UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 18-76 (RC) 

 ) 

 v. ) 

 ) REPLY IN SUPPORT OF MOTION 

FEDERAL ELECTION COMMISSION, ) FOR SUMMARY JUDGMENT 

 ) 

 Defendant. ) 

 ) 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

Haven G. Ward (D.C. Bar No. 976090) 

Attorney 

hward@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Charles Kitcher (D.C. Bar No. 986226) 

Acting Assistant General Counsel 

ckitcher@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, D.C. 20463 

(202) 694-1650 

November 16, 2018 

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 1 of 32
i

TABLE OF CONTENTS 

 Page 

ARGUMENT .............................................................................................................................1 

I. CREW PRECLUDES JUDICIAL REVIEW HERE ......................................................1 

A. Prosecutorial Discretion Was a Distinct Basis for the Dismissal Decision .......2 

B. Judicial Review Is Unavailable Where, As Here, A Controlling 

 Statement Does Not Rest Entirely on Interpretations of FECA ........................4 

C. The FEC Has Not Abdicated Its Statutory Responsibilities ..............................5

II. IN THE ALTERNATIVE, THE DISMISSAL DECISION SHOULD BE 

SUSTAINED BECAUSE IT WAS NOT CONTRARY TO LAW ...............................8 

A. Plaintiffs’ Arguments in Favor of De Novo Review Contravene Binding 

 Precedent Requiring Chevron Deference Here ..................................................8 

 

1. Chevron Deference Is Required By the Sealed Case Precedent ............9 

2. The Court Must Accord Deference to the Controlling Interpretation 

of FECA and Implementation of the Major Purpose Test Here ..........11 

3. Plaintiffs Cannot Rely on Material Not In the 

Administrative Record .........................................................................13 

B. The Controlling Commissioners’ Interpretation of FECA’s Statutory 

 Threshold for Political Committees Was Not Contrary to Law ......................13 

C. The Controlling Commissioners’ Application of the Commission’s 

 Judicially-Approved, Case-by-Case Approach When Determining 

 New Models’s Major Purpose Was Not Contrary to Law ...............................19 

1. The Controlling Commissioners Reasonably Considered All of the 

Commission’s Major Purpose Analysis Factors ..................................19 

2. The Controlling Commissioners Did Not Apply a Lifetime-Only Test 

 When They Considered New Models’s Relative Spending ................ 21 

3. Other Courts Have Already Rejected Imposing Bright-Line Rules 

 for Determining an Organization’s Major Purpose and This 

 Court Should Too ................................................................................24 

CONCLUSION ........................................................................................................................25 

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 2 of 32
ii 

TABLE OF AUTHORITIES 

 Page 

Cases 

AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003) .................................................................. 14 

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996) ................................................................... 12, 14

Antosh v. FEC, 599 F. Supp. 850 (D.D.C. 1984)...................................................................... 2 

Ass’n of Civilian Technicians, Inc. v. Fed. Labor Relations Auth., 

 283 F.3d 339 (D.C. Cir. 2002) ........................................................................................... 4 

*Buckley v. Valeo, 424 U.S. 1 (1976) .............................................................................. passim

Campaign Legal Ctr. v. FEC, 312 F. Supp. 3d 153 (D.D.C. 2018) .......................................... 8 

Ctr. for Individual Freedom v. Van Hollen, 694 F.3d 108 (D.C. Cir. 2012) .......................... 25 

Chaney v. Heckler, 718 F.2d 1174 (D.C. Cir. 1983) ............................................................. 4-5 

Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) .................... passim

Christensen v. Harris County, 529 U.S. 576 (2000) ................................................................. 9 

Citizens United v. FEC, 558 U.S. 310 (2010) ........................................................................ 16 

City of Arlington, Tex. v. F.C.C., 569 U.S. 290 (2013) .......................................................... 10 

*CREW v. FEC, 892 F.3d 434 (D.C. Cir. 2018) ................................................. 1, 2, 4, 5, 6, 10 

CREW v. FEC, 316 F. Supp. 3d 349 (D.D.C. 2018) ................................................................. 7 

CREW v. FEC, 236 F. Supp. 3d 378 (D.D.C. 2017) ............................................................. 3, 6 

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

CREW v. FEC, 164 F. Supp. 3d 113 (D.D.C. 2015) ................................................................. 8 

Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671 (D.C. Cir. 1994) ........................ 2, 4, 8 

CTS Corp. v. E.P.A., 759 F.3d 52 (D.C. Cir. 2014) ................................................................ 13 

D.C. Transit Sys. Inc. v. Wash. Metro. Area Transit Comm’n, 

 466 F.2d 394 (D.C. Cir. 1972) .................................................................................... 23-24

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 3 of 32
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Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 

 485 U.S. 568 (1988) ......................................................................................................... 14 

Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134 (2018) ................................................. 17 

F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502 (2009) ................................................. 16 

FEC v. Akins, 524 U.S. 11 (1998) ......................................................................................... 4, 5 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981) ....................... 8, 18, 19 

FEC v. Nat’l Rifle Ass’n of Am., 254 F.3d 173 (D.C. Cir. 2001) ............................................ 10 

FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471 (D.C. Cir. 1992) ...................... 10 

FEC v. Wisc. Right to Life, Inc., 551 U.S. 449 (2007) ............................................................ 12 

Free Speech v. FEC, 720 F.3d 788 (10th Cir. 2013) .............................................................. 24 

Gonzales v. Oregon, 546 U.S. 243 (2006) .............................................................................. 10 

Heckler v. Chaney, 470 U.S. 821 (1985) ...................................................................... 3, 4, 5, 6 

I.C.C. v. Bhd. of Locomotive Eng’rs, 482 U.S. 270 (1987) ...................................................... 4 

In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2001) ........................................................ 9, 10, 11 

Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014) ......................... 5 

McConnell v. FEC, 540 U.S. 93 (2003) .................................................................................. 15 

McFadden v. United States, 135 S. Ct. 2298 (2015) .............................................................. 14 

Nader v. FEC, 823 F. Supp. 2d 53 (D.D.C. 2011) .................................................................... 3 

NAACP v. Trump, 298 F. Supp. 3d 209 (D.D.C. 2018) ......................................................... 7-8

Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) ................ 15 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) .................................................................. 5, 24 

Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998) ................................................................. 14 

Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544 (4th Cir. 2012) ........................... 20, 25 

Shands Jacksonville Med. Ctr. v. Burwell, 139 F. Supp. 3d 240 (D.D.C. 2015) .................... 21 

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 4 of 32
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Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007) ...................................................... 16, 20, 25 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) ........................................................ 16 

United States ex rel. Atty. Gen. v. Del. & Hudson Co., 213 U.S. 366 (1909) ........................ 14 

United States v. Mead, 533 U.S. 218 (2011) ................................................................ 9, 10, 11 

United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483 (2001) ............................. 14 

United States v. Torres, 115 F.3d 1033 (D.C. Cir. 1997) ......................................................... 9 

United States v. Woods, 571 U.S. 31 (2013) ........................................................................... 17 

United Steelworkers, AFL-CIO-CLC v. Marshall, 647 F.2d 1189 (D.C. Cir. 1980) ................ 8 

United Student Aid Funds, Inc. v. Devos, 237 F. Supp. 3d 1 (D.D.C. 2017) .......................... 13 

Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016) ................................................... 12, 16, 25 

Warger v. Shauers, 135 S. Ct. 521 (2014) .............................................................................. 14 

Statutes and Regulations

28 U.S.C. § 2462 ....................................................................................................................... 3

52 U.S.C. § 30101(4)(A)............................................................................................. 11, 17, 18

52 U.S.C. § 30101(8)(A)......................................................................................................... 17

52 U.S.C. § 30101(9)(A)......................................................................................................... 17

