NOT YET SCHEDULED FOR ORAL ARGUMENT 

No. 18-5261 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

CROSSROADS GRASSROOTS POLICY STRATEGIES, 

Defendant-Appellant, 

v. 

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON AND NICHOLAS 

MEZLAK, 

Plaintiffs-Appellees, 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

On Appeal from the United States District Court for the 

District of Columbia Civ. A. No. 16-259 

 (Hon. Beryl A. Howell) 

BRIEF AMICUS CURIAE OF THE CHAMBER OF COMMERCE OF THE 

UNITED STATES OF AMERICA IN SUPPORT OF APPELLANT

STEVEN P. LEHOTSKY

RYAN MEYERS

U.S. CHAMBER LITIGATION CENTER

1615 H Street, NW 

Washington, DC 20062 

(202) 463-5337 

March 18, 2019 

JEFFREY M. HARRIS

SAMUEL D. ADKISSON

CONSOVOY MCCARTHY PARK PLLC 

3033 Wilson Boulevard, Suite 700 

Arlington, VA 22201 

(703) 243-9423 

PATRICK STRAWBRIDGE

CONSOVOY MCCARTHY PARK PLLC 

Ten Post Office Square 

8th Floor South PMB #706 

Boston, MA 02109 

(617) 227-0548 

Counsel for Amicus Curiae 

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

Pursuant to D.C. Circuit Rule 28(a)(1), amicus curiae submits this certificate 

as to parties, rulings, and related cases. 

A. PARTIES AND AMICI 

 Except for the following, all parties and intervenors appearing in this Court 

are listed in the Brief of Defendant-Appellant: (1) amicus curiae the Chamber of 

Commerce of the United States, which files this amicus brief in support of Appellant, 

(2) amici curiae Free Speech Coalition, et al. in support of Appellant, and (3) amicus 

curiae Sai, pro se and in support of neither party. 

B. RULINGS UNDER REVIEW 

References to the rulings at issue appear in the Brief for Defendant-Appellant 

Crossroads Grassroots Policy Strategies. 

C. RELATED CASES 

This case was previously before this Court on Defendant-Appellant’s 

emergency motion for a stay pending appeal. This Court’s resulting decision is titled 

CREW v. FEC, 904 F.3d 1014 (D.C. Cir. 2018) (per curiam) (Henderson, Millett, 

and Wilkins, JJ.). Counsel for amicus curiae is unaware of any related cases within 

the meaning of Circuit Rule 28(a)(1)(C). 

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CORPORATE DISCLOSURE STATEMENT 

Pursuant to Federal Rule of Appellate Procedure 26.1 and D.C. Circuit Rule 

26.1, amicus curiae the Chamber of Commerce of the United States of America 

(“Chamber”) makes the following disclosures: 

The Chamber is a nonprofit corporation representing the interest of more than 

three million businesses of all sizes, sectors, and regions. The Chamber has no parent 

corporation, and no publicly held company owns 10% or more of its stock. 

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CERTIFICATE OF COUNSEL REGARDING

AUTHORITY TO FILE

Pursuant to FRAP 29(a)(2), all parties have consented to the filing of this 

brief. 

Pursuant to D.C. Circuit Rule 29(d), counsel for amicus curiae the Chamber 

of Commerce of the United States of America certifies that it is not aware of any 

other non-government amicus brief addressing the subject of this brief, i.e., the 

erroneous statutory interpretation of the Federal Election Campaign Act by the 

district court. As one of the nation’s preeminent business associations, amicus curiae 

is particularly well-suited to provide the Court important context on these subjects 

that will assist it in resolving this case. 

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TABLE OF CONTENTS 

Page 

Certificate As To Parties, Rulings, And Related Cases .............................................. i

Corporate Disclosure Statement ............................................................................... ii

Certificate Of Counsel Regarding Authority To File .............................................. iii

Table Of Authorities .................................................................................................. v

Glossary .................................................................................................................... ix

Statutes And Regulations ........................................................................................... 1

Identity And Interest Of Amicus Curiae .................................................................... 1

Summary Of Argument ............................................................................................. 3

Argument ................................................................................................................... 6

I. The FEC’s Longstanding Interpretation of Section 434(c) Is 

Compelled By FECA’s Text, Structure, And History. ............................... 6

II. Section 434(c) Must Be Construed To Avoid The Serious First 

Amendment Concerns That Arise From The District Court’s 

Reading. .................................................................................................... 14

Conclusion ............................................................................................................... 24

Certificate of Compliance ........................................................................................ 25

Certificate of Service ............................................................................................... 26

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TABLE OF AUTHORITIES 

Page(s) 

Cases:

Am. Tradition P’ship, Inc. v. Bullock, 

132 S. Ct. 2490 (2012) ................................................................................... 15 

American Federation of Labor and Congress of Indus. Organizations v. 

FEC, 333 F.3d 168 (D.C. Cir. 2003) ......................................................... 5, 18 

Bell Atlantic Tel. Co. v. Fed. Communications Comm’n, 

131 F.3d 1044 (D.C. Cir. 1997) ..................................................................... 12 

Buckley v. Valeo, 

424 U.S. 1 (1976) ..................................................................... 6, 15, 17, 18, 23 

Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk A/S, 

566 U.S. 399 (2012)............................................................................. 4, 11, 14 

Center for Biological Diversity v. U.S. Dept. of Interior, 

563 F.3d 466 (D.C. Cir. 2009) ......................................................................... 9 

Chamber of Commerce of United States v. FEC, 

69 F.3d 600 (D.C. Cir. 1995) ......................................................................... 18 

Citizens United v. FEC, 

558 U.S. 310 (2010)...............................................................15, 16, 20, 22, 23 

Cohens v. Virginia, 

19 U.S. (6 Wheat.) 264 (1821) ........................................................................ 9 

Common Cause v. FEC, 

842 F.2d 436 (D.C. Cir. 1988) ......................................................................... 6 

County of Los Angeles v. Shalala, 

192 F.3d 1005 (D.C. Cir. 1999) ..................................................................... 12 

CREW v. FEC, 

904 F.3d 1014 (D.C. Cir. 2018) ..................................................................... 13 

CREW v. FEC, 

316 F. Supp. 3d 349 (D.D.C. 2018) ................................ 4, 6, 9, 10, 19, 20, 22 

Davis v. FEC, 

554 U.S. 724 .................................................................................................. 17 

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Deal v. United States, 

508 U.S. 129 (1993)....................................................................................... 12 

Edward J. DeBartolo Corp. v. 

