RECORD NO. 19-5161

THE LEX GROUPDC  1050 Connecticut Avenue, N.W.  Suite 500, #5190  Washington, D.C. 20036

(202) 955-0001  (800) 856-4419  www.thelexgroup.com

 

ORAL ARGUMENT IS SCHEDULED FOR FEBRUARY 12, 2020

 

In The 

United States Court of Appeals 

For The District of Columbia Circuit 

CITIZENS FOR RESPONSIBILITY AND ETHICS IN 

WASHINGTON; NOAH BOOKBINDER,

Plaintiffs - Appellants,

v.

FEDERAL ELECTION COMMISSION,

Defendant - Appellee,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

REPLY BRIEF OF APPELLANTS

Stuart McPhail

Adam J. Rappaport

CITIZENS FOR RESPONSIBILITY AND 

 ETHICS IN WASHINGTON

1101 K Street, NW, Suite 201

Washington, DC 20005

(202) 408-5565

Counsel for Appellants

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i 

TABLE OF CONTENTS 

Table of Authorities ................................................................................................ ii

Glossary.................................................................................................................. vi

Summary of the Argument ...................................................................................... 1

Argument................................................................................................................. 2

I. The District Court Erred in Extending CREW/CHGO 

To Apply Here .................................................................................... 2

II. If CREW/CHGO Applies, It Contravenes Precedent, 

the Statute, and the Constitution ........................................................ 6

A. The FEC Fails to Show CREW/CHGO is Consistent with 

Precedent .................................................................................. 6

B. The FEC Fails to Show CREW/CHGO Comports with the 

FECA...................................................................................... 10

C. CREW/CHGO’s “Unreviewable Discretion” Raises 

Significant First Amendment Concerns ................................. 16

III. The FEC’s Truncated Merits Arguments Fail, 

 But the Court Should Remand for the Merits or 

Order Supplemental Briefing ........................................................... 19

A. Review of the Merits is De Novo ........................................... 20

B. The FECA Plainly Defines “Expenditure” to Include 

New Models’s Distributions .................................................. 21

C. The Partisan Bloc’s “Major Purpose” Interpretation Has 

Already Been Declared Unlawful .......................................... 24

Conclusion ............................................................................................................ 27

Certificate of Compliance ....................................................................................... 1

Certificate of Service .............................................................................................. 1

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TABLE OF AUTHORITIES 

Cases

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996) ............................................... 7, 19, 20 

Almaqrami v. Pompeo, 933 F.3d 774 (D.C. Cir. 2019) ........................................... 19 

Buckley v. Valeo, 424 U.S. 1 (1976) ..................................................... 16, 18, 22, 26 

Burlington Resources Inc. v. FERC, 513 F.3d 242 (D.C. Cir. 2008) ...................... 14 

Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995) .............................6, 8 

Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984) .............................. 20, 21 

Citizens United v. FEC, 558 U.S. 310 (2010).......................................................... 26 

CREW v. AAN, No. 18-cv-945 (CRC), 

2019 WL 4750248 (D.D.C. Sept. 30, 2019) ........................................................... 3 

CREW v. FEC, 209 F. Supp. 3d 77 (D.D.C. 2016) ..................................... 15, 20, 25 

CREW v. FEC, 236 F. Supp. 3d 378 (D.D.C. 2017) .................................................. 3 

CREW v. FEC (Am. for Tax Reform), 475 F.3d 337 (D.C. Cir. 2007) ...................... 9 

CREW v. FEC (CREWCHGO), 892 F.3d 434 (D.C. Cir. 2018) ..................... 2, 3, 10 

CREW v. FEC, 923 F.3d 1141 (D.C. Cir. 2019) ......................................... 1, 5, 8, 10 

Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671 (D.C. Cir. 1994) ................ 4 

Democratic Congressional Campaign Comm. v. FEC (DCCC), 

831 F.2d 1131 (D.C. Cir. 1987) ..........................................................................6, 8 

Doe v. Fed. Democratic Republic of Ethiopia, 851 F.3d 7 (D.C. Cir. 2017) ............ 4 

Dunlop v. Bachowski, 421 U.S. 560 (1975) ............................................................. 13 

FEC v. Akins, 524 U.S. 11 (1998) ............................................................... 5, 7, 8, 17 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981) ................. 20 

FEC v. GOPAC, Inc., 917 F. Supp. 851 (D.D.C. 1996) .......................................... 26 

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FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004) ............................................ 26 

FEC v. Mass. Citizens for Life, Inc. (MCFL), 479 U.S. 238 (1986) ....................... 25 

Gersman v. Group Health Ass’n, 975 F.2d 886 (D.C. Cir. 1992) ............................. 3 

Greg v. Barrett, 771 F.2d 53 (D.C. Cir. 1985) ................................................. 16, 17 

Hagelin v. FEC, 411 F.3d 237 (D.C. Cir. 2005) ................................................. 9, 10 

Heckler v. Chaney, 470 U.S. 821 (1985) ................................................................. 13 

Herbert v. Lando, 441 U.S. 153 (1979) ................................................................... 15 

ICC v. Bro. of Locomotive Eng'rs, 482 U.S. 270 (1987) ........................................... 4 

In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000) .................................................. 11 

Kisor v. Wilkie, 139 S. Ct. 2400 (2019) ................................................................... 11 

Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto Ins. Co., 

463 U.S. 29 (1983) ............................................................................................... 12 

N.Y. N.Y., LLC v. NLRB, 313 F.3d 585 (D.C. Cir. 2002) ................................. 20, 21 

Nat’l Wrestling Coaches Ass’n v. Dep’t of Ed., 

366 F.3d 930 (D.C. Cir. 2004) .............................................................................. 17 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) ............................................. 6, 9, 20 

Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) .............................................. 8 

Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007) ................................................... 23 

Shelley v. Brock, 793 F.2d 1368 (D.C. Cir. 1986) ................................................... 12 

Sierra Club v. Jackson, 648 F.3d 848 (D.C. Cir. 2011) ............................................ 6 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) .................................. 21, 23 

Thermtron Prod., Inc. v. Hermandsdorfer, 423 US. 336 (1976) ............................. 14 

TRW Inc v. Andrews, 534 U.S. 19 (2001) ......................................................... 10, 15 

UAW v. Brock, 783 F.2d 237 (D.C. Cir. 1986) .......................................................... 4 

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United States v. Mead Corp., 533 U.S. 218 (2001) ................................................. 11 

Univ. of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) .............................. 20 

