No. 18A274 

____________________ 

IN THE 

Supreme Court of the United States 

____________________ 

CROSSROADS GRASSROOTS POLICY STRATEGIES, 

 Applicant, 

v. 

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON 

& NICHOLAS MEZLAK, 

and 

FEDERAL ELECTION COMMISSION, 

 Respondents.

____________________ 

On Application for Emergency Stay Pending Appeal from the United States District 

Court for the District of Columbia, Case No. 1:16-cv-00259-BAH 

____________________ 

RESPONSE IN OPPOSITION TO EMEREGENCY APPLICATION TO CHIEF 

JUSTICE ROBERTS, CIRCUIT JUSTICE FOR THE DISTRICT OF COLUMBIA, 

FOR A STAY PENDING APPEAL 

____________________ 

STUART C. MCPHAIL

Counsel of Record 

ADAM J. RAPPAPORT

CITIZENS FOR RESPONSIBILITY AND 

ETHICS IN WASHINGTON

455 Massachusetts Ave., N.W. 

Washington, D.C. 20001 

smcphail@citizensforethics.org 

arappaport@citizensforethics.org 

(202) 408-5565 

Counsel for Citizens for Responsibility and 

Ethics in Washington and Nicholas 

Mezlak 
i 

CORPORATE DISCLOSURE STATEMENT 

Pursuant to Rule 29.6 of the Rules of the Supreme Court of the United 

States, respondent Citizens for Responsibility and Ethics in Washington states that 

it does have not a parent corporation and that no publicly-held companies hold 10% 

or more of its stock. 

 
ii 

TABLE OF CONENTS 

CORPORATE DISCLOSURE STATEMENT .................................................. i

TABLE OF CONENTS .................................................................................... ii

TABLE OF AUTHORITIES ........................................................................... iii

INTRODUCTION ............................................................................................. 1

STATEMENT OF THE CASE .......................................................................... 3

A. The FECA’s Unambiguous Reporting Requirements ........................... 3

B. The Regulation’s Conflicting Requirement ........................................... 7

C. The Administrative Proceeding and Litigation Below ......................... 9

D. Post-Judgement Proceedings ............................................................... 12

ARGUMENT ................................................................................................... 13

A. Crossroads Fails to Overcome the Deference Owed to the Lower 

Courts’ Denial of Its Stay ..................................................................... 13

B. Crossroads Fails to Show a Reasonable Probability of Certiorari 

or a Fair Prospect of Success Before This Court ................................. 16

1. The District Court Rightfully Rejected Crossroads’s 

Suggestions to Ignore the Clear Statutory Text ...................... 16

2. The District Court Had Jurisdiction Below .............................. 21

C. Crossroads Fails to Show Any Irreparable Injury .............................. 24

D. The Equities Strongly Disfavor a Stay, Which Would Substantial 

Harm CREW and the Public ................................................................ 27

E. Vacatur was the Appropriate Remedy, and This Application is Not 

the Proper Vehicle to Seek Reconsideration of that Remedy ............. 33

 
iii 

TABLE OF AUTHORITIES 

Cases

Allied-Signal, Inc. v. Nuclear Regulatory Comm’n, 988 F.2d 146 

(D.C. Cir. 1993) ................................................................................................... 11, 33 

Ariz. Free Enterprise Club’s Freedom Club PAC v. Bennett, 

564 U.S. 721 (2011) .................................................................................................. 31 

AT&T Co. v. FCC, 978 F.2d 727 (D.C. Cir. 1992), cert. denied, 

509 U.S. 913 (1993) .................................................................................................. 21 

Bailey v. Patterson, 368 U.S. 346 (1961) .................................................................... 24 

Barnes v. E-Systems. Group Hosp. Medical & Surgical Ins. Plan, 

501 U.S. 1301 (1991) ................................................................................................ 27 

Better Gov’t Ass’n v. Dep’t of State, 780 F.2d 86 (D.C. Cir. 1986) ............................. 23 

Bluman v. FEC, 800 F. Supp. 2d 281 (D.D.C. 2011) .................................................. 29 

Breswick & Co. v. U.S., 75 S. Ct. 912 (1955) .............................................................. 14 

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

Catholic Leadership Coal. of Tex. v. Reisman, No. A-12-CA-566-SS, 

2012 WL 12873174 (W.D. Tex. July 20, 2012) ........................................................ 31 

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 

(D.C. Cir. 2006) ......................................................................................................... 26 

Cierco v. Mnuchin, 857 F.3d 407 (D.C. Cir. 2017) ................................................ 22, 23 

Citizens United v. FEC, 558 U.S. 310 (2010) ................................................... 8, 25, 29 

City of Arlington, Tex. v. FCC, 569 U.S. 290 (2013) ............................................ 20, 33 

CREW v. FEC, 243 F. Supp. 3d 91 (D.D.C. 2017) ................................................ 16, 21 

Davis v. FEC, 554 U.S. 724 (2008) .............................................................................. 31 

Doe v. Reed, 561 U.S. 186 (2010) .......................................................................... 25, 31 

Emily’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009) ........................................................ 33 

FEC v. Akins, 524 U.S. 11 (1998) .................................................................... 21, 23, 27 
iv 

FEC v. Mass. Citizens for Life, 479 U.S. 238 (1986) (“MCFL”) ......................... 3, 5, 16 

Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989) ............................................. 26 

Graves v. Barnes, 405 U.S. 1201 (1972) ..................................................................... 13 

Hollingsworth v. Perry, 558 U.S. 183 (2010) ...................................................... 2, 3, 24 

Humane Soc’y of U.S. v. Zinke, 865 F.3d 585 (D.C. Cir. 2017) .................................. 33 

Lair v. Bullock, 697 F.3d 1200 (9th Cir. 2012) ........................................................... 31 

Laird v. Tatum, 408 U.S. 1 (1972) ............................................................................... 26 

Lucas v. Townsend, 486 U.S. 1301 (1988) .................................................................. 28 

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .................................................. 24 

McComish v. Brewer, No. cv-08-1550-PHX-ROS, 2008 WL 4629337 

(D. Ariz. Oct. 17, 2008) ............................................................................................. 31 

McConnell v. FEC, 540 U.S. 93 (2003) ........................................................................ 25 

McCutcheon v. FEC, 572 U.S. 185 (2014) ................................................................. 5, 7 

MCFL, 479 U.S. at 262 ................................................................................................ 17 