Fla. Gulf Coast Bldg. and Const. Trades Council, 

485 U.S. 568 (1988)....................................................................................... 18 

FEC v. Furgatch, 

807 F.2d 857 (9th Cir. 1987) ........................................................................... 9 

FEC v. Mass. Citizens for Life, Inc., 

479 U.S. 238 (1986)................................................................................... 9, 15 

FEC v. Wisconsin Right To Life, Inc., 

551 U.S. 449 (2007)....................................................................................... 15 

Garrison v. Louisiana, 

379 U.S. 64 (1964) ......................................................................................... 15 

Johnson v. Transportation Agency, 

480 U.S. 616 (1987)....................................................................................... 13 

Kennedy for President Committee v. FEC, 

734 F.2d 1558 (D.C. Cir. 1984) ....................................................................... 6 

McConnell v. FEC, 

540 U.S. 93 .......................................................................................... 7, 15, 16 

McCutcheon v. FEC, 

134 S. Ct. 1434 (2014) ................................................................................... 23 

McIntyre v. Ohio Elections Comm’n, 

514 U.S. 334 (1995)................................................................................. 17, 18 

N.Y. Times Co. v. Sullivan, 

376 U.S. 254 (1964)....................................................................................... 23 

NAACP v. Button, 

371 U.S. 415 (1963)....................................................................................... 23 

NAACP v. State of Alabama ex rel. Patterson, 

357 U.S. 449 (1958)................................................................................. 16, 17 

National Ass’n of Home Builders v. Defenders of Wildlife, 

551 U.S. 644 (2007)....................................................................................... 10 

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Petit v. U.S. Dept. of Educ., 

675 F.3d 769 (D.C. Cir. 2012) ....................................................................... 12 

Republican Party of Minn. v. White, 

536 U.S. 765 (2002)....................................................................................... 15 

Richmond Newspapers v. Virginia, 

448 U.S. 555 (1980)....................................................................................... 14 

Schenck v. Pro-Choice Network, 

519 U.S. 357 (1997)....................................................................................... 14 

Stewart v. National Shopmen Pension Fund, 

730 F.2d 1552 (D.C. Cir. 1984) ....................................................................... 7 

Stop This Insanity Inc. Employee Leadership Fund v. FEC, 

761 F.3d 10 (D.C. Cir. 2014) ................................................................... 15, 16 

Texas Dep’t of Housing & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 

135 S. Ct. 2507 (2015) ................................................................................... 13 

TRW Inc. v. Andrews, 

534 U.S. 19 (2001) ......................................................................................... 10 

United States Nat’l Bank v. Indep. Ins. Agents of Am., Inc., 

508 U.S. 439 (1993)....................................................................................... 12 

Van Hollen, Jr. v. FEC, 

811 F.3d 486 (D.C. Cir. 2016) ...........................................5, 16, 19, 20, 21, 22 

Weber v. Heaney, 

995 F.2d 872 (8th Cir. 1993) ..................................................................... 4, 14 

Williams v. Taylor, 

529 U.S. 362 (2000)....................................................................................... 10 

Wis. Right to Life, Inc. v. FEC, 

546 U.S. 410 (2006)....................................................................................... 15 

Yates v. United States, 

135 S. Ct. 1074 (2015) ................................................................................... 12 

Young v. Community Nutrition Inst., 

476 U.S. 974 (1986)....................................................................................... 14 

Statutes & Other Authorities: 

U.S. Const., amend. I ......................................................................... 5, 14, 15, 16, 18 

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52 U.S.C. § 30101(17) ............................................................................................. 22 

52 U.S.C. § 30103(a) ................................................................................................. 9 

52 U.S.C. § 30103(b) ................................................................................................. 9 

52 U.S.C. § 30104 .................................................................................................... 10 

52 U.S.C. § 30104(b)(3)(A) ................................................................................. 8, 10 

52 U.S.C. § 30104(b)(6)(B)(iii) ................................................................................. 8 

52 U.S.C. § 30104(c) ........................................ 3, 4, 6, 7, 8, 9, 13, 14, 18, 19, 22, 23 

52 U.S.C. § 30104(c)(1) ...............................................................3, 7, 8, 9, 10, 14, 20 

52 U.S.C. § 30104(c)(2) ......................................................................... 3, 4, 9, 10, 11 

52 U.S.C. § 30104(c)(2)(A) ................................................................................. 8, 11 

52 U.S.C. § 30104(c)(2)(B) ............................................................................. 8, 9, 11 

52 U.S.C. § 30104(c)(2)(C) ...................................................... 3, 8, 9, 10, 11, 12, 14 

52 U.S.C. § 30104(f)(1) ............................................................................................. 9 

52 U.S.C. § 30104(f)(2) ............................................................................................. 9 

52 U.S.C. § 30111(d) ......................................................................................... 13, 14 

11 C.F.R. § 109.10(e)(1)(vi) ...................................................................................... 3 

Associated Press, Mozilla CEO Resignation Raises Free-Speech Issues, 

USA Today (April 4, 2014) ........................................................................... 21 

D.C. Circuit R. 29(b) .................................................................................................. 1 

Fed. R. App. P. 29(a)(3) ............................................................................................. 2 

Fed. R. App. P. 29(a)(4)(E) ........................................................................................ 1 

Kristiano Ang, Should Consumers Boycott L.L. Bean Over A Political 

Donation?, Marketwatch (Jan. 14, 2017) ...................................................... 21 

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GLOSSARY 

BCRA means Bipartisan Campaign Reform Act. 