Va. St. Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 

425 U.S. 748 (1976) ............................................................................................. 16 

Statutes

52 U.S.C. § 30101(17) ............................................................................................. 23 

52 U.S.C. § 30101(4) ........................................................................................ 21, 26 

52 U.S.C. § 30101(9)(A) .......................................................................................... 23 

52 U.S.C. § 30101(9)(A)(i) ...................................................................................... 22 

52 U.S.C. § 30101(9)(B)(iii) .................................................................................... 23 

52 U.S.C. § 30101(B)(vi) ......................................................................................... 23 

52 U.S.C. § 30103(d) ............................................................................................... 26 

52 U.S.C. § 30104(b)(4) .......................................................................................... 23 

52 U.S.C. § 30104(c) ............................................................................................... 22 

52 U.S.C. § 30104(f)(3)(B)(ii) ................................................................................. 23 

52 U.S.C. § 30106(c) .................................................................................... 5, 11, 12 

52 U.S.C. § 30107(e) ............................................................................................... 15 

52 U.S.C. § 30109(a)(2) .................................................................................... 12, 13 

52 U.S.C. § 30109(a)(4) ........................................................................................... 13 

52 U.S.C. § 30109(a)(8)(C) ..................................................................................... 14 

52 U.S.C. § 30109(a)(8)(C) ....................................................................................... 5 

52 U.S.C. § 30116(a)(7)(C)(ii) ................................................................................ 24 

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Other Authorities

Advisory Opinion 1987-12 (Costello) (June 12, 1987), https://bit.ly/2Ob5tpD ..... 24 

Advisory Opinion 1996-13 (Townhouse Associates, LLC) at 4 (June 10, 1996), 

https://bit.ly/2M25JSo .......................................................................................... 24 

Advisory Opinion 1996-18 (Int’l Ass’n of Fire Fighters) (July 14, 1996), 

https://bit.ly/2IiKfhE............................................................................................. 24 

Advisory Opinion 2000-25 (Minnesota House DFL Caucus) (Oct. 13, 2000), 

https://bit.ly/2RufXP3 .......................................................................................... 24 

Regulations

FEC, Statement of Policy, 72 Fed. Reg. 12,545 (Mar. 16 2007) ............................. 12 

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GLOSSARY 

APA Administrative Procedure Act 

CREW Citizens for Responsibility and Ethics in Washington and Noah 

Bookbinder 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

JA Joint Appendix 

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SUMMARY OF THE ARGUMENT 

As CREW demonstrated in its opening brief, the district court erroneously 

applied CREW/CHGO here to cut off judicial review because two commissioners 

(the “Partisan Bloc”) invoked the “magic words” of prosecutorial discretion. In 

opposition, the FEC fails to cure that error. The FEC, like the district court, relies 

on dicta in CREW/CHGO to extend it beyond its holding over dismissals resting 

entirely on prosecutorial discretion, to apply here where there are over thirty pages 

of “robust” legal analysis and a firm resolution of the merits, with “prosecutorial 

discretion” merely “drop[ed]” in. CREW v. FEC, 923 F.3d 1141, 1148–49 (D.C. 

Cir. 2019) (en banc) (Pillard, J., dissenting). Binding precedent, however, compels 

review here. Further, if CREW/CHGO does apply here, it contravenes earlier 

binding authority compelling review of FEC dismissals, guts Congress’s carefully 

crafted statutory scheme which, among other things, requires at least a bipartisan 

agreement of four commissioners to exercise prosecutorial discretion, and runs 

afoul of the Constitution. 

That alone is enough to reverse the district court. The FEC also suggests, 

however, that this Court should affirm on the merits, despite the fact the district 

court below concluded CREW/CHGO prohibited consideration of the merits. 

While the prudent course would be to remand for the lower court to consider the 

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merits in the first instance, even the brief discussion permitted in a reply is enough 

to refute the FEC’s arguments. 

ARGUMENT 

As demonstrated in CREW’s opening brief, the district court erred in finding 

CREW/CHGO was “binding” and “directly on point” here. JA152–53. In 

opposition, the FEC fails to justify the district court’s extension of CREW/CGHO

beyond its holding to a case, like this one, which the panel addressed only in dicta. 

The FEC further fails to show that, if CREW/CHGO does apply here, that it is 

consistent with prior precedent, the statute, or the Constitution. Finally, while 

remand is the most prudent course, a short discussion is enough to refute the FEC’s 

truncated briefing on the merits. 

I. The District Court Erred in Extending CREW/CHGO To Apply Here 

In its opposition, the FEC understandably abandons as indefensible the 

district court’s interpretation of CREW/CHGO: that the Partisan Bloc could evade 

review simply by invoking the “magic words” of prosecutorial discretion. 

Compare JA140 with FEC Br. 17, 20. Nonetheless, the FEC continues to err in 

asserting dicta in CREW/CHGO bound the district court below. 

The dismissal confronted in CREW/CHGO was “squarely” based on 

prosecutorial discretion. CREW v. FEC (CREW/CHGO), 892 F.3d 434, 439 (D.C. 

Cir. 2018). Indeed, the majority found the explanation for the dismissal did not 

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“reac[h] the merits” at all, id. at 441; see also id. at 443 (Pillard, J. dissenting) 

(noting majority interpreted dismissal to not reach “any legal decision”); id. at 444 

(quoting dismissal as “not definitively resolv[ing]” merits). Thus, the holding that 

is “determinative of the result,” Gersman v. Group Health Ass’n, 975 F.2d 886, 

897 (D.C. Cir. 1992), is the panel’s conclusion that a dismissal solely predicated on 

prosecution discretion and which involves no reviewable legal analysis is 

unreviewable, CREW/CHGO, 892 F.3d at 438, 441. There is no dispute that that 

does not describe the dismissal here which clearly involved “thirty-two-page[s]” of 

“robust interpretation of statutory text and case law” which conclusively resolved 

the merits. JA 148, JA153–54.1

To bridge this divide, both the FEC and district court rely on the divided 

panel’s discussion of a case that was a mere hypothetical: a dismissal that involved 

both reviewable legal analysis and claims of discretion. See CREW/CHGO, 892 

F.3d at 441 n.11. The panel’s discussion of hypothetical future cases not before it, 

however, is the definition of advisory opinion and dicta. Doe v. Fed. Democratic 

 

1

 The FEC’s post-hoc attempts to supplement the Partisan Bloc’s terse discussion, 

see FEC Br. 16–20, still fail to provide a rational explanation. For example, while 

the FEC spends more space on a statute of limitations’s effect than the whole of the 

partisan bloc’s discretionary “analysis,” FEC Br. 17, it still fails to explain that 

statute’s relevance since it does not apply to CREW’s claims against New Models, 

see CREW v. FEC, 236 F. Supp. 3d 378, 391 (D.D.C. 2017) (statute of limitations 

did not apply to “remaining political-committee claim”); see also CREW v. AAN, 

No. 18-cv-945 (CRC), 2019 WL 4750248, at *15 (D.D.C. Sept. 30, 2019) (finding 

CREW’s claim accrues after FEC’s failure to conform). 