McGraw-Hill v. Proctor & Gamble, 515 U.S. 1309 (1995) ......................................... 22 

Mott v. FEC, 494 F. Supp. 131 (D.D.C. 1980) ............................................................. 21 

NLRB v. SW Gen., Inc., 137 S. Ct. 929 (2017) ............................................................ 20 

Pasadena City Bd. of Ed. v. Spangler, 423 U.S. 1335 (1975) ....................................... 1 

Pereira v. Sessions, 138 S. Ct. 2105(2018) ................................................................. 15 

Pillsbury v. United Eng’g Co., 342 U.S. 197 (1952) .................................................... 20 

Purcell v. Gonzalez, 549 U.S. 1 (2006) .................................................................. 30, 31 

Randall v. Sorrell, 548 U.S. 230 (2006) ....................................................................... 32 

Respect Maine PAC v. McKee, 622 F.3d 13 (1st Cir. 2010) ....................................... 31 

Rostker v. Goldberg, 448 U.S. 1306 (1980) ......................................................... passim 

Ruckelshaus v. Monsanto Co., 463 U.S. 1315 (1983) ....................................... 2, 16, 25 
v 

Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) ............................................................... 33 

STOP Hillary PAC v. FEC, 166 F. Supp. 3d 643 (E.D. Va. 2015) ............................. 30 

Summers v. Earth Island Inst., 555 U.S. 488 (2009) ................................................. 23 

Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115 (1974) ............................................. 23 

U.S.P.S. v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 481 U.S. 1301 (1987) .............. 28 

United States v. Williams, 553 U.S. 285 (2008) ......................................................... 20 

Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016) ..................................................... 18 

Warth v. Seldin, 422 U.S. 490 (1975) .......................................................................... 32 

Weaver v. Fed. Motor Carrier Safety Admin., 744 F.3d 142 (D.C. Cir. 2014) .......... 21 

Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) ................................................. 33 

Whalen v. Roe, 423 U.S. 1313 (1975) ................................................................ 1, 14, 33 

Statutes

2 U.S.C § 434(e)(1) (1976) ........................................................................................ 6, 19 

52 U.S.C. § 30101(4) ...................................................................................................... 4 

52 U.S.C. § 30101(8) .................................................................................................... 20 

52 U.S.C. § 30102 ........................................................................................................... 4

52 U.S.C. § 30104(a)(4) .................................................................................................. 4 

52 U.S.C. § 30104(b)(3)(A) ............................................................................................. 4 

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

52 U.S.C. § 30104(c) ....................................................................................................... 4 

52 U.S.C. § 30104(c)(1) ........................................................................................ passim 

52 U.S.C. § 30104(c)(2)(C) ................................................................................... passim 

52 U.S.C. § 30106(c) ..................................................................................................... 32 

52 U.S.C. § 30109(a)(8)(A) ........................................................................................... 10 
vi 

Other Authorities

FEC, Definition of Federal Election Activity, Interim Final Rule, 

71 Fed. Reg. 14357 (Mar. 22, 2006) ......................................................................... 34 

FEC, Independent Expenditures (last visited Sept. 12, 2018), 

https://bit.ly/2MphFgB ............................................................................................. 23 

Hearing Before the S. Comm. on Rules & Admin. to Amend the 

Federal Election Campaign Act of 1971, as Amended, & for Other 

Purposes, 96th Cong. (July 13, 1979) ........................................................................ 6 

OpenSecrets.org, Outside Spending by Disclosure, Excluding Party 

Committees (last visited Sept. 15, 2018), https://bit.ly/1AzZeKb ........................... 29 

Robert Maguire, One Nation rising: Rove-linked group goes from no 

revenue to more than $10 million in 2015, OpenSecrets News (Nov. 17, 2016), 

https://bit.ly/2fJebqp ................................................................................................ 26 

Senate Select Committee on Intelligence, The Intelligence Community 

Assessment: Assessing Russian Activities and Intentions in Recent U.S. 

Elections (July 3, 2018) ............................................................................................ 29 

Rules

Fed. R. Civ. P. 60 ......................................................................................................... 33

Regulations

11 C.F.R. § 100.51 ........................................................................................................ 20 

11 C.F.R. § 100.71 ........................................................................................................ 21 

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

INTRODUCTION 

Having had every one of its arguments rejected below, including its requests 

to indefinitely stay the order vacating a regulation, Applicant Crossroads 

Grassroots Policy Strategies (“Crossroads”) now seeks relief appropriate in only 

“extraordinary cases.” Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980). Crossroads 

asks this Court to grant a stay pending its appeal to the D.C. Circuit and, 

presumably, review by this Court, of the considered judgment below of Chief Judge 

Beryl A. Howell; a request that both the D.C. Circuit and Judge Howell have now 

wholly rejected. At the heart of Crossroads’s request is its desire to avoid 

compliance with its unambiguous disclosure obligations under the Federal Election 

Campaign Act (“FECA”), a request that, if granted, would do immeasurable damage 

to the American people by “depriv[ing] the electorate of donor information that was 

intended and supposed to be disclosed,” Op. 96.1 Crossroads’s application appears 

calculated to deny voters in the next federal election knowledge about “[t]he sources 

of a candidate’s financial support” before they cast their ballots. Buckley v. Valeo, 

424 U.S. 1, 67 (1976). 

Crossroads fails, however, to meet its “heavy burden” of justifying the 

“extraordinary” relief it seeks here: a stay by this Court while the matter is pending 

on review in the circuit court below. Whalen v. Roe, 423 U.S. 1313, 1316 (1975); see 

also Pasadena City Bd. of Ed. v. Spangler, 423 U.S. 1335, 1336 (1975) (“Ordinarily a 

stay application to a Circuit Justice on a matter currently before a Court of Appeals 

 1 Crossroads Appl. Add. B; CREW v. FEC, 316 F. Supp. 3d 349 (D.D.C. 2018). 
2 

is rarely granted.”). Indeed, Crossroads’s burden is particularly high here, where 

(a) the district court expressly considered its request to delay relief and crafted its 

own limited stay based on a careful balance of the facts, and then rejected 

Crossroads’s request to extend that stay, and (b) the D.C. Circuit likewise rejected 

Crossroads’s stay request because Crossroads “fails every prong of the showing 

required,” Ruckelshaus v. Monsanto Co., 463 U.S. 1315, 1317 (1983) (lower court’s 

finding that a “stay is unwarranted is entitled to considerable deference”).