Chamber means Chamber of Commerce of the United States of America. 

CREW means Citizens for Responsibility and Ethics in Washington.

FEC means the Federal Election Commission.

FECA means Federal Election Campaign Act. 

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STATUTES AND REGULATIONS 

All applicable statutes and regulations are reproduced in DefendantAppellant’s Brief. 

IDENTITY AND INTEREST OF AMICUS CURIAE

The Chamber of Commerce of the United States of America (“Chamber”), 

submits this brief in support of Defendant-Appellants, Crossroads GPS.1

 The 

Chamber is the world’s largest business federation. It represents 300,000 direct 

members and indirectly represents the interests of more than three million companies 

and professional organizations of every size, in every industry sector, and from every 

region of the country. The Chamber advocates for its members’ interests before 

Congress, the executive branch, and the courts, and it regularly files amicus curiae

briefs in cases raising issues of importance to the business community. 

The Chamber has a strong interest in this case. The district court’s decision 

reversed more than three decades of settled FEC policy—long ratified by 

Congress—that provided clear guidance as to when advocacy organizations that are 

not political committees had to report information about their contributors. Under 

 1

 Pursuant to Fed. R. App. P. 29(a)(4)(E) & D.C. Circuit R. 29(b), amicus 

curiae states that no counsel for a party authored this brief in whole or in part, and 

no party or counsel for a party contributed money intended to fund the preparation 

or submission of this brief. No person other than amicus curiae, its members, or its 

counsel contributed money intended to fund the preparation or submission of this 

brief. 

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that regulation, a contribution needed to be disclosed only when it was earmarked 

for a specific independent expenditure expressly advocating the election or defeat of 

a particular candidate. In the decision below, however, the district court held that the 

Federal Election Campaign Act (FECA) requires disclosure of a far broader range 

of donors, upending a reading of the statute that had prevailed for nineteen federal 

election cycles. 

If allowed to stand, the district court’s misinterpretation of FECA will have a 

significant impact on the business community. The Chamber is an active participant 

in the political process, representing its members’ interests in a variety of ways 

during federal congressional elections. And the Chamber’s members often donate to 

advocacy groups that share their interests without necessarily supporting every

election-related communication those groups may make. Under the district court’s 

broad disclosure rule, however, a company may have its contribution disclosed as 

supporting a particular message that the contributor never intended to (and does not) 

endorse. The only way to avoid this misattribution or excessive disclosure is to 

refrain from supporting political advocacy organizations at all—a chilling of First 

Amendment activity that is detrimental to the public and the interest of healthy 

democratic debate. Due to the significant impact the district court’s decision will 

have on the business community, amicus curiae believes that its perspective will 

assist the Court in resolving this case. See Fed. R. App. P. 29(a)(3). 

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SUMMARY OF ARGUMENT 

The merits issue presented by this case is whether the FEC’s longstanding 

regulation regarding disclosure of contributions to advocacy organizations other 

than political committees, 11 C.F.R. § 109.10(e)(1)(vi), is inconsistent with the 

statutory disclosure requirements in section 434(c) of FECA (now codified at 52 

U.S.C. § 30104(c)). The district court held that FECA unambiguously imposed a 

greater disclosure obligation than provided in the FEC’s regulations. To the contrary, 

however, the text, structure, and history of the relevant section of FECA support the 

opposite conclusion: Congress intended only that contributions earmarked for a 

particular independent expenditure needed to be disclosed. And were there any 

doubt on this score, the First Amendment’s protection of political and anonymous 

speech would require the narrower reading of the statute that the FEC has endorsed 

for decades. 

First, the district court’s statutory interpretation failed to account for the 

broader context of section 434(c), instead interpreting the provisions of subsections 

(c)(1) and (c)(2)(C) in isolation. In doing so, the court ignored the structure of the 

statute, which describes the general reporting requirement in subsection (c)(1) but 

then further specifies the contents of the required report—including the mandated 

disclosures—in subsection (c)(2). The court then compounded that error by reading 

subsection (c)(2) to require disclosure of most contributors who donate to an 

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organization to fund any independent expenditure, not just those who earmark funds 

for a particular expenditure. 

The district court based its expansive interpretation of the statute on the 

ground that subsection (c)(2) requires disclosure of those who contribute “for the 

purpose of furthering an independent expenditure,” rather than “the independent 

expenditure.” Citizens for Responsibility and Ethics in Washington v. FEC, 316 

F.Supp.3d 349, 389-90 (D.D.C. 2018) (CREW). But the word “an” is susceptible to 

multiple meanings, and “context matters” in deciding which interpretation should 

prevail. Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk A/S, 566 U.S. 

399, 413-14 (2012). Here, the district court failed to account for the surrounding 

references in the text of FECA that indicate Congress intended the disclosure 

obligation to be tied to a particular contribution. 

Further confirming the FEC’s longstanding interpretation of the statute, 

Congress itself reviewed the FEC’s regulation when it was first promulgated nearly 

30 years ago and declined to exercise its authority to revoke the regulation. Since 

that time, Congress has repeatedly amended various provisions of FECA without 

taking any action to alter or expand the disclosure requirements of section 434(c). 

This is “persuasive evidence” that Congress did not intend for the statute to bear the 

meaning ascribed to it by the district court. Weber v. Heaney, 995 F.2d 872, 877 (8th 

Cir. 1993). 

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Second, even if the district court’s reading were a permissible interpretation 

of the text, the canon of constitutional avoidance would require this Court to adopt 

the FEC’s narrower reading. Campaign finance laws—including disclosure 

provisions—operate in an area fraught with First Amendment concerns. Both this 

Court and the Supreme Court have emphasized the potential harms to our system of 

self-government that arise when anonymous political speech is prohibited, see, e.g.,

Van Hollen, Jr. v. FEC, 811 F.3d 486, 488 (D.C. Cir. 2016), and both courts have 

employed the doctrine of constitutional avoidance in interpreting FECA and its 

regulations. 

