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, 

 

 Intervenor-Defendant. 

Civil Action No. 1:16-cv-00259-BAH 

CROSSROADS GRASSROOTS POLICY STRATEGIES’ MOTION 

FOR A STAY PENDING APPEAL 

AND ITS SUPPORTING MEMORANDUM OF LAW 

Crossroads Grassroots Policy Strategies (“Crossroads GPS”) respectfully moves this 

Court for a stay of its August 3, 2018 Opinion (“Op.”) and Order (Dkt. Nos. 42 and 43) pending 

final appeal of this case. (Crossroads GPS has already filed its notice of appeal. See Dkt. No. 

44.) In the alternative, Crossroads GPS requests that this Court stay those portions of its decision 

invalidating and vacating the challenged regulation, 11 C.F.R. § 109.10(e)(1)(vi), pending final 

appeal. A proposed order is attached. As discussed in the accompanying motion, Crossroads 

GPS also respectfully asks this Court to expedite briefing on this motion and to rule on the 

motion as soon as practicable, but in any event no later than August 30, 2018. 

Pursuant to Local Civil Rule 7(m), Crossroads GPS’s counsel conferred with Plaintiffs’ 

counsel concerning this motion and was informed that Plaintiffs’ counsel object to this motion. 

Crossroads GPS’s counsel also contacted counsel for the Federal Election Commission (“FEC”) 

the day prior to filing, but counsel was unavailable to discuss this motion until next week. 

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INTRODUCTION 

This Court’s August 3 opinion vacated a regulation – adopted by the FEC in 1980 and 

transmitted to Congress for review the same year – that implemented the statutory reporting 

requirements for non-political committee entities that make independent expenditures. Even 

though Citizens for Responsibility and Ethics in Washington (“CREW”) only discovered alleged 

“flaws” in the regulation’s text relatively recently, the Court has nevertheless accepted CREW’s 

arguments and invalidated the regulation in the context of reviewing a challenge to the FEC’s 

dismissal of an administrative enforcement complaint filed against Crossroads GPS. While the 

Court has deferred vacating the underlying regulation for 45 days, the fact remains that just 

weeks before a national election, speakers engaging in core First Amendment protected speech – 

commenting on the actions of the Government and those who lead it – suddenly find themselves 

adrift as to what rules and protections apply to their past, present, and future political speech. 

Indeed, this Court readily recognized that there is a “[non-]trivial concern” that “entities engaged 

in independent expenditures might have inadequate guidance” because of its decision to vacate 

the regulation in the final weeks before Election Day. Op. at 98. And this Court’s decision to 

remand the underlying enforcement case to the agency – which must respond within 30 days – 

has forced both Crossroads GPS and the FEC to divert valuable resources and energy away from 

core political speech and agency operations, respectively, and toward a stale administrative 

enforcement proceeding that falls outside the relevant statute of limitations. 

Rather than permit this significant encroachment on First Amendment rights, the proper 

course is for this Court to stay implementation of its entire 113-page decision pending appellate 

review. Not only does this Court’s decision raise numerous serious legal questions – which the 

FEC and the Court have, respectively, described as “complex” and representing a “close call” – 

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but issuance of a stay would also be consistent with repeated appellate court admonitions against 

changing the rules governing election-related activity in the final weeks preceding an election. 

Preservation of the status quo is all the more justified here given that the Court’s ruling appears 

in tension with existing D.C. Circuit precedent: (a) endorsing a narrow construction of a similar 

reporting regime for electioneering communications; and (b) limiting the courts’ role in 

reviewing FEC complaints dismissed based on prosecutorial discretion grounds. 

In short, the challenged FEC regulation has been in effect through nearly 20 federal 

elections and serious arguments support its validity. In such situations, the appropriate course is 

to permit orderly appellate review before completely upending long-established rules that pertain 

to core First Amendment freedoms, particularly right before an election, or continuing to pursue 

a stale administrative enforcement action against an entity that fully complied with an existing 

regulation governing its reporting obligations.

ARGUMENT 

I. THIS CASE SATISFIES THE FOUR TRADITIONAL FACTORS FOR A STAY 

PENDING APPEAL. 

In the D.C. Circuit, courts assess four factors when determining whether to grant a 

motion for a stay pending appeal: “(1) the moving party’s likelihood of success on the merits of 

its appeal, (2) whether the moving party will suffer irreparable injury, (3) whether issuance of the 

stay would substantially harm other parties in the proceeding, and (4) the public interest.” 

Akiachak Native Cmty. v. Jewell, 995 F. Supp. 2d 7, 12 (D.D.C. 2014). As discussed below, 

each of the four factors supports issuance of a stay here. 

A. Crossroads GPS Is Likely to Succeed on the Merits on Appeal and, in 

Any Event, the Court’s Opinion Raises Numerous Serious Legal 

Questions That Support Granting a Stay. 