Crossroads does not overcome that deference and cannot meet its heavy 

burden. It first fails to show “a reasonable probability that four Justices will 

consider the issue sufficiently meritorious to grant certiorari” or “a fair prospect 

that a majority of the court will vote to reverse the judgment below.” Hollingsworth 

v. Perry, 558 U.S. 183, 190 (2010) (per curiam). As the district court below held in 

its thorough and well-reasoned opinion, the Federal Election Commission (“FEC”) 

regulation that was struck and that Crossroads seeks to preserve is plainly 

inconsistent with the disclosure required by the FECA. Op. 53–92. The regulation 

limits disclosure by those making independent expenditures to only campaign 

contributors who contribute to fund “the reported” independent expenditure—a 

category so narrowly defined as to be nonexistent. See 11 C.F.R. § 109.10(e)(1)(vi); 

Op. 7, 8. The FECA, however, far more broadly commands disclosure of the sources 

of “all contributions” over $200, 52 U.S.C. § 30104(c)(1), as well the identification of 

those who contribute for the purpose of furthering “an” independent expenditure, id.
3 

§ 30104(c)(2)(C); accord FEC v. Mass. Citizens for Life, 479 U.S. 238, 262 (1986) 

(“MCFL”). 

Recognizing the statute and regulation impose inconsistent requirements, 

Crossroads requests this emergency relief for the very purpose of using the narrow 

regulation to avoid the disclosure mandated by the FECA. Crossroads then resorts 

to attacking straw men and blatant misquotations in an attempt to mislead this 

Court about its likelihood of success. Despite these tactics, Crossroads cannot make 

out a “fair prospect” that the Court will ignore the FECA’s clear text to save the 

invalid regulation. 

Crossroads further fails to show any cognizable and “irreparable harm” from 

a lack of a stay, Hollingsworth, 558 U.S. at 190, because Crossroads’s selfcensorship to avoid constitutional disclosure obligations is not a cognizable injury, 

particularly where that censorship is wholly unrelated to the decision below. 

Crossroads also fails to show that the “balance [of] equities” between “the relative 

harms to [it]” and respondents Citizens for Responsibility and Ethics in Washington 

and Nicholas Mezlak (together “CREW”), “as well as the interests of the public at 

large,” favors a stay. Rostker, 448 U.S. at 1308. Accordingly, CREW respectfully 

requests this Court deny Crossroads’s application. 

STATEMENT OF THE CASE 

A. The FECA’s Unambiguous Reporting Requirements 

The FECA imposes two separate but complementary disclosure obligations on 

groups that are not political committees who make more than $250 in “independent 
4 

expenditures,” 52 U.S.C. § 30104(c), defined as communications that expressly 

advocate for the election or defeat of a federal candidate, 52 U.S.C. § 30101(17). 

First, the FECA requires: 

Every person (other than a political committee) who makes 

independent expenditures in an aggregate amount or value in excess of 

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

information required under subsection (b)(3)(A) for all contributions 

received by such person. 

52 U.S.C. § 30104(c)(1). Subsection (b) governs the contents of disclosure reports 

political committees must file, and subsection (b)(3)(A) covers the 

scope of contributors that must be disclosed.2 By the explicit cross-reference to 

subsection (b)(3)(A), subsection (c)(1) subjects non-political committees making 

independent expenditures to the same obligation to disclose contributors that it 

imposes on political committees. Specifically, they must both disclose “the 

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

contribution . . . whose 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).3 

 2 The FECA defines a political committee as a group that “receives contributions” or 

“makes expenditures” over $1,000 in a calendar year, 52 U.S.C. § 30101(4), and this 

Court has further limited their application to groups with the “major purpose” of 

influencing elections, Buckley, 424 U.S. at 79. 

3 Apart from the scope of contributor disclosure, the FECA imposes more rigorous 

burdens on political committees than on others making independent expenditures, 

including disclosure of all disbursements, 52 U.S.C. § 30104(b)(4); continuous 

reporting, id. § 30104(a)(4); and certain recordkeeping and organizational burdens, 

id. § 30102. Further, all funds donated to a political committee are contributions 
5 

Second, the FECA also requires groups that are not political committees to 

identify certain of those contributors: 

Statements required to be filed by this subsection shall be filed in 

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

52 U.S.C. § 30104(c)(2)(C) (emphasis added). 

As this Court itself held, these provisions require non-political committees 

making $250 worth of independent expenditures “to identify all contributors who 

annually provide in the aggregate $200 in funds intended to influence elections . . . 

[and] to identify all persons making contributions over $200 who request that the 

money be used for independent expenditures.” MCFL, 479 U.S. at 262.4 As with all 

disclosure provisions of the FECA, these complementary reporting obligations serve 

a number of compelling interests, including “providing the electorate with 

information about the sources of election-related spending” and “deter[ing] actual 

corruption and avoid[ing] the appearance of corruption.” McCutcheon v. FEC, 572 

U.S. 185, 223 (2014) (Roberts, C.J.) (internal quotation marks and citations 

omitted). 

 

because political committees are “by definition, campaign related,” Buckley, 424 

U.S. at 79, while only donations to those making independent expenditures 

“intended to influence elections” are contributions, Op. 55. 

4 While § 30104 was not at the center of the dispute in MCFL, the Court’s 

understanding about the scope of the obligations it imposed was necessary to its 

conclusion that the government had available “less restrictive” means than the ban 

at issue and that still satisfied its interests. Id. 
6 

The complimentary reporting obligations mirror the FECA’s prior dual 

reporting obligations for independent expenditures. First, the prior statutory 

language required those making independent expenditures to “file with the 

Commission . . . a statement containing . . . the information required of a candidate 

or political committee receiving . . . a contribution [in excess of $100].” 2 U.S.C. 

§ 434(e)(1) (1976). The 1979 FECA Amendments made this incorporation of 

political committee reporting obligations even more explicit by identifying exactly 

what information the reporting entity should identify. Second, unlike the current 

statute, the FECA then imposed an obligation on contributors to self-report, 

requiring that any person “who makes contributions . . . , other than by contribution 

to a political committee or candidate, in an aggregate amount in excess of $100 

during a calendar year shall file . . . a statement containing the information 

required of a person who makes a contribution in excess of $100 to a candidate or 

political committee.” Id. In so doing, the prior statute imposed a duty on those 

making contributions to report “contributions to independent expenditures” without 

exception. See Crossroads Add. D at 3. In the 1979 FECA Amendments, Congress 

shifted the latter reporting obligation onto the person making the independent 

expenditure to “[s]implif[y] reporting without affecting meaningful disclosure.” 