Those important First Amendment interests are directly implicated here, and 

the district court’s broad reading of the disclosure provision presents “serious 

constitutional difficulties.” American Federation of Labor and Congress of Indus. 

Organizations v. FEC, 333 F.3d 168, 184 (D.C. Cir. 2003) (Henderson, J., 

concurring). Most importantly, the district court’s view of FECA would force 

contributors to advocacy organizations to be associated with election-related 

messages they neither approved nor supported, and might well disagree with. The 

only way to avoid such disclosures would be to decline to contribute at all, and the 

net effect would be to significantly chill protected speech. The district court’s ruling 

also creates confusion for organizations that engage in other forms of advocacy—

for example, lobbying and grassroots organizing—in addition to independent 

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expenditures. The better reading of the statute—and the one the FEC had followed 

for decades before the district court’s decision—more closely ties disclosed 

contributors to their actual intended message, thus minimizing the resulting 

constitutional harms and providing a workable and easily understandable rule for 

contributors and advocacy organizations alike. This Court should reverse the 

decision below. 

ARGUMENT 

I. The FEC’s Longstanding Interpretation Of Section 434(c) Is Compelled 

By FECA’s Text, Structure, And History. 

The district court concluded that “the unambiguous language” of FECA 

section 434(c) “plainly requires broader disclosure than just those donors making 

contributions for the purposes of funding the independent expenditures made by the 

reporting entity.” CREW, 316 F.Supp.3d at 367, 389. As a result, the court 

invalidated the FEC’s related regulation. Id. at 367. This Court should reverse that 

decision. Under this Court’s traditional approach to statutory interpretation, section 

434(c) is better read to compel the FEC’s interpretation. 

A. FECA’s substantive and procedural obligations are indisputably 

“labyrinthine” and “complex,” Kennedy for President Committee v. FEC, 734 F.2d 

1558, 1566 (D.C. Cir. 1984) (Starr, J., dissenting), and the statute contains 

“enormous subtleties and complexities,” Common Cause v. FEC, 842 F.2d 436, 445 

(D.C. Cir. 1988). See also Buckley v. Valeo, 424 U.S. 1, 83 (1976) (per curiam) 

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(referring to FECA as “complex legislation”); McConnell v. FEC, 540 U.S. 93, 264 

(Scalia, J., concurring in part and dissenting in part) (opining that “[t]he federal 

election campaign laws, [are] . . . so voluminous, so detailed, so complex, that no 

ordinary citizen dare run for office”). It is thus “important to read each section of 

this complex statute in its proper context.” Stewart v. National Shopmen Pension 

Fund, 730 F.2d 1552, 1561, (D.C. Cir. 1984). 

A careful and contextual reading of section 434(c) confirms that it requires 

disclosure of contributors to advocacy groups other than political committees only 

when the relevant contribution is earmarked for a particular independent 

expenditure. The district court’s contrary holding misconstrued two provisions of 

the statute to create overlapping disclosure obligations that are far broader than the 

statutory language can support. 

The district court’s errors begin with its decision to interpret section 434(c)(1) 

in isolation. That provision imposes a filing requirement on any person or 

association that is not a “political committee,” that “makes independent expenditures 

in an aggregate amount or value in excess of $250 during a calendar year.” 52 U.S.C. 

§ 30104(c)(1). Section 434(c)(1) also provides the baseline for the contents of the 

report that such organizations must file: “a statement containing the information 

required under subsection (b)(3)(A) for all contributions received by such person.” 

Id. That provision, in turn, requires political committees to report “the identification 

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

the reporting committee during the reporting period, whose contribution or 

contributions have an aggregate amount or value in excess of $200 within the 

calendar year. . . together with the date and amount of any such contribution.” 52 

U.S.C. § 30104(b)(3)(A). 

If subsection (c)(1) were the end of section 434(c), the district court’s decision 

might be persuasive. But the following subsections go on to modify the baseline 

reporting requirement of subsection (c)(1): “Statements required to be filed by this 

subsection shall be filed in accordance with subsection (a)(2), and shall include” the 

following: 

 Information about the recipient of expenditures on behalf of a candidate 

or political committee, “indicating whether the independent 

expenditure is in support of, or in opposition to, the candidate 

involved,” 52 U.S.C. § 30104(c)(2)(A) (citing 52 U.S.C. § 30104 

(b)(6)(B)(iii)) (emphasis added); 

 A “certification whether or not such independent expenditure is made 

in cooperation, consultation, or concert, with, or at the request or 

suggestion of, any candidate or any authorized committee or agent of 

such candidate,” id. § 30104(c)(2)(B) (emphasis added); and 

 “the identification of each person who made a contribution in excess of 

$200 to the person filing such statement which was made for the

purpose of furthering an independent expenditure.” Id.

§ 30104(c)(2)(C). 

These provisions necessarily alter the contents of the report required by (c)(1). 

Subsection (c)(2)(A) requires additional information about expenditures to be 

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included in the report; subsection (c)(2)(B) requires that it include a particular 

certification; and subsection (c)(2)(C) specifies that only those persons who made a 

contribution “for the purpose of furthering an independent expenditure” need to be 

identified. As Appellant explains, this structure is similar to that used in other FECA 

provisions. See Appellant Br. 38 (citing 52 U.S.C. § 30103(a)-(b); § 30104(f)(1)-

(2)). The Ninth Circuit has explicitly recognized that “[s]ection 434(c)(1) requires 

that any person making an ‘independent expenditure’ greater than $250 file a 

statement with the FEC,” while “[t]he contents of the statement are specified in 

434(c)(2).” FEC v. Furgatch, 807 F.2d 857, 859 n.2 (9th Cir. 1987).2

 

The district court disagreed, holding that subsection (c)(1) creates its own 

broad disclosure requirement independent of the disclosure required by (c)(2). 

CREW, 316 F.Supp.3d at 389. But that makes little sense. Under this reading—as 

the district court conceded—the contributors who must be disclosed in subsection 

(c)(2)(C) “are a subset of those contributors required to be identified in subsection 

(c)(1).” Id. The Supreme Court has “cautioned against reading a text in a way that 

 2

 The district court rejected Furgatch’s holding in favor of dicta from FEC v. 