52 U.S.C. § 30107(a)(9) .......................................................................................................... 18

52 U.S.C. § 30109(a)(1) .......................................................................................................... 24

52 U.S.C. § 30109(a)(2) .......................................................................................................... 11 

52 U.S.C. § 30109(a)(4)(A)(i) ................................................................................................ 11

52 U.S.C. § 30109(a)(6)(A) .................................................................................................... 11

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

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

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 5 of 32
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52 U.S.C. § 30116(a)(7)(C)(ii) ............................................................................................... 18

52 U.S.C. § 30118 ................................................................................................................... 17

11 C.F.R. § 100.5(a)................................................................................................................ 18

11 C.F.R. § 102.6(a)(1)(i) ....................................................................................................... 18

11 C.F.R. § 102.6(a)(2) ........................................................................................................... 18

11 C.F.R. § 102.6(b) ............................................................................................................... 18

11 C.F.R. § 109.20(b) ............................................................................................................. 18

11 C.F.R. § 110.3(a)(1) ........................................................................................................... 18

Miscellaneous

Electioneering Commc’ns, 72 Fed. Reg. 50261 (proposed Aug. 31, 2007) ........................... 12 

Rev. Rul. 81-95, 1981-1 C.B. 332 .......................................................................................... 20 

*Rules & Regulations: Political Comm. Status, 72 Fed. Reg. 5595 (Feb. 7, 2007) .......... 19-20 

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 6 of 32
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ARGUMENT 

The Federal Election Commission (“FEC” or “Commission”) demonstrated in its initial 

brief that the Court of Appeals’s recent decision in Citizens for Responsibility and Ethics in 

Washington v. FEC, 892 F.3d 434 (D.C. Cir. 2018) (“CREW”), pet’n for reh’g en banc filed, No. 

17-5049, Doc. #1742905 (July 27, 2018), requires that the Commission prevail here as a matter 

of law. CREW held that, where, as here, the Commission’s dismissal decision is based in part on 

prosecutorial discretion, that decision is judicially unreviewable. Plaintiffs have failed to 

demonstrate that any potential exception to this general rule applies. 

Even if review were available, the Commission’s opening brief further demonstrated that 

the controlling Commissioners’ dismissal decision should be sustained on the merits. Plaintiffs’ 

reply provides no basis for the Court to find otherwise. Their argument for an unprecedented de 

novo standard of review and against deferential review under Chevron U.S.A., Inc. v. Natural 

Resources Defense Council, Inc., 467 U.S. 837 (1984), contravenes controlling Circuit authority 

compelling the Court to apply Chevron deference. Further, the controlling Commissioners’ 

analysis regarding (a) whether New Models crossed the statutory threshold for political 

committee status, and (b) whether it had the requisite major purpose — either of which alone is 

sufficient to uphold the dismissal decision — passes the deferential standard of review that 

applies here. The Court thus should grant summary judgment in favor of the Commission. 

I. CREW PRECLUDES JUDICIAL REVIEW HERE 

Because the controlling Commissioners’ exercise of prosecutorial discretion was a 

distinct basis for dismissal of plaintiffs’ administrative complaint, CREW precludes judicial 

review here. (FEC Mem. in Supp. of Its Mot. for Summ. J. and in Opp’n to Pls.’ Mot. for 

Summ. J. at 15-18 (Docket No. 13-1) (“FEC Mem.”).) Plaintiffs argue that CREW does not 

apply because (a) the controlling Commissioners did not adequately explain their invocation of 

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 7 of 32
2 

prosecutorial discretion; (b) the controlling Commissioners also found that New Models was 

not a political committee; and (c) the FEC has abdicated enforcement of the Federal Election 

Campaign Act (“FECA” or “Act”). (Pls.’ Reply Br. in Supp. of Pls.’ Mot. for Summ. J. and in 

Opp’n to Def.’s Cross-Mot. for Summ. J. at 25-30 (Docket No. 16) (“Pls. Reply”).) Their 

contentions regarding the inapplicability of CREW are incorrect on all fronts. 

A. Prosecutorial Discretion Was a Distinct Basis for the Dismissal Decision 

CREW held that FEC decisions based even in part on prosecutorial discretion are not

subject to judicial review. 892 F.3d at 438, 441; FEC Mem. at 16, 18. Detail sufficient to 

explain the agency’s rationale may be required where judicial review is for abuse of discretion 

(e.g., Pls. Reply at 26 (citing Antosh v. FEC, 599 F. Supp. 850, 853 (D.D.C. 1984)), but 

plaintiffs in the context here are “not entitled to have the court evaluate for abuse of discretion 

the individual considerations the controlling Commissioners gave in support of their vote not to 

initiate enforcement proceedings.” CREW, 892 F.3d at 441. No review means no review. 

In any event, plaintiffs err in challenging the sufficiency of the controlling 

Commissioners’ invocation of prosecutorial discretion. The Commissioners expressly noted 

that they “exercise[d] . . . our prosecutorial discretion” as a basis for their votes not to pursue 

enforcement and stated their reasons why. (AR 121 & n.136.) This is a legally sufficient 

invocation of their discretion. Cf. Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 676 

(D.C. Cir. 1994) (finding agency’s exercise of prosecutorial discretion judicially unreviewable 

even if the agency did not expressly invoke it). The controlling Commissioners explained that 

“proceeding further would not be an appropriate use of Commission resources” for two reasons 

— both of which are independent of the merits, are supported by the record, and are recognized 

as appropriate bases for exercising prosecutorial discretion. (AR 121 n.139.) First, they found 

that prosecutorial discretion was warranted due to “the age of the activity” at issue. (Id.) Citing 

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 8 of 32
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the applicable five-year statute of limitations (AR 121 n.139 (citing 28 U.S.C. § 2462)), the 

Commissioners conveyed their staleness concerns about the transactions underlying plaintiffs’ 

political committee claims, which occurred between January 11, 2012 and October 26, 2012 

(AR 35, 38, 39, 42, 60, 96 & nn. 24, 28). See CREW v. FEC, 236 F. Supp. 3d 378, 392-93 

(D.D.C. 2017) (“CREW III”), aff’d, 892 F.3d 434 (D.C. Cir. 2018) (finding that impending 

statute of limitations was a rational basis for exercising prosecutorial discretion). The 

Commissioners also expressly indicated their specific concern about the “‘staleness of 

evidence.’” AR 121 n.139 (quoting Nader v. FEC, 823 F. Supp. 2d 53, 66 (D.D.C. 2011)); see 

also Nader, 823 F. Supp. 2d at 66 (“The passage of time, even within the period, will obviously 

impair investigations.”). 

Second, the controlling Commissioners found that exercising prosecutorial discretion 

was also warranted due to “the fact that the organization appears no longer active.” (AR 121 

n.139.) The record supported their finding that New Models ceased operating in 2015 (AR 97 

& n.32), and the difficulties attendant to investigating and obtaining recovery from a defunct 

entity are valid reasons for exercising prosecutorial discretion. AR 121 n.139 (citing Nader, 

823 F. Supp. 2d at 66 (finding dismissal reasonable given, inter alia, the defunct nature of the 

organizations at issue)); see also CREW III, 236 F. Supp. 3d at 396 (similar). 

These explanations are readily capable of analysis, not “a ‘terse’ invocation of discretion 

such as a footnote” that is too inadequate “to enable judicial review.” (Pls. Reply at 26.) The 

controlling invocation of prosecutorial discretion is not an improper attempt to immunize the 

agency from judicial review (id. at 27), but is of a piece with an agency’s exercise of its 

prosecutorial discretion, Heckler v. Chaney, 470 U.S. 821, 831 (1985) (recognizing that an 

agency’s exercise of prosecutorial discretion “involves a complicated balancing of a number of 

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 9 of 32
4 

factors which are peculiarly within its expertise,” including but not limited to “whether agency 

resources are best spent on this violation or another”). 

