IN THE SUPREME COURT OF THE UNITED STATES 

No. ________ 

Crossroads Grassroots Policy Strategies, 

 Defendant-Petitioner, 

v. 

Citizens for Responsibility and Ethics in Washington and Nicholas 

Mezlak, 

 Plaintiffs-Respondents, 

Federal Election Commission, 

 Defendant-Respondent, 

__________________________________ 

EMERGENCY APPLICATION TO CHIEF JUSTICE ROBERTS, 

CIRCUIT JUSTICE FOR THE DISTRICT OF COLUMBIA 

CIRCUIT, FOR A STAY PENDING APPEAL _____________________________________________

On Appeal from the United States District Court for the District of Columbia 

Case No. 1:16-cv-00259-BAH 

Thomas J. Josefiak 

J. Michael Bayes 

HOLTZMAN VOGEL JOSEFIAK 

TORCHINSKY PLLC 

45 North Hill Drive, Suite 100 

Warrenton, VA 20186 

Tel: 540.341.8808 

Counsel for Defendant-Petitioner

Michael E. Toner 

Thomas W. Kirby 

 Counsel of Record 

 E-mail: tkirby@wileyrein.com

Andrew G. Woodson 

Eric Wang 

WILEY REIN LLP 

1776 K St., NW 

Washington, D.C. 20006 

Tel: 202.719.7000 
 1 

TO THE HONORABLE JOHN G. ROBERTS, JR., CHIEF JUSTICE OF THE UNITED STATES 

AND CIRCUIT JUSTICE FOR THE DISTRICT OF COLUMBIA CIRCUIT: 

Summary and Request for Immediate Relief1

Crossroads Grassroots Policy Strategies (“Crossroads”) respectfully requests 

a stay pending appeal of a federal district court decision that, mere weeks before 

the impending election, invalidates and will shortly vacate a foundational Federal 

Election Commission (“FEC” or “Commission”) regulation promulgated without 

controversy over 38 years ago. The FEC regulation implements a federal election 

law provision that balances First Amendment privacy for donors and groups – 

including Section 501(c)(4) nonprofit organizations like Crossroads – that are not 

political committees but engage in limited activities that address matters of public 

concern near elections. Nineteen prior elections have been held under the existing 

regulation, and there is no compelling reason to hastily throw the clear reporting 

 

1

 Crossroads Grassroots Policy Strategies’ S. Ct. R. 26.2 Corporate Disclosure Statement is 

provided in Addendum A. All parties below have been informed of this motion and served 

either by hand or electronically. Plaintiffs below, Citizens for Responsibility and Ethics in 

Washington and Nicholas Mezlak (collectively, “CREW”), opposed preliminary relief below and 

are expected to oppose relief in this Court as well. As a defendant below, the Federal Election 

Commission (“FEC” or “Commission”) supported Crossroads’ arguments, although internal 

disputes between the commissioners are apparently preventing the agency from participating in 

any appellate proceedings. See, e.g., FEC Chair Caroline C. Hunter and Commissioner Matthew 

S. Petersen, Statement on CREW v. FEC, No. 16-cv-259 (Sept. 6, 2018) (Hunter-Petersen 

Statement”), at https://www.fec.gov/resources/cms-content/documents/Statement_of_Chair_ 

Hunter_and_Commissioner_Petersen_in_CREW_v._FEC.pdf. 
 2 

standards it provides to donors and speakers into confusion just prior to a national 

election – thereby chilling core First Amendment speech and association. 

When entering its August 3 judgment, the district court recognized that 

vacating the FEC regulation could have a potentially “chaotic” effect on the 

upcoming elections, as “entities engaged in independent expenditures might have 

inadequate guidance.” See Addendum B (opinion and order of August 3, 2018) at 

96-98. As a result, the court stayed its vacatur, but only for 45 days (i.e., until 

September 17, 2018). It expressed the hope that, during the 45 days, the 

Commission might adopt interim replacement regulations. However, the court had 

no basis for expecting the FEC could act so swiftly, and two of the four FEC 

commissioners just explained that institutional constraints, including a mandatory 

30-day congressional review period, as well as their own conviction that the 

existing regulations are valid and will be vindicated on Crossroads’ appeal, meant 

that no such interim regulation would be adopted to address the mounting 

uncertainty they described. 

On August 24, Crossroads moved the district court to extend the stay 

pending appeal, but the district court has not yet ruled. When time became short, 

on August 31, Crossroads moved the Court of Appeals for the D.C. Circuit for a 

stay pending appeal by 11:00 A.M. today, but it also has not yet ruled. With the 
 3 

vacatur set to take effect on September 17, Crossroads now presents this motion 

for a stay to protect the pending election. 

The FEC regulation and statutory provisions at issue balance First 

Amendment free speech rights and associational privacy interests against the 

burdens of compelled donor disclosure by groups that are not classified under the 

law as political committees. The Federal Election Campaign Act of 1971, as 

amended (“FECA”) calls for reporting contributions “made for the purpose of 

furthering an independent expenditure.”2

 52 U.S.C. § 30104(c)(2)(C). For 38 

years, the Commission, through the regulation, has reasonably construed this 

requirement to apply where the contribution was earmarked for a particular 

independent expenditure – i.e., the expenditure being reported. See 11 C.F.R. 

§ 109.10(e)(1)(vi). Now, 38 years later and only weeks before a national election, 

the district court decided that the relevant statutory language unambiguously 

compels the reporting of a much larger universe of contributions that, in some 

vague sense, fund an organization’s broader “political purposes,” whatever that 

may mean. In a complex, policy-driven analysis over 100 pages, the district court 

concluded that the provision at issue, and most notably its word “an,” had such a 

plain meaning as to defeat Chevron deference. Accordingly, it invalidated and 

 

2

 An “independent expenditure” is a communication that expressly advocates the election 

or defeat of federal candidates. See 52 U.S.C. § 30101(17). 
 4 

vacated the long-standing regulation and directed the Commission to reopen an 

administrative complaint against Crossroads from 2012, one the Commission had 

dismissed based in part on Crossroads’ compliance with the regulation. (The 

challenge to that dismissal was the vehicle CREW used to bootstrap its long-sinceexpired challenge to the regulation. See Addendum B.) 

Crossroads and similarly situated entities now find themselves in an 

impossible position. The district court’s arbitrarily truncated stay throws into 

disarray the laws governing core First Amendment speech just prior to a national 

election. It forces Crossroads and other organizations to choose between 

exercising their long-protected free speech rights and thereby incurring severe 

legal risks – including potentially violating their donors’ privacy – or remaining 

silent. As a result, core political speech is chilled far more than the statute or 

regulation ever contemplated, causing irreparable harm to groups, donors, and the 

public. 