Mass. Citizens for Life, Inc. (“MCFL”), 479 U.S. 238, 262 (1986). But MCFL’s

brief discussion of section 434(c) was recognized at the time as unnecessary to the 

Court’s holding, see 479 U.S. at 271 (Rehnquist, J., concurring in part and dissenting 

in part), and it has long been held that dicta, even from the Supreme Court, is not 

binding. Center for Biological Diversity v. U.S. Dept. of Interior, 563 F.3d 466, 

481(D.C. Cir. 2009) (citing Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821)). 

This may explain why Furgatch, which post-dates MCFL, did not feel constrained 

to accept its reading of section 434. This Court should not do so either. 

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makes part of it redundant.” National Ass’n of Home Builders v. Defenders of 

Wildlife, 551 U.S. 644, 669 (2007) (citing TRW Inc. v. Andrews, 534 U.S. 19, 31 

(2001)). There is certainly no reason to assume that Congress would intend such 

overlap within a single subsection of section 434. The district court’s decision failed 

to heed the “cardinal principle” requiring courts to “give effect” to “every clause and 

word of a statute.” Williams v. Taylor, 529 U.S. 362, 404 (2000). The way to do so 

here is to read section 434 as this Court and the Ninth Circuit have done: subsection 

(c)(1) sets out the reporting obligation for persons who are not political committees, 

and subsection (c)(2) governs the content of such reports.3

 The district court’s second interpretive error was its myopic focus on the 

article “an” in subsection (c)(2)(C). In the district court’s view, by providing for 

disclosure of contributions “made for the purpose of furthering an independent 

expenditure,” subsection (c)(2)(C) cannot be limited to only contributions earmarked 

for a particular independent expenditure. See CREW, 316 F.Supp.3d at 390-91 

(“[u]se of the indefinite article ‘an’ before ‘independent expenditure’ indicates a 

broader coverage” than the FEC’s interpretation). This reading again eschews a 

 3

 This does not render the cross-reference in subsection (c)(1) meaningless; 

by incorporating the requirements of 52 U.S.C. § 30104(b)(3)(A), it ensures that any 

disclosure that is required by (c)(2) includes the “date and amount” of the 

contribution. 

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properly contextual reading of the statute and expands its scope far beyond that 

intended by Congress. 

To begin, the district court was incorrect to conclude that “an” in subsection 

(c)(2)(C) should be accorded an indefinite meaning. As a matter of ordinary usage, 

the word is often used in the particular sense. As the Supreme Court has explained: 

Suppose your child explains her mediocre grade on a college exam by 

saying that she “did not read an assigned text.” You would infer that 

she failed to read a specific book, not that she read nothing at all on the 

syllabus. And suppose a lawyer friend laments that in her last trial, she 

“did not prove an element of the offense.” You would grasp that she is 

speaking not of all the elements, but of a particular one. The examples 

could go on and on, but the point is simple enough: When it comes to 

the meaning of “[]an,” context matters. 

Caraco, 566 U.S. at 414. Here, the context of subsection (c)(2) establishes that the 

statute is referring to contributions that support a particular expenditure. Subsection 

(c)(2)(C) itself requires disclosure of donors who make a contribution “for the 

purpose of furthering an independent expenditure”—i.e., a singular expenditure. 

And subsection (c)(2) refers on two other occasions to “the expenditure” or “such 

expenditure.” See 52 U.S.C. § 30104(c)(2)(A), (B); Appellant Br. 37. These other 

references underscore that Congress intended the obligation imposed by subsection 

(c)(2)(C) to be tied to contributions that fund a specific independent expenditure, not 

every independent expenditure. 

By ignoring this broader statutory context, the district court’s reading of 

subsection (c)(2)(C) contravened the “fundamental principle of statutory 

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construction (and, indeed, of language itself) that the meaning of a word cannot be 

determined in isolation, but must be drawn from the context in which it is used.” 

Deal v. United States, 508 U.S. 129, 132, (1993). This Court has often warned that 

“to prevent statutory interpretation from degenerating into an exercise in solipsism, 

‘we must not be guided by a single sentence or member of a sentence, but look to 

the provisions of the whole law.’” County of Los Angeles v. Shalala, 192 F.3d 1005, 

1014 (D.C. Cir. 1999) (quoting United States Nat’l Bank v. Indep. Ins. Agents of 

Am., Inc., 508 U.S. 439, 455 (1993)). “The literal language of a provision taken out 

of context cannot provide conclusive proof of congressional intent, any more than a 

word can have meaning without context to illuminate its use.” Bell Atlantic Tel. Co. 

v. Fed. Communications Comm’n, 131 F.3d 1044, 1047 (D.C. Cir. 1997); see also 

Petit v. U.S. Dept. of Educ., 675 F.3d 769, 781 (D.C. Cir. 2012). In sum, the 

“plainness or ambiguity of statutory language is determined not only by reference to 

the language itself, but also by the specific context in which that language is used, 

and the broader context of the statute as a whole.” Yates v. United States, 135 S.Ct. 

1074, 1081-82 (2015) (cleaned up). 

B. Even setting aside the district court’s failure to read subsection 

(c)(2)(C)’s disclosure provision in its proper context, there is good reason to doubt 

that Congress intended the disclosure requirement to be as broad as the district 

court’s interpretation. FECA requires the FEC to transmit its regulations and 

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reporting forms to Congress for review before they take effect, see 52 U.S.C. § 

30111(d), and the Commission did so. Yet Congress declined to alter the FEC’s 

reading of its statutory language in 1980, or any time since—even though it has 

revised the independent expenditure statute multiple times. See Appellant Br. 6-7 

(collecting authorities). 