B. Judicial Review Is Unavailable Where, As Here, A Controlling Statement 

Does Not Rest Entirely on Interpretations of FECA 

Plaintiffs are also incorrect in contending that the controlling statement’s inclusion of 

reasons for concluding that New Models did not violate the law makes it subject to judicial 

review. (Pls. Reply at 25-26.) As the D.C. Circuit has explained in rejecting that argument: 

“To demonstrate the falsity of that proposition it is enough to 

observe that a common reason for failure to prosecute an alleged 

criminal violation is the prosecutor’s belief (sometimes publicly 

stated) that the law will not sustain a conviction. That is surely an 

eminently ‘reviewable’ proposition, in the sense that courts are 

well qualified to consider the point; yet it is entirely clear that the 

refusal to prosecute cannot be the subject of judicial review.” 

Crowley Caribbean Transp., Inc., 37 F.3d at 676 (quoting I.C.C. v. Bhd. of Locomotive Eng’rs, 

482 U.S. 270, 283 (1987)). FECA provides judicial review only where the FEC’s dismissal is 

“based entirely on its interpretation of the statute,” CREW, 892 F.3d at 441 n.11 (citing FEC v. 

Akins, 524 U.S. 11 (1998)) (emphasis added); see also Ass’n of Civilian Technicians, Inc. v. 

Fed. Labor Relations Auth., 283 F.3d 339, 343 (D.C. Cir. 2002) (“The Supreme Court . . . has 

generally rejected the principle that if the agency gives a reviewable reason for otherwise 

unreviewable action, the action becomes reviewable.” (internal quotation marks omitted)).

Thus, the controlling Commissioners’ conclusion that New Models did not violate the 

law did not deprive them of discretion to dismiss the complaint and make their determination 

reviewable. (See Pls. Reply at 27.) Judicial review is not available because the controlling 

Commissioners also did not pursue enforcement based on prosecutorial discretion. (AR 121 & 

n.139.) Indeed, Heckler itself involved an agency conclusion that it did not have jurisdiction to 

pursue enforcement — an argument the agency subsequently asserted in court as well, Chaney 

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 10 of 32
5 

v. Heckler, 718 F.2d 1174, 1178-82 (D.C. Cir. 1983), rev’d on other grounds, 470 U.S. 821 — 

but even if the agency had jurisdiction, it claimed it was “authorized to decline to exercise it 

under [its] inherent discretion to decline to pursue certain enforcement matters.” 470 U.S. at 

824 (internal quotation marks omitted). The Supreme Court agreed. Though a lack of 

jurisdiction would have been a sufficient reason to decline enforcement, the Court found that 

the agency’s decision not to pursue enforcement was a judicially unreviewable exercise of 

prosecutorial discretion. Heckler, 470 U.S. at 828 (concluding that “we need not and do not 

address the thorny question of the [agency]’s jurisdiction” because “this case turns on the 

important question of the extent to which determinations by the [agency] not to exercise its 

enforcement authority . . . may be judicially reviewed” (emphasis omitted)). 

 The cases plaintiffs cite (Pls. Reply at 27-28) do not refute this point. Unlike in this 

matter, the challenged decisions in Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986), and Akins

were not based on prosecutorial discretion. The Orloski court did not even discuss prosecutorial 

discretion, and the “[t]he only issue the Court decided in Akins dealt with standing.” CREW, 

892 F.3d at 438 n.6 (explaining that Akins “held only that the complainants had standing even 

though, on remand, the Commission might invoke its prosecutorial discretion to dismiss the 

remaining charge”).1

 See also infra, p. [x] (discussing other cases plaintiffs cite). 

C. The FEC Has Not Abdicated Its Statutory Responsibilities 

Plaintiffs’ argument that the FEC has abdicated its statutory responsibilities with respect 

to regulating political committees (Pls. Reply at 28-30) is without basis and must be rejected. 

 

1

 Moreover, having Article III standing to sue, while necessary, is not sufficient. E.g., 

Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 132 (2014) (“A consumer 

who is hoodwinked into purchasing a disappointing product may well have an injury-in-fact 

cognizable under Article III, but he cannot invoke the protection of the Lanham Act[.]”). 

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 11 of 32
6 

While the CREW court noted that “[Heckler] left open the possibility that an agency 

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

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

responsibilities,” the D.C. Circuit in that case also rejected the same argument that abdication 

had occurred in this context. 892 F.3d at 440 n.9 (internal quotation marks omitted). 

In CREW, the plaintiffs argued that “the FEC has abdicated enforcement of the political 

committee laws,” relying on a nearly identical chart to that here. Compare Br. of Appellant at 

41-43, CREW v. FEC, No. 17-5049, Doc. # 1681549 (June 27, 2017) (“CREW Br.”); id. at 41 

(citing J.A. 244 (chart submitted in that case)), with Pls. Reply, Exh. 2 (Docket No. 16-3).)2

 

The D.C. Circuit rejected this argument, finding that the plaintiffs’ “own submissions [in that 

case] show that the [FEC] routinely enforces the election law violations alleged in CREW’s 

administrative complaint.” CREW, 892 F.3d at 440 n.9. That determination is dispositive here. 

Plaintiffs’ contention that the D.C. Circuit was only opining as to “an organization’s 

failure to file independent expenditure and electioneering communication reports,” but not 

“political committee allegations” (Pls. Reply at 30), is belied by the opinions and the record in 

that case. CREW, 892 F.3d at 440-41 & n.9; CREW Br. at 41 (citing Heckler, 470 U.S. at 833 

n.4); id. at 41-43. Indeed, the district court opinion devoted an entire section analyzing “[t]he 

‘[n]ovel [l]egal [i]ssues’ [s]urrounding [p]olitical [c]ommittees.” CREW III, 236 F. Supp. 3d at 

393-95. The claim that CREW did not involve political committee allegations is inaccurate. 

Furthermore, plaintiffs’ argument must fail because they have not, and cannot, identify 

any conscious and express general agency policy of nonenforcement. No such policy exists. 

 

2

 For the Court’s convenience, copies of an excerpt of the cited appellate brief and the 

relevant chart cited therein (J.A. 244) are attached hereto as Exhibits 1 and 2, respectively. 

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 12 of 32
7 

Contrary to plaintiffs’ notion that “the controlling [C]ommissioners refused to apply the 

FECA’s political committee laws to any group that qualifies under the statute as a result of its 

contributions to other political committees, or as the result of an analysis of less than its lifetime 

of spending” (Pls. Reply at 29 (emphasis added)), the controlling Commissioners in fact applied 

the fact-intensive, case-by-case approach here to conclude that the facts and circumstances of 

the particular case before them did not warrant moving forward with enforcement. (AR 108-21; 

FEC Mem. at 24-41.) Plaintiffs’ claim that any enforcement less than what they prefer 

constitutes abdication reflects a fundamental misconception of prosecutorial discretion. 

CREW v. FEC, 316 F. Supp. 3d 349 (D.D.C. 2018), is inapposite. That case involved a 

regulation of general applicability, which that court held violated the Administrative Procedure 

Act by impermissibly narrowing FECA’s unambiguous disclosure requirements. Id. at 423. The 

court then remanded a related enforcement matter, finding that the discrepancy between the 

challenged regulation and statutory disclosure obligations “had been acknowledged without 

remedial action by the FEC for years prior to dismissal” of the administrative complaint, and 

thus “rais[ed] the issue” of potential abdication due to the identified flaw in the FEC’s existing 

regulation. Id. at 422. No similar issue arises here. This single application of political 

committee standards to the facts of a particular respondent was not a flawed regulation or other 

law binding in future matters. (FEC Mem. at 20 n.7.) 