Crossroads shows below – and will further demonstrate in its merits brief – 

that the district court’s judgment is profoundly mistaken and fundamentally 

misreads the statute and the relevant legislative and regulatory environment. The 

mere fact that the court required 113 pages to justify its novel construction of the 

relevant statutory subsections only underscores how far away its ruling landed 
 5 

from the statutory text. There are numerous other grounds for challenging the 

district court’s judgment: 

 Relying on this Court’s precedents, the D.C. Circuit recently rejected 

the district court’s policy arguments in holding that a similar statutory 

donor reporting regime for “electioneering communications”3

 permits 

the general approach the Commission implemented in the challenged 

regulation here. See Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 

2016) (“Van Hollen II”). Although the statutory language differs, the 

policy arguments are the same; 

 The district court lacked jurisdiction to invalidate the regulation 

because the Commission had – and did – dismiss the administrative 

enforcement complaint for reasons independent of the regulation’s 

validity; and 

 The district court’s solution to the regulatory problem it created – i.e., 

hoping the Commission would promulgate a new regulation within 45 

days, without any public notice and comment, to take effect without 

 

3

 Generally, an “electioneering communication” is a broadcast ad that refers to a federal 

candidate and is targeted to the relevant jurisdiction within certain pre-election windows. See 52 

U.S.C. § 30104(f)(3). 
 6 

the prior congressional review mandated by 52 U.S.C. § 30111(d) – 

burdens crucial First Amendment rights. 

This case also is one that the Court likely would hear on the merits. This 

Court has wrestled with attempts to regulate core political speech and association, 

particularly by groups that are not political committees. Moreover, the district 

court’s decision implicates important issues of administrative law, including the 

deference owed an agency charged with the constitutionally sensitive task of 

regulating speech. In interpreting a similar FEC regulation in 2016, Judges Brown, 

Sentelle, and Randolph wrote that there is an “unmistakable tension that exists in 

campaign finance law between speech rights and disclosure rules,” and that “the 

Supreme Court’s track record of expanding who may speak while simultaneously 

blessing robust disclosure rules has set these two values on an ineluctable collision 

course.” Van Hollen II, 811 F.3d at 488, 499. Rather than let this “Court’s 

campaign finance jurisprudence” remain in a “fragile” state of affairs, id. at 

501, Crossroads respectfully believes that this Court should and would take this 

case to provide greater clarity concerning these issues of fundamental importance 

to our democratic process. 

* * * 

Citizens pay closest attention to electoral messaging starting after Labor 

Day, and early voting for the November mid-term election begins in some states in 
 7 

a matter of days. With neither the district court nor the D.C. Circuit willing (to this 

point) to enter a stay pending appeal, Crossroads now respectfully requests that this 

Court stay the district court’s opinion and order pending final appeal as soon as 

practicable – but in any event no later than Monday, September 17, 2018 – to 

ensure that neither core political speech nor the 2018 electoral process are further 

disrupted. 

I. BACKGROUND 

A. The Independent Expenditure Reporting Statute and the 

Commission’s Implementing Regulation. 

This case involves a reporting requirement adopted by Congress in 1979 and 

signed into law on January 8, 1980. The pertinent language from the 1979 Federal 

Election Campaign Act amendments is as follows (with the key language in italics 

and other language to be discussed shortly in bold/underlined):4

 

2 U.S.C. 434 REPORTS . . . 

(c)(1) Every person (other than a political committee) who makes 

independent expenditures in an aggregate amount or value in excess 

of $250 during a calendar year shall file a statement containing the 

information required under subsection (b)(3)(A)5

 for all contributions 

received by such person. 

 

4

 2 U.S.C. § 434 was subsequently recodified at 52 U.S.C. § 30104. 

5

 This provision provides that: “(b) Each report under this section shall disclose . . . (3) the 

identification of each . . . (A) person (other than a political committee) who makes a contribution 

to the reporting committee during the reporting period, whose contribution or contributions have 

an aggregate amount or value in excess of $200 within the calendar year . . . together with the 

date and amount of any such contribution.” 
 8 

(2) Statements required to be filed by this subsection shall be filed in 

accordance with subsection (a)(2), and shall include—, 

(A) the information required by subsection (b)(6)(B)(iii),6

indicating whether the independent expenditure is in support 

of, or in opposition to, the candidate involved; 

(B) under penalty of perjury, a certification whether or not such 

independent expenditure is made in cooperation, consultation, 

or concert, with, or at the request or suggestion of, any 

candidate or any authorized committee or agent of such 

candidate; and 

(C) the identification of each person who made a contribution 

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

made for the purpose of furthering an independent expenditure. 

The Commission worked extensively with Congress on these amendments. 

See Legislative History of Federal Election Campaign Act Amendments of 1979 at 

7-8, 10, 20, 39, 150-60 (1983) (“1979 FECA History”).7

 One of the Commission’s 

recommendations to Congress was to consolidate pre-1979 reporting requirements 

that obligated the person making an independent expenditure and the persons “who 

contribute to the independent expenditure” to separately report their respective 

expenditures and contributions (the person making the expenditure previously did 

not report its donors). Id. at 451; FEC Form 5 (1978) (attached as Addendum C); 

 

6

 This provision provides that the report will identify “the full name and mailing address 

(occupation and the principal place of business, if any) of each person to whom expenditures 

have been made . . . .” 

7

 http://classic.fec.gov/pdf/legislative_hist/legislative_history_1979.pdf. 
 9 

Memo. from Orlando B. Potter, Staff Director, Federal Elec. Comm’n (Mar. 29, 

1978) at 2, 3 (emphasis added) (attached as Addendum D). Under the 1979 

amendments, only the person making an independent expenditure would report the 

expenditure and the source of funds for it. See 1979 FECA History at 25. 

Senate committee staff implemented the Commission’s legislative

recommendation, see id. at 78, 101, 103, 123, 145, with the accompanying 

Summary of Committee Working Draft confirming that the changes required “the 

person who receives the contribution[s], and subsequently makes the independent 

expenditure, [to] report having received the contribution to the Commission” id. at 

103, 145 (emphasis added). That Congress understood the Section 434(c)(2)(C) 

reporting requirement to apply only where funds were given to support “the” – i.e., 

a specific – independent expenditure, rather than for any independent expenditures 

an organization may make (as the district court mistakenly concluded), logically 

follows from the legislative history, the surrounding statutory text, and pre-existing 

reporting practices. At the very least, Chevron allows such a reading. 