While recognizing that the Court has wrestled with the issues surrounding this case over 

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many pages and for many months, Crossroads GPS respectfully submits that an appellate court is 

likely to render a different outcome. This Court’s decision runs counter to nearly four decades of 

established agency practice and settled interpretation and application of the statute. See, e.g., 

FEC, Campaign Guide for Corporations and Labor Organizations (Aug. 1997) at 24 (Dkt. No. 

28-1)) (explaining reports are required to identify only “each person who contributed more than 

$200 for the purpose of making the independent expenditures”) (emphasis added); FEC Matter 

Under Review (“MUR”) 6696, First General Counsel’s Report (Mar. 7, 2014), Joint App’x Part 

1 (Dkt. 38) AR173 (noting that the FEC previously decided “not to open a matter where there 

was no information that a 501(c)(4) organization received ‘donations tied to a specific 

independent expenditure.’”). 

This Court’s decision also downplays – contrary to existing judicial precedent – the 

unique congressional review process applicable to FEC regulations. The Court goes to great 

lengths to set aside crucial aspects of the legislative process directly bearing on the reporting 

requirement at issue here (e.g., the FEC’s extensive involvement in the statute’s drafting phase, 

the legislative materials confirming the limited nature of the reporting requirement, etc.). And 

the Court’s decision also stands for the remarkable – and likely unsupportable – proposition that 

a regulated entity may be subject to sanction even where, as here, the entity fully complied with 

a longstanding agency regulation. 

Moreover, while the Court has tried to distinguish this case from three key D.C. Circuit 

decisions, Crossroads GPS respectfully contends that these precedents are directly applicable to 

the case at hand. This Court’s analysis was driven by the supposed “broad disclosure goals of 

Congress” in enacting the reporting requirements, Op. at 77, and the assumption that “Congress 

expressly intended broad disclosure for not-political committees,” id. at 88. But in Center for 

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Individual Freedom v. Van Hollen, 694 F.3d 108 (D.C. Cir. 2012) (“Van Hollen I”), and Van 

Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016) (“Van Hollen II”), which together upheld a 

separate-but-related FEC regulation for reporting information about an independent 

organization’s donors, the D.C. Circuit criticized a “district court’s invocation of such a 

sweeping disclosure purpose [as] contradict[ing] the very statute whose purposes it purports to 

protect,” since the law “does not require disclosure at all costs; it limits disclosure in a number of 

ways.” Van Hollen II, 811 F.3d at 494–95. 

This Court’s opinion also is in apparent tension with CREW v. FEC, 892 F.3d 434 (D.C. 

Cir. 2018), where the D.C. Circuit recently held that FEC decisions to dismiss enforcement cases 

based on prosecutorial discretion are generally “not subject to judicial review for abuse of 

discretion.” Id. at 441. But here, while acknowledging that the FEC’s dismissal of the 

administrative complaint against Crossroads GPS was in fact grounded “in the exercise of [] 

prosecutorial discretion,” Op. at 105, the Court nonetheless subjected it to review. In doing so, 

the Court mistakenly relied upon two inapplicable exceptions to the non-reviewability principle. 

First, the Court indicated that dismissal of the enforcement case against Crossroads GPS 

was reviewable because the FEC’s purported failure to fully enforce the statute “rais[ed] the 

issue [of] whether” the agency had “intentionally ‘abdicated’” its responsibilities. Op. at 110. 

But the Supreme Court has never endorsed this exception. See Heckler v. Chaney, 470 U.S. 821, 

844 n.4 (1985). As the D.C. Circuit noted in 1989, “the [Supreme] Court [in Chaney] stopped 

short of stating that the presumption of unreviewability is inapplicable in such circumstances.”  

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 

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

responsibilities.’”). 

But even presuming an “abdication” exception exists, there still remains “no review 

available from [an] agency’s specific nonenforcement decision . . . or its overall pattern of 

decisions not to pursue enforcement action” in a particular area. Int’l Union, United Auto., 

Aerospace & Agr. Implement Workers of Am. v. Brock, 783 F.2d 237, 245 (D.C. Cir. 1986). 

Mere “substantive disagreement with the agency’s legal rulings,” Ass’n of Civilian Technicians, 

Inc. v. Fed. Labor Relations Auth., 283 F.3d 339, 344 (D.C. Cir. 2002), or situations where the 

government’s “enforcement activities may not measure up to plaintiffs’ expectations or desires,” 

simply do not represent an abdication of duty by an agency, Int'l Union, United Auto., 

Aerospace, & Agric. Implement Workers of Am., UAW v. Donovan, 577 F. Supp. 398, 405 n.12 

(D.D.C. 1983), aff’d in part, remanded in part, sub nom., 783 F.2d 237 (D.C. Cir. 1986). 