Plaintiffs’ remaining arguments are equally unavailing. In NAACP v. Trump, the court 

recognized that “an agency’s refusal to act on a single complaint” is unreviewable, even if “‘an 

agency’s statement of a general enforcement policy’ that was either ‘expressed . . . as a formal 

regulation after the full rulemaking process . . . or . . . otherwise articulated . . . in some form of 

universal policy statement’” may be subject to judicial review. 298 F. Supp. 3d 209, 229 

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 13 of 32
8 

(D.D.C. 2018) (quoting Crowley, 37 F.3d at 676). This Court should join others in rejecting 

plaintiffs’ effort to broaden the scope of this section 30109(a)(8) challenge to include other 

enforcement matters (Pls. Reply at 29 & Exh. 2) and information outside the administrative 

record, which in any event would not constitute an expressly adopted policy. CREW v. FEC, 

164 F. Supp. 3d 113, 118, 120 (D.D.C. 2015) (rejecting improper attempt to mount “‘an acrossthe-board challenge’” to the Commission’s treatment of previous matters). And their 

suggestion that Commissioners will use prosecutorial discretion to immunize dismissals 

improperly (Pls. Reply at 27) contravenes the presumption of regularity of government officials. 

E.g., United Steelworkers, AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1208 (D.C. Cir. 1980). 

II. IN THE ALTERNATIVE, THE DISMISSAL DECISION SHOULD BE 

SUSTAINED BECAUSE IT WAS NOT CONTRARY TO LAW 

A. Plaintiffs’ Arguments in Favor of De Novo Review Contravene Binding 

Precedent Requiring Chevron Deference Here 

Where judicial review is available, the parties agree that the standard for review of an 

FEC dismissal under FECA is whether the dismissal is “contrary to law,” (FEC Mem. at 19 

(quoting 52 U.S.C. § 30109(a)(8)(C)); Pls. Reply at 3 (same)), a standard that “is itself 

deferential.” Campaign Legal Ctr. v. FEC, 312 F. Supp. 3d 153, 160 (D.D.C. 2018). As the 

Supreme Court has explained, “Congress wisely provided that the Commission’s dismissal of a 

complaint should be reversed only if ‘contrary to law’” because “the Commission is precisely the 

type of agency to which deference should presumptively be afforded.” FEC v. Democratic 

Senatorial Campaign Comm., 454 U.S. 27, 45 (1981) (“DSCC”). 

Plaintiffs nevertheless request that the Court disregard the longstanding, controlling 

authority requiring deferential review (FEC Mem. at 19-20) in favor of “de novo” review, 

arguing that: (1) split-vote dismissals do not get deference; and (2) the Commissioners were 

interpreting judicial precedent. (Pls. Reply at 4-9.) Both arguments are unavailing. 

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 14 of 32
9 

1. Chevron Deference Is Required By the Sealed Case Precedent 

This Court remains bound by In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2001), which 

held that a controlling statement of reasons deserves Chevron deference, even if not joined by 

four or more Commissioners. See United States v. Torres, 115 F.3d 1033, 1036 (D.C. Cir. 1997) 

(explaining the obligation of district judges to follow controlling circuit precedent). 

Contrary to plaintiffs’ argument, Sealed Case is consistent with United States v. Mead, 

533 U.S. 218 (2011). The Mead Court considered whether the 10,000-15,000 tariff classification 

rulings issued by 46 different Customs offices per year — that were not the product of a formal 

administrative procedure — were nonetheless owed Chevron deference. 533 U.S. at 231. 

Following Christensen v. Harris County, 529 U.S. 576 (2000), Mead held that these cursory 

Customs classification rulings were “beyond the Chevron pale” because they were “best treated 

like ‘interpretations contained in policy statements, agency manuals, and enforcement 

guidelines.’” 533 U.S. at 234 (quoting Christensen, 529 U.S. at 587). 

 In Sealed Case, the D.C. Circuit likewise expressly considered whether controlling 

statements by declining-to-go-ahead FEC Commissioners were like the “‘interpretations’” 

discussed in Christensen, “‘all of which lack the force of law.’” Sealed Case, 223 F.3d at 780 

(quoting Christensen, 529 U.S. at 587). The court determined that they were not like such 

interpretations. Rather, controlling statements are issued pursuant to “a detailed statutory 

framework for civil enforcement . . . analogous to a formal adjudication, which itself falls on the 

Chevron side of the line.” 223 F.3d at 780.3

 Given that framework and the FEC’s unique 

 

3

 As the Court of Appeals explained, “[t]he General Counsel advocates and the respondent 

opposes a finding of [reason-to-believe]”; “through this statutorily mandated adversarial process 

the agency gives ambiguous statutory terms concrete meaning through a process of case-by-case 

adjudication”; and “the no-action decision [t]here was made by the Commission itself, not the 

staff, and precludes further enforcement.” Sealed Case, 223 F.3d at 780.

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 15 of 32
10 

structure, the court concluded that controlling statements by declining-to-go-ahead 

Commissioners thus warrant Chevron deference. Id.; see also FEC v. Nat’l Republican 

Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992) (“NRSC”). That conclusion accords 

with Mead, which reiterated that “[i]t is fair to assume generally that Congress contemplates 

administrative action with the effect of law when it provides for a relatively formal 

administrative procedure tending to foster the fairness and deliberation that should underlie a 

pronouncement of such force.” 533 U.S. at 230; accord City of Arlington, Tex. v. F.C.C., 569 

U.S. 290, 306 (2013) (“What the [plaintiffs] need[], and [have] fail[ed] to produce, is a single 

case in which a general conferral of rulemaking or adjudicative authority has been held 

insufficient to support Chevron deference for an exercise of that authority within the agency’s 

substantive field.”).4

 Therefore, Sealed Case remains good law and the controlling Commissioners’ statement 

of reasons warrants Chevron deference. FEC v. Nat’l Rifle Ass’n of Am., 254 F.3d 173, 185 

(D.C. Cir. 2001) (“NRA”) (relying on Sealed Case post-Mead)

5

; CREW v. FEC, 209 F. Supp. 3d 

77, 85 n.5 (D.D.C. 2016) (“CREW II”) (rejecting plaintiffs’ identical argument in that case and 

 

4

 The only other binding Supreme Court case plaintiffs cite, Gonzales v. Oregon, 546 U.S. 

243 (2006), involved statutory interpretation beyond the administrative body’s designated 

authority, id. at 260, unlike here where the FEC has broad authority to interpret FECA. 

5

 Plaintiffs falsely accuse the FEC of misrepresentations in its NRA D.C. Circuit brief by 

“referring to [the] decision at issue in In re Sealed Case as the ‘agency’s interpretation.’” (Pls. 

Reply at 9 n.6.) But, “for purposes of judicial review, the statement or statements of . . . the socalled ‘controlling Commissioners’ [are] treated as if they were expressing the Commission’s

rationale for dismissal.” CREW, 892 F.3d at 437 (emphasis added); see also NRSC, 966 F.2d at 

1476 (“Since those Commissioners constitute a controlling group for purposes of the decision, 

their rationale necessarily states the agency’s reasons for acting as it did.” (emphasis added)).