Consistent with the authorities above, the Commission’s implementing 

regulation required independent expenditure reports to identify “each person who 

made a contribution in excess of $200 to the person filing such report, which 

contribution was made for the purpose of furthering the reported independent 

expenditure.” 11 C.F.R. § 109.10(e)(1)(vi) (emphasis added). 
 10 

The Commission adopted this rule text on March 7, 1980, explaining that it 

“incorporate[s]” both “[52] USC [§ 30104](c)(1) and (2).” Joint App’x Part 2, 

(Dkt. No. 38-1) AR1503 (emphasis added) (attached as Addendum E). (In contrast 

to the district court, the Commission understood and read (c)(1) as a preamble 

explaining who had to file the report.) The agency transmitted the rule to Congress 

for its review under a special congressional disapproval provision. Id. Now 

codified at 52 U.S.C. § 30111(d), Congress had already used this provision several 

times to disapprove Commission regulations, including shortly before the agency 

transmitted the independent expenditure reporting rule to Congress. See S. Res. 

236, 96th Cong. (1979); H.R. Res. 780, 94th Cong. (1975); S. Res. 275, 94th Cong. 

(1975). Congress did not disapprove the Commission’s rule, and it went into effect 

on April 1, 1980. Joint App’x Part 2, AR 1543, 1553 (attached as Addendum F). 

Over the next 38 years, the Commission’s regulation remained constant. See

Crossroads’ Cross-Mot. for S.J. Ex. A (Dkt. No. 28-1) (attached as Addendum G); 

Joint App’x Part 1 (Dkt. No. 38) AR173 (attached as Addendum H). Although 

Congress amended the independent expenditure reporting statute six times, it has 

never overridden the Commission’s decades-long interpretation. 

B. The Administrative Complaint. 

This case arose from an administrative complaint CREW filed with the 

Commission in 2012. CREW alleged Crossroads violated the reporting statute and 
 11 

accompanying Commission regulation when Crossroads reported independent 

expenditures in 2012 without identifying donors. Joint App’x Part 1 AR1-52, 98-

159; AR 109, 110, 112, 114 (Amend. Admin. Compl. ¶¶ 44, 50, 54, 57, 62) 

(attached as Addendum I). 

 After reviewing CREW’s administrative complaint and Crossroads’ 

response, the agency’s Office of General Counsel recommended the Commission 

find no reason to believe that Crossroads violated the law. Joint App’x Part 1 

AR164-177 (attached as Addendum H). As the General Counsel’s 

recommendation explained, even if, as CREW alleged, Crossroads had received 

funds for a “general purpose to support . . . its efforts to further the election of a 

particular federal candidate,” this “does not itself indicate that the donor’s purpose 

was to further ‘the reported independent expenditure’ – the requisite regulatory 

test” described in 11 C.F.R. § 109.10(e)(1)(vi). Id. AR174. 

CREW’s administrative complaint did not clearly allege Crossroads had 

violated 52 U.S.C. § 30104(c)(1), and, consequently, Crossroads’ response did not 

address this claim. Nonetheless, the General Counsel’s report suggested sua 

sponte that, “to the extent the question is presented on these facts, we recommend 

that the Commission dismiss in the exercise of prosecutorial discretion” any 

allegation involving section 30104(c)(1) due to “equitable concerns,” “fair notice” 

defenses, and prior Commission precedent dismissing a theory that section 
 12 

30104(c)(1) required broader reporting of donors than the regulation. Id. AR165-

66, 172-73, 175-76 (citing Heckler v. Chaney, 470 U.S. 821 (1985)). 

The FEC commissioners divided 3-3 on proceeding with enforcement and 

closed the case. Joint App’x Part 1, AR193-94 (attached as Addendum J). Even 

the commissioners who voted to proceed with enforcement did not embrace the 

district court’s novel statutory interpretation or express dissatisfaction with the 

regulation at issue. See id. AR198-99. 

C. The District Court’s Opinion and the FEC’s Response. 

CREW filed a complaint with the district court for judicial review of the 

agency’s dismissal under 52 U.S.C. § 30109(a)(8). The district court held that the 

challenged regulation conflicts with the language of both 52 U.S.C. § 30104(c)(1) 

and (c)(2)(C), and therefore was invalid under “step one” of Chevron U.S.A., Inc.

v. Natural Resources Defense Council, Inc. (“Chevron”) 467 U.S. 837 (1984). Op. 

at 53. In reaching its conclusions, the district court’s opinion placed particular 

emphasis on post-Citizens United spending trends. See, e.g., Op. at 3, 41-43. 

Notably, while the court recognized a “[non-]trivial concern” that “entities engaged 

in independent expenditures might have inadequate guidance” in the final weeks 

before Election Day, Op. at 98, the district court nonetheless invalidated and 

vacated the regulation, staying the latter for 45 days. 

Remarkably, the court also held that Crossroads could be liable for relying 
 13 

on the regulation as it stood in 2012 – six years before the court found it to be 

invalid. Accordingly, the court also remanded the underlying administrative 

complaint to the Commission, which then dismissed it again based on the General 

Counsel’s recommendation. See FEC’s Response to Mot. for Stay Pending Appeal 

(Dkt. No. 50) (attached as Addendum K); Hunter-Petersen Statement. While the 

statute arguably allows CREW to file another lawsuit challenging the dismissal, 

see 52 U.S.C. § 30109(a)(8)(A), CREW has not done so and represents that its 

“FECA claim is now moot,” CREW D.C. Cir. Opp. at 3 n.2. 

In the wake of the district court’s opinion, two of the four FEC 

commissioners expressed their concerns that the district court’s decision was 

“deeply flawed” and contained “serious errors,” while also sounding alarm bells 

that “the court’s decision is already causing confusion” when “independent 

political speech is at its peak.” Hunter-Petersen Statement. They also made clear 

that the Commission would not and could not solve the problem through the 

interim regulation approach. Id.

D. Crossroads’ Efforts to Obtain a Stay Pending Appeal. 

On August 24, 2018, Crossroads filed a notice of appeal and moved the 

district court for a stay pending appeal. Due to the impending September 17, 2018 

lapse of the court’s stay on its vacatur of the regulation and the imminent start of 

early voting in many states, Crossroads moved the court for expedited briefing and 
 14 

a decision on its motion to stay by August 30, 2018, so that entities making 

independent expenditures in connection with the upcoming elections could have 

sufficient time to adjust their First Amendment activities accordingly. The district 

court constructively denied Crossroads GPS’s motions on August 28, 2018, by 

ordering a briefing schedule that extended well beyond the requested relief date. 