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Republic of Ethiopia, 851 F.3d 7, 10 (D.C. Cir. 2017). Accordingly, it did not bind 

the court below. 

Nor, moreover, is that dicta persuasive, as the extension of CREW/CHGO to 

this case ran afoul of decades of actually binding prior precedent. As discussed 

below, the dicta contravenes authority finding FEC dismissals are reviewable 

notwithstanding any invocation of prosecutorial discretion. See infra Part II.A. 

Moreover, it contradicts the law that a reviewable agency action “predicated on a 

combination of both statutory and discretion grounds” remains reviewable. UAW v. 

Brock, 783 F.2d 237, 245 n.9, 246 (D.C. Cir. 1986). Contrary to the FEC’s 

assertion, FEC Br. 24, this “part” of UAW was not overruled in ICC v. Bro. of 

Locomotive Engineers, 482 U.S. 270 (1987). Rather, ICC found an “unreviewable” 

action remained unreviewable even if the agency “discussed the merits ... at 

length.” Id. at 277, 280. There, as here, “it is the Commission’s formal action, 

rather than its discussion, that is dispositive.” Id. at 281; see also Crowley 

Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 676 (D.C. Cir. 1994). The FEC 

concedes, as it must, that its dismissals are reviewable. FEC Br. 20. That 

concession is “dispositive,” and by rendering review dependent not on the FEC’s 

“formal action” but its “discussion,” ICC, 482 U.S. at 281, CREW/CHGO’s dicta 

flatly contradicts that precedent. 

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Nor would review be academic, because courts “cannot know that the FEC 

would have exercised its prosecutorial discretion” with a correct view of the law. 

CREW, 923 F.3d at 1147 (Pillard, J., dissenting) (quoting FEC v. Akins, 524 U.S. 

11, 25 (1998)). The FEC suggests otherwise, FEC Br. 22, but ignores the simple 

fact that on remand, the law requires at least four commissioners to agree to 

dismiss a complaint to “conform” with any declaration. See 52 U.S.C. §§ 30106(c); 

30109(a)(8)(C).2

 If the Partisan Bloc again attempts to stymie action by 

deadlocking the Commission, they will simply run out the statutory clock to 

conform, id., which results in CREW’s citizen suit accruing. Thus, the FEC would 

need to show not only that the Partisan Bloc would stick to its discretionary 

assessment on remand, but prove that the other commissioners would join them—

an unlikely reaction to a court’s finding the Partisan Bloc’s legal analysis was 

erroneous. 

In sum, CREW/CHGO’s holding does not apply beyond dismissals 

exclusively based on prosecutorial discretion, and its dicta should not be followed 

to expand that decision into realms that put it in (further) conflict with precedent. 

The FEC fails to remedy the district court’s error in relying on CREW/CHGO’s 

dicta to render the legal analysis below entirely unreviewable. 

 

2

 As stated below, the FECA also required at least four votes to exercise 

prosecutorial discretion in the first place—something CREW/CHGO ignored. See 

infra II.B.1. 

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II. If CREW/CHGO Applies, It Contravenes Precedent, the Statute, and 

the Constitution 

For the reasons stated above, it is enough for this Court to not expand 

CREW/CHGO beyond its holding to apply here. If, however, the Court concludes 

CREW/CHGO applies here, then the decision’s conflict with precedent—a conflict 

born from its disregard for the FECA and the Constitution—means the decision is 

not binding. Sierra Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011). The 

FEC’s attempts to salvage CREW/CHGO simply misrepresent that precedent, 

ignore the statute, and neglect the serious constitutional violation CREW/CHGO

created. 

A. The FEC Fails to Show CREW/CHGO is Consistent with 

Precedent 

As discussed in CREW’s opening brief, CREW/CHGO is in conflict with 

Supreme Court authority in Akins, and this Court’s precedent of Chamber of 

Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995), Democratic Congressional 

Campaign Committee v. FEC (DCCC), 831 F.2d 1131 (D.C. Cir. 1987), and 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986). The FEC does not show otherwise. 

First, with respect to Akins, the FEC distracts attention from what the case 

actually did to instead focus on an issue that wasn’t before the Supreme Court—

whether the FEC’s dismissal of a different claim based on prosecutorial discretion 

alone was lawful. See FEC Br. 28 (discussing dismissal of prohibited campaign 

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contributions under then 2 U.S.C. §441b). The plaintiffs never challenged that 

separate dismissal, so its legality or reviewability wasn’t before the Court. See 

Akins v. FEC, 101 F.3d 731, 734 (D.C. Cir. 1996) (en banc), vacated by 524 U.S. 

11 (noting plaintiffs only challenge “the Commission’s interpretation of the term 

‘political committee’”). 

In contrast, with respect to the dismissal that was before the Court, the FEC 

contended that it was both premised on legal analysis and discretion, see CREW 

Br. 23, and the Court did not question that characterization. Rather, it said that 

even if the dismissal was a “discretionary agency action” it was still reviewable to 

determine if the agency “based its decision upon an improper legal ground.” Akins, 

524 U.S. at 25.3

 Even as to a subsequent discretionary dismissal, which the Court 

suggested might be possible, it expressly stated such dismissal would have to be 

“lawful”—i.e., at least an act of a majority of the agency based on correct 

interpretations of law. Id. 

Similarly, the FEC fails to reconcile CREW/CHGO with Chamber. Rather, 

the FEC tortures the decision’s straight-forward holding: that a dismissal based on 

an “unwillingness” to proceed was an “easy” case of a contrary to law dismissal 

 

3

 The FEC oddly suggests that the “discretionary agency action” to which Akins

referred was not prosecutorial discretion, FEC Br. 30, but immediately preceding 

this sentence, the Court expressly referenced “prosecutorial discretion,” Akins, 524 

U.S. at 25. 

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which would set up a citizen suit. Chamber, 69 F.3d at 603. The FEC’s attempt to 

cast this discussion as dicta fails: but for that decision, the plaintiffs there would 

not have had standing because they had no expectation of enforcement. Id.; see 

also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996) (discussion 

necessary to result is a holding).4

 In the end, the FEC admits CREW/CHGO

directly contradicts Chamber, but suggests Chamber was “eviscerated” by Akins. 