Setting aside any question of deference, the specific process for congressional 

review of FEC regulations casts doubt on the district court’s conclusion about 

Congress’s intent in enacting section 434(c). In denying a stay pending appeal, the 

motions panel dismissed the significance of this point, citing dissenting opinions 

from cases addressing congressional acquiescence generally that do not involve the 

particular review process for FEC interpretations. See CREW v. FEC, 904 F.3d 1014, 

1018 (D.C. Cir. 2018) (citing Texas Dep’t of Housing & Cmty. Affairs v. Inclusive 

Cmtys. Project, Inc., 135 S.Ct. 2507, 2540 (2015) (Alito, J., dissenting) and Johnson 

v. Transportation Agency, 480 U.S. 616, 672-67 (1987) (Scalia, J., dissenting)). 

The Chamber does not disagree with the panel’s general observation that “the 

suggestion of congressional acquiescence cannot change the plain meaning of 

enacted text,” 904 F.3d at 1018. Here, however, a proper and contextual reading of 

the statutory text is consistent with the regulation. See supra 6-12. The lack of any 

objection from Congress at the time or in the ensuing 30-plus years is further support 

for that analysis. As the Eighth Circuit noted after finding that the plain text of a 

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statutory provision supported the FEC’s interpretation, “congressional failure to 

revise or repeal the agency’s interpretation” after it was presented pursuant to § 

30111(d) “is persuasive evidence that the interpretation is the one intended by 

Congress.” Weber, 995 F.2d at 877 (quoting Young v. Community Nutrition Inst., 

476 U.S. 974, 983 (1986)). 

In sum, the district court’s opinion failed to read the statutory provision as a 

whole, or to account for the structure and particular language used in subsections 

(c)(1) and (c)(2)(C). In this highly complex statutory scheme, “context matters,” 

Caraco, 566 U.S. at 414, and that context supports the FEC’s longstanding reading 

of the statute. The district court’s invalidation of the regulation should be reversed 

for this reason alone. 

II. Section 434(c) Must Be Construed To Avoid The Serious First 

Amendment Concerns That Arise From The District Court’s Reading. 

Regulations of political speech go to the heart of the First Amendment’s 

protections. Speech “on matters of public concern” is one of the “classic forms of 

speech that lie at the heart of the First Amendment.” Schenck v. Pro-Choice Network,

519 U.S. 357, 377 (1997). Uninhibited debate on important policy issues—and, 

necessarily, the elections that help decide how the government will address those 

issues—“has a structural role to play in securing and fostering our republican system 

of self-government.” Richmond Newspapers v. Virginia, 448 U.S. 555, 587 (1980). 

The right to speak freely “concerning public affairs is more than self expression; it 

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is the essence of self-government.” Garrison v. Louisiana, 379 U.S. 64, 74-75 

(1964). 

Because “[p]olitical participation is integral to our democratic government ... 

limitations on political contributions and expenditures ‘operate in an area of the most 

fundamental First Amendment activities.’” Stop This Insanity Inc. Employee 

Leadership Fund v. FEC, 761 F.3d 10, 13 (D.C. Cir. 2014) (quoting Buckley, 424 

U.S. at 14). The government must show that the burdens on political speech are both 

necessary and narrowly tailored to satisfy a compelling government interest. See 

Citizens United v. FEC, 558 U.S. 310, 340 (2010); FEC v. Wisconsin Right To Life, 

Inc., 551 U.S. 449, 464 (2007). 

In the context of regulating elections, the Supreme Court has tolerated greater 

interference with political speech than the First Amendment ought to allow. See 

Buckley, 424 U.S. 1; McConnell, 540 U.S. 93.4

 In particular, it has held that “[l]imits 

on direct contributions to candidates to avoid corruption or the appearance of 

corruption ... are tolerated” within certain parameters. Stop This Insanity, Inc., 761 

F.3d at 13. But “limits on independent expenditures, which do not implicate the 

 4

 The Chamber has consistently taken the position that the freedom of speech 

deserves the same rigorous protection in the context of elections that it does in other 

contexts. See, e.g., Am. Tradition P’ship, Inc. v. Bullock, 132 S. Ct. 2490 (2012) 

(amicus); Citizens United v. FEC, 558 U.S. 310 (2010) (amicus); Wis. Right to Life, 

Inc. v. FEC, 546 U.S. 410 (2006) (amicus); McConnell v. FEC, 540 U.S. 93 (2003) 

(party); Republican Party of Minn. v. White, 536 U.S. 765 (2002) (amicus); FEC v. 

Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) (amicus). 

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anticorruption rationale, are subjected to the highest form of scrutiny and are 

generally unconstitutional.” Id. (citing Citizens United, 558 U.S. at 357). 

Consistent with this approach, the Supreme Court has also held that the First 

Amendment tolerates limited disclosure requirements. At least facially, such laws 

complement substantive restrictions on campaign speech by advancing the 

“important state interests” of “providing the electorate with information, deterring 

actual corruption and avoiding any appearance thereof, and gathering the data 

necessary to enforce more substantive electioneering restrictions.” McConnell, 540 

U.S. at 196. But that does not suggest that all election-related disclosure laws can 

satisfy constitutional scrutiny. Indeed, this Court has recognized that “what has made 

this area of election law so challenging is that these two values”—speech and 

disclosure—“exist in unmistakable tension.” Van Hollen, 811 F.3d 486, 488 (D.C. 

Cir. 2016). This is because “[d]isclosure chills speech.” Id. 

This point is beyond dispute. In numerous other contexts, the Supreme Court 

has emphasized the constitutional value in robust protection of anonymous political 

speech. In NAACP v. State of Alabama ex rel. Patterson, 357 U.S. 449 (1958), for 

example, the Court upheld the NAACP’s First Amendment right to protect the 

anonymity of its members. Disclosure would have imposed “a substantial restraint 

upon the exercise by [the NAACP’s] members of their right to freedom of 

association.” Id. at 462. Though the decision emphasized “that on past occasions 

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revelation of the identity of its rank-and-file members has exposed these members 

to economic reprisal, loss of employment, threat of physical coercion, and other 

manifestations of public hostility,” id., the Court more broadly recognized the 

“deterrent effect on the free enjoyment of the right to associate which disclosure of 

membership lists is likely to have,” id. at 466. 

