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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON ) 

1331 F Street, N.W. Suite 900 ) 

Washington, D.C. 20004, ) 

 ) 

 Plaintiff, ) 

 ) Civil Action No. ___________ 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION ) 

1050 First Street, N.E. ) 

Washington, D.C. 20463, ) 

 ) 

 Defendant. ) 

 ) 

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 

1. This is an action for injunctive and declaratory relief under the Federal Election 

Campaign Act of 1971 (“FECA”), 52 U.S.C. § 30109(a)(8)(C), challenging as arbitrary, 

capricious, an abuse of discretion, and contrary to law the dismissal by the Federal Election 

Commission (“FEC” or “Commission”) of an administrative complaint by Citizens for 

Responsibility and Ethics in Washington (“CREW”) against the American Action Network 

(“AAN”) after repeated remands to the agency to correct legal errors identified by Judge 

Christopher Cooper, see CREW v. FEC, 299 F. Supp. 3d 83 (D.D.C. 2018) (“CREW II”); CREW 

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

2. This is the third time that CREW has had to sue the FEC over its unlawful 

treatment of CREW’s complaint against AAN, a group that spent and continues to spend 

millions of dollars to influence federal elections without any disclosure about the sources of its 

funds. The first two times, a United States District Court reversed the dismissal because the 

commissioners who blocked the investigation by voting against a reason-to-believe vote—the 

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first step in the FEC’s enforcement procedures—did so based on an analysis that “blink[ed] 

reality,” CREW I, 209 F. Supp. 3d at 93, and caused the court to question the commissioners’ 

sincerity, CREW II, 299 F. Supp. 3d at 98, respectively. Specifically, the commissioners treated 

the millions AAN spent on electioneering communications as cause to excuse AAN from 

political committee reporting, notwithstanding the fact its ads aired shortly before an election, 

targeted electorates, attacked candidates, and urged voters to express their displeasure “in 

November.” 

3. This third time, however, the FEC dismissed the complaint for very different 

reasons, after a single commissioner blocked a reason-to-believe vote by the then four-member 

Commission. That Commissioner has issued a new analysis disclaiming the previous analyses, 

and instead stating that electioneering communications count towards concluding a group is a 

political committee, that the proper analysis focuses on the group’s calendar year’s activities, and 

that, consequently, AAN unequivocally was and is a political committee. In addition, that 

controlling opinion disclaimed any lawful basis for dismissal, including prosecutorial discretion 

and the statute of limitations. Rather, the now-controlling opinion of the FEC is that the 

dismissal was “absolutely contrary to law.” 

4. This perhaps perplexing explanation for dismissal is the direct result of D.C. 

Circuit precedent providing that the commissioners who blocked the last reason-to-believe vote 

before the dismissal are the “controlling commissioners” who speak on behalf of “the 

Commission” with respect to the following dismissal. CREW v. FEC, 993 F.3d 880, 883 (D.C. 

Cir. 2021) (“New Models”). In this case, Commissioner Ellen L. Weintraub is now the 

controlling commissioner as she is the commissioner who single-handedly blocked the last 

reason-to-believe vote. 

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5. Here, there is no dispute. A dismissal without any lawful or rational basis is, 

without doubt, arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. There is 

no dispute that under existing law, organizations like AAN that devote more than half of their 

annual spending on express advocacy or electioneering communications or a combination of the 

two (or, for that matter, other federal campaign activity) are not excused from the reporting 

obligations imposed by the FECA on political committees. There is no dispute that the statute of 

limitations does not preclude enforcement against AAN. And there is no dispute that this case 

does not warrant prosecutorial discretion. Indisputably, the FEC’s dismissal of CREW’s 

complaint against AAN is, once again, contrary to law. 

JURISDICTION AND VENUE 

6. This Court has both subject matter jurisdiction over this action and personal 

jurisdiction over the parties pursuant to 52 U.S.C. § 30109(a)(8)(A). This Court also has 

jurisdiction over this action pursuant to 28 U.S.C. § 1331, and 28 U.S.C. §§ 2201(a) and 2202. 

Venue lies in this district under 52 U.S.C. § 30109(a)(8)(A) and 28 U.S.C. § 1391(e). 

PARTIES 

7. Plaintiff CREW is a non-profit, non-partisan corporation organized under section 

501(c)(3) of the Internal Revenue Code. 

8. CREW is committed to protecting the right of citizens to be informed about the 

activities of government officials, to ensuring the integrity of government officials, protecting 

our political system from corruption, and reducing the influence of money in politics. CREW is 

dedicated to empowering voters to have an influential voice in government decisions and in the 

governmental decision-making process. CREW uses a combination of research, litigation, and 

advocacy to advance its mission. 