As demonstrated in Crossroads GPS’s opening brief, CREW’s complaint here represents 

precisely the type of non-judicially reviewable argument other courts have rejected. In just the 

past few years alone, the Commission has enforced the independent expenditure donor reporting 

requirement against a number of organizations. See, e.g., 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). In fact, other than the FEC’s dismissal of the 

administrative complaint in this matter, the record indicates the FEC has declined to open an 

investigation into an alleged violation of the independent expenditure donor reporting 

requirement in only one other instance. See FEC Matter Under Review (“MUR”) 6696, First 

General Counsel’s Report (Mar. 7, 2014), Joint App’x Part 1 (Dkt. 38) AR173. In other words, 

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the FEC appears to have taken enforcement action under the statute as often as it has dismissed 

matters involving this requirement. While CREW would clearly prefer that the FEC extend its 

enforcement efforts and budget to target more speech, that type of decision is left to the agency 

to decide – subject to further direction from Congress – rather than this Court. 

Second, the Court concluded that the FEC’s dismissal of the administrative complaint 

against Crossroads GPS is judicially reviewable because the FEC’s failure to pursue enforcement 

was “primarily” based what the Court judged to be its errant interpretation of the underlying 

statute. Op. at 110. But the D.C. Circuit has previously held that for an agency’s failure to 

prosecute to be reviewable, it must be based “entirely” on a misreading of the statute. CREW, 

892 F.3d at 441 n.11 (emphasis added). Here, as the Court freely acknowledged in its opinion, 

the FEC based its decision to dismiss the case on the ground of “prosecutorial discretion.” Op. at 

105. 

In any event, despite the strength of these combined merits arguments that are likely to 

prevail on appeal, this “court is not required to find that ultimate success by the movant is a 

mathematical probability, and indeed, [ ] may grant a stay even though its own approach may be 

contrary to the movant’s view of the merits.” CREW v. Office of Admin., 565 F. Supp. 2d 23, 28 

(D.D.C. 2008) (quoting Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 

841, 843 (D.C. Cir. 1977)). Instead, particularly where, as here, the other criteria support a stay, 

the movant need only identify “serious legal questions going to the merits” that are “a fair 

ground of litigation and thus for more deliberative investigation.” Population Inst. v.

McPherson, 797 F.2d 1062, 1078 (D.C. Cir. 1986). In other words, “[w]hat is fairly 

contemplated is that tribunals may properly stay their own orders when they have ruled on an 

admittedly difficult legal question and when the equities of the case suggest that the status quo 

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should be maintained.” Holiday Tours, 559 F.2d at 844-45. 

This Court’s August 3 opinion raises an array of important legal questions concerning, 

among other things, core First Amendment speech concerning political candidates, congressional 

intent and acquiescence in agency rulemaking, and a regulated party’s ability (or lack thereof) to 

rely upon regulations duly promulgated by an administrative agency. These “serious legal 

questions” – which the Court grappled with over 113 pages and in 57 footnotes – warrant a stay 

even if the Court believes Crossroads GPS’s success on appeal is unlikely. See, e.g., FTC v. 

Heinz, H.J. Co., No. 00-5362, 2000 WL 1741320, at *2 (D.C. Cir. Nov. 8, 2000) (per curiam) 

(“‘50% plus’ likelihood of success” is not needed “to justify relief”) (citation omitted). This is 

particularly true here not only because the Court’s resolution of these issues conflicts with the 

conclusions of the FEC’s professional staff and the agency’s Commissioners – none of whom 

concluded there was reason to believe Crossroads GPS had violated the FEC regulation – but 

also because the Court’s reasoning represents a significant departure in several respects from 

established understanding of this statute and its implementing regulations over the course of the 

last four decades. And as to the FECA’s good faith regulatory reliance provision, the Court has 

already held and acknowledged that its decision to deprive Crossroads GPS and numerous other 

affected entities of their statutory right to rely on an existing FEC regulation “present[s] a close 

call.” Op. at 106.1

The Court does not abandon any part of its opinion by recognizing that, in touching on so 

many complex and important first-order legal issues, its ruling raises the types of questions that 

readily satisfy the first factor of the stay analysis. 

                                                            

1

 Moreover, despite initially recognizing that Crossroads GPS asserted a “constitutional right to rely on a longaccepted regulation,” Op. at 22, it does not appear that the Court subsequently analyzed this constitutional issue. 

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B. Absent a Stay, Crossroads GPS and the Public Will Be Irreparably 

Harmed by the Court’s Decision. 

The second and fourth factors of the stay analysis are likewise satisfied because the 

Court’s August 3 decision is chilling core political speech by Crossroads GPS and other 

similarly-constituted entities and has sown confusion in the weeks immediately preceding a 

national election. The extremely abbreviated schedule set by this Court for action by the FEC – 

both on the underlying enforcement matter and especially the invalidation of the regulation and 

the shortened schedule for issuing a new rule – will unavoidably create massive disruption 

among non-political committee entities that have long had the right to engage in limited 

independent expenditure activity without fear of exposing their benefactors to public disclosure – 

as long as those benefactors had not designated their support for specific independent 

expenditure activity. 