Similarly, in McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995), the 

Court held that Ohio’s ban on distribution of anonymous campaign literature was 

unconstitutional because “the interest in having anonymous works enter the 

marketplace of ideas unquestionably outweighs any public interest in requiring 

disclosure as a condition of entry.” Id. at 342. It did not matter that the law targeted 

only “unsigned documents designed to influence voters in an election,” id. at 344, 

because “the category of speech regulated by the Ohio statute occupies the core of 

the protection afforded by the First Amendment,” id. at 346. 

Those constitutional concerns apply with full force to FECA’s disclosure 

requirements; indeed, the Supreme Court has “repeatedly” recognized that electionrelated disclosure requirements “seriously infringe” political advocacy. Davis v. 

FEC, 554 U.S. 724, 744 (quoting Buckley, 424 U.S. at 64-65). Would-be donors 

have many legitimate reasons to insist on anonymity—“fear of economic or official 

retaliation,” “concern about social ostracism,” the assurance “that readers will not 

prejudge [a] message simply because they do not like its proponent,” or “merely 

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[the] desire to preserve as much of one’s privacy as possible.” McIntyre, 514 U.S. at 

341-42. 

Because FECA’s “sole purpose” is the creation of a regime that “regulate[s] 

core constitutionally protected activity — ‘the behavior of individuals and groups 

only insofar as they act, speak and associate for political purposes,’” AFL-CIO, 333 

F.3d at 170 (D.C. Cir. 2003), the cannon of constitutional avoidance plays a 

particularly important role when interpreting the statute. Indeed, Buckley itself 

employed the canon when interpreting FECA to avoid unnecessary imposition on 

political activity, 424 U.S. at 43-44, and this Court has repeatedly emphasized the 

importance of avoiding First Amendment problems when applying FECA’s 

provisions and related regulations. See, e.g., Chamber of Commerce of United States 

v. FEC, 69 F.3d 600, 605 (D.C. Cir. 1995) (rejecting FEC’s interpretation of FECA 

that presented “serious constitutional difficulties”); AFL-CIO, 333 F.3d at 179 

(same). Under the avoidance cannon, “where an otherwise acceptable construction 

of a statute would raise serious constitutional problems, the Court will construe the 

statute to avoid such problems unless such construction is plainly contrary to the 

intent of Congress.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. and Const. 

Trades Council, 485 U.S. 568, 575 (1988). 

Here, the district court’s expansive interpretation of section 434(c) raises 

“serious constitutional problems” that can be avoided by limiting the disclosure 

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requirement to contributions earmarked for a particular independent expenditure. 

Most obviously, the district court’s reading requires the identification of donors who 

may have contributed with the expectation that the funds would be used by the 

agency to engage in its own “advocacy for or against the election of a federal 

candidate, even when the donor has not expressly directed that the funds be used in 

the precise manner reported.” CREW, 316 F.Supp.3d at 423 (emphasis added). 

That holding opens up a world of potentially misleading disclosures. A person 

may contribute funds to an association’s general efforts to elect Democrats in Ohio, 

aware that the organization will make independent expenditures. But the donor 

would not necessarily support an ad that suggests a Republican betrayed her country 

by supporting the Iraq War. Or a donor may believe it important to support a union’s 

independent expenditures in New York but may have no knowledge, let alone 

approve of, advertisements the union runs in Arkansas. In these cases, a “robust 

disclosure rule would thus mislead voters as to who really supports the 

communications.” Van Hollen, 811 F.3d at 497. 

The district court’s reading of section 434(c) also creates confusion for 

contributors and organizations as to when disclosure is required. The district court’s 

decision requires disclosure of contributors whose contributions are earmarked for 

“political purposes,” CREW, 316 F.Supp.3d at 401, as well as those who contribute 

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“for the purpose of furthering” independent expenditures generally, id. at 405.5

 This 

fosters confusion for both contributors and the advocacy organizations they wish to 

support. Many advocacy groups engage in multiple forms of advocacy—for 

example, grass-roots organizing and lobbying—in addition to independent 

expenditures. If a donor to the Sierra Club gives a contribution to “support our efforts 

in 2020,” is that sufficient to require disclosure under subsection (c)(1)? Or what if 

a contributor mentions seeing a prior ad, writes a letter encouraging the advocacy 

organization to “keep it up!,” and includes a $300 check? Is that sufficient 

earmarking for future independent expenditures? Requiring disclosure in the many 

borderline cases that arise greatly increases the risk of misattribution and is likely to 

cause contributors to curtail their support and advocacy groups to curtail their 

activities to avoid running afoul of the district court’s novel rule. 

The broader reading also intrudes upon the privacy of individuals who want 

to support an organization’s independent expenditures. Overly broad “disclosure 

requirements enable private citizens and elected officials to implement political 

strategies specifically calculated to curtail campaign-related activity and prevent the 

lawful, peaceful exercise of First Amendment rights.” Van Hollen, 811 F.3d at 500 

(quoting Citizens United, 558 U.S. at 483 (Thomas, J., dissenting)). “Disclosure also 

 5

 The FEC subsequently issued guidance tracking the district court’s order. 

See http://www.fec.gov/updates/fec-provides-guidance-following-us-district-courtdecision-crew-v-fec-316-f-supp-3d-349-ddc-2018/. 

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makes it easier to see who has not done his bit for the incumbents, so that arms may 

be twisted and pockets tapped.” Majors, 361 F.3d at 356 (Easterbrook, J., dubitante). 

In an era of easily accessible information, there is no shortage of examples of 

individuals—and sometimes uninvolved third parties—who were targeted for 

retaliation based on their contributions to groups engaged in political advocacy. See, 

e.g., Associated Press, Mozilla CEO Resignation Raises Free-Speech Issues, USA 

Today (April 4, 2014), available at https://bit.ly/2j2aIW9; Kristiano Ang, Should 

Consumers Boycott L.L. Bean Over A Political Donation?, Marketwatch (Jan. 14, 

2017), available at https://on.mktw.net/2Oc22fb (noting boycott of retailer because 

of heiress’s support for President Trump). 