FEC Br. 34. As discussed above, however, Akins did not find the Commission’s 

unwillingness to enforce was not contrary to law—rather it found a dismissal was 

reviewable even if it was based on discretion. 524 U.S. at 25. Nor would any 

statement recognizing the FEC has prosecutorial discretion run afoul of Chambers, 

see Akins, 524 U.S. at 25, because four commissioners could exercise any such 

discretion by dismissing a meritorious case contrary to law and then refusing to 

conform. In that event, the FEC retains complete control of its resources and 

priorities—the only result is the recognition of a complainant’s “plausible claim[]” 

that it may pursue on its own. CREW, 923 F.3d at 1144 (Pillard, J., dissenting). 

Similarly, the FEC’s attempts to minimize DCCC and Orloski do not 

demonstrate CREW/CHGO is consistent with them. DCCC held judicial review 

 

4 The possibility commissioners might “change [their] mind” only “seem[ed]” to 

confer standing, Chamber, 69 F.3d at 603; cf. FEC Br. 33, but the fact that 

discretionary dismissals are contrary to law proved the plaintiffs were “subject to 

litigation” and had standing, Chamber, 69 F.3d at 603. 

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was not limited to cases where “the Commission act[s] on the merits” and thus 

found the Commission had to “explain coherently the path they are taking” for all

dismissals. 831 F.2d at 1134,1133. Yet if discretionary dismissals are wholly 

unreviewable, as CREW/CHGO held, there would be no need for such statements 

for them. Similarly, contrary to Orloski’s order of operations requiring courts to 

first satisfy themselves that a dismissal involves only “permissible 

interpretation[s]” of law before going any further, 795 F.2d at 161, CREW/CHGO

renders any interpretation permissible by subjecting review to a partisan bloc’s 

whims. 

Finally, the FEC’s purportedly contrary authority does not salvage 

CREW/CHGO. CREW v. FEC (Am. for Tax Reform), 475 F.3d 337, 340 (D.C. Cir. 

2007) , did not render any FEC dismissal unreviewable—indeed its single 

statement about the Commission’s prosecutorial discretion was entirely dicta, see 

id. (addressing issue “[n]o one contends”), and the Court even recognized review 

was still permissible to “correc[t] errors of law,” id. Rather, the Court found it 

lacked jurisdiction to consider the issue because the information sought by 

plaintiffs was already public and was not covered by the FECA. Id. at 339–40. 

Similarly, the FEC simply misrepresents Hagelin v. FEC, 411 F.3d 237 (D.C. Cir. 

2005). The dispute in Hagelin was over the Commission’s factual findings, so the 

Court applied a “highly deferential” standard of view that upheld that finding 

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because it was “supported by substantial evidence.” 411 F.3d at 243-4. Neither 

Americans for Tax Reform nor Hagelin support CREW/CHGO. 

Prior to CREW/CHGO, all precedent recognized all dismissals by the FEC 

are subject to judicial review, and even recognized dismissals based on an 

unwillingness to enforce are contrary to law. Prior to CREW/CHGO, the FEC also 

recognized that fact—which is why the FEC did not contest reviewability in that 

case. See CREW/CHGO, 892 F.3d at 440 (recognizing the FEC accepted the 

availability of judicial review). CREW/CHGO, however, swept aside this law, 

largely without even discussing it, to hand a partisan bloc a “superpower” found 

nowhere in law. CREW, 923 F.3d at 1150 (Pillard, J., dissenting). Assuming 

CREW/CHGO is not distinguishable on its facts, then its irredeemable conflict with 

this binding precedent renders it inapplicable as a matter of law. 

B. The FEC Fails to Show CREW/CHGO Comports with the FECA 

CREW/CHGO’s conflict with this prior precedent stems from its disregard 

for the statutory scheme adopted by Congress. Rather, CREW/CHGO said nothing 

in the FECA altered what was already law in the APA, 892 F.3d at 437, meaning 

the whole judicial review provision of 52 U.S.C. § 30109 was entirely 

“superfluous.” TRW Inc v. Andrews, 534 U.S. 19, 31 (2001). This remarkable 

conclusion is one reason CREW/CHGO departs so starkly from prior caselaw, and 

why CREW/CHGO cannot be squared with the statute. 

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1. CREW/CHGO Conflicts with the FECA’s Bipartisan Structure 

It is telling that in the whole of its opposition, the FEC never addresses 

CREW/CHGO’s decision to gut the requirement that “[a]ll decisions of the 

Commission” must be bipartisan. 52 U.S.C. § 30106(c). Rather than grapple with 

CREW/CHGO’s transfer of power from the agency to a partisan minority bloc, the 

FEC simply pretends CREW/CHGO deals with bipartisan “Commission 

decision[s].” See, e.g., FEC Br. 31. 

Sidestepping the issue, the FEC takes exception to CREW’s suggestion that 

this Court correct a longstanding error in In re Sealed Case, 223 F.3d 775 (D.C. 

Cir. 2000), before remanding for a determination of the merits. FEC Br. 37–38. 

That case erred by conferring Chevron deference without regard to whether the 

statement under review bears “force of law.” United States v. Mead Corp., 533 

U.S. 218, 236-7 (2001); see also Kisor v. Wilkie, 139 S. Ct. 2400, 2416 (2019) 

(deference only available to “agency’s ‘authoritative’ or ‘official position’”).5

While corrective guidance on this point would preserve judicial resources, even In 

 

5 Contrary to the FEC’s assertion, FEC Br. 38, Kisor follows the rule that deference 

is only available to the agency’s “authoritative policy.” Kisor, 139 S. Ct. 2416; see 

also id. at 2424 (noting interpretation without “precedential value” would not 

“reflect[] the considered judgment of the agency as a whole”). The FEC’s other 

authority recognizing courts do not defer to nonbinding statements, which the FEC 

concedes includes the Partisan Bloc’s here. See FEC Br. 37. Finally, while the FEC 

cites two cases it asserts follow In re Sealed Case, neither case addressed the 

propriety of Chevron to nonbinding statements are thus are inapposite. See FEC 

Br. 37–39. 

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re Sealed Case did not purport to overrule the FECA’s bipartisan majority 

requirement, as CREW/CHGO did. 