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9. In furtherance of its mission, CREW seeks to expose unethical and illegal conduct 

of those involved in government. One way that CREW does this is by educating citizens 

regarding the integrity of the electoral process and our system of government. Toward this end, 

CREW monitors the campaign finance activities of those who run for federal and state office and 

those who support or oppose such candidates and publicizes those who violate federal campaign 

finance laws through its website, press releases, and other methods of distribution. CREW also 

files complaints with the FEC when it discovers violations of the FECA. Publicizing campaign 

finance violators and filing complaints with the FEC serve CREW’s mission of keeping the 

public informed about individuals and entities that violate campaign finance laws and deterring 

future violations of campaign finance law. 

10. In order to assess whether an individual, candidate, political committee, or other 

regulated entity is complying with federal campaign finance law, CREW needs the information 

contained in receipts and disbursements reports that political committees and others must file 

pursuant to the FECA, 52 U.S.C. § 30104; 11 C.F.R. §§ 104.1–22, 109.10. CREW is hindered in 

its programmatic activity when an individual, candidate, political committee, or other regulated 

entity fails to disclose or provides false information in reports required by the FECA. 

11. CREW relies on the FEC’s proper administration of the FECA’s reporting 

requirements because the FECA-mandated disclosure reports are the only source of information 

CREW can use to determine if an individual, candidate, political committee, or other regulated 

entity is complying with the FECA. The proper administration of the FECA’s reporting 

requirements includes mandating that all disclosure reports required by the FECA are properly 

and timely filed with the FEC. CREW is hindered in its programmatic activity when the FEC 

fails to properly administer the FECA’s reporting requirements. 

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12. CREW has standing here because CREW alleges “violations of the FECA that 

require accurate disclosure of contribution information and the filing of public reports by 

political committees.” Campaign Legal Center v. FEC, 952 F.3d 352, 356 (D.C. Cir. 2020) 

(citations omitted). CREW’s injury is not mooted by its prior citizen suit against AAN, as the 

court recently dismissed that case for lack of jurisdiction without awarding CREW a disclosure 

of information that would have remedied CREW’s injuries. 

13. Defendant FEC is the federal agency established by Congress to oversee the 

administration and civil enforcement of the FECA. See 52 U.S.C. §§ 30106, 30106(b)(1). 

STATUTORY AND REGULATORY FRAMEWORK 

Political Committees 

14. The FECA and the implementing FEC regulations impose on “political 

committees” registration, organization, and disclosure requirements. 

15. The FECA and implementing FEC regulations define a “political committee” as 

“any committee, club, association, or other group of persons which receives contributions 

aggregating in excess of $1,000 during a calendar year or which makes expenditures aggregating 

in excess of $1,000 during a calendar year.” 52 U.S.C. § 30101(4)(A); 11 C.F.R. § 100.5(a). 

16. An “expenditure” is “any purchase, payment, distribution, 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.” 52 U.S.C. § 30101(9)(A); 11 C.F.R. § 100.16. A “contribution” 

includes “any gift, ... or deposit of money or anything of value made by any person for the 

purpose of influencing any election for Federal office.” 52 U.S.C. § 30101(8)(A)(i); 11 C.F.R. 

§ 100.52(a). 

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17. Notwithstanding the statutory test, the Supreme Court has carved out from the 

reach of the FECA’s political committee provisions groups that, while they met the statutory 

definition, were neither under the control of a candidate nor had the requisite “major purpose” to 

nominate or elect of federal candidates. See Buckley v. Valeo, 424 U.S. 1, 79 (1976). 

18. Determination of a group’s “major purpose” requires a fact-intensive, case-by-case 

analysis of an organization. FEC, Political Committee Status, Supplemental Explanation and 

Justification, 72 Fed. Reg. 5595, 5601 (Feb. 7, 2007) (“Supplemental E&J”). An organization’s 

major purpose may be demonstrated by its activities, and a group that devotes a sufficiently 

extensive amount of its spending to campaign activity is not excused from the FECA’s political 

committee provisions. See FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 262 (1986). 

19. Neither the Court, nor the FECA or FEC regulations define the scope of qualifying 

campaign activity. The FECA and FEC regulations nonetheless regulate two forms of 

communications as election-related: express advocacy communications and electioneering 

communications. 52 U.S.C. §§ 30101(17), 30104(f); 11 C.F.R §§ 100.16, 100.29(a). An express 

advocacy communication is any communication that expressly asks the audience to “vote for” or 

“vote against” a candidate, or uses similar terms such that “[r]easonable minds could not differ as 

to whether it encourages actions to elect or defeat one or more clearly identified candidate(s) or 

encourages some other kind of action.” 11 C.F.R. § 100.22. An electioneering communication is 

any broadcast communication that “refers to a clearly identified candidate for Federal office,” is 

publicly distributed within “60 days before a general, special, or runoff election for the office 

sought by the candidate, or ... 30 days before a primary or preference election, or a convention 

or caucus of a political party that has authority to nominate a candidate, for the office sought by 

the candidate,” “is targeted to the relevant electorate,” and does not fall within one of the 

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statutory exceptions. 52 U.S.C. § 30104(f)(3)(A), (B); 11 C.F.R. § 100.29(a). The FECA 

imposes various disclosure burdens on anyone who spends a sufficient amount of money on 

either form of communication. 52 U.S.C. §§ 30104(c)(1), (f)(1); 11 C.F.R. §§ 104.20(b), 109.10. 