A more pernicious effect of the district court’s maximalist interpretation of 

FECA is to discourage participation in any political activity at all. Faced with the 

choice of being held individually responsible for all independent expenditures an 

organization may make, or simply the loss of privacy associated with the amount 

and recipient of one’s contributions, see Van Hollen, 811 F.3d at 501, individuals 

are far less likely to contribute in the first place to associations that engage in any 

independent expenditures. Indeed, the pernicious effect is that those who cannot 

afford election-law specialists and corporate structures are most harmed: “such 

requirements ‘have their real bite when flushing small groups, political clubs, or 

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solitary speakers into the limelight, or reducing them to silence.’” Id. (quoting 

Majors, 361 F.3d at 358 (Easterbrook, J., dubitante)). 

The district court paid these issues no mind, instead justifying its expansive 

reading of section 434(c) as compelled by “the congressional goal of fully disclosing 

the sources of money flowing into federal political campaigns,” and “the benefits 

intended to accrue from disclosure, including informing the electorate, deterring 

corruption, and enforcing bans on foreign contributions being used to buy access and 

influence to American political officials.” CREW, 316 F.Supp.3d at 423. But this 

Court in Van Hollen cautioned against taking precisely this type of one-sided view 

of FECA’s disclosure requirements. The Court emphasized that “the art of statutory 

construction has moved beyond this particularly results-oriented brand of 

purposivism[,]” and that “[s]tatutes are hardly, if ever, singular in purpose.” Van 

Hollen, 811 F.3d at 494-95. And, like the Bipartisan Campaign Reform Act 

(“BCRA”) there, FECA seeks “to achieve a variety of ends in a way that reflects the 

give-and-take of the legislative process” and it “does not require disclosure at all 

costs.” Id. 

Moreover, the disclosure provision at issue here is specific to “independent 

expenditures”—i.e., advocacy that is not coordinated with any candidate or political 

party. 52 U.S.C. § 30101(17). In Citizens United, the Supreme Court squarely held 

that “independent expenditures, including those made by corporations, do not give 

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rise to corruption or the appearance of corruption.” Id., 558 U.S. at 357. Nor did it 

find that the speculative possibility of foreign contributions could justify limits on 

independent expenditures. Id. at 361-62. And, although Citizens United upheld an 

as-applied challenge to BCRA’s disclosure requirements—which feature markedly 

higher thresholds than section 434(c)—nothing in that decision suggests that all 

disclosure requirements are constitutional. Given their imposition on 

constitutionally protected speech, disclosure requirements must be subjected to an 

exacting narrow-tailoring requirement. After all, “[i]n the First Amendment context, 

fit matters.” McCutcheon v. FEC, 134 S. Ct. 1434, 1456-57 (2014); see Buckley, 

424 U.S. at 64 (“[C]ompelled disclosure ... cannot be justified by a mere showing 

of some legitimate governmental interest.”). 

In light of these serious constitutional concerns, the language of section 434(c) 

must be interpreted to avoid the First Amendment problems inherent in the district 

court’s reading of the disclosure requirements at issue. Simply put, the freedoms of 

speech and association are “delicate and vulnerable” and “need breathing space to 

survive.” NAACP v. Button, 371 U.S. 415, 433 (1963). Careful and contextual 

interpretation is essential to protecting our “‘profound national commitment to the 

principle that debate on public issues should be uninhibited, robust, and wideopen.’” Buckley, 424 U.S. at 14 (1976) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 

254, 270 (1964)). 

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CONCLUSION 

This Court should reverse the judgment of the district court and remand the 

case for further proceedings. 

Date: March 18, 2019 Respectfully submitted, 

 /s/ Jeffrey M. Harris 

STEVEN P. LEHOTSKY

RYAN MEYERS

U.S. CHAMBER LITIGATION CENTER

1615 H Street, NW 

Washington, DC 20062 

(202) 463-5337 

JEFFREY M. HARRIS

SAMUEL D. ADKISSON

CONSOVOY MCCARTHY PARK PLLC 

3033 Wilson Boulevard, Suite 700 

Arlington, VA 22201 

(703) 243-9423 

PATRICK STRAWBRIDGE

CONSOVOY MCCARTHY PARK PLLC 

Ten Post Office Square 

8th Floor South PMB #706 

Boston, MA 02109 

(617) 227-0548

Counsel for Amicus Curiae

 

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CERTIFICATE OF COMPLIANCE 

1. This brief complies with the type-volume limitation of Fed. R. App. P. 

29(d), because this brief contains 5439 words, excluding the parts of the brief 

exempted by Fed. R. App. P. 32(f) and D.C. Cir. R. 32(e)(1). 

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

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

brief has been prepared in a proportionally spaced typeface using Microsoft Word 

in Times New Roman 14-point font. 

Date: March 18, 2019 

/s/ Jeffrey M. Harris 

JEFFREY M. HARRIS

CONSOVOY MCCARTHY PARK PLLC 

3033 Wilson Boulevard, Suite 700 

Arlington, VA 22201 

(703) 243-9423 

Counsel for Amicus Curiae

USCA Case #18-5261 Document #1778164 Filed: 03/18/2019 Page 35 of 36
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CERTIFICATE OF SERVICE 

Pursuant to Rule 25 of the Federal Rules of Appellate Procedure, I hereby 

certify that, on March 18, 2019, I electronically filed the foregoing Brief Amicus 

Curiae of the Chamber of Commerce of the United States of America in Support of 

Appellants with the Clerk of the Court for the U.S. Court of Appeals for the District 

of Columbia Circuit by using the appellate CM/ECF system, and served copies of 

the foregoing via the Court’s CM/ECF system on all ECF-registered counsel. 

Date: March 18, 2019 

/s/ Jeffrey M. Harris 

JEFFREY M. HARRIS

CONSOVOY MCCARTHY PARK PLLC 

3033 Wilson Boulevard, Suite 700 

Arlington, VA 22201 

(703) 243-9423 

Counsel for Amicus Curiae

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