in federal campaign finance, 

Congress enacted the Bipartisan Campaign Reform Act of 2002 (“BCRA”), 

Pub. L. No. 107-155, 116 Stat. 81 (2002). In particular, in response to what Congress identified 

as “sham issue ads,” Congress imposed new disclosure requirements on those making 

“electioneering communications.” BCRA §§ 201, 203, 204. See McConnell, 540 U.S. at 126. 

Under BCRA, an “electioneering communication” is any broadcast, cable, or satellite 

communication that refers to a clearly identified federal candidate, is publicly distributed within 

60 days before a general election or 30 days before a primary election, and is targeted to the 

relevant electorate. See 52 U.S.C. § 30104(f)(3)(A). Congress therefore never set out to create a 

dual reporting mechanism for electioneering communications and independent expenditures; 

rather, it created “electioneering communications” in response to a legislative concern and set up 

a disclosure regime for those types of communications. That situation bears no resemblance to 

what plaintiffs claim happened here — that in 1979 Congress developed a dual reporting 

mechanism for independent expenditures made by persons that are not political committees. 

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3. No Court Has Held That Section 30104(c)(1) Imposes an Independent 

Reporting Requirement, Nor Has the Commission Itself Ever 

Enforced the Statute in Accord With That Interpretation 

As discussed at supra pp. 26-28, the Supreme Court’s decision in MCFL does not control 

on the issue of the proper interpretation of subsection 30104(c)(1). In its prior brief, the 

Commission pointed out that courts had not considered MCFL binding on this issue, citing FEC 

v. Furgatch, 807 F.2d 857, 859 n.2 (9th Cir. 1987), a case that came out a year after MCFL and 

interpreted the provision differently. Plaintiffs argue that Furgatch does not bind this Court, and 

of course the opinion is merely persuasive authority rather than binding, but the citation to 

Furgatch does show that MCFL is not dispositive authority on the relevant issues. To the 

Commission’s knowledge, no court has spoken definitively about the meaning of subsection 

30104(c)(1).13

Beyond this lack of guidance from the courts, the Commission itself has never taken the 

position that subsection 30104(c)(1) is a stand-alone reporting requirement. Plaintiffs claim that 

“[t]he agency has previously enforced subsection (c)(1) as a standalone reporting obligation,” 

pointing to a single enforcement action from 1992. (Pls.’ Opp at 26.) But plaintiffs’ claim is 

baseless, and the enforcement matter they cite actually indicates that the FEC has been consistent 

in its treatment of the law. The enforcement action plaintiffs identify involved an individual 

named Carmack Watkins, who took out a political advertisement in his local newspaper but “had 

no previous political experience and was not aware of applicable election law requiring him to 

disclose who paid for the ads.” MUR 3503 (Perot Petition Committee), First General Counsel’s 

 

13 Plaintiffs also state that interpreting the law in a manner they disagree with is 

“unconstitutional” because it infringes upon the rights of CREW and others to receive 

information about contributions. (Pls.’ Opp. at 8, 32.) But there is no constitutional claim in this 

case, nor could there be, because CREW has no constitutional right to have the FEC take action 

against Crossroads GPS or any other third parties. 

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Report at 3, https://www.fec.gov/files/legal/murs/3503.pdf.14 Acting on the recommendation of 

the FEC’s Office of General Counsel, the Commission found that Mr. Watkins had violated 52 

U.S.C. § 30104(c)(1) and another FECA provision, but took no further action. See Certification, 

https://www.fec.gov/files/legal/murs/3503.pdf. Plaintiffs suggest that this is evidence that the 

Commission deemed (c)(1) a standalone reporting requirement, but to the contrary, the citation 

to that provision makes sense under any statutory interpretation because Mr. Watkins failed to 

file any independent expenditure statement at all. (See 52 U.S.C. § 30104(c)(1) (stating that 

persons that make independent expenditures “shall file a statement.”) The letter the Commission 

sent to Mr. Watkins after the MUR was closed stated that “the failure to file a statement of 

independent expenditures made on behalf of presidential candidate Ross Perot appears to be in 

violation of 2 U.S.C. § 434(c)(1) [now codified at 52 U.S.C. § 30104(c)(1)].” While it is true 

that the First General Counsel’s Report paraphrased the statutory language of subsection (c)(1) 

when describing the relevant legal provisions, there was no discussion anywhere in the MUR 

about the relevant issue in this case – whether (c)(1) and (c)(2)(C) each require the disclosure of 

different sets of contributors. Indeed, because Mr. Watkins acknowledged using his own money, 

there were no contributors to report at all. 

Neither judicial nor FEC precedent provides support for plaintiffs’ argument that 

subsection 30104(c)(1) unambiguously creates a stand-alone reporting requirement. To the 

contrary, the absence of such support suggests that there is no unambiguous requirement. 