Like other organizations, Crossroads GPS also needs clarity from the Court to enable the 

organization to plan its future speech and fundraising appeals. See Affidavit of Steven Law, ¶¶ 

7, 8, 13 (“Law Aff.”); Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 

499 (1982) (stating that additional “clarity” is required where First Amendment rights are 

implicated). Depriving Crossroads GPS of the clear guidance and protection of the FEC 

regulation, see Law Aff. ¶ 10, narrows Crossroads GPS’s options, exposes it to further litigation 

by CREW, and chills core First Amendment activity, inflicting irreparable injury as a matter of 

law. See id. at ¶¶ 10-12; see also Campaign Legal Ctr. v. FEC, 312 F. Supp. 3d 153, 165 n.7 

(D.D.C. 2018) (collecting authority that “[d]isclosure chills speech” and “can seriously infringe 

on privacy of association and belief guaranteed by the First Amendment”); Dombrowski v. 

Pfister, 380 U.S. 479, 486-87 (1972) (explaining that the “chilling effect upon the exercise of 

First Amendment rights may derive from the fact of the prosecution” can be used to show 

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“irreparable injury”). And forcing Crossroads GPS to divert attention and resources into a 

revived administrative enforcement matter on the eve of an election further compounds this 

injury. See Citizens United v. FEC, 558 U.S. 310, 327 (2010) (cautioning that the burden of 

litigation “create[s] an inevitable, pervasive, and serious risk of chilling protected speech”); Riley 

v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 794 (1988) (finding that “the costs of 

litigation . . . must necessarily chill speech in direct contravention of the First Amendment’s 

dictates”). 

Significantly, this disruption and lack of clarity comes during a “critical pre-election 

period” for Crossroads GPS and similar independent organizations, Right to Life of Mich., Inc. v. 

Miller, 23 F. Supp. 2d 766, 767, 769-70 (W.D. Mich. 1998) (focusing on the “45 days prior to an 

election”), when the public actually “begins to concentrate on elections” and their speech can 

have influence, Citizens United, 558 U.S. at 334. Without a stay to keep the FEC regulation in 

place pending appeal, there can be no doubt that other members of the public will find their 

speech “stifled” and will lose their “chance of persuading voters” – out of uncertainty or fear of 

enforcement. Id. at 327. And not only does this Court’s decision place a “considerable burden 

[and potential] risk[]” on speakers, who may well “choose simply to abstain from protected 

speech,” but it also harms “society as a whole, which is deprived of an uninhibited marketplace 

of ideas.” Virginia v. Hicks, 539 U.S. 113, 119 (2003). 

 In fact, this is exactly what happened in Van Hollen I, when another judge of this court 

invalidated a similar FEC donor reporting regulation for “electioneering communications” 

(“ECs”). See Van Hollen v. FEC, 851 F. Supp. 2d 69 (D.D.C. 2012), rev’d, Van Hollen I, 694 

F.3d 108. After the district court’s initial ruling, groups like Crossroads GPS effectively stopped 

making ECs. See, e.g., Law Aff. ¶ 12. Between the district court’s March 30, 2012 decision and 

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the D.C. Circuit’s September 18, 2012 ruling overturning the district court’s decision, the EC 

reporting requirements applied for approximately 78 separate nominating primaries, primary 

runoffs, and conventions that were actually held in various jurisdictions across the country. See

FEC, Electioneering Communications Periods (2012), at

https://transition.fec.gov/info/charts_ec_dates_2012.shtml.

2

 During this period, only 11 EC 

reports were filed with the Commission. See FEC Form 9 filings, Apr. 1, 2012, through Sep. 18, 

2012, at https://www.fec.gov/data/filings/?data_type= 

processed&min_receipt_date=04%2F01%2F2012&max_receipt_date=09%2F18%2F2012&form

_type=F9. By contrast, prior to the district court’s March 30 ruling, 33 EC reports were filed, 

despite there being far fewer primary, primary runoffs, and conventions for which the EC 

reporting requirement applied. Moreover, after the D.C. Circuit’s reversal of the district court’s 

ruling on September 18, 2012, 67 EC reports were filed in connection with the November 

general elections. See FEC Form 9 filings, Jan. 1, 2012, through Mar. 30, 2012, at 

https://www.fec.gov/data/filings/?data_type=processed&min_receipt_date=01%2F01%2F2012&

max_receipt_date=03%2F30%2F2012&form_type=F9 and Sep. 18, 2012, through Nov. 6, 2012, 

at https://www.fec.gov/data/filings/?data_type=processed&min_receipt_date=09%2F18%2 

F2012&max_receipt_date=11%2F06%2F2012&form_type=F9; see also FEC, Electioneering 

Communications Periods (2012), supra. 

That is why “[c]ourt orders affecting elections” are particularly disfavored when there is 

an “impending election.” Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006). Although the order at 

issue in Purcell concerned an elections procedure law, see id. at 1, courts have extended the 

                                                            

2

 This count is only approximate because it is based on congressional nominating primaries, primary runoffs, and 

conventions only, and does not include any state presidential nominating primaries or conventions that may have 

been held on separate dates, the inclusion of which would increase this number. See id.