20. The FECA and FEC regulations require all political committees to register with 

the FEC within 10 days of becoming a political committee. 52 U.S.C. § 30103(a); 11 C.F.R. 

§ 102.1. Nonetheless, “the law does not require a committee to register as a [political committee] 

in order to be one.” Statement of Reasons of Chairman Allen Dickerson, MUR 7920 

(Oklahomans for T.R.U.M.P.),https://perma.cc/6Q2C-PDY8 . 

21. The FECA and implementing FEC regulations require political committees to file 

periodic reports with the FEC that, among other things: (1) identify all individuals contributing 

an aggregate of more than $200 in a year to the organization, and the amount each individual 

contributed; (2) identify all political committees making a contribution to the organization, and 

the amount each committee contributed; (3) detail all of the organization’s outstanding debts and 

obligations; and (4) list all of the organization’s expenditures, including its independent 

expenditures and electioneering communications. 52 U.S.C. § 30104(a)(4), (b), (f)(2); 11 C.F.R. 

§§ 104.3, 104.4, 104.20(b). A political committee’s obligations continue until either it or the 

FEC terminates its status as permitted by the FECA. 52 U.S.C. § 30103(d).

Enforcement 

22. The FECA divides civil enforcement between the FEC and private complainants. 

52 U.S.C. § 30107(e). Before seeking relief, a private complainant must exhaust their remedies 

before the FEC. CREW v. AAN, 410 F. Supp. 3d 1, 25 (D.D.C. 2019). To exhaust their claim, any 

person who believes there has been a violation of the FECA may file a sworn complaint with the 

FEC. 52 U.S.C. § 30109(a)(1). Based on the complaint, the response from the person alleged to 

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have violated the Act, and any recommendation of the FEC’s Office of General Counsel 

(“OGC”), the FEC then votes on whether there is “reason to believe” a violation of the FECA 

may have occurred. 52 U.S.C. § 30109(a)(2). If four commissioners vote to find there is “reason 

to believe” a violation of the FECA may have occurred, the FEC must notify the respondents of 

that finding and must “make an investigation of such alleged violation.” Id.

23. After the investigation, the OGC recommends whether the Commission should 

vote to find there is “probable cause” to believe the FECA has been violated. 52 U.S.C. 

§ 30109(a)(3). If four commissioners vote to find probable cause to believe a violation of the 

FECA has occurred, the FEC must attempt for at least 30 days, but not more than 90 days, to 

resolve the matter “by informal methods of conference, conciliation and persuasion.” 52 U.S.C. 

§ 30109(a)(4)(A)(i). 

24. If the FEC is unable to settle the matter through informal methods, it may institute 

a civil action for legal and equitable relief in the appropriate United States district court. 52 

U.S.C. § 30109(a)(6)(A). In any action instituted by the FEC, a district court may grant 

injunctive relief as well as impose monetary penalties. 52 U.S.C. § 30109(a)(6)(B)–(C). 

25. If at any stage of the proceedings the FEC dismisses a complaint, any “party 

aggrieved” may seek judicial review of that dismissal in the United States District Court for the 

District of Columbia. 52 U.S.C. § 30109(a)(8)(A). All petitions from the dismissal of a 

complaint by the FEC must be filed “within 60 days after the date of the dismissal.” 52 U.S.C. 

§ 30109(a)(8)(B). 

26. The district court reviewing the FEC’s dismissal of a complaint may declare the 

FEC’s actions “contrary to law.” 52 U.S.C. § 30109(a)(8)(C). Where a dismissal occurs after a 

failure of the Commission to secure four votes to find reason to believe a respondent violated the 

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law, the court looks to the reasoning provided by the “controlling commissioners” who most 

recently defeated the reason-to-believe vote and who speak for “the Commission” as to its 

reasons for dismissal. CREW v. FEC, 993 F.3d 880, 883 (D.C. Cir. 2021), pet. for review en 

banc filed, CREW v. FEC, No. 19-5161 (D.C. Cir. June 23, 2021). 

27. The court also may order the FEC “to conform with such declaration within 30 

days.” 52 U.S.C. § 30109(a)(8)(C). If the FEC fails to abide by the court’s order, the FECA 

provides the complainant with a private right of action, brought in the complainants’ own name, 

“to remedy the violation involved in the original complaint.” Id.