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 16 of 32
11 

following controlling precedent); cf. Mead, 533 U.S. at 232 (explaining that “precedential value 

alone does not add up to Chevron entitlement”).6 

2. The Court Must Accord Deference to the Controlling Interpretation 

of FECA and Implementation of the Major Purpose Test Here 

As the Commission explained in its opening brief, when the controlling Commissioners 

interpreted FECA’s statutory threshold for political committees in 52 U.S.C. § 30101(4)(A), they 

did just that — interpret the statute. (FEC Mem. at 24-32.) Plaintiffs counter by contending that 

the controlling Commissioners did not actually interpret FECA. (Pls. Reply at 4-6.) Plaintiffs’ 

own brief undermines this claim, however, by devoting six pages to their criticism of the 

controlling Commissioners’ interpretation in light of FECA’s “plain text.” (Pls. Reply at 10-16 

(arguing against the “two controlling [C]ommissioners’ impermissible interpretations”); see also

FEC Mem. at 24-32 (discussing controlling Commissioners’ interpretation of FECA’s statutory 

threshold for political committees).) Contrary to plaintiffs’ claim (Pls. Reply at 4), the 

controlling Commissioners’ discussion of Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), as 

part of their overall statutory analysis (AR 108-10) does not reduce or eliminate the requirement 

of applying Chevron deference to their interpretation of section 30101(4)(A). 

Moreover, the Commissioners’ determination of whether New Models had the requisite 

major purpose did not “turn[] directly and almost exclusively on judicial precedent.” CREW II, 

209 F. Supp. at 86. On the contrary, as the CREW II court explained, plaintiffs’ challenge to “the 

 

6

 Nor is Sealed Case rendered inapplicable here because the instant dismissal resulted from 

a 2-2 split vote, rather than the 3-3 split vote there. Regardless of the number of Commissioners 

voting against pursuing a matter, under the FEC’s unique structure, the agency can dismiss an 

administrative complaint if there are not four affirmative votes to proceed. 52 U.S.C. 

§ 30109(a)(2), (a)(4)(A)(i), (a)(6)(A). Thus, in either case, the statement of the controlling 

Commissioners explains why the complaint was dismissed. And, in either case, that dismissal 

decision was made during the course of a relatively formal adjudication. 

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 17 of 32
12 

FEC’s choice of relevant timespan for assessing an organization’s spending activity” does “not 

primarily challenge the FEC’s interpretation of Supreme Court doctrine.” Id. at 87. “Rather,” 

such “attacks on the FEC’s choice of relevant timespan for assessing an organization’s spending 

activity . . . are less about what Buckley (and subsequent precedent) means and more about how

Buckley (and the test it created) should be implemented.” Id. “Such implementation choices, 

which call on the FEC’s special regulatory expertise, were the types of judgments that Congress 

committed to the sound discretion of the agency.” Id. The controlling timeframe analysis in this 

case warrants deference.7 

The vacated decision in Akins v. FEC does not support plaintiffs’ position either, as that 

opinion addressed whether the major purpose test even applied. 101 F.3d 731, 740-41 (D.C. Cir. 

1996) (en banc), vacated on other grounds, 524 U.S. 11 (1998); CREW II, 209 F. Supp. 3d at 86 

(noting that Akins “rejected the FEC’s ‘plea for deference’ on the question of whether the 

Supreme Court had imposed the major purpose test in the first place”); id. at 86 n.6 (“[T]he 

Court does not read Akins broadly to prescribe de novo review for all FEC actions implicating 

the major purpose test.”). Here, the parties agree that, contrary to the principal holding of the 

Akins opinion and in accordance with legal developments over two decades since that decision, 

only organizations that have met the statutory threshold and that also have as their major purpose 

campaign related activity must register and report as political committees. (Pls. Mem. at 4; FEC 

Mem. at 5-6.) In the controlling Commissioners’ major purpose analysis, they assumed New 

 

7

 Plaintiffs’ attempt to distinguish Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016), on 

the basis that the regulation at issue there did not implement FEC v. Wisconsin Right to Life, 

Inc., 551 U.S. 449 (2007) (“WRTL”), is unavailing. (Compare Pls. Reply at 5, with FEC Mem. at 

22-23.) As the Van Hollen court stated, “[t]he FEC published a Notice of Proposed Rulemaking 

. . . and requested comments on proposed rules that ‘would implement the Supreme Court’s 

decision in [WRTL].’” 811 F.3d at 491 (quoting Electioneering Commc’ns, 72 Fed. Reg. 50261, 

50262 (proposed Aug. 31, 2007) (emphasis added))). 

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 18 of 32
13 

Models had crossed the statutory threshold and then, as plaintiffs agree is appropriate, applied 

the major purpose test to New Models. (AR 110 & n.95; AR 110-21.) Thus, the dispute here is 

not whether Buckley’s major purpose test applies at all, but rather whether the controlling 

Commissioners used the appropriate timeframe when applying that test to New Models. As 

such, the controlling Commissioners’ statement receives deference for this application of the 

“FEC’s special regulatory expertise.” CREW II, 209 F. Supp. 3d at 87. 

3. Plaintiffs Cannot Rely on Material Not In the Administrative Record 

Plaintiffs do not seriously dispute the black-letter law that courts should not consider 

materials that were not considered by the Commission. CTS Corp. v. E.P.A., 759 F.3d 52, 64 

(D.C. Cir. 2014); FEC Mem. at 23-24. And they have failed to demonstrate that an exception to 

this black-letter rule applies. United Student Aid Funds, Inc. v. Devos, 237 F. Supp. 3d 1, 3-4 

(D.D.C. 2017) (noting that currently exceptions are “‘primarily limited to cases where the 

procedural validity of the agency’s action remains in serious question, or the agency 

affirmatively excluded relevant evidence’” (quoting CTS Corp., 759 F.3d at 64)). The FEC 

agreed not to contest plaintiffs’ citation in court of a narrow set of distinguishable materials. 

(Compare Pls. Reply at 9, with FEC Reply, Exh. 3 (email correspondence memorializing the 

parties’ agreement).) The extra-record materials the Commission objected to (FEC Mem. at 23-

24) were not included, and the Court should reject plaintiffs’ request that it rely on the 

challenged materials. 

B. The Controlling Commissioners’ Interpretation of FECA’s Statutory 

Threshold for Political Committees Was Not Contrary to Law 

The FEC’s opening brief explained why the controlling Commissioners’ analysis of the 

statutory threshold respecting contributions or expenditures for political committee status was 

not contrary to law. (FEC Mem. at 24-32.) Plaintiffs’ reiterated argument that FECA’s 

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 19 of 32
14 

definition of “expenditure” is unambiguous by virtue of the “commands” of FECA’s “plain text” 

(Pls. Reply at 10) is foreclosed by Supreme Court precedent. In Buckley, the Supreme Court 

explained that it was the “ambiguity of this phrase” “‘for the purpose of . . . influencing’” in the 

definitions of “contribution” and “expenditure” that “pose[d] constitutional problems.” 424 U.S. 

at 77. And this is the same definitional provision applicable to the word “expenditure” used in 

FECA’s definition of political committee. The Supreme Court’s narrowing of the term political 

committee was in accordance with the doctrine of constitutional avoidance, a context in which 

“‘competing plausible interpretations of a provision’” are inherently present. McFadden v. 

United States, 135 S. Ct. 2298, 2307 (2015) (quoting Warger v. Shauers, 135 S. Ct. 521, 529 

(2014) (holding that this canon “has no application in the absence of . . . ambiguity”) (quoting 

United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 494 (2001))); Pa. Dep’t of 

Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (holding that this canon “enters in only ‘where a 

statute is susceptible of two constructions’” (quoting United States ex rel. Atty. Gen. v. Del. & 

Hudson Co., 213 U.S. 366, 408 (1909))).8

 

 

8

 Contrary to plaintiffs’ reliance (Pls. Reply at 12) on the concurring opinion in AFL-CIO 

v. FEC, 333 F.3d 168, 183 (D.C. Cir. 2003) (Henderson, J., concurring in judgment) (citing 

Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568 

(1988)), the majority in AFL-CIO held that “DeBartolo’s mandate that ‘every reasonable 

construction must be resorted to, in order to save a statute from unconstitutionality,’ suggests 

merely that an agency acts unreasonably if, instead of choosing among constitutionally 

permissible alternatives, it interprets ambiguous statutory language as indicating that Congress 

intended to authorize infringements on constitutional rights.” 333 F.3d at 179 (quoting 

DeBartolo, 485 U.S. at 575) (internal citation omitted); see also DeBartolo, 485 U.S. at 577. 