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“Purcell principle” to decisions, such as this Court’s ruling, that dramatically alter the campaign 

finance landscape shortly before an election. For example, in Lair v. Bullock, the U.S. District 

Court for the District of Montana enjoined Montana’s campaign contribution limits for being 

unconstitutionally low shortly before the general election. 697 F.3d 1200, 1202 (9th Cir. 2012). 

But the U.S. Court of Appeals for the Ninth Circuit granted a stay of the district court’s order 

pending appeal, citing, among other reasons, “the imminent nature of the election” and the 

“importan[ce of] not [] disturb[ing] long-established expectations that might have unintended 

consequences” during the pre-election period. Id. at 1214 (citing Purcell, 549 U.S. at 5-6). And 

in STOP Hillary PAC v. FEC, a case challenging an FEC regulation, the court emphasized how 

“‘[c]onsiderations specific to election cases’ weigh even further against the issuance of 

injunctions” shortly before the 2016 presidential primaries were to begin. 166 F. Supp. 3d 643, 

647-48 (E.D. Va. 2015) (citing Purcell, 549 U.S. at 4-5). 

This Court acknowledges that its decision will have ramifications far beyond just the 

existing litigants, agreeing to stay vacatur of the FEC regulation for 45 days “to ensure that notpolitical committees benefit from regulatory guidance.” Op. at 99. Yet the existing stay is of 

little comfort in that (a) it effectively expires half-way between August 3 and the November 6 

general election; and (b) the Court’s order otherwise “declared [the regulation] to be invalid,” 

Order at 2, which calls into question whether Crossroads GPS or the rest of the regulated 

community may even rely upon the current FEC regulation during the 45-day period. Moreover, 

after the 45-day stay period ends, a quarterly report will be due that covers independent 

expenditures made during the stay period, and it is thus also unclear what donor reporting rule 

will apply for that quarterly report. See 11 C.F.R. § 109.10(b); FEC Form 5 (Line 4), at

https://transition.fec.gov/pdf/forms/fecfrm5.pdf. 

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Given the immense consequences for non-compliance, such uncertainty has already 

caused tension and confusion. For example, one prominent law firm that advises a large number 

of Democratic and progressive advocacy groups has concluded that, during the existing 45-day 

stay, “organizations engaging in independent expenditure activity can continue to file reports as 

they have in the past.” Ezra Reese & Shanna Reulbach, Court Opens Door to Expanded 

Disclosure for Nonprofits Making Independent Expenditures in Federal Campaigns (Aug. 8, 

2018), at https://www.perkinscoie.com/en/news-insights/court-opens-door-to-expandeddisclosure-for-nonprofits-making.html. By contrast, immediately following this Court’s 

decision, CREW’s Executive Director threatened legal action against those who continue to 

follow the existing FEC regulation during the current 45-day period: 

Major donors are now on notice that if they contribute to politically active 

501(c)(4) organizations, their contributions will have to be disclosed, and if 

they are not, CREW will pursue enforcement cases with the FEC and, if 

necessary, in court. 

Press Release, CREW Scores Major Court Victory Against Dark Money, CREW (Aug. 4, 2018), 

https://www.citizensforethics.org/press-release/crew-scores-major-court-victory-against-darkmoney/. This sort of confusion and uncertainty does little to provide the clarity Crossroads GPS 

and the public need and the First Amendment demands, illustrating precisely why a stay is 

appropriate here. Indeed, the Court even acknowledges that there is a “[non-]trivial concern” 

that “entities engaged in independent expenditures might have inadequate guidance” as a result 

of its decision to vacate the FEC regulation in the final weeks before Election Day. Op. at 98. 

Moreover, the extremely abbreviated schedule virtually ensures that there will be none of 

the notice and comment that is part of virtually every other administrative rulemaking, see, e.g., 

N. Mariana Islands v. United States, 686 F. Supp. 2d 7, 21 (D.D.C. 2009) (subjecting interim 

rule to notice and comment before it would become effective), and should especially be part of 

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any regulatory process impinging on core First Amendment activity. See also Am. Bus. Ass’n v. 

United States, 627 F.2d 525, 528 (D.C. Cir. 1980) (explaining that the “‘principal purpose’ of 

[the APA is] ‘to provide that the legislative functions of administrative agencies shall so far as 

possible be exercised only upon public participation and notice’”). 

Instead, the court’s ruling creates a disruptive regulatory vacuum – thereby forcing social 

welfare groups to choose between their constitutional right to engage in a limited amount of 

political activity or preserve the confidentiality of their benefactors. The Court’s sharply 

abbreviated deadline for promulgating a new regulation virtually assures there will be little or no 

public input or even careful evaluation of complex constitutional concerns by the agency staff. 