Crossroads filed its Emergency Motion for a Stay Pending Appeal with the 

U.S. Court of Appeals for the District of Columbia Circuit on August 31, 2018 and 

requested relief by 11:00 A.M. on September 14, 2018. The court ordered 

expedited briefing on the motion, CREW filed its Opposition to Crossroads GPS’s 

motion on September 10, 2018, and Crossroads GPS filed its reply thereto on 

September 12, 2018. The D.C. Circuit has not yet ruled on this motion. 

II. ANALYSIS OF THE STAY FACTORS 

In seeking a stay from a single Justice, the applicant must demonstrate: 

(1) “a ‘fair prospect’ that the Court will reverse the decision below,” 

(2) “a ‘likelihood that irreparable harm [will] result from the denial of a stay,’” and 

(3) “a ‘reasonable probability’ that this Court will grant certiorari.” Teva 

Pharmaceuticals USA, Inc., et al. v. Sandoz, Inc., 572 U.S. 1301 (2014) (Roberts, 

C.J.) (quoting Maryland v. King, 567 U.S. 1301 (2012) (Roberts, C.J.)); see also

Stroup v. Willcox, 549 U.S. 1501 (2006) (Roberts, C.J.); Barnes v. E-Systems, Inc., 

501 U.S. 1301, 1302 (1991) (Scalia, J.). In “a close case,” it also “may be 
 15 

appropriate to ‘balance the equities’ – to explore the relative harms to applicant 

and respondent, as well as the interests of the public at large.” Karcher v. Daggett, 

455 U.S. 1303, 1306 (1982) (Brennan, J.) (quoting Rostker v. Goldberg, 448 U.S. 

1306 (1980) (Brennan J., in chambers)). Applying these principles, this Court has 

granted a number of stays in election-related matters, including those involving 

publicity for those involved with an issue campaign, see Hollingsworth v. Perry, 

558 U.S. 183, 195 (2010) (per curiam), and where an entity would be “forever 

denied any opportunity to finance communication to the statewide electorate of its 

views in support of” a matter on the November ballot, City of Boston v. Anderson, 

439 U.S. 1389, 1389–91 (1978) (Brennan, J., in chambers).8

A. Crossroads Is Likely to Prevail on the Merits. 

1. The District Court Misconstrued the Reporting Statute. 

In the “Background” section above, Crossroads previewed some of its 

arguments that the district court fundamentally misconstrued a statute and FEC 

regulation in place for nearly four decades. See also FEC v. DSCC, 454 U.S. 27, 

34 (1981) (relying upon lack of congressional disapproval during the special 30-

 

8

 See also Tennant v. Jefferson Cty. Comm’n, 567 U.S. 758, 763 (2012) (per curiam) 

(noting stay); Perry v. Perez, 565 U.S. 1090 (2011); Growe v. Emison, 507 U.S. 25, 31 (1993) 

(noting stay); Wis. Elections Bd. v. Republican Party of Wis., 467 U.S. 1232 (1984) (Stevens, J.); 

Karcher v. Daggett, 455 U.S. 1303 (1982) (Brennan, J.); Wise v. Lipscomb, 434 U.S. 1329 

(1977) (Powell, J.); Hill v. Stone, et al., 416 U.S. 963 (1974) (Powell, J.); Republican State Cent. 

Comm. of Arizona v. Ripon Soc’y Inc., 409 U.S. 1222, 1227 (1972) (Rehnquist, J., in chambers); 

O’Brien v. Brown, 409 U.S. 1 (1972) (per curiam); Rockefeller v. Socialist Workers Party, 400 

U.S. 1201 (1970) (Harlan, J.). 
 16 

day regulatory review process as evidence of congressional agreement with FEC 

regulation); cf. STOP Hillary PAC v. FEC, 166 F. Supp. 3d 643, 647 (E.D. Va. 

2015) (disapproving a challenge to a 35-year-old Commission regulation). Most 

glaringly, the district court’s analysis asserted the supposed “broad disclosure goals 

of Congress” in enacting the reporting requirements, Op. at 77, and assumed 

“Congress expressly intended broad disclosure for not-political committees,” id. at 

88. However, relying upon this Court’s jurisprudence, in Center for Individual 

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

Hollen II, the D.C. Circuit upheld a similar Commission regulation for reporting 

non-political committee organizations’ donors and rejected the type of approach 

the district court adopted – “that anything less than maximal disclosure is 

subversive” of the statute and that “unbounded disclosure” is always required. 811 

F.3d at 494 & n.4. The D.C. Circuit criticized a “district court’s invocation of such 

a sweeping disclosure purpose,” and found the law “does not require disclosure at 

all costs; it limits disclosure in a number of ways.” Id. at 494–95. Had the district 

court adhered to this Court’s principles, as embodied in Van Hollen I and II, and 

properly considered “the conflicting privacy interests that hang in the balance,” id.

at 494, it would have upheld the Commission’s regulation at issue here under 

Chevron, 467 U.S. at 843. 
 17 

To clarify the statutory provision, the district court discounted the legislative 

history and instead embraced policy arguments articulated (anachronistically) after 

Citizens United v. FEC, 558 U.S. 310 (2010), to conclude that the agency had too 

narrowly construed the statute decades earlier. The court also freely invoked the 

statute’s purported “gist” in order to circumvent the law’s plain text. Op. at 69. 

And the varying standards the court used to describe the information Congress 

supposedly intended to be reported – e.g., contributions “earmarked for political 

purposes,” “intended to influence elections,” etc. – only underscores that Congress 

“has not directly addressed the precise question at issue” in the manner the district 

court suggested. Chevron, 467 U.S. at 843. 

In short, the contemporaneous legislative authorities, along with implied 

ratification, confirm the strength of Crossroads’ arguments that the Commission’s 

regulation implements both the plain text and congressional intent far more 

faithfully than the district court’s improvised new standard. 

2. The District Court Lacked Jurisdiction to Invalidate the 

Regulation. 

The regulation at issue was promulgated decades ago – i.e., outside the sixyear statute of limitations for Administrative Procedure Act challenges. See 28 

U.S.C. § 2401. Despite the rule that a party generally forfeits “an opportunity to 

challenge an agency rulemaking on a ground that was not first presented to the 

agency” during the rulemaking process, Koretoff v. Vilsack, 707 F.3d 394, 397 
 18 

(D.C. Cir. 2013), the district court allowed CREW to challenge the regulation on 

the theory that “those affected may challenge that application on the grounds that it 

conflicts with the statute from which its authority derives.” CREW v. Fed. Elec. 