FACTUAL BACKGROUND 

American Action Network 

28. The Washington, D.C.-based American Action Network (“AAN”), formed in July 

2009, is a tax-exempt organization under section 501(c)(4) of the Internal Revenue Code. 

29. AAN describes its mission as creating, encouraging, and promoting center-right 

policies based on the principles of freedom, limited government, American exceptionalism, and 

strong national security, and states as its “primary goal” “to put our center-right ideas into action 

by engaging the hearts and minds of the American people and spurring them into active 

participation in our democracy.” 

30. Between July 23, 2009, and June 30, 2011, according to reports AAN filed with 

the FEC, AAN spent $4,096,910 on independent expenditures and $14,038,625 on electioneering 

communications, a total of $18,135,535. Broken down by AAN’s fiscal year, AAN reported 

spending $4,036,987 on independent expenditures and $14,038,625 on electioneering 

communications between July 1, 2010 and June 30, 2011, a total of $18,075,612. AAN further 

reported spending $59,922 on independent expenditures between July 23, 2009 and June 30, 

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2010. That money was spent largely producing and broadcasting television and Internet 

advertisements in 29 primary and general elections. 

31. AAN’s earliest independent expenditure was $29,000 the group spent on an ad 

supporting Tim Burns, a Republican candidate for a special election for a House seat in 

Pennsylvania, on May 6, 2010. Accordingly, AAN met the statutory qualification for political 

committee status—making over $1,000 in expenditures in one calendar year, 52 U.S.C. 

§ 30101(4)—no later than May 6, 2010. 

32. AAN also spent significant funds on at least twenty versions of electioneering 

communications in at least twenty different 2010 federal races. For example, starting on October 

22, 2010, just weeks before the election, AAN spent $725,000 broadcasting an advertisement 

against Rep. Ed Perlmutter (D-CO) that expressed disbelief that “convicted rapists can get 

Viagra paid for by the new health care bill.” Noting Rep. Perlmutter had voted for the Affordable 

Care Act, the advertisement encouraged viewers to “tell Congressman Perlmutter to vote for 

repeal in November” and to “[v]ote Yes on H.R. 4903.” The House went into recess at the end of 

September 2010, with no votes scheduled on H.R. 4903 or any other bill repealing the health 

care law during November 2010 or, indeed, the remainder of the 111th Congress. Accordingly, 

AAN’s reference to a vote “in November” could have referred only to the upcoming 

congressional election in which viewers of the advertisement could vote. 

33. All of the electioneering communications AAN broadcast in 2010 similarly were 

related to the election. The ads not only met the statutory definition of electioneering 

communications, but criticized or praised the identified candidate, discussed the identified 

candidate’s voting record, did not discuss a pending legislative matter, referred to the upcoming 

election, ran in the weeks before an election rather than at the beginning of the electioneering 

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communication window, and/or referred to non-incumbent candidates. Accordingly, all AAN’s 

electioneering communications exhibit the purpose of nominating or electing federal candidates. 

34. The proper time period for comparing AAN’s political activity to its overall 

spending is the 2010 calendar year. However, because AAN’s fiscal year runs from July 1 

through June 30, and it reported its overall spending to the Internal Revenue Service (“IRS”) on 

its tax returns using those time periods, CREW does not have sufficient information to precisely 

determine AAN’s overall spending for 2010. 

35. The closest time period for which there is reported information about AAN’s 

spending is its 2010 fiscal year, covering July 1, 2010 through June 30, 2011. On its 2010 tax 

return, AAN reported spending a total of $25,692,334 on all activities during that period. As 

discussed above, AAN reported to the FEC spending $18,075,612 on independent expenditures 

and electioneering communications during the 2010 fiscal year. As a result, AAN’s political 

spending comprised approximately 70.4 percent of its total spending in that fiscal year. 

36. AAN may have spent even more money on politics. On its 2010 tax return, AAN 

reported spending a total of $5,035,953 on political expenditures. That is approximately 

$998,966 more than the amount it reported to the FEC spending on independent expenditures 

that year. AAN maintained in previous proceedings that none of the money it spent on 

electioneering communications qualified as political activity. Accordingly, AAN may have spent 

an additional $998,966 on political activities which it has not explained. If this sum is added to 

the $18,075,612 AAN reported spending on independent expenditures and electioneering 

communications, AAN’s total political spending for fiscal year 2010 would be $19,074,577, or 

74.2 percent of its total spending. 

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37. Looking instead at AAN’s first two years of existence, AAN still spent most of its 

money on election-related activities. On its 2009 tax return, AAN reported spending a total of 

$1,446,675 on all activities for the period July 23, 2009 through June 30, 2010, its 2009 fiscal 

year, making AAN’s total reported spending for its 2009 and 2010 fiscal years combined 

$27,139,009. The $18,135,535 in independent expenditures and electioneering communications 

AAN reported to the FEC, therefore, comprises approximately 66.8 percent of its total spending 

between July 23, 2009 and June 30, 2011. 