Hearing Before the S. Comm. on Rules & Admin. to Amend the Federal Election 

Campaign Act of 1971, as Amended, & for Other Purposes, 96th Cong. 139 (July 13, 

1979), https://bit.ly/2BopE8F.5

 5 The district court’s decision provides a lengthy discussion of the history of the 
7 

B. The Regulation’s Conflicting Requirement 

Notwithstanding the FECA’s unambiguous statutory commands, the FEC 

regulation implementing these provisions fails to capture the dual reporting 

requirements Congress imposed. The regulation in question, 11 C.F.R. 

§ 109.10(e)(1)(vi) completely ignores the reporting requirement of subsection (c)(1) 

and inexplicably and “sharply narrows” the reporting requirement under subsection 

(c)(2)(C), mandating that non-political committees making independent 

expenditures merely “identi[fy] each person who made a contribution in excess of 

$200 to the person filing such report, which contribution was made for the purpose 

of furthering the reported independent expenditure.” Id. (emphasis added); D.C. 

Cir. Stay Op. 1. The FEC has interpreted the regulation to require reporting only 

where a contributor “earmarked contributions for specific expenditures in the 

precise form set out in a particular report”—i.e., an “express link between the 

receipt and independent expenditure” was deemed required. Op. 13, 80. 

Accordingly, the FEC has found the regulation did not require disclosure of 

contributions where the reporter knew funds were given to “support the election” of 

a specific federal candidate, Op. 102, or where the contributors were solicited after 

watching “example” independent expenditures, Op. 88. As a result, the regulation 

produces almost no reporting about the “sources of election-related spending.” 

McCutcheon, 572 U.S. at 223; see, e.g., Op. 8 (showing Crossroads aired over $17 

million in independent expenditures but reported “0” in contributions). 

 

relevant portions of the FECA. See Op. 25–35 
8 

The FEC never issued an explanation for its abandonment of subsection 

(c)(1)’s reporting requirement or its narrowing of subsection (c)(2)(C) . Rather, its 

entire public explanation for the regulation comprised a single sentence: “This 

section has been amended to incorporate the changes set forth in [52] U.S.C. 

[§] [30104](c)(1) and (2) regarding reporting requirements for persons, other than a 

political committee, who make independent expenditures.” Op. 39 (quoting 45 Fed. 

Reg. 15080, 15087 (Mar. 7, 1980)). The rulemaking record also shows no reason for 

the regulation’s divergence from the FECA or, in fact, that the agency was even 

aware of this divergence. Rather, it shows that the FEC first proposed a regulation 

reflecting the language of subsection (c)(2)(C), but inexplicably changed that 

language to the final form without prompting or discussion. See Op. 38–39. 

Nonetheless, prior to this Court’s decision in Citizens United v. FEC, 558 

U.S. 310 (2010), the regulation’s divergence from the statute had little effect 

because there were very few non-political committee independent expenditures. 

OpenSecrets.org, Total Outside Spending by Election Cycle, Excluding Party 

Committees, https://bit.ly/2OuygS0. With the explosion in independent 

expenditures after Citizens United, however, new attention was paid to 11 C.F.R. 

§ 109.10(e)(1)(vi), leading then-Congressman Van Hollen to petition for a 

rulemaking change in 2011 to bring the regulation into compliance with the statute. 

See Op. 13–14. Even though the FEC staff acknowledged that the regulation 

conflicted with the statute, no action was taken. Id. 
9 

C. The Administrative Proceeding and Litigation Below 

The present action arises from the application of the invalid regulation to 

CREW in an administrative proceeding where CREW alleged that Crossroads 

violated 52 U.S.C. § 30104(c)(1), (c)(2)(C), and 11 C.F.R. § 109.10(e)(1)(vi). Op. 47–

48; see also Crossroads Add. I ¶¶ 14–16, 41, 47 (CREW’s administrative complaint). 

CREW’s complaint asserted that Crossroads received a multi-million dollar 

contribution for the known purpose of “aid[ing] the election of” a federal candidate, 

accepted millions more in “matching” contributions for the same purpose, and 

collected more contributions from individuals who were first shown “example” 

independent expenditures that their contributions could go toward funding. Op. 5–

8, 88.6 

The FEC staff also reviewed all of CREW’s allegations and recognized that 

the regulation was in conflict with the statute. See Op. 12–15. Specifically, the 

FEC Office of General Counsel (“OGC”) recognized that the regulation was “silent 

concerning [the] additional reporting requirement” of subsection (c)(1), and was in 

conflict with subsection (c)(2)(C)’s “arguably more expansive approach.” Id. 

Nevertheless, finding itself bound by the FEC’s interpretation of the statute as 

expressed in the regulation, the OGC recommending dismissing CREW’s complaint 

 6 Crossroads responded to CREW’s allegations, including—contrary to its assertion 

to the Court here, see Crossroads Appl. 11—CREW’s allegation that Crossroads 

violated subsection (c)(1). See Crossroads Appl. Add. I ¶ 16 n.1 (alleging regulation 

fails to give “full effect to these provisions,” including subsection (c)(1)); Crossroads, 

Response to MUR 6696, at 11 (Jan. 17, 2013) https://bit.ly/2xfpUHq (arguing 

“CREW’s Suggestion That the Regulation Does Not ‘Give Full Effect’ to the Act Is 

Irrelevant”). 
10 

because it found the facts failed to establish an “express link” between the 

contribution and a final specific independent expenditure. Op. 13.7 By a divided 

three-to-three vote, the Commission deadlocked on the OGC’s recommendation, 

leading to dismissal of CREW’s complaint. Op. 15. 

CREW sought review of that dismissal under 52 U.S.C. § 30109(a)(8)(A) and 

challenged the regulation’s validity under the Administrative Procedure Act. Op. 

16. The district court, after considering the reporting obligations imposed by 52 

U.S.C. § 30104(c)(1) and (c)(2)(C), found they “unambiguously require separate and 

complementary” reports of contributors and “mandate significantly more disclosure 

than” 11 C.F.R. § 109.10(e)(1)(vi). Op. 92. In doing so, it relied on the plain text of 

the statute, which was supported by the statutory structure, statutory history, and 

the fact that the Supreme Court had also construed 52 U.S.C. § 30104(c)(1) and 

(c)(2)(C) to impose two separate reporting obligations: one to disclose “all 

contributors” over $200 annually and another to identify all contributions “used for 

independent expenditures.” Op. 53–65. The remainder of the district court’s 

opinion was largely devoted to rejecting the FEC’s and Crossroads’s numerous 

“unsupported” arguments, including various challenges to the court’s jurisdiction, 

and considering CREW’s FECA claim. See Op. 43–51, 65–92, 99–112. 