The FEC simply ignores the lack of a bipartisan vote to exercise 

prosecutorial discretion—a legal prerequisite to exercise such power, even 

assuming such dismissals are not contrary to law. 52 U.S.C. § 30106(c); FEC, 

Statement of Policy, 72 Fed. Reg. 12,545, 12,545–46 (Mar. 16 2007); but see 52 

U.S.C. § 30109(a)(2) (agency “shall” investigate whenever there is “reason to 

believe”). Rather, there was a bipartisan vote to close the file after two 

commissioners rendered a decision on the merits that there was no reason to 

believe New Models violated the FECA. JA101–02. A justification with a “rational 

connection” to that vote must explain that decision with a sole focus on the merits. 

Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 

43 (1983); see also Shelley v. Brock, 793 F.2d 1368, 1371 (D.C. Cir. 1986). It does 

not permit the Partisan Bloc to usurp the agency and unilaterally rewrite history by 

insisting that the bipartisan commission’s decision was to exercise prosecutorial 

discretion all along. Yet that is precisely what CREW/CHGO permits. 

Congress carefully wrote the FECA to keep all FEC powers—to permit or to 

block enforcement—in the hands of bipartisan coalitions of commissioners. 

CREW/CHGO acted without regard for this structure, which led it to conflict with 

earlier precedent which heeded Congress’s design. 

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13 

2. CREW/CHGO Nullifies § 30109 

In 52 U.S.C. § 30109, Congress laid out a multistep process to ensure fair 

enforcement and to protect against “enforcement-shirking.” CREW, 923 F.3d at 

1144 (Pillard, J., dissenting). Consistent with a desire to protect against frivolous 

partisan-motivated complaints, the Commission plays a primary gatekeeping role 

not only over the agency’s enforcement, but also as a preliminary adjudicator over 

private claims. See Perot v. FEC, 97 F.3d 553, 557 (D.C. Cir. 1996) (dismissing 

claim brought against respondent prior to FECA exhaustion). The Commission is 

tasked with an early determination on the merits: to decide whether a complaint 

raises a “reason to believe” a violation may have occurred. 52 U.S.C. 

§ 30109(a)(2). If there is, the FECA accords no lawful discretion to the 

Commission. Rather the FEC “shall” investigate, id., and “shall” enforce if that 

investigation establishes probable cause, id. at § 30109(a)(4); see also Heckler v. 

Chaney, 470 U.S. 821, 834 (1985) (“if ... shall” statute “withdrew discretion from 

the agency...” (discussing Dunlop v. Bachowski, 421 U.S. 560 (1975))).6

 If four 

commissioners choose to ignore those mandates—perhaps because they think a 

plausible claim is “small-scale, inconsequential, or difficult to prove” or a 

respondent is “blameless” despite injuring the complainant, FEC Br. 44—then they 

 

6 Contrary to the FEC’s suggestion that the FECA’s use of “if” confers absolute 

and unreviewable discretion on the Commission, FEC Br. 44, the statute in Dunlop

used the exact same “if ... shall” conditionality as the FECA. 421 U.S. at 562 n.2. 

USCA Case #19-5161 Document #1821069 Filed: 12/20/2019 Page 20 of 37
14 

may choose not to proceed, but a citizen suit is then permitted so complainants can 

protect themselves. But what the Commission may not do is refuse to adjudicate a 

complainant’s claim, see, e.g., 52 U.S.C. § 30109(a)(8)(C) (permitting suit for a 

failure to act), or nullify that claim by simply declining to decide it. 

In that way, the FEC commissioners are no different than “judges”—as one 

commissioner of the Partisan Bloc recognized. Caroline Hunter, How my FEC 

Colleague is Damaging the Agency and Misleading the Public, Politico (Oct. 22, 

2019) https://politi.co/38SzuBi (“In enforcement actions, commissioners are like 

judges”). As judges with the power to “cancel or release” New Models from 

CREW’s “own private claims,” the commissioners are obligated to render 

decisions on the merits rather than award or deny claims based on mere whim. 

Burlington Resources Inc. v. FERC, 513 F.3d 242, 247 (D.C. Cir. 2008); see also

Thermtron Prod., Inc. v. Hermandsdorfer, 423 US. 336, 344 (1976) (judges may 

not dismiss action because they are “too busy to try it”).7

 And like judges, their 

rulings are always subject to higher review. 

CREW/CHGO, however, renders the whole of the FEC’s enforcement 

structure—Commission review of complaints, judicial review of dismissals, and 

 

7 The FEC need not have the authority to unilaterally “impose penalties or any 

other remedy” against a respondent, FEC Br. 50, to act as an adjudicatory tribunal. 

So long as it may dispose of private claims, then it is an adjudicator to which 

prosecutorial discretion does not apply. Burlington, 513 F.3d at 247.

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15 

citizen suits—entirely subject to the whims of a partisan minority of 

commissioners. The FEC is silent on this “void[ing]” of 52 U.S.C. § 30109. TRW, 

534 U.S. at 31.8

In the end, the FEC cannot bring CREW/CHGO into line with the plain 

terms of the FECA and prior precedent. Instead, the FEC pretends private parties 

have no claims to adjudicate because the FEC’s enforcement authority is 

purportedly “exclusive,” FEC Br. 3, 48, while ignoring the “except[ion]” to that 

exclusivity: citizen suits under section 30109(a)(8), 52 U.S.C. § 30107(e). The 

FEC also suggests private suits run afoul of the First Amendment, FEC Br. 37, but 

courts overseeing private suits must also do so “in a manner sensitive to [parties’] 

First Amendment Rights,” id.at 49; see also, e.g., Herbert v. Lando, 441 U.S. 153, 

209 n.6 (1979) (Marshall, J., dissenting) (noting “courts have displayed sensitivity 

to First Amendment values in assessing motions”). The FEC’s need to flatly ignore 

 

8 At most, the FEC argues that they have at times exercised their whim to enforce. 

But its examples hardly show anything other than abdication. The FEC 

conveniently ignores that the single example of enforcement for a political 

committee violation like that here, FEC Br. 26 n.3, was in fact only the result of a 

Court order forcing enforcement after finding an earlier abdication of enforcement 

was contrary to law, see CREW v. FEC, 209 F. Supp. 3d 77 (D.D.C. 2016). Nor do 

any of the FEC’s other examples recite the Partisan Bloc’s interpretation of the 

political committee test, see FEC Br. 40, and contrary to the FEC’s assertion, some 

invoke prosecutorial discretion, see MUR 6781, https://bit.ly/2M8970s (finding 

enforcement would be “imprudent”); MUR 7006, https://bit.ly/2PF6G7C

(“declin[ing] to adopt” interpretation that would expend agency resources in 

litigation), and others aren’t even statements of the Partisan Bloc at all.

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16 

its role in adjudicating private claims simply demonstrates CREW/CHGO is not 

salvageable. 