38. As with its 2010 tax return, AAN’s 2009 tax return reported more political 

expenditures than AAN reported to the FEC. AAN’s 2009 tax return identified $185,108 in 

political expenses, about $125,186 more than AAN reported in independent expenditures during 

the same period. Including all of AAN’s unexplained spending for fiscal years 2009 and 2010 

brings its total spending on political activity to $19,199,763. Based on this figure, AAN’s 

political spending comprised 70.7 percent of its overall spending between July 23, 2009 and June 

30, 2011.

39. AAN has never terminated its political committee status as permitted by 52 U.S.C. 

§ 30103.

Procedural History 

40. On June 7, 2012, CREW filed a complaint with the FEC against AAN for 

violating the FECA (“MUR 6589”). The complaint alleged, as demonstrated by its extensive 

spending on federal campaign activities, that AAN’s major purpose was the nomination or 

election of federal candidates. 

41. On January 17, 2013, the OGC issued the First General Counsel’s Report 

recommending the Commission find reason to believe AAN had as its major purpose the 

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nomination or election of federal candidates during 2010, and therefore violated 52 U.S.C. 

§§ 30102, 30103, and 30104 by failing to organize, register, and report as a political committee. 

In particular, the OGC found AAN spent at least $4,096,910 on independent expenditures 

between July 2009 and June 2011, of which approximately $4,044,572 was spent in 2010. The 

OGC further found AAN spent at least $12,968,445 on electioneering communications during 

2010. The OGC could not determine the total amount AAN spent in 2010 alone, so it assumed 

all of AAN’s reported spending occurred in 2010—the assumption most beneficial to AAN. The 

OGC then concluded AAN spent at least $17,013,017 on federal campaign activity during 2010, 

or at least 62.6 percent of its total spending for that calendar year on federal campaign activity. 

As a result, the OGC concluded, AAN’s spending showed the group’s major purpose during 

2010 was federal campaign activity. 

42. Despite the OGC’s detailed analysis, on June 24, 2014, the Commission 

deadlocked three-to-three, and thus failed to find reason to believe AAN had violated 52 U.S.C. 

§§ 30102, 30103, or 30104. The Commission then voted to close the file by a vote of six-to-zero, 

dismissing CREW’s complaint. 

43. On July 30, 2014, the FEC released the statement of reasons of the three 

commissioners who voted against finding reason to believe—then Chairman Lee E. Goodman 

and Commissioners Caroline C. Hunter and Matthew S. Petersen. These commissioners 

concluded AAN’s major purpose, based on its public statements, organizational documents, and 

overall spending history, “has been issue advocacy and grassroots lobbying and organizing.” 

44. To reach that conclusion, the commissioners interpreted the First Amendment and 

judicial precedent to require the FEC to treat all expenses for AAN’s non-express advocacy 

communications, including AAN’s electioneering communications, as cause to excuse AAN 

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from political committee reporting. Further, they interpreted the Buckley’s “major purpose” 

limitation as considering the group’s activities over its entire life and treating all such activity as 

equally important to determine whether the group’s current major purpose in a given election 

year was to nominate or elect candidates. Finally, in a footnote, the commissioners stated that 

“constitutional doubts raised here militate in favor of cautious exercise of our prosecutorial 

discretion.” 

45. On August 20, 2014, CREW brought suit against the FEC challenging the 

dismissal of CREW’s administrative complaint against AAN as “contrary to law” in violation of 

52 U.S.C. § 30109(a)(8). 

46. On September 19, 2016, Judge Christopher Cooper granted CREW’s motion for 

summary judgment, finding that the FEC’s dismissal of CREW’s complaint against AAN was 

“contrary to law.” CREW I, 209 F. Supp. 3d at 95. In relevant part, Judge Cooper ruled that the 

commissioners committed legal error by applying an inapposite “express advocacy/issue speech 

distinction in the realm of disclosure,” id. at 92, and by concluding that “First Amendment 

effectively required the agency to exclude from its consideration all non-express advocacy in the 

context of disclosure,” including the FECA’s political committee provisions, id. at 93. The Court 

found that it “blinks reality to conclude that many of the ads considered by the Commissioners in 

this case were not designed to influence the election or defeat of a particular candidate in an 

ongoing race.” Id. Rather, the Court noted that the record supported the conclusion that, at a 

minimum, “many or even most electioneering communications indicate a campaign related 

purpose.” Id. Additionally, though the Court deferred to the three commissioners’ consideration 

of “a particular organization’s full spending history” in their major purpose analysis, it found the 

application in this case was arbitrary because it “ignore[d] crucial facts indicating whether an 

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organization’s major purpose has changed.” Id. at 94 (deferring pursuant to Chevron U.S.A., Inc. 

v. N.R.D.C., 467 U.S. 837 (1984)). Accordingly, the Court reversed the dismissal and remanded 

for reconsideration within thirty days, to be done in conformity with the Court’s declaration. Id.

at 95. 