The district court also gave considered thought to the appropriate remedy for 

CREW’s challenge to the regulation, weighing defendants’ arguments in favor of an 

 7 The OGC also stated that the existence of the regulation, which it assumed was 

valid, could mean that Crossroads could raise “equitable concerns” about a failure to 

report under subsection (c)(1). Op. 15. 
11 

indefinite stay by way of remand to the agency. Op. 93–99. Evaluating the factors 

outlined in Allied-Signal, Inc. v. Nuclear Regulatory Comm’n, 988 F.2d 146, 150–51 

(D.C. Cir. 1993), the district court found vacatur was the proper remedy. The 

district court recognized the “regulation has deprived the electorate of donor 

information that was intended and supposed to be disclosed” and that remand 

rather than vacatur addressed the “significant concern” about the proven “inaction 

by the FEC to address flaws” in the regulation. Op. 96, 99; see also Op. 13–15 

(noting the FEC has known since at least 2011 that the regulation is inconsistent 

with the statute but has refused to take action). Further, the district court rejected 

Crossroads’s suggestions that vacatur would be “chaotic”—in contradiction to 

Crossroad’s false representation here, see Crossroads Appl. 2—finding that “the fact 

that not-political committees have been permitted to under-disclose by virtue of the 

flawed challenged regulation and may now have to increase their contributor 

disclosures to meet statutory requirements is not a consequence that, in the Court’s 

view, is so disruptive or chaotic that vacatur should be avoided.” Op. 96. 

Nonetheless, responding to the FEC’s arguments “that the timing of filing the 

requisite disclosure statements to fulfill statutory disclosure obligations may be 

complex” because it is not clear whether an organization like Crossroads that makes 

large numbers of independent expenditures would have to resubmit every one of 

their contributors with each report or whether it could simply update a previous 

report with new contributors, the Court found that “that regulatory guidance from 

the FEC on this timing issue would be helpful.” Op. 88. Accordingly, it stayed its 
12 

judgment for 45 days. Op. 99. The district court, however, expressly asserted it did 

not stay its decision to give the FEC time to craft a new regulation to “ignore, 

narrow or misconstrue a statute in order to save reporting entities from a statutory 

disclosure regime viewed by the FEC as ‘cumbersome and confusing,’ or 

‘duplicative.’” Op. 88–89 (quoting FEC’s Opp’n at 37). 

D. Post-Judgement Proceedings 

As a result of the district court’s judgment on CREW’s FECA claim, the 

administrative proceeding was remanded back to the FEC for further action within 

thirty days. Op. 112. On remand, the FEC once again dismissed, this time finding 

reason to believe Crossroads violated the law, but concluding that dismissal was 

warranted because Crossroads could have reasonably relied on the regulation. First 

General Counsel’s Report 15, MUR 6696R (Crossroads) (Aug. 24, 2018), 

https://bit.ly/2OoygTC. 

On August 24, three weeks after the district court’s decision and almost 

halfway through the 45 day stay of the vacatur, Crossroads first moved for a stay of 

judgment, demanding the district court reconsider the limited stay it provided and 

grant Crossroads relief within six calendar days. When the district court did not 

comply with Crossroads’s demand, Crossroads filed an emergency request to stay in 

the D.C. Circuit. On September 15, 2018, both the district court and the Court of 

Appeals rejected Crossroads’s requests for a stay. Order, CREW v. FEC, No. 18-

5261 (D.C. Cir. Sept. 15, 2018) (hereinafter, “D.C. Cir. Stay Op.”) (attached as Add. 

A); see also Minute Order, CREW v. FEC, No. 16-cv-259-BAH (D.D.C. Sept. 15, 

2018) (denying Crossroads’s motion for a stay). 
13 

ARGUMENT 

“Stays pending appeal to this Court are granted only in extraordinary 

circumstances.” Graves v. Barnes, 405 U.S. 1201, 1203 (1972) (Powell, J., in 

chambers). “Relief from a single Justice is appropriate only in those extraordinary 

cases where the applicant is able to rebut the presumption that the decisions 

below–both on the merits and on the proper interim disposition of the case–are 

correct.” Rostker, 448 U.S. at 1308. 

In a case like the present one, this can be accomplished only if a fourpart showing is made. First, it must be established that there is a 

reasonable probability that four Justices will consider the issue 

sufficiently meritorious to grant certiorari or to note probable 

jurisdiction. Second, the applicant must persuade [the Justice] that 

there is a fair prospect that a majority of the Court will conclude that 

the decision below was erroneous. . . . Third, there must be a 

demonstration that irreparable harm is likely to result from the denial 

of a stay. And fourth, in a close case it may be appropriate to balance 

the equities—to explore the relative harms to applicant and 

respondent, as well as the interests of the public at large. 

Id. (internal quotation marks and citations omitted). 

A. Crossroads Fails to Overcome the Deference Owed to the 

Lower Courts’ Denial of Its Stay 

As an initial matter, Crossroads application should be rejected because it 

cannot overcome the deference owed to the lower courts’ decisions to reject its 

request for a stay. The district court considered the same arguments Crossroads 

raises here for a stay and found them insufficient to delay vacatur of the regulation 

for any longer than 45 days after its decision. Op. 93–99. The D.C. Circuit found 

that “Crossroads’[s] motion for a stay fails every prong of the showing required to 

obtain the extraordinary relief of a say pending appeal. D.C. Cir. Stay Op. 3; see 
14 

also Minute Order, CREW, No. 16-cv-259-BAH (denying Crossroads’s motion for a 

stay). 