C. CREW/CHGO’s “Unreviewable Discretion” Raises Significant 

First Amendment Concerns 

As CREW’s opening brief showed, the First Amendment guarantees access 

to speech without reliance on the “faith” of government officials. Cf. FEC Br. 39. 

In its opposition, the FEC concedes that its decisions on complaints, including 

dismissals, impact CREW’s “First Amendment interests,” FEC Br. 42, and does 

not contest that the First Amendment prohibits government officials’ unbridled 

discretion over such interests. Rather, the FEC argues that there is no “willing 

speaker,” id. at 43, that alternative means of communication still exists, id., and 

that the existence of CREW’s right depends on its having validly stated a 

meritorious claim against New Models, FEC Br. 42. The FEC is wrong on the first 

point, its second point is both wrong and irrelevant, and it gets the importance of 

the last point backwards. 

First, there is a “willing speaker.” Greg v. Barrett, 771 F.2d 539, 547 (D.C. 

Cir. 1985) (quoting Va. St. Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 

425 U.S. 748, 770 (1976)). There is no dispute Congress has constitutionally 

compelled organizations that qualify as political committees to speak to each and 

every member of the public though disclosure, Buckley v. Valeo, 424 U.S. 1, 66–67 

(1976), vesting each person with an individual and concrete right to that speech, 

USCA Case #19-5161 Document #1821069 Filed: 12/20/2019 Page 23 of 37
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Akins, 524 U.S. at 20–21. As there is no reason to think New Models would take 

“the extraordinary measure of continuing their injurious conduct in violation of the 

law,” Nat’l Wrestling Coaches Ass’n v. Dep’t of Ed., 366 F.3d 930, 941 (D.C. Cir. 

2004), it is a willing speaker that will comply with its legal obligation so CREW 

can exercise its right to receive the information to which it is entitled. 

Thus, this case is far afield from Barrett where the Court found no willing 

speaker in a challenge by citizens who wanted the congressional record to reflect a 

verbatim transcript of floor debates. 771 F.2d at 541. The plaintiffs there could not 

demonstrate any legal right to a verbatim transcript. Instead, they relied on a theory 

that a representative wanted to communicate to the plaintiffs the true “context” of 

his speech, and so could compel a separate representative (over which the first 

enjoyed no legal right to compel) to provide that context. Id. at 548. This Court 

rejected this “indirect” theory of speech, whereby someone could claim a First 

Amendment right to communicate via an unwilling third person’s speech. Id. Here, 

however, Congress has legally compelled New Models to speak. As such, there is 

speech CREW is legally entitled to receive. What is censoring CREW’s access, 

however, is the Partisan Bloc of FEC commissioners who “s[i]t directly astride the 

channel of communication,” empowered by CREW/CHGO with unbridled 

discretion to “restric[t] the flow of information.” Id. 

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Second, no adequate alternative avenue of speech exist except by means of 

this process. It is obvious that New Models is only willing to speak in the face of 

legal compulsion. That is, after all, why Congress compelled it. Buckley, 424 U.S. 

at 62 (noting prior disclosure rules were “circumvented”). Thus, there are no other 

adequate alternative avenues for CREW to receive information except through the 

FEC. Cf. FEC Br. 43. Nor, even if there were, would that alleviate the 

constitutional infirmity of CREW/CHGO. “One is not to have the exercise of his 

liberty of expression in appropriate places abridged on the plea that it may be 

exercised in some other place.” See Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 

556 (1975). Thus, for example, an officer’s unbridled discretion over a public 

forum is no less unconstitutional because petitioners could use “some other” forum 

for their speech. Id. Same here: the FEC’s unconstitutional unbridled discretion 

over this channel of communication to CREW, which in fact is the only channel in 

existence, cannot be remedied on the hypothetical possibility CREW might learn 

elsewhere the information the FEC is censoring. 

Third, the FEC simply gets backwards the importance of its concession that 

if CREW stated a valid legal claim, it has a constitutionally protected First 

Amendment right. FEC Br. 42. It is the validity of that claim, and the invalidity of 

the Partisan Bloc’s analysis of that claim, of which CREW seeks judicial review. 

It is that analysis the court below found impossible because of the terse invocation 

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19 

of prosecutorial discretion. But, as the FEC concedes, the only point of 

prosecutorial discretion is to dismiss claims that “have merit.” FEC Br. 21. In other 

words, the dismissal was either due to a lack of merit, a question CREW is entitled 

to have reviewed, or due to discretion, which concedes the claim has merit and 

thus would violate CREW’s First Amendment rights. 

This Court sitting en banc was right to recognize the FEC’s discretion “itself 

raises First Amendment concerns.” Akins, 101 F.3d at 744. The Court was correct 

before when it found such concerns deprived the FEC of discretion, and 

CREW/CHGO was wrong to ignore those concerns. 

III. The FEC’s Truncated Merits Arguments Fail, But the Court Should 

Remand for the Merits or Order Supplemental Briefing 

The FEC suggests this Court affirm on an alternative ground not reached by 

the district court: that the Partisan Bloc’s erroneous legal analysis was not contrary 

to law. FEC Br. 50. It provides only the barest of arguments on the merits, 

however: six pages and the few pages CREW can devote here, to summarize 125 

pages of briefing below. The Court’s “usual practice[, however,] is to remand for 

the district court to consider arguments about the merits in the first instance.” 

Almaqrami v. Pompeo, 933 F.3d 774, 784 n.3 (D.C. Cir. 2019). Alternatively, the 

Court can order supplemental briefing to ensure it has a complete understanding of 

the issues. Nonetheless, a brief discussion suffices to reject the FEC’s truncated 

merits argument. 

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A. Review of the Merits is De Novo

First, review here is not “[d]eferential,” as the FEC claims. FEC Br. 51. 

Rather, the Partisan Bloc’s legal interpretations only enjoy deference, if ever, see 

supra pp. 11–12, subject to the confines of the Chevron doctrine. Orloski, 795 F.2d 

at 161 (applying Chevron in determining whether commissioners’ interpretation 

was permissible); CREW, 209 F. Supp. 3d at 87 (applying Chevron); see also 

Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 843 n.9 (1984) (subsuming 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981)). 

Here, no deference is warranted. This case involves two legal 

interpretations: the Partisan Bloc’s interpretation of Buckley’s “major purpose” 

test, and their interpretation of “expenditure” in 52 U.S.C. § 30101(4). On the first, 

courts do not “defer to an agency’s interpretation of Supreme Court precedent 

under Chevron or any other principle.” N.Y. N.Y., LLC v. NLRB, 313 F.3d 585, 590 

(D.C. Cir. 2002); Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1341 (D.C. Cir. 