The majority thus concluded that “the constitutional issues raised by the Commission’s 

disclosure policy are properly addressed at Chevron step two.” AFL-CIO, 333 F.3d at 179. And 

in the vacated opinion in Akins (see Pls. Reply at 11-12), it was “undisputed that the statutory 

language is not in issue, but only the limitation — or really the extent of the limitation — put on 

this language by the Supreme Court decisions,” i.e., Buckley’s major purpose test. 101 F.3d at 

740. But as to the question concerning the political committee threshold, only the statutory 

language is at issue. 

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 20 of 32
15 

 Importantly, plaintiffs’ gloss on Buckley’s discussion of expenditures in the context of the 

expenditure disclosure requirements for candidates and political committees fails to demonstrate 

that the controlling analysis was contrary to law. (Pls. Reply at 11 (arguing that Buckley decided 

that “[t]he type of ‘expenditure’ that would qualify a group [as a ‘political committee’] was not 

limited to express advocacy”).) In the cited portion of Buckley, however, the Court discussed the 

information that political committees needed to disclose — not the meaning of “expenditure” for 

purposes of determining whether a group is a political committee in the first instance. Indeed, 

the Court’s upholding of general disclosure requirements for “[e]xpenditures of candidates and 

of ‘political committees’ so construed” — i.e., groups satisfying the major purpose test, Buckley, 

424 U.S. at 79 — distinguishes that context from the one here, which is the determination of 

whether the group is, in fact, a political committee, accord McConnell v. FEC, 540 U.S. 93, 170 

n.64 (2003) (describing Buckley as “noting that a general requirement that political committees 

disclose their expenditures raised no vagueness problems because [under its narrowed definition] 

a political committee’s expenditures ‘are, by definition, campaign related’” (quoting 424 U.S. at 

79) (emphases added)).9

 For non-political-committee groups, by contrast, the Court could not 

assume that the expenditures required to be disclosed would be similarly campaign related. 424 

U.S. at 79-80. It thus limited the disclosure requirements for “expenditures” by non-political 

committee groups to “expenditures for communications that expressly advocate the election or 

defeat of a clearly identified candidate.” Id. at 80; see also FEC Mem. at 25-27. 

 

9

 Moreover, even if Buckley did not find limiting “expenditures” to independent 

expenditures for purposes of the monetary threshold for political committees to be compelled as 

a matter of constitutional vagueness, the agency still may interpret the ambiguous term 

“expenditures” using other interpretational doctrines. See Nat’l Cable & Telecomm. Ass’n v. 

Brand X Internet Servs., 545 U.S. 967, 982 (2005) (“Only a judicial precedent holding that the 

statute unambiguously forecloses the agency’s interpretation, and therefore contains no gap for 

the agency to fill, displaces a conflicting agency construction.”). 

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 21 of 32
16 

Nor is Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007), an authority contravened by the 

controlling analysis. Initially, the portion of the opinion plaintiffs rely upon is dicta. Compare

Pls. Reply at 11, with Shays, 511 F. Supp. 2d at 27 (“[T]he decision of whether to codify detailed 

standards for the ‘major purpose’ test in a general rule — the subject of this suit — is separate 

and apart from the question of the proper interpretation of ‘expenditure.’”). Shays also pre-dates 

Citizens United v. FEC, 558 U.S. 310 (2010), and SpeechNow.org v. FEC, 599 F.3d 686 (D.C. 

Cir. 2010) (en banc), which led to the instant context of super PACs and certain non-person 

contributors such as New Models. (AR 110 n. 92 (noting that “New Model[s]’s contributions to 

these political committees are only permissible because” of Citizens United and 

SpeechNow.org).) As the D.C. Circuit has recognized, “[c]onstitutional decisions of this 

magnitude unquestionably justify an agency in updating its existing [regulatory approach] to 

appropriately compensate for changed circumstances.” Van Hollen, 811 F.3d at 496.10 In 

addition, the controlling Commissioners’ interpretation of “expenditure” in the statutory 

definition of “political committee” was not solely based on Buckley, as in Shays, so greater 

deference is warranted here. Compare AR 109-10; FEC Mem. at 24-32, with Shays, 511 F. 

Supp. 2d at 26-27. And the Shays court did not address Buckley’s discussion of how the 

monetary threshold for expenditures would work under its major purpose limitation. Buckley, 

424 U.S. at 79 n.107; FEC Mem. at 27-28. In this respect, rather than being necessarily contrary 

 

10 Plaintiffs’ reliance upon advisory opinions issued prior to Citizens United and 

SpeechNow.org (Pls. Reply at 14-15) is similarly misplaced. FEC Mem. at 29-30; F.C.C. v. Fox 

Television Stations, Inc., 556 U.S. 502, 515 (2009) (“[An agency] need not demonstrate to a 

court’s satisfaction that the reasons for the new policy are better than the reasons for the old one; 

it suffices that the new policy is permissible . . . , that there are good reasons for it, and that the 

agency believes it to be better, which the conscious change of course adequately indicates.”). 

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 22 of 32
17 

to law, the controlling Commissioners reasonably viewed their approach as being more 

consistent with Buckley. (FEC Mem. at 27 (discussing Buckley, 424 U.S. at 79 n.107).) 

More broadly, construing “contributions” to a super PAC not to constitute “expenditures” 

for purposes of the statutory monetary threshold for “political committees” is not contrary to law, 

regardless of whether the specific expenditures at issue are express advocacy. As the controlling 

Commissioners found, FECA “defines the term ‘contribution’ and never includes that term in a 

definition or modification of the term ‘expenditure.’” (AR 110.) In relevant part, the statutory 

definitions of “contribution” and “expenditure” are nearly identical. Compare 52 U.S.C. 

§ 30101(8)(A) (“any gift, . . . loan, advance, or deposit of money or anything of value made by 

any person for the purpose of influencing any election for Federal office”), with id.

§ 30101(9)(A) (“any . . . loan, advance, deposit, or gift of money or anything of value made by 

any person for the purpose of influencing any election for Federal office”). Yet, as the 

Commissioners found, “the Act differentiates between ‘contributions’ and ‘expenditures’ 

throughout its provisions.” (AR 110.) As but one example among many, they cited 52 U.S.C. 

§ 30118, which prohibits “contributions or expenditures” by national banks, corporations, and 

labor unions. (AR 110 n.94 (quoting 52 U.S.C. § 30118).) As the Supreme Court has 

recognized, “[‘or’] is almost always disjunctive, that is, the words it connects are to be given 

separate meanings.” United States v. Woods, 571 U.S. 31, 45 (2013) (internal quotation marks 

omitted); see also Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1141 (2018) (same). 

Thus, both for section 30118 and FECA’s political committee definition in section 30101(4)(A), 

the use of “or” defines the extent of the prohibited conduct and the manner in which an 

organization may qualify as a political committee. The controlling Commissioners’ 

interpretation that a “contribution” by an entity cannot also be an “expenditure” accords with the 

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 23 of 32
18 

well-established case law recognizing not only that the terms are different, but also that the 

difference between them is constitutionally significant. (FEC Mem. at 28.) 