“Justices have . . . weighed heavily the fact that the lower court refused to 

stay its order pending appeal, indicating that it was not sufficiently persuaded of 

the existence of potentially irreparable harm as a result of enforcement of its 

judgment in the interim.” Whalen, 423 U.S. at 1317. For example, Justice Jackson 

noted that it was his “almost invariable practice to refuse stays which the Court of 

Appeals or its judges have denied” because “they are closer to the facts, have heard 

the merits fully argued, and because [he] ha[d] confidence that they would grant 

stays in worthy cases.” Breswick & Co. v. U.S., 75 S. Ct. 912, 915 n* (1955) 

(Harlan, J.) (quotingUnited States ex rel. Knauff v. McGrath, 96 Cong. Rec. A3751 

(1949)); see also id. at 915 (“A single Justice may also be expected to give due regard 

to a lower court’s denial of a stay.”). Here, the lower court judges have unanimously 

agreed Crossroads does not deserve the stay it requests. 

The D.C. Circuit issued an order the day after Crossroads filed its application 

here rejecting in toto Crossroads’s emergency motion for a stay of the district court 

opinion below. First, the D.C. Circuit found that Crossroads “is unable to 

demonstrate any ‘likelihood’ of success, and certainly not a ‘substantial’ one.” D.C. 

Cir. Stay Op. 4 (emphasis added). The D.C. Circuit found that Crossroads ignored 

the plain text of the FECA by “rel[ying] on (debatable) legislative history and postenactment congressional inaction.” Id. But it recognized that here, “text alone is 

enough to resolve th[e] case.” Id. (quoting Pereira v. Sessions, 138 S. Ct. 2105, 2114 
15 

(2018)); see also id. (recognizing “congressional acquiescence cannot change the 

plain meaning of enacted text”). The D.C. Circuit similarly found the age of the 

regulation could not save it, noting that, “unlike fine wines, regulations that so 

materially rewrite and recast plain statutory text do not improve with age.” Id. 

The D.C. Circuit also found CREW had standing below and its challenge was 

timely, and found Crossroads’s mootness argument “is wrong chronologically since 

it post-dates the decision under review and, in any event, the dismissal on remand 

actually indicates that the regulation is continuing to deprive [CREW] of the 

information it seeks and certainly is capable of repetition.” Id. at 5. The D.C. 

Circuit further found Crossroads’s asserted injuries were neither “certain and 

great,” nor “actual and not theoretical.” Id. Finally, the D.C. Circuit found CREW’s 

and the public’s interest outweighed Crossroads’s, stating “where the complained-of 

disclosure covers only those who donate for the intended purpose of influencing an 

election, the interest in anonymity does not, for purposes of an exceptional stay, 

outweigh [CREW’s] and the public’s countervailing interests in receiving importing 

voting information and in transparency.” Id. at 6. 

Further, district court Chief Judge Howell, who considered over four 

hundred pages of briefing on the merits by the parties,8 as well as over eighthundred pages of record, and rendered two thorough and well-reasoned decisions 

totaling 135 pages on CREW’s standing and the merits below, both rejected 

 8 The district court also had the benefit of the arguments of the FEC, which 

appeared in the district court and has not participated in briefing here. 
16 

Crossroads’s request to remand-but-not-vacate,see Op; CREW v. FEC, 243 F. Supp. 

3d 91 (D.D.C. 2017), and Crossroads’s request to stay, see Minute Order, CREW, 

No. 16-cv-259-BAH. Crossroads provides no reason for this Court to disturb the 

considered judgment of the courts below.9 

B. Crossroads Fails to Show a Reasonable Probability of Certiorari or a Fair 

Prospect of Success Before This Court 

1. The District Court Rightfully Rejected Crossroads’s Suggestions to 

Ignore the Clear Statutory Text 

Turning to the factors themselves, Crossroads’s application immediately 

falters because, rather than make a strong showing of a likelihood of success in 

reversing the district court’s well-reasoned decision below, it resorts to 

misconstruing the court’s analysis to attack straw men, while ignoring the 

reasoning the district court actually gave. 

The district court rendered its considered judgment that the FECA provides 

two unambiguous and complementary reporting obligations for non-political 

committees making independent expenditures: (1) to disclose “all contributions” 

over $200 annually in the same manner that political committees do, and (2) to 

identify contributors who intended to fund “an independent expenditure.” Op. 53–

60, 65; see also MCFL, 479 U.S. at 262. Its primary reasoning was straightforward: 

the text explicitly calls for such disclosure. See also D.C. Cir. Stay Op. at 4 (holding 

“text alone” resolves this case). 

 9 Crossroads also waited three weeks from that decision before asking to extend the 

stay. Crossroads’s “failure to act with greater dispatch tends to blunt [its] claim of 

urgency and counsels against the grant of a stay.” Ruckelshaus, 463 U.S. at 1318. 
17 

The district court found that the plain reading of subsection (c)(1) was 

supported by the fact that the FECA expressly incorporates by reference the 

contributor reporting obligations imposed on political committees, making “clear 

that these disclosure obligations for contributors are closely aligned.” Op. 54. This 

incorporation, the district court noted, was reflected in prior versions of the FECA, 

and that Congress’s only changes to this requirement over the years were to make it 

more explicit. Op. 55 n.35. 

The district court also recognized that, with respect to subsection (c)(2)(C), 

Congress expressly provided the particular scope of the subset of contributors that 

must be further identified: those intending to support “an independent 

expenditure.” Op. 56–58. The district court held that the word “an” must be given 

its “plain and ordinary meaning,” which, as shown by contemporary dictionaries 

and context, is “one, some, any.” Id. That meaning, the district court concluded, is 

more expansive than “a particular, specified independent expenditure,” and extends 

to a contribution “without regard to the actual reported form of the express 

advocacy funded by the expenditure.” Op. 59. 

The district court further recognized that the Supreme Court itself ascribed 

the exact same reading to these provisions more than thirty years ago. Op. 55–56 

(discussing MCFL, 479 U.S. at 262); id. at 60–61 (same). Accordingly, the district 

court found the regulation—which did not require either type of disclosure, but 
18 

rather limited contributor reporting to such an extent that contributors were rarely 

if ever reported—conflicted with the statute. Op. 92.10 

The district court also devoted significant consideration to the FEC’s and 

Crossroads’s numerous arguments suggesting that both the agency and the court 

could ignore the plain text, finding their arguments “[u]nsupported.” See Op. 65–

91; see also D.C. Cir. Stay Op. 4 (noting “district court’s opinion spent just twelve 

pages analyzing the plain text of two interrelated statutory provisions . . .” and 

“[t]he balance of the opinion is devoted to background sections, dismantling 

Crossroads’[s] and the [FEC’s] varied efforts to manufacture ambiguity, and 

disposing of other issues in the case”). Among those rejected arguments was 

Crossroads’s claim that the FEC (and the court) could ignore the text of the statute 

because the FECA “does not require disclosure at all costs,” Op. 77 (discussing 

Crossroads’s argument based on Van Hollen v. FEC, 811 F.3d 486, 494–95 (D.C. 