2002). Indeed, this Court sitting en banc already found the propriety of the FEC’s 

interpretation of Buckley’s “major purpose” test is “decide[d] de novo.” Akins, 101 

F.3d at 740 (“It is undisputed that the statutory language is not in issue, but only 

the limitation ... put on this language by Supreme Court decisions.”); see also 

CREW, 209 F. Supp. 3d at 87 (affording commissioners’ “major purpose” 

interpretation “no deference”). 

USCA Case #19-5161 Document #1821069 Filed: 12/20/2019 Page 27 of 37
21 

 The same is true of the Partisan Bloc’s interpretation of § 30101(4) because 

they did not independently interpret it, but rather “rest[ed]” their reading “on 

[their] interpretation of Supreme Court opinions.” N.Y. N.Y., LLC, 313 F.3d at 590 

(holding NLRB’s interpretation of NLRA warranted no deference because 

interpretation “purport[ed] to rest on the Board’s interpretation of Supreme Court 

opinions”). Similarly, here, the Partisan Bloc rested their interpretation of 

§ 30101(4) entirely on their reading of Buckley to define “expenditure,” wherever 

used in the FECA, to reach only “express[] advoca[cy].” JA121.9

 As such, it 

receives no deference. In any event, even if Chevron deference were theoretically 

available, the Partisan Bloc still cannot ignore the plaint text of the statute. 

Chevron, 467 U.S. at 843. 

B. The FECA Plainly Defines “Expenditure” to Include New 

Models’s Distributions 

New Models qualifies as a political committee if it made more than $1,000 

in “expenditures.” 52 U.S.C. § 30101(4). An “expenditure” includes any 

“distribution, ... deposit, or gift of money or anything of value, made by any 

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

 

9

 The Partisan Bloc also rested on SpeechNow.org v. FEC, 599 F.3d 686, 695 (D.C. 

Cir. 2010) (en banc), to interpret the Constitution to prohibit any regulation, even 

disclosure, of contributions to Super PACs because such contributions raise “no 

anti-corruption” concern. JA122. As with Buckley, this interpretation warrants no 

deference. 

USCA Case #19-5161 Document #1821069 Filed: 12/20/2019 Page 28 of 37
22 

§ 30101(9)(A)(i). There is no dispute New Models’s distributions were to 

influence Federal elections. JA053, JA056–57, JA060, JA083, JA107–08. Nor is 

there any dispute that New Models’s transfers were “distribution[s],” “deposit[s]” 

or “gift[s] of money.” Thus, New Models’s transfers meet the plain statutory 

definition of an expenditure. 

The Partisan Bloc rejected this plain reading, however, because they 

interpret Buckley to “circumscribe[] the definition of ‘expenditure’” to “reach only 

funds used for communications that expressly advocate the election or defeat of a 

clearly identified [federal] candidate.” JA109 (citing Buckley, 424 U.S. at 79–80). 

Accordingly, because New Models’s expenditures were not for its own express 

advocacy, they reasoned the spending could not be expenditures within the 

meaning of the Act, and thus could not qualify New Models as a political 

committee. Id. 

The Partisan Bloc completely misapplied Buckley, however. First, the 

portion of the opinion they cite made clear it was limiting a particular use of 

expenditure “for the purposes of that section” alone. 424 U.S. at 80 (emphasis 

added). That section triggered disclosure for making a single expenditure in excess 

of $100, id. at 74–75, and the Court construed the provision to be coextensive with 

a parallel provision limiting expenditures, id. at 39, 78–80. Congress subsequently 

ratified that change. See 52 U.S.C. § 30104(c). In contrast, Buckley expressly did 

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23 

not limit the expenditures that trigger political committee reporting, rather relying 

the creation of a new “major purpose” test to address all constitutional concerns. 

Id. at 79; see also Shays v. FEC, 511 F. Supp. 2d 19, 26–27 (D.D.C. 2007) 

(recognizing Buckley’s distinct cures to each section stand independently). 

Indeed, reading Buckley as the Partisan Bloc proposes leads to gross 

absurdities. The FECA’s definition of “independent expenditure” (i.e., express 

advocacy), would be rendered circular, 52 U.S.C. § 30101(17), and sections 

distinguishing between “independent expenditure[s]” and other “expenditure[s]” 

would be meaningless, see, e.g., 52 U.S.C. § 30101(9)(B)(iii), § 30104(b)(4), 

(f)(3)(B)(ii). 

Nor do New Models’s expenditures raise no “anti-corruption” concern 

sufficient to subject it to disclosure. Cf. JA122. This Court already held transfers to 

Super PACs can trigger disclosure. SpeechNow.Org, 599 F.3d at 698. 

Finally, the FEC’s suggestion that New Models’s distributions cannot be 

“expenditures” because the Super PAC recipients reports them as “contributions” 

is without basis in law. FEC Br. 53. The FECA does not exempt contributions from 

the definition of “expenditure.” Compare 52 U.S.C. § 30101(9)(A) with id. at 

§ 30101(B)(vi) (exempting in certain circumstances from expenditure any cost “in 

connection with the solicitation of contributions”); and id. at § 30104(f)(3)(B)(ii) 

(excepting from definition any “expenditure or an independent expenditure”). 

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24 

Rather, it expressly mandates that certain transfers be reported as both a 

contribution and an expenditure, 52 U.S.C. § 30116(a)(7)(C)(ii) (coordinated 

expenditures are both contributions as to maker and expenditures as to candidate). 

Moreover, the FEC has previously recognized a group’s contributions can qualify 

it as a political committee. See Advisory Opinion 2000-25 (Minnesota House DFL 

Caucus) at 4 (Oct. 13, 2000), https://bit.ly/2RufXP3; Advisory Opinion 1996-13 

(Townhouse Associates, LLC) at 4 (June 10, 1996), https://bit.ly/2M25JSo; 

Advisory Opinion 1996-18 (Int’l Ass’n of Fire Fighters) at 2–3 (July 14, 1996), 

https://bit.ly/2IiKfhE, Advisory Opinion 1987-12 (Costello) at 2 (June 12, 1987), 

https://bit.ly/2Ob5tpD. 

In short, the plain text of the FECA compels the conclusion New Models’s 

distributions are “expenditures” within the meaning of 52 U.S.C. § 30101(4). The 

Partisan Bloc’s refusal to accord the text its plain meaning should be rejected. 