Comm’n, 243 F. Supp. 3d 91, 101 (D.D.C. 2017) (citation omitted). But CREW 

was not “affected” by the regulation in the way that warrants granting an exception 

to the six-year time limit: untimely regulatory challenges should be entertained 

“when raised as a defense to an agency enforcement action,” Am. Scholastic TV 

Programming Found. v. F.C.C., 46 F.3d 1173, 1178 n.2 (D.C. Cir. 1995) 

(emphasis added), by “a party against whom a rule is applied,” Indep. Cmty. 

Bankers of Am. v. Bd. of Governors of Fed. Reserve Sys., 195 F.3d 28, 34 (D.C. 

Cir. 1999) (emphasis added).9

 The district court should not have permitted CREW 

to misuse a narrow, defensive-minded exception to end-run the statute of 

limitations and challenge a long-standing regulation based on a theory CREW 

admits only raising in 2012. See Opp. (Dkt. No. 52) at 14. 

Furthermore, when “a plaintiff has sued to challenge the lawfulness of 

certain [agency] action . . . but that portion of the action is rendered moot, the 

plaintiff does not retain standing to challenge the regulation that was the basis for 

that action apart from any concrete application that threatens imminent harm to his 

 

9

 See also Grid Radio v. F.C.C., 278 F.3d 1314, 1320–21 (D.C. Cir. 2002); N.L.R.B. Union 

v. Fed. Labor Relations Auth., 834 F.2d 191, 195 (D.C. Cir. 1987). 
 19 

interests.” Cierco v. Mnuchin, 857 F.3d 407, 417 (D.C. Cir. 2017) (citing Summers 

v. Earth Island Inst., 555 U.S. 488, 494 (2009)). Indeed, as the D.C. Circuit has 

already concluded in the FECA context specifically, “given that reliance on that 

regulation would afford a defense to ‘any sanction,’ . . . the court might well 

uphold FEC non-enforcement without ever reaching the regulation’s validity.” 

Shays v. FEC, 414 F.3d 76, 95–96 (D.C. Cir. 2005) (emphasis added). 

Here, by CREW’s own admission, its challenge to the dismissal is “moot,” 

Opp. (Dkt. No. 52) at 7 n.6., for reasons independent of the regulation’s validity, 

see Hunter-Petersen Statement. First, as the FEC commissioners noted, 52 U.S.C. 

§ 30111(e) specifically provides that “any person who relies upon any rule or 

regulation prescribed by the Commission . . . and who acts in good faith in 

accordance with such rule or regulation shall not, as a result of such act, be subject 

to any sanction provided by this Act.” The statute “establish[es] ‘legal rights’ to 

engage in that conduct” and categorically removes “any risk of enforcement,” even 

“if that conduct violates campaign statutes.” Shays v. FEC (“Shays I”), 414 F.3d 

76, 84, 95 (D.C. Cir. 2005) (emphasis added). Thus, when Crossroads acted in 

compliance with an existing Commission regulation, the regulation’s validity or 
 20 

invalidity affected neither the Commission’s obligation to dismiss the enforcement 

case nor the ultimate outcome for CREW.10 

Second, there is a five-year statute of limitations for campaign finance 

violations. See 28 U.S.C. § 2462. Because that deadline expired before the district 

court’s remand to the Commission, this case would have been dismissed regardless 

of the regulation’s validity. 

Third, in CREW v. FEC, 892 F.3d 434 (D.C. Cir. 2018), the D.C. Circuit 

held that Commission dismissals of enforcement cases based on prosecutorial 

discretion are generally “not subject to judicial review for abuse of discretion.” Id.

at 441. Here again, the regulation’s validity had no effect on CREW because the 

Commission grounded its recent dismissal of the enforcement case on reasons 

other than the regulation’s validity (e.g., concerns about fair notice, etc.).11 

 

10 Even aside from 52 U.S.C. § 30111(e), the regulation’s validity would be irrelevant: 

Under general principles of administrative law “any individual who relied on . . . [a regulation] 

prior to the date of [a] decision [invalidating it] can properly assert it as a defense to a charge that 

he otherwise violated the [statute].” Joseph v. U.S. Civil Serv. Comm’n, 554 F.2d 1140, 1157 

(D.C. Cir. 1977). 

11 The district court attempted to side-step this Court’s clear precedent by erroneously 

invoking two exceptions. The first “exception” – i.e., the assertion that the Commission 

“intentionally ‘abdicated’” its responsibilities, Op. at 110 – has never been endorsed by this 

Court, see Heckler, 470 U.S. at 844 n.4. In fact, the Commission has enforced the independent 

expenditure donor reporting requirement against a number of organizations in just the past few 

years alone. See, e.g., Conciliation Agreements, MUR 7085 (State Tea Party Express) (Sept. 21, 

2016); MUR 6816 (Americans for Job Security) (June 21, 2016), (The 60 Plus Association, Inc.) 

(July 7, 2016), (American Future Fund) (June 21, 2016). The district court offered nothing to 

justify finding that the Commission so abdicated enforcement as to deprive it of prosecutorial 

discretion. 
 21 

So for all of the above reasons, Crossroads has demonstrated a clear 

likelihood of success on the merits. 

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

Harmed. 

1. Absent a Stay, the District Court’s Decision Will Continue 

Causing Major Disruption to the 2018 Elections. 

Having recognized that a stay was warranted, the district court relied on 

unfounded hopes to cut its stay so short that its judgment is already creating 

significant disruption to Crossroads and others just weeks before the November 

elections. That is why “[c]ourt orders affecting elections” are particularly 

disfavored during pre-election periods, Purcell v. Gonzalez, 549 U.S. 1, 4-5 

(2006) (citing potential for “voter confusion”) – especially during the “45 days 

prior to an election,” Right to Life of Mich., Inc. v. Miller, 23 F. Supp. 2d 766, 767, 

769-70 (W.D. Mich. 1998) – as this is when the public actually “begins to 

concentrate on elections” and speech has a “chance of persuading voters,” Citizens 

United, 558 U.S. at 327, 334. And as “an election draws closer, that risk will 

 

 The district court also argued that the Commission’s dismissal was reviewable because 

the agency’s failure to pursue enforcement was “primarily” based upon a supposedly errant 

interpretation of the underlying statute. Op. at 110. This exception applies only if an agency’s 

dismissal is based “entirely” on misreading the statute. CREW, 892 F.3d at 441-42 & n.11 

(emphasis added) (rejecting “carving reviewable legal rulings out from the middle of nonreviewable actions”). Here, as the district court acknowledged, the Commission dismissed the 

case on non-reviewable prosecutorial discretion considerations separate and apart from the 

agency’s statutory interpretation. See Op. at 105. Moreover, the recent dismissal on remand 

does not at all rest on a construction of the statute. 
 22 

[only] increase,” STOP Hillary PAC, 166 F. Supp. 3d at 647, particularly since 

over 40% of all ballots in the last election were cast prior to Election Day, U.S. 