The Court reached this conclusion even though it has identified a number of specific scenarios 

that will likely require detailed further analysis and has acknowledged that the reporting issue is 

“complex.” Op. at 88-89, 104 n.53.3

 Effectively precluding public participation in this type of 

administrative agency rulemaking – particularly in the electoral and associational privacy 

contexts – contradicts self-evident authority that the “promulgation process [must provide the] 

degree of public awareness, understanding, and participation commensurate with the complexity 

and intrusiveness of the resulting regulations.” Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 

1028 (D.C. Cir. 1978). Indeed, a sister court in this district has rightly warned and recognized 

that forcing the FEC to “hastily cobbl[e] together an alternative, interim set of regulations . . . is 

                                                            

3

 In addition to raising questions about which donors must be identified under 52 U.S.C. § 30104(c)(2)(C), the 

Court’s reliance on Buckley’s vague “earmarked for political purposes” definition for “contributions” raises 

questions about whether donations made for the following “political purposes” must be identified under 

§ 30104(c)(1): grassroots lobbying campaigns aimed at elected officials; public opinion polling on political issues; 

scorecards of congressional votes; non-partisan voter registration programs; non-partisan voter turnout and get-outthe-vote efforts; non-partisan communications informing voters when or where to vote; candidate surveys or issue 

pledges; etc. The FEC’s regulatory exceptions to the “contribution” definition, see 11 C.F.R. §§ 100.71-100.155, 

are of little assistance here, and these activities could all arguably be said to “influenc[e]” an election in some way, 

see 52 U.S.C. § 30101(8). 

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potentially harmful to the public interest.” Emily’s List v. FEC, 362 F. Supp. 2d 43, 59 (D.D.C. 

2005), aff’d, 170 F. App’x 719 (D.C. Cir. 2005); see also Mendoza v. Perez, 72 F. Supp. 3d 168, 

173 (D.D.C. 2014) (J. Howell) (“Short-cutting the time for adequate notice and comment 

rulemaking [c]ould be shortsighted and end up extending, rather than expediting, the process”). 

To ensure that Crossroads GPS and all other interested entities are not irreparably harmed by 

being effectively excluded from the rulemaking process, the Court should stay its decision 

pending appeal in order to integrate the public into whatever FEC rulemaking proceedings, if 

any, become necessary as a result of this litigation.4 

Furthermore, while the Court’s opinion downplays the “disruptive consequences” 

invalidation of the FEC’s regulation will have on organizations filing independent expenditure 

reports, Op. at 95, in practice, this may not be so. First, while the obligation of 501(c) 

organizations to report their donors to the Internal Revenue Service has only applied to donors of 

$5,000 or more during the tax year, see 26 C.F.R. § 1.6033-2(a)(2)(ii)(f), the obligation to report 

donors under the FECA, as the Court has interpreted it, applies to donors who have given more 

than $200 during the calendar year, or as little as $200 “for the purpose of furthering an 

independent expenditure,” 52 U.S.C. § 30104(c)(1), (b)(3)(A), (c)(2)(C). Entities making 

independent expenditures likely have not been keeping track of their donors at these levels in a 

format that easily translates to FEC reports, for the simple reason that they have had no 

                                                            

4

 This is particularly true given the Court’s criticisms of the outcome of the FEC’s 1980 rulemaking proceeding. As 

the Court notes (Op. at 38-39), the specific regulation language ultimately adopted by the FEC was not included in 

the material put out for public comment in the Federal Register. Instead, such language was first “circulated 

internally” after the close of the public comment period. Id. at 39. Presumably, in the Court’s view, had the public 

seen the subsequent regulatory language and been able to file comments, it would have helped the FEC better tailor 

its regulation to the statute. While Crossroads GPS does not agree that the regulation promulgated by the FEC is 

inconsistent with the statute, in light of its opinion this Court would presumably want to avoid this prior FEC 

“mistake” here by ensuring that the public has an opportunity to review and comment upon any proposed regulations 

before they take effect rather than allowing the FEC to enact a new interim regulation effectively behind closed 

doors. 

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expectation that they would have to report donors at such levels. Second, as this Court noted in 

its opinion, the donor identification requirement is not “unbounded.” Op. at 55. Therefore, 

unless an organization wishes to report all of its donors of more than $200 under Section 

30104(c)(1), the organization will have to make extremely difficult post hoc judgment calls 

about whether each and every $200-or-more donor gave for “political purposes,” whatever that 

may mean. See note 3, supra. And all of this effort and expense will be unnecessary should this 

Court’s opinion ultimately be overturned on appeal. 