47. On October 18, 2016, the Commission again deadlocked three-to-three on whether 

there was reason to believe AAN violated 52 U.S.C. §§ 30102, 30103, 30104 in the remanded 

matter (now designated MUR 6589R), and then voted five-to-one to close the file, again 

dismissing CREW’s complaint. Then-Chairman Matthew S. Petersen and then-Commissioners 

Caroline C. Hunter and Lee E. Goodman—the commissioners who voted against finding reason 

to believe on remand and the same commissioners who had voted against finding reason to 

believe AAN violated the FECA in the first instance—issued a new statement of reasons 

explaining their continued refusal to find reason to believe AAN had violated the FECA by 

failing to register as a political committee. In relevant part, the commissioners claimed to apply a 

flexible ad-by-ad analysis but continued to treat nearly all electioneering communications as 

cause to excuse AAN from political committee reporting and continued to equally weigh such 

activities against AAN’s lifetime of spending to determine AAN’s major purpose in a particular 

election-year. 

48. CREW moved for an order to the FEC to show cause why its dismissal of 

CREW’s complaint was not a failure to conform with the Court’s prior dismissal. On April 6, 

2017, the Court denied CREW’s request, finding the new framework employed by the 

commissioners “was free of the legal errors identified in this Court’s previous Opinion and 

Order,” but reserved the question of whether the new analysis was contrary to law due to other 

errors. CREW v. FEC, No. 14-1419-CRC (D.D.C. Apr. 6, 2017) (ECF No. 74). 

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49. At the same time CREW sought the order to show cause, CREW also once again 

sought judicial review of this dismissal pursuant to 52 U.S.C. § 30109(a)(8)(C). On March 20, 

2018, Judge Cooper found that the analysis in the new statement of reasons demonstrated the 

dismissal was indeed “contrary to law.” CREW II, 299 F. Supp. 3d at 101. Judge Cooper found 

that electioneering communications “presumptively have an election-related purpose.” Id. at 93 

(emphasis omitted). Only an “extraordinary” and “rare” electioneering communication would 

lack this purpose and thus cause the sums spent on it to count against finding the organization 

had the major purpose of nominating or electing candidates. Id. at 97. Judge Cooper found that 

the commissioners’ analysis did not adequately reflect this presumption and thus their analysis of 

AAN’s electioneering communications was contrary to law. Judge Cooper remanded the matter 

to the Commission, ordered the FEC to conform with the March 20, 2018 judgment within 30 

days, and noted the FEC’s failure to “timely conform with the Court’s declaration” would mean 

“CREW may bring ‘a civil action to remedy the violation involved in the original complaint.’” 

Id. at 101 (quoting 52 U.S.C. § 30109(a)(8)(C)). 

50. On April 11, 2018, CREW filed an amended complaint with the FEC substituting 

complainant Melanie Sloan with complainant Noah Bookbinder and substituting new allegations 

specific to Mr. Bookbinder, but otherwise repeating the allegations in CREW’s original 2012 

complaint. Complaint, MUR 6589 (AAN) (Apr. 11, 2018), Ex. 1. 

51. On April 19, 2018, Commissioner Weintraub published a statement about 

CREW’s court victory, noting the relief provided in the statute was the authorization of a lawsuit 

by CREW against AAN. Statement of Vice Chair Ellen L. Weintraub Regarding CREW v. FEC 

& American Action Network, (Apr. 19, 2018), Ex. 2, https://perma.cc/LW5C-LN6P (“Weintraub 

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Third AAN Statement”). She stated that it was time to “let this matter move forward unimpeded 

by commissioners who have fought every step of the way to keep dark money dark.” Id.

52. The FEC thereafter failed to conform with the Court’s declaration, and CREW 

filed suit against AAN on April 23, 2018. Judge Cooper denied AAN’s motion to dismiss 

CREW’s suit, finding CREW had standing, CREW exhausted its claims, and a reference to 

prosecutorial discretion in the commissioners’ first statement of reasons did not deprive the court 

of jurisdiction. See generally CREW v. AAN, 410 F. Supp. 3d 1 (D.D.C. 2019). Approximately 

three years later, after discovery had completed, the Court reconsidered its decision with respect 

to the effect of the reference to prosecutorial discretion in the first statement of reasons in light of 

an intervening D.C. Circuit decision, New Models, 993 F.3d 880, and found that it precluded the 

Court’s decision in CREW I. CREW v. AAN, No. 18-cv-945 (CRC), 2022 WL 612655, at *8 

(D.D.C. March 2, 2022). The Court then found that either CREW I’s impropriety rendered all 

subsequent events a nullity or, alternatively, the reference to prosecutorial discretion in the first 

statement was incorporated by reference into the second statement, which rendered CREW II a 

nullity and thus deprived the Court of jurisdiction over CREW’s citizen suit against AAN. AAN, 

2022 WL 612655, at *8 n.7. CREW appealed that decision, and the case is currently being held 

in abeyance pending the D.C. Circuit’s en banc review of New Models. 