Election Assistance Comm’n, The Election Administration and Voting Survey: 

2016 Comprehensive Report at 8;12 see also Minn. Stat. § 203B.081 (providing that 

absentee voting for the 2018 mid-term election begins 46 days before the election 

(i.e., on September 21)). 

The district court’s ruling here is precisely the type of status-quo-shattering 

judicial order that is “harm[ful] to the public interest,” Respect Maine PAC v. 

McKee, 62 F.3d 13, 16 (1st Cir. 2010), invites “chaos” for those “who have relied 

on the challenged provisions,” id., disrupts “the significant interest the public has 

in the smooth functioning of an election, McComish v. Brewer, No. CV-08-1550, 

2008 WL 4629337, at *12 (D. Ariz. Oct. 17, 2008), and renders political actors 

“unable to deliver their message to voters as planned,” id. See also Lair v. Bullock, 

697 F.3d 1200, 1202 (9th Cir. 2012) (granting stay of campaign finance order 

pending appeal citing, inter alia, “the imminent nature of the election” and the 

“importan[ce of] not [] disturb[ing] long-established expectations” during the preelection period);13 Wise v. Lipscomb, 434 U.S. 1329 (1977) (Powell, J., Circuit 

 

12 https://www.eac.gov/assets/1/6/2016_EAVS_Comprehensive_Report.pdf. 

13 See also Memorandum Regarding Remedies from the Common Cause and League of 

Women Voters Plaintiffs at 4, Common Cause v. Rucho, Civ. A. No. 1:16-cv-1026 (M.D.N.C. 

Aug. 31, 2018), at https://www.commoncause.org/wp-content/uploads/2018/08/PLDGCommon-Cause-v.-Rucho-August-31-2018-Brief-re-Remedies.pdf (expressing concern that 

adopting new electoral rules on September 17, 2018 and ratifying them shortly thereafter would 
 23 

Justice) (granting stay where lower court action upended decades-long elections 

procedures). Indeed, this Court granted a stay pending appeal when a lower court 

altered the status quo by imposing burdens on “independent expenditure groups,” 

Arizona Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 733, 739 

(2011), and appeared to delay issuing the Citizens United decision until 36 hours 

after the nationally significant Massachusetts special Senate election in January 

2010, see Paul Kane and Karl Vick, Republican Brown Beats Coakley in Special 

Senate Election in Massachusetts, Washington Post (Jan. 20, 2010). 

The public interest in avoiding disruption is even greater when the 

“established system for regulating political contributions and expenditures” is 

upset and a “short time frame . . . and the delays inherent in lawmaking [make it] 

almost certain no amended regulatory scheme could be implemented before the 

general election in November.” Catholic Leadership Coal. v. Reisman, No. A-12-

CA-566, 2012 WL 12873174, at *2 (W.D. Tex. July 20, 2012), aff’d, 473 F. App’x 

402 (5th Cir. 2012). Such concern is particularly salient here given the district 

court’s own “[non-]trivial concern” that “entities engaged in independent 

expenditures might have inadequate guidance” because of its vacatur decision. Op. 

at 98. 

 

inhibit “voters [from being] able to be educated about the different candidates and their 

positions”). 
 24 

Not only does the district 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). 

This is exactly what happened in Van Hollen I, when a district court invalidated a 

similar Commission donor reporting regulation for “electioneering 

communications.” After the district court’s initial ruling, groups like Crossroads 

effectively stopped making electioneering communications. See, e.g., Law Aff. 

¶ 12 (attached as Addendum L). As Commission data show, only 11 

electioneering communication reports were filed between the district court’s 

March 30, 2012 decision and the D.C. Circuit’s September 18, 2012 reversal, as 

compared to the 33 such reports that were filed in 2012 preceding the district 

court’s ruling and the 67 reports in connection with the November election that 

were filed following the D.C. Circuit’s reversal. Compare FEC Form 9 filings, 
 25 

Apr. 1, 2012, through Sep. 18, 201214 with FEC Form 9 filings, Jan. 1, 2012, 

through Mar. 30, 2012,15 and Sep. 18, 2012, through Nov. 6, 2012.16 

The district court here acknowledged its decision will have widespread 

impact and stayed vacatur of the regulation for 45 days, ostensibly “to ensure that 

not-political committees benefit from regulatory guidance.” Op. at 99. Yet the 

existing stay provides little comfort in that (a) it effectively expires halfway 

between August 3 and the November 6 general election; and (b) the district court’s 

order otherwise “declared [the regulation] to be invalid,” Order at 2 (Dkt. No. 42), 

which calls into question whether “the invalidated regulation provides any real 

protection and guidance to would-be speakers during this 45-day stay period,” Inst. 

for Free Speech, Court Ruling on Independent Expenditures Creates New Risks for 

Groups (Aug. 23, 2018).17 Moreover, after the 45-day stay ends, a quarterly FEC 

disclosure report will be due on October 15 that covers independent expenditures 

 

14 https://www.fec.gov/data/filings/?data_type=processed&min_receipt_date=04%2F01%2F

2012&max_receipt_date=09%2F18%2F2012&form_type=F9. 

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

2012&max_receipt_date=03%2F30%2F2012&form_type=F9. 

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

2012&max_receipt_date=11%2F06%2F2012&form_type=F9. 

17 https://www.ifs.org/2018/08/23/court-ruling-on-independent-expenditures-creates-newrisks-for-groups/. 
 26 

made during the stay period, making it unclear what donor reporting rule will 

apply for that report. See 11 C.F.R. § 109.10(b). 

This uncertainty is not theoretical. While one prominent law firm 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),18 CREW’s Executive Director has threatened legal action against those who 

rely upon 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 (Aug. 4, 

2018).19 This demonstrable confusion and uncertainty falls far short of the “fullest 

and most urgent” protections the First Amendment demands when the public 

debates the qualifications of political candidates. Bennett, 564 U.S. at 734, 739. 

And where “as here, prosecutions are actually threatened, this challenge . . . will 

 

18 https://www.perkinscoie.com/en/news-insights/court-opens-door-to-expanded-disclosurefor-nonprofits-making.html. 

19 https://www.citizensforethics.org/press-release/crew-scores-major-court-victory-againstdark-money/. 
 27 

establish the threat of irreparable injury.” Dombrowski v. Pfister, 380 U.S. 479, 

490 (1965). 