C. The Partisan Bloc’s “Major Purpose” Interpretation Has Already 

Been Declared Unlawful 

Finally, the Partisan Bloc concluded New Models’s “major purpose” was not 

to elect candidates because the $3.1 million New Models’s spent doing so in 

2012—68.7% of its spending that year, and exceeding New Models’s total 

spending in all other years, see FEC Br. 56—did not constitute a majority of New 

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25 

Models’s spending “during its lifetime,” JA123.10 That erroneous interpretation of 

Buckley’s “major purpose” test has already been declared contrary to law. CREW, 

209 F. Supp. 3d at 94. The Partisan Bloc’s test would mean a “half-century-old 

organization with a substantial spending history could commend spending 

handsomely on election-related ads and continue such expenditures for decades 

before its new ‘major purpose’ would be detected.” Id. at 94 (citing MCFL, 479 

U.S. at 262). Rather, to ensure the test takes account of the fact a group’s purpose 

can change, the test must focus on a shorter period. See id. at 83 (group’s spending 

“three-fourths” of funds in one year sufficient to demonstrate its major purpose). 

Yet, here, the Partisan Bloc test ignored New Models’s changed activities in 2012 

because of its spending history from other years. 

Moreover, their test continues to ignore salient facts, like that New Models’s 

post-2010 political spending was illegal prior to 2010. Or that New Models’s post2012 activities are in response to notice of the FEC complaint. JA063. Nor could a 

change in purpose from politics, even if earnest, alter the fact that once New 

Models’s purpose was to influence elections (and it satisfied the statutory test), it 

qualified as a political committee and any later change in purpose alone would not 

 

10 The FEC’s focus on a lack of confessional statements, FEC Br. 55, is beside the 

point, as a group’s activities alone can qualify it as a political committee, FEC v. 

Mass. Citizens for Life, Inc. (MCFL), 479 U.S. 238, 262 (1986) (group becomes 

political committee if its political spending is “extensiv[e]”). 

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26 

alter that qualification. See 52 U.S.C. § 30103(d) (providing limited circumstances 

group may cease to be political committee). The Partisan Bloc’s “lifetime” test (or 

the FEC’s “outlier” test, FEC Br. 56), would void that termination provision, 

however, and permit political committees to terminate (or avoid registration all 

together) just by reducing their total lifetime spending on politics to less than 50%. 

The test also ignores the law. Under the FECA, it is a group’s “calendar 

year” activities that qualify it as a political committee. 52 U.S.C. § 30101(4). 

Nothing in Buckley altered that temporal scope. Indeed, courts have routinely 

looked at a group’s single year of activities to determine their major purpose. See, 

e.g., FEC v. Malenick, 310 F. Supp. 2d 230, 235–37 (D.D.C. 2004) (group’s 

“major purpose ... in 1996”); FEC v. GOPAC, Inc., 917 F. Supp. 851, 858 (D.D.C. 

1996) (“major purpose in 1989 and 1990”); see also Conciliation Agreement, 

MUR 6538R (Americans for Job Security) ¶¶ 14, 15 (Sept. 9, 2019) 

https://bit.ly/2MbbuiZ (conduct “[b]etween November 1, 2009 and October 31, 

2010” determined group’s major purpose). 

In the end, the “major purpose” limitation is designed to ensure the public 

knows “who is speaking about a candidate,” Citizens United v. FEC, 558 U.S. 310, 

369 (2010), and to be “fully informed,” about “[t]he sources of a candidate’s 

financial support,” Buckley, 424 U.S. at 67, 76, while excluding groups for which 

disclosure would not “fulfill the purposes of the Act,” id. at 79. An interpretation 

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27 

of Buckley that denies voters access to information about who is funding millions 

of dollars of campaign spending merely because an anodyne sounding group like 

“New Models” served as a link in the funding chain goes far beyond Buckley’s 

limited approach to gut the FECA. See CREW Br. 4–5. 

In sum, the Partisan Bloc misinterpreted Buckley to gut the FECA’s political 

committee rules, opening the door to millions of dollars in dark money, including 

from foreign powers. Nothing in Buckley compels their “lifetime” test which works 

not to keep voters informed while weeding out irrelevant groups, but to maximize 

evasion of the FECA’s legal requirements. That was why that test was already 

declared unlawful, and why this Court should do the same. 

CONCLUSION 

The district court erred in following CREW/CHGO to cut of judicial review 

here. The case does not apply and, even if it did, contravenes binding authority. 

The decision below warrants reversal for consideration of the merits. Alternatively, 

if this Court takes up the merits itself, CREW’s respectfully requests the Court find 

the dismissal below was contrary to law. 

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28 

Dated: December 20, 2019. 

Respectfully submitted, 

/s/ Stuart McPhail

Stuart C. McPhail 

smcphail@citizensforethics.org

(D.C. Bar. No. 1032529) 

Adam J. Rappaport 

arappaport@citizensforethics.org

(D.C. Bar No. 479866) 

CITIZENS FOR RESPONSIBILITY AND 

ETHICS IN WASHINGTON

1101 K Street, NW, Suite 201 

Washington, DC 20005 

Telephone: (202) 408-5565 

Fax: (202) 588-5020 

Attorneys for Appellants 

USCA Case #19-5161 Document #1821069 Filed: 12/20/2019 Page 35 of 37
1 

CERTIFICATE OF COMPLIANCE 

1. This document complies with the type-volume limit of Fed. R. App. P. 

32(a)(7)(B)) because, excluding the parts of the document exempted by Fed. 

R. App. P. 32(f) and Circuit Rule 32(e)(1): 

[ X ] this document contains 6,486 words, or 

[ ] this brief uses a monospaced typeface and contains [state the number 

of] lines of text. 

2. This document complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because: 

[ X ] this document has been prepared in a proportionally spaced typeface 

using Microsoft Word 2016 in 14pt Times New Roman; or 

[ ] this document has been prepared in a monospaced typeface using [state 

name and version of word-processing program] with [state number of 

characters per inch and name of type style]. 

Dated: December 20, 2019 /s/ Stuart McPhail 

 Stuart C. McPhail 

Counsel for Appellants

USCA Case #19-5161 Document #1821069 Filed: 12/20/2019 Page 36 of 37
1 

CERTIFICATE OF SERVICE 

I hereby certify that on December 20, 2019, I electronically filed the 

foregoing document with the Clerk of Court for the United States Court of Appeals 

for the District of Columbia Circuit by using the appellate CM/ECF system, 

thereby serving all persons required to be served. 

I further certify that I caused the required copies of the foregoing document 

to be hand filed with the Clerk of the Court. 

/s/ Stuart McPhail 

Stuart C. McPhail 

USCA Case #19-5161 Document #1821069 Filed: 12/20/2019 Page 37 of 37