Relatedly, this Court emphasizes in its opinion that a new interim FEC regulation 

purportedly promulgated “in accordance with the statute [will] provide[] members of the public 

with the information that they need to participate as an informed electorate.” Op. at 97. But this 

does not address the “significant” individual and associational privacy interests for donors and 

organizations at stake in this matter. See Van Hollen II, 811 F.3d at 499-501. Specifically, 

donors may end up being reported involuntarily under a new interim rule, whether under Section 

30104(c)(1) (which applies to donors going back to the beginning of the calendar year) or under 

Section (c)(2)(C), even though such donors gave with the reasonable expectation that they would 

not be publicly identified at all – and even though the D.C. Circuit could find on appeal that the 

current FEC regulation is valid and consistent with the statute. In other words, the Court’s 

decision, if not stayed, will likely create a situation where “[t]he egg has been scrambled and 

there is no apparent way to restore the status quo ante.” Op. at 97 (brackets in the original) 

(internal citation and quotation marks omitted). This is precisely the type of situation that courts 

find “effectively unreviewable,” In re Sealed Case, 237 F.3d 657, 665 (D.C. Cir. 2001), and as 

justifying injunctive relief, see Securities Industry and Financial Markets Ass’n v. Garfield, 469 

F. Supp. 2d 25, 41-42 (D. Conn. 2007) (noting that the disclosure bell cannot be unrung, 

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17 

particularly in the age of the Internet where information “will be indexed by search engines and 

widely distributed and archived by various Internet companies”). And in many situations, rather 

than create exposure for their donors, Crossroads GPS and other similarly-situated organizations 

will have to refrain from speaking at all pending appeal – an irreparable harm that can never be 

redressed in the event that Crossroads GPS’s appeal ultimately proves successful. 

Finally, there is a “public interest in ‘uniformity in the application of the law’” that will 

be denied by enforcement of the Court’s 45-day deadline. FTC v. Cockrell, 431 F. Supp. 558, 

560 (D.D.C. 1977) (citation omitted); see also FEC v. Comm. to Elect Lyndon La Rouche, 613 

F.2d 849, 859 (D.C. Cir. 1979). First, the ordinary practice of other courts in this district when 

invalidating FEC regulations is to remand them to the agency for further action without any 

vacatur at all. See, e.g., Shays v. FEC, 337 F. Supp. 2d 28, 130 (D. D.C. 2004) (“Shays I”), aff’d, 

414 F.3d 76 (D.C. Cir. 2005); Shays v. FEC, 508 F. Supp. 2d 10, 71 (D.D.C. 2007) (“Shays III”), 

aff’d in part, rev’d in part and remanded, 528 F.3d 914 (D.C. Cir. 2008); Shays v. FEC, No. 06-

cv-01247 (D.D.C. Aug. 26, 2008) (“Shays III”), amended order.5

 Second, vacatur is generally 

appropriate where needed to preserve the status quo – in other words, it is a remedy often 

employed to prevent a new, affirmative reporting obligation from taking effect. See, e.g., AFLCIO v. Chao, 496 F. Supp. 2d 76, 78-79 (D.D.C. 2007) (vacating a rule “establishing a new 

annual reporting requirement for labor organizations”). Here, however, the Court is employing 

vacatur to take away an existing regulatory reporting standard that is relied upon by advocacy 

organizations throughout the country and across the ideological spectrum. In light of the 

foregoing, Crossroads GPS respectfully submits that the Court should have followed the standard 

rule and remanded the regulation without vacating it. See, e.g., AARP v. EEOC, 267 F. Supp. 3d 

                                                            

5

 The authorities cited in the Court’s opinion, describing vacatur of an invalid regulation as a “common remedy,” do 

not address instances in which FEC regulations have been invalidated. See Op. at 93. 

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14, 37–38 (D.D.C.), on reconsideration, 292 F. Supp. 3d 238 (D.D.C. 2017) (declining to vacate 

regulation where “information cannot be made confidential again”). But because it did not, the 

Court should stay its decision in order to preserve the status quo as well as Crossroads GPS’s and 

the public’s interests in clear campaign finance rules governing constitutionally protected 

political speech, particularly this close to an election. 

C. A Stay Will Not “Substantially Harm” CREW, But the Absence of One 

Could Substantially Harm the FEC. 

Although a stay of this Court’s August 3 decision would help reduce the harm to 

Crossroads GPS and the general public, it is clear that a stay would not harm CREW in any 

meaningful – much less substantial – way. While CREW is doubtless interested in gathering 

more data about its political opponents, see, e.g., Bill Allison, CREW’s Watchdog Status Fades 

After Arrival of Democrat David Brock, Bloomberg (Apr. 11, 2016), this election cycle is no 

different than the nearly twenty election cycles that proceeded it with the existing FEC regulation 

in place and that were conducted largely free of CREW’s recently discovered critiques of the 

FEC’s reporting requirements.6

 And the administrative enforcement matter giving rise to this

case involved activity that occurred nearly six years ago – i.e., so long ago that it is outside the 

statute of limitations, see 28 U.S.C. § 2462 – meaning that there is no imminent deadline or 

reason to rush new and additional enforcement and regulatory proceedings. 

In contrast to CREW, the Commission could suffer significant harm to its enforcement 

and rulemaking authority should this case proceed without a stay and the FEC’s regulation is 

vacated. The Commission has been delegated “primary and substantial responsibility for 

                                                            

6

 Notably, CREW did not participate in the 2011 FEC rulemaking process to consider changes to the independent 

expenditure reporting requirements, further underscoring CREW’s lack of need for immediate relief here. See 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. 