As to Crossroads specifically, the organization’s president attests that 

Crossroads “is at present deterred and constrained from sponsoring any 

independent expenditures for the remainder of this election cycle” as a result of 

this Court’s decision. Law Aff. ¶ 10 (Addendum L). Mr. Law cites CREW’s 

threats to use the decision to file complaints against groups making independent 

expenditures that do not report their donors pursuant to the decision as an 

additional deterrent on Crossroads’ speech. Id. ¶ 11. The practical constraint 

imposed on Crossroads’ ability to make independent expenditures as a result of the 

district court’s decision is informed by its experience in Van Hollen I, when a 

similar decision also inhibited Crossroads’ and others’ speech. Id. ¶ 12. So 

Crossroads too, like the public at large, is being irreparably harmed by the district 

court’s decision. 

2. The District Court’s Interim Rulemaking Remedy Conflicts 

with Standard Administrative Practices. 

The district court recognized that vacating the regulation and directing the 

Commission to promulgate a new rule was a “complex” task that required detailed 

analysis and consideration of numerous reporting scenarios. Op. at 88-89, 104 

n.53. Yet, instead of following standard practices, it tasked the Commission with 
 28 

secretly and “hastily cobbling together an alternative, interim set of regulations 

[that can well be] 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). 

Not only is the Court’s vacatur inconsistent with multiple past decisions 

invalidating Commission regulations, see, e.g., Shays I, 337 F. Supp. 2d 28, 130 

(D. D.C. 2004), aff’d, 414 F.3d 76 (D.C. Cir. 2005); Shays v. FEC, 508 F. Supp. 2d 

10, 71 (D.D.C. 2007), 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. Order of Aug. 26, 2008) 

(Dkt. No. 45), but it denies the public (including Crossroads) the standard notice 

and comment procedures safeguarded under the Administrative Procedure Act that 

are particularly crucial when regulations burden First Amendment rights. See, e.g.,

Am. Bus. Ass’n v. United States, 627 F.2d 525, 528 (D.C. Cir. 1980), 

Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1028 (D.C. Cir. 1978).20 

3. The District Court’s Decision Endangers Donors’ and 

Organizations’ Associational Privacy. 

While the district court focuses on “provid[ing] members of the public with 

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

 

20 Remarkably, CREW even claims “there is no need or opportunity for either FEC 

rulemaking or public comment” on the independent expenditure reporting requirement at issue 

here at all. Opp. at 14. But this directly conflicts with general administrative law principles, 

specific congressional intent when Congress directed the FEC to conduct a rulemaking in 1980, 

and the district court’s 45-day stay and opinion, the latter of which specifically contemplated the 

need to resolve some specific reporting scenarios in an interim rulemaking. 
 29 

it completely ignores the “significant” individual and associational privacy 

interests at stake for donors and organizations, see Van Hollen II, 811 F.3d at 499-

501. Specifically, the district court’s decision forces Crossroads and other 

similarly situated organizations to refrain from core First Amendment political 

speech that has long been statutorily permitted, or run the risk of having to report 

donors under either subsection 30104(c)(1) or (c)(2)(C), donors who would 

otherwise reasonably expect that their giving would remain private – and even 

though an appellate court could uphold the current Commission regulation on 

appeal. In other words, the decision below, if not stayed, likely will 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 courts find 

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

and 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 

disclosure cannot be undone in the modern information age). See also San 

Diegans for Mt. Soledad Nat’l War Mem’l v. Paulson, 548 U.S. 1301, 1303–04 

(2006) (Kennedy, J., in chambers) (granting stay pending appeal where subsequent 

developments may moot case). And in many situations, Crossroads and similarly 

situated organizations will be forced to decide whether to refrain from speaking at 
 30 

all pending appeal or risk publicly exposing their donors – an irreparable harm that 

can never be redressed in the event that Crossroads’ appeal succeeds. See also

Perry v. Schwarzenegger, 591 F.3d 1126, 1131–32 (9th Cir. 2009) (granting stay 

pending appeal where disclosure of confidential campaign information was 

sought). 

The district court downplays the effect of its order by observing that Section 

501(c) organizations are required to report their donors to the Internal Revenue 

Service (at least through 2018). Op. at 95. But the court ignores that the donor 

information on organizations’ tax filings is reported on a strictly confidential basis, 

see 26 U.S.C. § 6104(d)(3)(A), and severe criminal penalties apply to their 

unauthorized public release, id. § 7213. In fact, the Internal Revenue Service 

recently abolished the donor reporting requirement for most organizations because 

even when such information is reported confidentially, it unduly compromises 

donors’ privacy. See IRS, Rev. Proc. 2018-38. 

C. There Is a Reasonable Probability the Court Would Grant 

Certiorari. 

This Court has a rich history of adjudicating campaign finance and FECrelated matters.21 Moreover, individual Justices have taken a particular interest in 

 

21 See, e.g., McCutcheon v. FEC, 572 U.S. 185 (2014); Ariz. Free Enterprise Club’s 

Freedom Club PAC v. Bennett, 564 U.S. 721 (2011); Citizens United v. FEC, 558 U.S. 310 

(2010); Davis v. FEC, 554 U.S. 724 (2008); FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007); 

Randall v. Sorrell, 548 U.S. 230 (2006); McConnell v. FEC, 540 U.S. 93 (2003); FEC v. 

Beaumont, 539 U.S. 162 (2003); Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604 
 31 

some of the issues generally presented in this case, such as: (a) the interplay 

between regulated “contributions” and “expenditures,” see, e.g., McCutcheon v. 

FEC, 572 U.S. 185, 228 (2014) (Thomas, J., concurring); (b) campaign finance 

reporting requirements, see, e.g., Citizens United v. FEC, 558 U.S. 310, 480-85 

(2010) (Thomas, J., concurring in part and dissenting in part); (c) the right to 

privacy while engaging in political speech, see, e.g., McIntyre v. Ohio Elections 

Comm’n, 514 U.S. 334, 359-70 (1995) (Thomas, J., concurring); (d) to what extent 

“courts [should] respect that leeway which Congress intended the agencies to 

have,” SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1364 (2018) (Breyer, J., 

dissenting); and (e) the making of political contributions as a “basic constitutional 

freedom” that has “a significant relationship to the right to speak and associate,” 

Riddle v. Hickenlooper, 742 F.3d 922, 931 (10th Cir. 2014) (Gorsuch, J., 

concurring). 