In the context of coordinated expenditures, the FEC previously explained that “a payment 

that would, at first blush, appear to be an ‘expenditure’ by the person paying for the coordinated 

expenditure is in fact ‘treated as a contribution’ by the payor under the Act, not as an 

expenditure”; “[i]nstead, the payment is treated as an expenditure by the candidate.” (FEC Mem. 

at 28 (quoting 52 U.S.C. § 30116(a)(7)(C)(ii); 11 C.F.R. § 109.20(b)).)11 Plaintiffs’ response 

misses the mark. Whether a single transaction could be an expenditure as to one entity and a 

contribution to a different entity for reporting purposes (Pls. Reply at 13) is irrelevant. Plaintiffs 

have already conceded that New Models made “contributions.” (E.g., Pls. Mem. at 29-30). The 

question is whether a single transaction can be both an expenditure and a contribution by the 

same entity under FECA. The provisions governing coordinated expenditures support the 

controlling Commissioners’ conclusion that it should not. 

Accordingly, plaintiffs have failed to meet their burden of showing that the controlling 

interpretation of the ambiguous term “expenditure,” as incorporated into “political committee,” 

to not also include “contributions,” is contrary to law. Plaintiffs’ remaining arguments are policy 

arguments (Pls. Reply at 15-16), but Congress has given the FEC the authority to “‘formulate 

general policy with respect to the administration of [the] Act.’” DSCC, 454 U.S. at 37 (quoting 

now-52 U.S.C. § 30107(a)(9)). Though plaintiffs may have weighed competing concerns 

differently, “federal judges . . . have a duty to respect legitimate policy choices made by” the 

 

11 11 C.F.R. § 102.6(a)(2) is not inconsistent with this approach. For example, unless it 

qualifies as a collecting agent under § 102.6(b), if an affiliated committee receives contributions 

that it then transfers to the committee with which it is affiliated under § 102.6(a)(1)(i), the 

affiliated committee will be deemed to have “receive[d] contributions” for purposes of political 

committee status under § 100.5(a) and 52 U.S.C. § 30101(4). Accord 11 C.F.R. § 110.3(a)(1). 

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 24 of 32
19 

agency. Chevron, 467 U.S. at 866; see also DSCC, 454 U.S. at 39 (holding that the decision 

need not be “the only reasonable one or even the” decision “the [C]ourt would have reached” on 

its own in a judicial proceeding).

C. The Controlling Commissioners’ Application of the Commission’s JudiciallyApproved, Case-by-Case Approach When Determining New Models’s Major 

Purpose Was Not Contrary to Law 

Plaintiffs have failed to rebut the FEC’s showing that the controlling analysis of New 

Models’s major purpose was not contrary to law. (FEC Mem. at 32-41.) Initially, it is incorrect 

to argue that similarities between the statement of reasons at issue in CREW II and the one under 

review here (especially with respect to background discussion of the evolution of the major 

purpose test) renders the most relevant portion of the controlling Commissioners’ analysis, 

covering twelve single-spaced pages, of specific findings and conclusions as to New Models, an 

analysis that “has already been held to be contrary to law.” (Compare Pls. Reply at 17 (citing 

AR 97-108), with AR 110-21.) It has not. To the contrary, as the FEC has shown, the 

controlling group specifically addressed the CREW II court’s concern about a “lifetime-only

rule” and reasonably applied the FEC’s judicially-upheld, case-by-case approach for determining 

a group’s major purpose to New Models’s unique circumstances. (FEC Mem. at 32-41.) 

1. The Controlling Commissioners Reasonably Considered All of the 

Commission’s Major Purpose Analysis Factors 

Plaintiffs have not demonstrated that the controlling Commissioners’ application of the 

FEC’s judicially-upheld, multi-factored approach was contrary to law. Under this approach, the 

Commission conducts a fact-intensive inquiry and weighs a number of factors as appropriate to 

the circumstances of the particular case before it, including a group’s organizational focus, 

public statements, and the proportion of its spending on federal campaign activity versus that 

unrelated to campaigns. Rules & Regulations: Political Comm. Status, 72 Fed. Reg. 5595 (Feb. 

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 25 of 32
20 

7, 2007); Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544, 556 (4th Cir. 2012); Shays, 511 

F. Supp. 2d at 30. That is precisely what the controlling Commissioners did here. (AR 108-21 

(considering and weighing New Models’s organizational statements and public statements, as 

well as its spending).) 

First, they found that “New Models’s organizational documents weigh against finding 

reason to believe that its major purpose was the nomination or election of federal candidates.” 

(AR 112.) They reasoned that, “[a]lthough an organization’s tax status is not dispositive of the 

question, it is certainly a relevant consideration.” (AR 111.) New Models was a tax-exempt 

501(c)(4) social welfare organization (AR 94), which “may carry on lawful political activities 

and remain exempt . . . as long as it is primarily engaged in activities that promote social 

welfare.” (AR 112 n.99 (quoting Rev. Rul. 81-95, 1981-1 C.B. 332).) And the administrative 

complaint did “not allege that New Models’s organizational documents reveal its purpose to be 

the nomination or election of federal candidates.” (AR 112.) Plaintiffs thus do not, and cannot, 

demonstrate that the controlling analysis of New Models’s organizational statements was 

arbitrary or capricious. 

Second, the controlling Commissioners found that “New Models’s public statements 

weigh against finding reason to believe New Models was a political committee” — and “place[d] 

much weight on this factor in [thei]r analysis.” (AR 114.) They conducted an analysis of New 

Models’s website and the documents accessible thereon, which they found “indicate[d] that New 

Models’s major purpose was to conduct and sponsor research on public policy.” (Id.) They 

considered the sworn declaration from New Models’s President and Chief Operating Officer, 

attesting that New Models “never made an independent expenditure, nor publicly advocated the 

election or defeat of a federal candidate.” (AR 113 (footnote omitted).) They searched 

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 26 of 32
21 

Commission archives for independent expenditure reports filed by New Models and examined 

New Models’s statements on its website. (AR 114.) The Commissioners also noted that “[t]he 

Complaint does not identify a single statement in over 15 years where a representative of New 

Models indicated the major purpose of the organization was to nominate or elect federal 

candidates.” (AR 113-14 (emphasis added).) Plaintiffs thus similarly fail to demonstrate that the 

controlling analysis of New Models’s public statements was arbitrary or capricious. 

Plaintiffs thus largely ignore that the FEC’s judicially-approved major purpose analysis is 

multi-factored. In focusing exclusively on New Models’s relative spending (AR 114-21), 

discussed infra, plaintiffs have conceded that the controlling Commissioners’ conclusion as to 

two of the three factors — including New Models’s public statements, to which they gave 

particularly heavy weight — weigh in favor of concluding that New Models did not have the 

requisite major purpose. Shands Jacksonville Med. Ctr. v. Burwell, 139 F. Supp. 3d 240, 260-61 

& n.7 (D.D.C. 2015) (holding that argument not raised in plaintiffs’ opening brief was waived). 

2. The Controlling Commissioners Did Not Apply a Lifetime-Only Test 

When They Considered New Models’s Relative Spending 

As explained in the FEC’s opening brief (FEC Mem. at 32-41), the controlling 

Commissioners did not apply the “lifetime-only rule” that the CREW II found contrary to law, 

209 F. Supp. 3d at 94 (emphasis added). (See also, e.g., AR 121 (“For all of these reasons, the 

Commission’s analysis of an organization’s major purpose has avoided setting a definitive time 

frame for judging each organization’s activities.”).) As many of the excerpts cited in plaintiffs’ 

brief demonstrate (Pls. Reply at 19-20), the Commissioners declined to adopt a categorical, rigid 

calendar-year only approach — a decision the CREW II found to be within the Commission’s 

discretion, 209 F. Supp. 3d at 94. The CREW II court’s concern was that the analysis in that case 

had “gone further than merely eschewing the calendar-year approach as a ‘rigid, one-size-fits-all 

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 27 of 32
22 

rule’ at odds with the FEC’s chosen case-by-case method.” Id. (emphasis added). There, “the 

Commissioners considered spending only over the ‘lifetime’ of the organization in question,” 

i.e., “a different — but equally inflexible — metric.” Id. (emphasis added). 