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administering and enforcing [FECA],” including the “sole discretionary power” to decide 

whether to initiate an enforcement action. CREW v. FEC, 209 F. Supp. 3d 77, 87 (D.D.C. 2016) 

(internal quotation marks and citation omitted). The FEC also “is given extensive 

rulemaking . . . powers” and is authorized to “formulate general policy with respect to the 

administration of this Act.” Buckley v. Valeo, 424 U.S. 1, 110 (1976) (internal quotation marks 

and citation omitted). Not only does this Court’s opinion upend these agency responsibilities 

and duties, but it does so in a context where an appellate court could – and likely will – eliminate 

the need for the FEC to expend resources on a rulemaking or enforcement proceeding at all. 

This Court also considered – but ultimately disregarded – the FEC’s concerns that a 

remand with vacatur could result in “inadequate guidance” for speakers in advance of the 2018 

elections. See Op. at 98. However, the decision to disregard the FEC’s insights and 

recommendation runs contrary to the D.C. Circuit’s admonition that a government agency “is in 

a better position than the court to assess the disruptive effect of vacating [a rule].” Chamber of 

Commerce v. SEC, 443 F.3d 890, 909 (D.C. Cir. 2006). If a stay is not issued, the FEC, rather 

than prioritizing its efforts on 2018 election law administrative matters and demonstrable 

violations of federal election laws, will be forced to divert limited agency resources in the final 

weeks before the 2018 election to reconsidering an administrative complaint barred by the statute 

of limitations that concerns activities that dates back to 2012 and initiate a rulemaking 

proceeding concerning a regulation that dates back to 1980 – with the very real prospect that its 

work will be interrupted or completely undone by a successful appeal. This type of unilateral, 

court-driven administrative agency resource re-allocation appears contrary to both judicial 

precedent and the FEC’s interests and statutory responsibilities under FECA. 

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II. IN THE EVENT THE COURT DOES NOT STAY THE ENTIRE CASE PENDING 

APPEAL, THE COURT SHOULD AT THE VERY LEAST STAY 

INVALIDATION AND VACATUR OF THE FEC REGULATION. 

In the event the Court does not stay its entire opinion and order, the Court should at 

minimum stay its decision to invalidate and vacate the FEC reporting regulation pending final 

appeal. As discussed above, we contend that Crossroads GPS is likely to succeed on appeal and, 

at the very least, the issue of the regulation’s validity involves complex and difficult legal 

questions that warrant additional consideration on appeal. 

An abrupt vacatur of a Commission reporting requirement that the regulated community 

has relied on for 38 years, especially in the final weeks before Election Day, will create 

enormous uncertainty for Crossroads GPS and other advocacy organizations across the 

ideological spectrum that seek to exercise their fundamental First Amendment rights. As the 

real-world experience with Van Hollen I demonstrated, allowing the vacatur to go into effect at 

this time will almost certainly mean that a vast number of organizations will be inhibited from 

making independent expenditures that they might otherwise be able to make under the current 

FEC regulation during the remaining weeks of the 2018 election cycle. 

Additionally, were the FEC to promulgate an interim regulation as suggested by the 

Court’s opinion and order, the public would be irreparably harmed by the lack of notice and 

comment in the rulemaking proceeding. Donors to Crossroads GPS and other organizations who 

may be required to be publicly identified based upon the breadth of the FEC’s interim regulation 

resulting from the vacatur, and who made donations without having any expectation that they 

would be publicly reported, would also be irreparably harmed. The Commission would also 

suffer irreparable harm to its rulemaking authority and prerogative to manage limited agency 

resources. And all of this will have been unnecessary if Crossroads GPS ultimately succeeds on 

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the merits on appeal. CREW, for its part, will not be substantially harmed by a stay of the 

vacatur, considering (1) the administrative complaint concerns activities that took place many 

years ago and that are outside the statute of limitations, and (2) CREW could have sought to have 

the FEC regulation amended years ago but evidently did not believe it was important enough to 

do so until waiting and choosing to litigate this matter against Crossroads GPS before the FEC 

and this Court. 

For these reasons, a stay of the Court’s invalidation and vacatur of the FEC regulation is 

warranted under the traditional four factors for granting a stay pending appeal. See Akiachak 

Native Cmty., 995 F. Supp. 2d at 12. 

CONCLUSION 

For all the foregoing reasons, Crossroads GPS respectfully requests this Court to grant its 

motion for a stay pending final appeal of the entire case (i.e., both remand of the administrative 

enforcement proceeding to the FEC and also the invalidation and vacatur of the Commission’s 

regulation). In the alternative, Crossroads GPS respectfully requests that the Court stay those 

portions of its decision invalidating and vacating the challenged FEC regulation, 11 C.F.R. 

§ 109.10(e)(1)(vi), pending final appeal. 

 

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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 

August 24, 2018 Strategies

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