Judges on the Court of Appeals for the D.C. Circuit have expressed similar 

interests in the right of non-profit groups to raise and spend money on independent 

expenditures. See, e.g., EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009) 

(Kavanaugh, J.). Judges Brown, Sentelle, and Randolph recently asked this Court 

 

(1996); Austin v. Mich. Chamber of Commerce, 494 U.S. 652 (1990); FEC v. Mass. Citizens for 

Life, Inc., 479 U.S. 238 (1986); Cal. Med. Ass’n v. FEC, 453 U.S. 182 (1981); First Nat’l Bank 

of Boston v. Bellotti, 435 U.S. 765 (1978); Buckley v. Valeo, 424 U.S. 1 (1976). 
 32 

to provide clarity in drawing lines between free speech and donor reporting, 

observing: 

The arc of campaign finance law has been ambivalent, 

bending toward speech and disclosure. Indeed what has 

made this area of election law so challenging is that these 

two values exist in unmistakable tension. Disclosure 

chills speech. Speech without disclosure risks 

corruption. And the Supreme Court’s track record of 

expanding who may speak while simultaneously blessing 

robust disclosure rules has set these two values on an 

ineluctable collision course. . . . 

The Supreme Court has vigorously protected the public’s 

right to speak anonymously, even recognizing that 

anonymous speech has “played an important role in the 

progress of mankind.” Talley v. California, 362 U.S. 60, 

64 (1960). . . . And yet, the Court has sanctioned startling 

intrusions on this right to anonymity by upholding 

mandatory disclosure requirements. 

As our discussion of the FEC’s rule has shown, the 

Supreme Court’s campaign finance jurisprudence 

subsists, for now, on a fragile arrangement that treats 

speech, a constitutional right, and transparency, an extraconstitutional value, as equivalents. But “the centre 

cannot hold.” William Butler Yeats, The Second 

Coming (1919). 

Van Hollen II, 811 F.3d at 488, 499-501. Cf. McDaniel v. Sanchez, 448 U.S. 1318, 

1322 (1980) (Powell, J., Circuit justice) (granting stay “in view of the ambiguity of 

our precedents,” which led to “a ‘reasonable probability’ that four Members of the 

Court will consider the issue sufficiently meritorious – and the need for 

clarification sufficiently evident – to warrant a grant of certiorari”). 
 33 

D. A Stay Will Not Meaningfully Harm CREW, But the Absence of 

One Could Harm the Commission. 

Although a stay of the decision below would reduce the harm to Crossroads 

and the general public, a stay would not harm CREW in any meaningful – much 

less substantial – way. This election cycle is no different than the preceding

nineteen that were conducted largely free of CREW’s recently discovered 

grievances. See, e.g., U.S.P.S. v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 481 

U.S. 1301, 1303 (1987) (Rehnquist, Circuit Justice) (granting stay, in part, after 

finding party could not claim “irreparable harm” where status quo had existed for 

at least three years); Lucas v. Townsend, 486 U.S. 1301, 1305 (1988) (Kennedy, 

Circuit Justice) (discounting harm where such “burdens can fairly be ascribed to 

the [non-movant’s] own failure” to timely raise issue with agency). Moreover, 

CREW failed to participate in a 2011 Commission rulemaking proceeding that 

proposed the very changes CREW now seeks in the challenged regulation, further 

undermining CREW’s need for immediate relief. See Rep. Van Hollen Petition for 

Rulemaking (Apr. 21, 2011) at 4.22

In contrast to CREW, declining to grant a stay would divert the Commission 

away from providing guidance and enforcing the law in the remaining days before 

 

22 http://classic.fec.gov/pdf/nprm/citizensunited/van_hollen.pdf. 
 34 

this fall’s mid-term election, with the risk that such efforts will be interrupted or 

completely undone by a successful appeal. Moreover, while the district court 

dismissed the agency’s concerns that a vacatur could result in “inadequate 

guidance” for speakers ahead of the 2018 elections, Op. at 98, appellate courts 

have has held that a government agency “is in a better position than the court to 

assess the disruptive effect of vacating [a rule].” Chamber of Commerce of United 

States v. SEC, 443 F.3d 890, 909 (D.C. Cir. 2006). See also Reynolds v. Sims, 377 

U.S. 533, 585 (1964) (observing that “with respect to the timing of relief, a court 

can reasonably endeavor to avoid a disruption of the election process which might 

result from requiring precipitate changes that could make unreasonable or 

embarrassing demands on a State in adjusting to the requirements of the courts 

decree”). The district court’s decision contravenes these important principles. 

CONCLUSION 

The district court’s ruling is unprecedented and its timing extraordinary. 

Rather than force Crossroads and similarly situated organizations to choose 

between sacrificing their core First Amendment speech rights just prior to a major 

national election and their donors’ associational and privacy rights – neither of 

which can be restored if Crossroads prevails on appeal – this Court should stay the 

district court’s ruling pending appeal. 
 35 

Dated: September 14, 2018 

Thomas J. Josefiak 

 E-mail: tjosefiak@holtzmanlaw.net

J. Michael Bayes 

 E-mail: mbayes@holtzmanlaw.net

HOLTZMAN VOGEL JOSEFIAK 

TORCHINSKY PLLC 

45 North Hill Drive, Suite 100 

Warrenton, VA 20186 

Tel.: 540.341.8808 

Counsel for Defendant-Petitioner

Respectfully submitted, 

/s/ Thomas W. Kirby 

Michael E. Toner 

 E-mail: mtoner@wileyrein.com

Thomas W. Kirby 

 Counsel of Record 

 E-mail: tkirby@wileyrein.com

Andrew G. Woodson 

 E-mail: awoodson@wileyrein.com

Eric Wang 

 E-mail: ewang@wileyrein.com

WILEY REIN LLP 

1776 K St., NW 

Washington, D.C. 20006 

Tel.: 202.719.7000 
 

CERTIFICATE OF SERVICE 

I certify that on September 14, 2018, one copy of Crossroads’ 

EMERGENCY APPLICATION TO CHIEF JUSTICE ROBERTS, CIRCUIT 

JUSTICE FOR THE DISTRICT OF COLUMBIA CIRCUIT, FOR A STAY 

PENDING APPEAL, along with the supporting documents, was sent electronically 

and hand-delivered to each of the following: 

Office of the Solicitor General 

950 Pennsylvania Avenue, NW 

Washington, DC 20530 

supremectbriefs@usdoj.gov 

Kevin Deeley (kdeeley@fec.gov) 

Harry Jacob Summers (hsummers@fec.gov) 

Seth E. Nesin (snesin@fec.gov) 

Federal Election Commission 

Office of General Counsel 

1050 First Street, NE 

Washington, DC 20463 

Stuart C. McPhail (smcphail@citizensforethics.org) 

Adam J. Rappaport (arappaport@citizensforethics.org) 

Citizens for Responsibility and Ethics in Washington 

455 Massachusetts Avenue, N.W. 

6th Floor 

Washington, DC 20001 

/s/ Thomas W. Kirby 

 Thomas W. Kirby