53. On August 29, 2022, the FEC once again voted to dismiss the remanded complaint 

against AAN. See Certification, MUR 6589R (AAN) (Aug. 29, 2022), Ex. 3, 

https://perma.cc/B8ET-SUNH. Commissioner Weintraub voted against dismissal. Id.

54. The FEC published the record of its AAN proceedings approximately thirty days 

after dismissal, revealing for the first time that the FEC reconsidered its reason-to-believe 

findings on May 10, 2018, shortly after CREW filed its suit against AAN. See Certification, 

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MUR 6589R (AAN) (May 10, 2018), Ex. 4, https://perma.cc/US95-WQDP . The Commission at 

that time had only four members, as Commissioners Goodman and Ravel had resigned. The 

record revealed that Commissioners Hunter and Petersen changed their votes and now voted to 

find reason-to-believe that AAN failed to register and report as a political committee. Id.

Commissioner Walther joined them in that vote. Id. Nonetheless, the vote did not garner the 

required four votes because Commissioner Weintraub defeated the reason-to-believe vote. Id.

That was the last reason-to-believe vote the Commission took before it dismissed the case in 

August 2022. 

55. Under the current precedent of the D.C. Circuit, because Commissioner Weintraub 

singularly blocked the most recent reason-to-believe vote, she is the “controlling commissioner” 

who now speaks for “the Commission” in this case. New Models, 993 F.3d at 883. 

56. Commissioner Weintraub issued a Statement of Reasons on September 30, 2022 to 

provide the analysis required for review of the dismissal here. Statement of Reasons of 

Commissioner Weintraub, MUR 6589R (AAN) (Sept. 30, 2022), Ex.5 https:/perma.cc/C9FDEESZ (“Weintraub Fourth AAN Statement”). In it, she stated the Commission “explicitly 

disclaim[s] in its entirety the reasoning contained” in the prior controlling statements of reasons, 

that it “did not dismiss this matter pursuant to its prosecutorial discretion” and, in fact, 

“unequivocally disclaims prosecutorial discretion as a rationale for the Commission’s dismissal 

of this matter.” Id. at 8–9. She further explained that “[t]he Commission did not dismiss this 

matter because the statute of limitations had elapsed” and that in fact “[t]he Commission has 

considerable equitable remedies available to it that are not subject to 28 U.S.C. § 2462.” Id. at 9. 

57. Further, Commissioner Weintraub, speaking on behalf of the Commission, 

concluded that “the evidence before the Commission showed that AAN met the definition of a 

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political committee, which does have to disclose the identity of its donors.” Id. at 9–10. She 

reached that conclusion through her prior analyses, incorporated by reference, interpreting the 

FECA and the major purpose test. Id. at 2, 11. 

58. In particular, the FEC’s controlling analysis is that “activity that extends well 

beyond express advocacy” is relevant “for the purpose of determining political committee 

status.” Statement of Vice Chair Ravel and Commissioners Walther and Weintraub at 3, MUR 

6538 (AAN) (July 30, 2014), Ex. 6, https://perma.cc/6PCT-DN6Z (“Weintraub First AAN 

Statement”); accord Statement of Reasons of Commissioners Ann M. Ravel and Ellen L. 

Weintraub at 3, MUR 6538R (AAN) (Dec. 5, 2016), Ex. 7, https://perma.cc/75JU-K4EV 

(“Weintraub Second AAN Statement”) (“[T]he major purpose inquiry is not limited to express 

advocacy and its functional equivalent.”). Incorporating Judge Cooper’s rationale from CREW I 

and CREW II, the controlling analysis recognized that the amounts a group spends on 

electioneering communications, except in rare and extraordinary occasions, constitute federal 

campaign activities that count towards concluding the group’s major purpose is to influence 

federal elections. Weintraub First AAN Statement at 3–4; accord Weintraub Second AAN 

Statement at 3, 6, Weintraub Third AAN Statement. Additionally, the major purpose analysis 

compares the group’s calendar year campaign activity against only the group’s spending that 

same calendar year, and consequently any group devoting more than half of its spending in a 

calendar year to campaign activity may not be excused from registering and reporting as a 

political committee. Weintraub First AAN Statement at 3–4; accord Weintraub Second AAN 

Statement at 6 n.28 (status can be determined by examining “calendar year spending”). 