Here, however, while the controlling Commissioners considered the percentage of New 

Models’s lifetime spending on election-related expenditures, this number was not dispositive. 

(E.g., AR 117 & n.123; AR 120-21; FEC Mem. at 34-36.) They instead considered New 

Models’s relative spending in 2012, but ultimately concluded that it was an outlier rather than 

showed a change in the organization’s major purpose — a factual finding supported by the 

record. (E.g., FEC Mem. at 35-36.) Indeed, plaintiffs highlight one such fact in their reply: “the 

controlling [C]ommissioners’ recognition that New Models spent $1.5 million in 2012 on nonelection activities.” (Pls. Reply at 20 (citing AR 94-96).) Demonstrating that New Models still 

devoted a large amount of its budget to non-election activities supports the controlling 

Commissioners’ conclusion that, while “nominating or defeating a federal candidate may have 

been a purpose of the organization in 2012” (AR 117), the group continued pursuing issue 

advocacy, which remained its major purpose. Unlike the rigid “lifetime-only rule” at issue in 

CREW II, the controlling Commissioners’ spending analysis based on this and numerous other 

facts in the record thus was consistent “with the FEC’s stated fact-intensive approach to the 

‘major purpose’ inquiry.’” 209 F. Supp. 3d at 94. 

Contrary to plaintiffs’ suggestion, the CREW II court did not find that “pre-2010 activity 

was irrelevant to a lawful major purpose analysis.” (Pls. Reply at 17-18.) Rather, it explained 

that “[l]ooking only at relative spending over an organization’s lifetime runs the risk of ignoring 

. . . that an organization’s major purpose can change.” CREW II, 209 F. Supp. 3d at 94. A 

fortiorari the Commission cannot consider whether a group’s major purpose has changed unless 

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it can compare different years. Compare id. (finding that a “lifetime-only rule” “tends to ignore 

crucial facts indicating whether an organization’s major purpose has changed”), with Pls. Reply 

at 17-18. The court found a lifetime-only rule contrary to law — “at least as applied to [the 

organization there]” — because the factual record indicated that the group’s major purpose had, 

in fact, changed. CREW II, 209 F. Supp. 3d at 94 (finding that the group “spent no money on 

election-related spending until 2008, but then shifted its expenditures towards electioneering 

communications and express advocacy over the following several years”). 

The controlling Commissioners also did not purport to be announcing an “outlier test” or 

“mak[ing] the lack of a signed confession determinative.” (Pls. Reply at 20 & n.12, 21.) To the 

contrary, they repeatedly emphasized the case-by-case nature of their major purpose analysis and 

their refusal to adopt rigid, bright-line rules. (AR 91-92; AR 105-08; AR 111; AR 114-15; AR 

118-19; AR 121.) Under the facts here, for example, the controlling Commissioners “place[d] 

much weight” on the fact that there was not “a single statement in over 15 years where a 

representative of New Models indicated the major purpose of the organization was to nominate 

or elect federal candidates.” (AR 113-14.) While spending on express advocacy and 

electioneering communications might have also so indicated, the controlling Commissioners 

found it “[s]ignificant[]” that “New Models has never made any independent expenditures nor . . 

. funded any electioneering communications.” (AR 97; see also AR 113; AR 117.) 

Nor was it improper for the controlling Commissioners to consider the sworn declaration 

submitted on behalf of New Models, particularly as they did not blindly accept the statements 

therein, but also examined, inter alia, New Models’s tax records, New Models’s website and 

reports, and Commission materials. (AR 94-97; AR 111-13.) Whether the plaintiffs would have 

given the declaration less weight is irrelevant. As the D.C. Circuit has held, “it is not a valid 

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 29 of 32
24 

objection that conflicts in the evidence might conceivably have been resolved differently, or 

other inferences drawn from the same record.” D.C. Transit Sys. Inc. v. Wash. Metro. Area 

Transit Comm’n, 466 F.2d 394, 414 (D.C. Cir. 1972) (internal quotation marks omitted). Rather, 

the FEC’s decision “requires affirmance if a rational basis . . . is shown.” Orloski, 795 F.2d at 

167 (internal quotation marks omitted). Here, the controlling Commissioners readily met that 

standard by weighing all the evidence before the FEC. 

Considering New Models’s post-2012 spending did not “lead to grave injustice.” (Pls. 

Reply at 18.) Indeed, in this case, FECA required the Commission to provide New Models with 

the opportunity to demonstrate why no action should be taken against it, 52 U.S.C. 

§ 30109(a)(1), and New Models specifically submitted evidence of its post-2012 spending as part 

of its asserted defense in this matter. (AR 57-58.) Considering post-2012 spending thus was not 

due to “solely on when the Commission got around to voting on a complaint” (Pls. Reply at 19), 

but rather part of the Commission’s obligation to consider the full record before it in accordance 

with the rights of respondents. See CREW II, 209 F. Supp. 3d at 93 (agreeing that generally the 

“Commissioners’ decision to use the entire record before it was neither unreasonable nor 

contrary to law, since [n]either FECA nor any judicial decision specifies a particular time period 

for determining a group’s major purpose” (internal quotation marks omitted)). 

3. Other Courts Have Already Rejected Imposing Bright-Line Rules for 

Determining an Organization’s Major Purpose and This Court 

Should Too 

In CREW II, the court refused to mandate a calendar-year only rule: “Given the FEC’s 

embrace of a totality-of-the-circumstances approach to divining an organization’s ‘major 

purpose,’ it is not per se unreasonable that the Commissioners would consider a particular 

organization’s full spending history as relevant to its analysis.” 209 F. Supp. 3d at 94. This 

Court should do the same. Cf. Free Speech v. FEC, 720 F.3d 788, 797-98 (10th Cir. 2013) 

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(upholding the Commission’s discretion to determine an organization’s major purpose based on a 

flexible, case-by-case analysis rather than through categorical rules); Real Truth About Abortion, 

Inc., 681 F.3d at 556 (same); Shays, 511 F. Supp. 2d at 31 (same). 

Buckley’s major purpose test narrowed FECA’s definition of a “political committee” after 

it was enacted, so Congress could not have had the intent to limit the Commission’s analysis of a 

group’s major purpose to a calendar year, Center for Individual Freedom v. Van Hollen, 694 

F.3d 108, 111 (D.C. Cir. 2012) (per curiam), and plaintiffs admit that Buckley does not dictate an 

appropriate timeframe (Pls. Reply at 22). 

Plaintiffs’ remaining policy arguments assert why they believe a calendar-year only rule 

is preferable to the Commission’s more flexible, judicially-upheld case-by-case approach. (E.g., 

Pls. Reply at 24 (arguing for “a clear standard”).) But “[t]he responsibilities for assessing the 

wisdom of such policy choices and resolving the struggle between competing views of the public 

interest are not judicial ones,” but belong to the agency. Chevron, 467 U.S. at 866. And as Van 

Hollen demonstrates, the controlling Commissioners’ application of their discretion in a manner 

sensitive to constitutional concerns is permissible. 811 F.3d at 499 (deferring to the FEC and 

approving of the “tailoring” of its approach “to satisfy constitutional interests”). 

CONCLUSION 

For the foregoing reasons, and those stated in the FEC’s opening brief, the Court should 

deny plaintiffs’ motion for summary judgment and award summary judgment to the FEC. 

 

 

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Respectfully submitted, 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

/s/ Haven G. Ward 

Haven G. Ward (D.C. Bar No. 976090) 

Attorney 

hward@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Charles Kitcher (D.C. Bar No. 986226) 

Acting Assistant General Counsel 

ckitcher@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, D.C. 20463 

(202) 694-1650 

November 16, 2018 

Case 1:18-cv-00076-RC Document 20 Filed 11/16/18 Page 32 of 32