4. FECA Treats Persons That Are Not Political Committees Differently 

from Political Committees

Political committees are entities that have the major purpose of electing federal 

candidates, Buckley v. Valeo, 424 U.S. 1, 79 (1976), and FECA treats them differently from other 

 

14 Plaintiffs misnumbered the MUR as “5303” in their brief. (Pls.’ Opp. at 26.) 

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41 

groups that engage in independent expenditures. Overall, political committee reporting 

requirements are far more extensive. Compare 52 U.S.C. § 30104(a)-(b) (reporting requirements 

of political committees) with 52 U.S.C. § 30104(c) (reporting requirements for other groups 

engaged in independent expenditures). As the FEC noted, one problem with plaintiffs’ preferred 

interpretation of 52 U.S.C. § 30104(c)(1) is that it would cause political committees to have 

fewer disclosure requirements than persons that are not political committees. (FEC Mem. 27-

28.) Plaintiffs’ interpretation would require such persons to file statements disclosing all 

contributors, just like political committees, but also to file statements about which contributions 

were for the purpose of an independent expenditure, which political committees are not required 

to do. 

Plaintiffs’ response to the FEC’s argument was simply that political committees are 

required to report all contributions (Pls.’ Opp. at 29 n.16), but that does not address the issue. 

Plaintiffs make several other claims that also fail to reconcile their interpretation of FECA with 

the unique requirements that Congress imposed on political committees but not other groups. 

(See, e.g., Pls.’ Opp. at 6-7 (“just as Congress wanted voters to know the identities of all 

contributors to a political committee . . . Congress similarly wanted viewers of independent 

expenditures to understand the full scope of the ad’s financial support.”); id. at 7 (“the confusion 

defendants fear is also present with political committees, which must report all of their 

contributors, even if those contributors did not intend to impact the specific election in which a 

voter might interact with the political committee.”); id. at 12 (arguing that there is no problem if 

a particular contributor is improperly linked with an independent ad he did not support because 

“[t]he exact same situation could happen when someone donates to a political committee, yet 

there is no dispute that that person must be reported.”); id. at 21 (stating that non-earmarked 

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42 

contributions to Crossroads GPS must also be reported because “there is no dispute that political 

committee contributions need not be earmarked to their final use in order to be reported.”).) But 

to suggest that the provision at issue in this case must be read a particular way because political 

committees are also treated that way ignores FECA’s special treatment of political committees. 

Because political committees are primarily concerned with influencing federal elections, 

Congress provided distinct, comprehensive regulatory requirements for them. The fact that 

political committees are treated a certain way under the law is not evidence that other groups 

should be treated the same way. 

III. REMAND TO THE COMMISSION WOULD BE THE APPROPRIATE REMEDY 

IF THE COURT DETERMINED THAT THE COMMISSION ERRED 

If the Court determined that the FEC had acted unlawfully in either dismissing plaintiffs’ 

administrative complaint or in promulgating the regulation, the proper remedy would be to 

remand the case to the FEC to give the agency the opportunity to correct its mistake. (FEC 

Mem. at 49-50 (citing Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 

150-51 (D.C. Cir. 1993).) Plaintiffs argue that the Court should instead vacate the regulation 

because it purportedly conflicts with the statute, it cannot be explained, and there is no serious 

risk of disruption from vacating the law. (Pls.’ Opp. at 39-40.) But the unusual and potentially 

disruptive remedy of vacatur is inappropriate here under the standards identified in Allied-Signal, 

as discussed in the Commission’s prior brief. The general rule when courts review agency 

decision-making is, “except in rare circumstances,” to give the agency an opportunity to fix any 

problems on its own. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985). 

 Plaintiffs’ argument that vacatur is appropriate because the regulation conflicts with the 

statute is true of every regulation that fails at Chevron step one, yet vacatur is not the normal 

remedy in such cases. See, e.g., Shays v. FEC, 337 F. Supp. 2d 28, 128 (D.D.C. 2004) (Chevron

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43 

step one loss with no vacatur). Moreover, if the Court were to rule against the Commission at 

Chevron step two, vacatur would be inappropriate because there is a “non-trivial likelihood” that 

the Commission could justify the regulation on remand. WorldCom, Inc. v. FCC, 288 F.3d 429, 

434 (D.C. Cir. 2002). Plaintiffs’ argument that there is little risk of disruption misunderstands 

the “disruption” prong of the Allied-Signal test — the 2018 federal elections are quickly 

approaching, and persons making independent expenditures as well as those making 

contributions to such groups are acting in reliance on the current regulation. While CREW may 

wish to obtain additional information on contributors, plaintiffs have not met the standards 

required to vacate a 38-year-old regulation. 

 Lastly, plaintiffs ask that if this case is remanded, the Court should take the 

extraordinary step of setting an explicit and draconian timetable of as little as two weeks to 

provide a new explanation and justification for the regulation. (Pls.’ Opp. at 40-41.) But 

plaintiffs have presented no evidence that the Commission will act in an untimely way to 

respond to whatever order the Court may issue. Indeed, district courts that oversaw cases 

involving multiple recently promulgated FEC regulations saw no need for such a remedy or short 

timetable. See, e.g., Shays v. FEC, 337 F. Supp. 2d at130 (“Accordingly, it is up to the agency to 

determine how to proceed next — not for the Court to decide or monitor.”); Shays v. FEC, 508 F. 

Supp. 2d 10, 70-71 (D.D.C. 2007) (denying plaintiffs’ request for an injunction, expedited 

rulemaking, and retention of jurisdiction). 

CONCLUSION 

For the reasons stated in this brief and the FEC’s initial brief, the Court should grant 

summary judgment to the Commission. 

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Respectfully submitted, 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

/s/ Seth Nesin 

Seth Nesin 

Attorney 

snesin@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

(202) 694-1650 

January 24, 2018 

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