Cir. 2016)), thus permitting the FEC to narrow the disclosure Congress mandated, 

see Crossroads Appl. 29 (arguing for Crossroads’s preferred policy of limited-to-no 

disclosure). 

Nonetheless, Crossroads now mischaracterizes the district court’s decision 

below and remarkably accuses it of engaging in an over-expansive purposive 

analysis at the cost of the text. Crossroads Appl. 16. But even a cursory reading of 

 10 The district court also found the regulation was “arbitrary and capricious” 

because the single-sentence explanation provided “wholly fails to explain how 

subsection (c)(1) is implemented or provide justification for narrowing the disclosure 

of subsection (c)(2)(C).” Op. 92 n.48. 
19 

the district court’s opinion shows that Crossroads’s characterization is wrong. 

Indeed, the portions Crossroads quotes stem not from any purposive-driven 

approach, but rather from the district court’s rejection of the defendants’ suggestion 

that the FEC and the court should ignore 52 U.S.C. § 30104(c)(1) solely to advance 

their unsupported assumption that the statute simply could not have meant to 

impose parallel reporting obligations. Compare Crossroad Appl. 16 with Op. 77 

(responding to defendants’ argument that “Congress did not intend for not-political 

committees to be regulated in the same way as political committees”); id. at 87–88 

(responding to defendants’ argument that “the event-driven independent 

expenditure reports filed by [not-political committees] are intended to provide 

information only about the reported expenditure, not a wider range of activity”). 

Crossroads also insists the district court “discounted the legislative history.” 

Crossroads Appl. 17. Not so. The district court opinion includes a lengthy 

discussion of the legislative history, see Op. 25–35, and it found that history 

confirmed the “unambiguous” nature of the statutory sections, Op. 53. Crossroads 

contests this by oddly relying on the fact that the historical record uses a definite 

article at times to refer to various items. See Crossroads Appl. 8–9 (underlining the 

word “the” in several texts). Crossroads points to nothing, however, to dispute the 

fact that the prior versions of the FECA also imposed a duty on those making 

independent expenditures to disclose the same information about contributors that 

political committees disclosed, and on contributors to report if they gave to fund any 

independent expenditure. See 2 U.S.C § 434(e)(1) (1976). Nor does the use of “the” 
20 

anywhere else in the record alter the fact that, with respect to subsection (c)(1), and 

(c)(2)(C), Congress expressly rejected such an express link between the independent 

expenditure triggering the report and the contribution. “Congress knew the 

difference between ‘[the]’ and ‘[an]’ and used the words advisedly.” Pillsbury v. 

United Eng’g Co., 342 U.S. 197, 199 (1952). At any rate, where, as here, the 

statutory text is unambiguous, there is no need to consider legislative history or 

other extra-textual evidence. See NLRB v. SW Gen., Inc., 137 S. Ct. 929, 942 (2017) 

(Roberts, C.J.) (“The [statutory] text is clear, so we need not consider this extratextual evidence.”); accord D.C. Cir. Stay Op. 4. 

Crossroads also insists that the term “contribution” is vague because it is 

defined in the statute as funds “for the purpose of influencing any election” and by 

the Supreme Court as funds “earmarked for political purposes,” and therefore the 

FEC could ignore subsection (c)(1). Crossroads Appl. 17. Even if there were some 

ambiguity as to what a contribution is (and there is not11), Congress still 

commanded the same disclosure of “all” contributors that it imposes on political 

committees, which alone invalidates the regulation. See City of Arlington, Tex. v. 

FCC, 569 U.S. 290, 296 (2013). Further, it was this Court that defined 

“contribution” to include funds “earmarked for political purposes,” Buckley, 424 

U.S. at 78, which it did to render the statute not vague, see id.; Mott v. FEC, 494 F. 

 11 Both the FECA and FEC implementing regulations contain long explanations of 

what is and is not a contribution. See 52 U.S.C. § 30101(8)A)(i)–(B)(xiv); 11 C.F.R. 

§§ 100.51–94. The mere fact there may be “close cases” on the facts does not mean 

the definition is vague. United States v. Williams, 553 U.S. 285, 305–06 (2008). 
21 

Supp. 131, 136 (D.D.C. 1980) (recognizing Buckley interpreted “contribution” to 

eliminate vagueness); see also Op. 55 (adopting definition of “contribution” provided 

in Buckley).12

2. The District Court Had Jurisdiction Below 

Crossroads also tries to resuscitate a twice-rejected argument that CREW 

lacked standing to challenge the regulation. Crossroads Appl. 17–21. As the 

district court properly held, the FEC “applied” the regulation to CREW in 

dismissing CREW’s administrative complaint, depriving CREW of access to 

information to which it is legally entitled. Op. 47–48 (citing Weaver v. Fed. Motor 

Carrier Safety Admin., 744 F.3d 142, 145 (D.C. Cir. 2014); AT&T Co. v. FCC, 978 

F.2d 727, 737 (D.C. Cir. 1992), cert. denied, 509 U.S. 913 (1993), CREW, 243 F. 

Supp. 3d at 101 (finding statute of limitations did not bar CREW’s claim); see also 

FEC v. Akins, 524 U.S. 11, 24–25 (1998) (plaintiff deprived of information to which 

it is legally entitled may challenge denial). The D.C. Circuit has now agreed with 

the district court’s opinion. D.C. Cir. Stay Op. 4–5. As before, Crossroads 

 12 Crossroads’s concerns about the clarity of the FECA’s definition of “contribution” 

also are irrelevant to the question on which it would need to succeed here: whether 

11 C.F.R. § 109.10(e)(1)(vi) comports with the disclosure required by the FECA, 

which requires “all contributions,” however they are defined, to be disclosed, rather 

than only those that were earmarked for a specific ad in its final form. The 

regulation at issue did not purport to define what is and is not a contribution, 

compare 11 C.F.R. § 109.10(e)(1)(vi) with 11 C.F.R. §§ 100.71–94, and the FEC did 

not explain its promulgation of the regulation based on any desire to address any 

vagueness concerns in the definition of “contribution.” Nothing in Crossroads’s 

argument event attempts to show the regulation is consistent with the statute 

rather than merely reflect Crossroads’s own objections to the statutory reporting 

obligations. 
22 

bootstraps irrelevant issues—whether the FEC could lawfully dismiss CREW’s 

complaint on remand, and whether prosecutorial discretion blocked CREW’s FECA 

claim—on to its attack on CREW’s standing. Crossroads Appl. 20. Yet Crossroads 

continues to miss the point. It is because the regulation blocks CREW’s access to 

information, whether directly or because groups like Crossroads can rely on it to 

block FEC enforcement, that CREW is injured by the regulation. CREW’s past and 

future lack of access to that information will be remedied when the regulation is 

struck.13 

Nor is Crossroads correct in claiming that the mooting of its appeal of 

CREW’s FECA claim has any bearing on the district court’s jurisdiction to vacate 

the regulation. Crossroads Appl. 18–19 (citing Cierco v. Mnuchin, 857 F.3d 407, 

417 (D.C. Cir. 2017)). First, Crossroads’s argument is “wrong chronologically.” D.C. 