59. Employing those metrics, Commissioner Weintraub, speaking on behalf of the 

Commission, concluded that the evidence established “AAN spent a minimum of $17 million on 

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federal campaign activity in 2010,” meaning “at least 62.6 percent ... of AAN’s total spending in 

that year supported federal campaign activity.” Weintraub First AAN Statement at 4; accord 

Weintraub Second AAN Statement at 6. 

60. Accordingly, Commissioner Weintraub concluded, speaking on behalf of the 

Commission, that “dismissal of this matter was unreasonable, given the facts before the 

Commission, the law governing this activity, and the reasoning referenced above.” Weintraub 

Fourth AAN Statement at 11. Accordingly, it is the FEC’s position that “[t]he Commission’s 

dismissal of this matter was contrary to law.” Id. 

PLAINTIFF’S CLAIMS FOR RELIEF 

CLAIM ONE 

The FEC’s Dismissal of the AAN Matter Is 

Arbitrary, Capricious, an Abuse of Discretion, and Contrary to Law 

61. CREW re-alleges and incorporate by reference all preceding paragraphs as fully 

set forth herein. 

62. The FEC’s dismissal on remand of the CREW’s administrative complaint against 

AAN was arbitrary, capricious, an abuse of discretion, and contrary to law in violation of 52 

U.S.C. § 30109(a)(8)(C). 

63. The FEC dismissed CREW’s complaint alleging AAN failed to register and report 

as a political committee as early as 2009 and no later than 2010 in violation of 52 U.S.C. 

§§ 30102, 30103, 30104 and the FEC’s implementing regulations. It did so notwithstanding the 

fact that the controlling opinion of the Commission is that AAN in fact violated those provisions 

and that AAN is a political committee and “does have to disclose the identity of its donors,” 

Weintraub Fourth AAN Statement at 9–10, based on its analysis concluding that AAN devoted 

more than 62 percent of its spending in 2010 to influence elections, demonstrating AAN’s major 

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purpose was to elect federal candidates, Weintraub First AAN Statement at 4; Weintraub Second 

AAN Statement at 6. 

64. Having considered the merits and found more than reason to believe AAN failed 

to register and report as a political committee since 2010, the controlling opinion disclaimed all 

other possible lawful bases to dismiss. In particular, the FEC’s controlling opinion disclaimed 

any reliance on prosecutorial discretion and concluded the statute of limitation did not provide a 

basis to dismiss the complaint. Weintraub Fourth AAN Statement at 8. 

65. Accordingly, there is no lawful basis for the dismissal of CREW’s complaint 

against AAN. Indeed, the controlling opinion of the FEC is that “dismissing the complaint in this 

matter was absolutely contrary to law.” Id. at 8. 

REQUESTED RELIEF 

 WHEREFORE, CREW respectfully requests that this Court: 

(1) Declare that a group’s electioneering communications constitute federal election 

activity that alone, or when combined with other qualifying activities, may demonstrate that a 

group’s major purpose is to influence federal elections if they are sufficiently extensive. 

(2) Declare that the major purpose test compares a group’s calendar year federal 

campaign activity to its other spending that same calendar year to determine whether the group’s 

federal campaign activities are sufficiently extensive to demonstrate the group’s major purpose is 

to nominate or elect federal candidates, that the group’s activity in other calendar years may not 

negate a finding that the group’s major purpose is to influence federal elections in that calendar 

year, and that a group may not be excused from political committee reporting because it lacks a 

requisite major purpose in other calendar years. 

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(3) Declare that a group that devotes half or more of its annual spending to qualifying 

federal campaign activity, including electioneering communications, has spent extensively on 

federal campaign activity and thus has a major purpose to nominate or elect federal candidates, 

and thus may not be excused from reporting as a political committee under the FECA, while 

recognizing a group may demonstrate its major purpose is to nominate or elect federal candidates 

when it meets a lower spending threshold, either in combination with or separate from other 

evidence in a fact-intensive, case-by-case analysis. 

(4) Declare that a group’s political committee status, and its duty to continually report, 

may only terminate as provided by law under 52 U.S.C. § 30103. 

(5) Declare the FEC’s dismissal of MUR 6589R (AAN) on remand was arbitrary, 

capricious, an abuse of discretion, and contrary to law; 

(6) Order the FEC to conform to such declaration within 30 days pursuant to 52 

U.S.C. § 30109(a)(8)(C); 

(7) Award CREW its costs, expenses, and reasonable attorneys’ fees; and 

(8) Grant such other and further relief as the Court may deem just and proper. 

 Respectfully submitted, 

________________________ 

 STUART McPHAIL 

(D.C. Bar No. 1032529) 

 Citizens for Responsibility and Ethics 

in Washington 

1331 F Street N.W., Suite 900 

Washington, D.C. 20004 

Phone: (202) 408-5565 

Facsimile: (202) 588-5020 

smcphail@citizensforethics.org 

October 27, 2022 Attorney for Plaintiff

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