Cir. Stay Op. 5. The mooting of Crossroads’s appeal after judgment can hardly 

retroactively deprive the district court of jurisdiction before judgment. Id. 14

Second, even if CREW’s as-applied challenge to the statute was moot because 

the FEC has again dismissed CREW’s administrative complaint on remand, the 

district court had jurisdiction over CREW’s facial challenge. See Better Gov’t Ass’n 

 13 The issues Crossroads raises go only to the possibility of relief on CREW’s FECA 

claim. Even if meritorious—and they are not—they have no bearing on CREW’s 

APA claim against the regulation that is now the sole subject of any appeal. 

14 As it does several times, Crossroads resorts to gross misquotation, claiming 

CREW asserted below its “FECA claim is now moot.” Crossroads Appl. 13. CREW 

actually stated that “Crossroads’s request to stay CREW’s FECA claim is now 

moot.” CREW D.C. Cir. Opp. at 3 n.2 (emphasis added) (attached as Add. B). 

Crossroads’s lack of candor with this Court alone warrants denial of its application. 

McGraw-Hill v. Proctor & Gamble, 515 U.S. 1309, 1310–11 (1995). 
23 

v. Dep’t of State, 780 F.2d 86, 90–91 (D.C. Cir. 1986) (holding that while “the 

appellants’ challenge to the standard as applied to their specific fee waiver requests

is, in fact, moot,” there is, “however, no question that the appellants’ other 

arguments concerning the facial validity of the DOJ guidelines and the interior 

regulation are not moot”) (citing Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 

121–22 (1974)). 

CREW’s injuries from the regulation are also far from moot. First, the 

regulation was again applied to CREW’s complaint. See First General Counsel’s 

Report 15, MUR 6696R (Crossroads). “[T]he dismissal on remand actually indicates 

that the regulation is continuing to deprive [CREW] of the information it seeks.” 

D.C. Cir. Stay Op. 5. Second, there are “concrete application[s] that threaten[] 

imminent harm to [CREW]’s interests” if the regulation remains in effect. Cierco, 

857 F.3d at 416 (quoting Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009)). 

Despite Crossroads’s claim that groups are refraining from making independent 

expenditures due to uncertainty after the district court decision, the facts show 

millions in independent expenditures continue to be made. See FEC, Independent 

Expenditures (last visited Sept. 12, 2018), https://bit.ly/2MphFgB. However, due to 

the stay, the reports still fail to disclose contributions, see, e.g., Americans for 

Prosperity, Form 5 (Aug. 31, 2018), https://bit.ly/2N6Xnhf (reporting “0” in 

contributions), and each report injures CREW by depriving it of the information to 

which it legally entitled, Akins, 524 U.S. at 20–25. CREW’s claim against the 
24 

regulation is therefore very much live. D.C. Cir. Stay Op. 5 (further noting CREW’s 

injury “certainly is capable of repetition”). 

In contrast, Crossroads standing here is at best highly questionable. See

D.C. Cir. Stay Op. 6. As noted, Crossroads received full relief already. Moreover, 

Crossroads does not identify any concrete risk of future harm. It merely asserts 

that it “would like to maintain the ability to continue making independent 

expenditures.” Crossroads Appl. Add. L (Aff. of Steven Law) ¶ 10. But “[s]uch 

‘some day’ intentions—without any description of concrete plans . . . —do not 

support a finding of ‘actual or imminent’ injury that our cases require.” Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 564 (1992); D.C. Cir. Stay Op. 6 (“Crossroads 

[does not] identify an actual independent expenditures it has made this quarter or 

had intended to make in the coming months that are deterred by the order.”). 

Where there are “serious question[s]” about the movant’s standing, that alone 

justifies denying the stay. Bailey v. Patterson, 368 U.S. 346, 346 (1961). 

In short, Crossroads provides no grounds to think it has a “reasonable 

probability that four Justices” will grant certiorari, never mind a “fair prospect that 

a majority of the Court will vote to reverse the judgment below.” Hollingsworth, 

558 U.S. at 190. Accordingly, Crossroads’s application fails. 

C. Crossroads Fails to Show Any Irreparable Injury 

To justify the extraordinary remedy of a stay, “there must be a demonstration 

that irreparable harm is likely to result.” Rostker, 448 U.S. at 1308. “An 

applicant’s likelihood of success on the merits need not be considered . . . if the 

applicant fails to show irreparable injury from the denial of a stay.” Ruckelshaus, 
25 

463 U.S. at 1317. Crossroads proves no such injury here. D.C. Cir. Stay Op. 5 

(holding Crossroads’s purported injuries are neither “certain and great,” nor “actual 

and not theoretical”). 

Indeed, in its entire argument supposedly devoted to the irreparable harm it 

will face, Crossroads never mentions anything that will actually happen to it. See 

Crossroads Appl. 21–30. Rather, it attempts to rely on potential harms to the 

public or other groups that wish to make independent expenditures. 

At best, Crossroads speculates that groups like it “will be forced to decide 

whether to refrain from speaking at all pending appeal or risk exposing their 

donors.” Crossroads Appl. 29–30. Disclosure, however, “do[es] not prevent anyone 

from speaking.” Doe v. Reed, 561 U.S. 186, 196 (2010) (Roberts, C.J.); D.C. Cir. 

Stay Op. 6 (“Nothing in the district court’s order prohibits the making of 

independent expenditures.”). Moreover, the disclosure that Crossroads fears has 

been upheld against First Amendment challenge in numerous cases, even where it 

does chill speech. See Citizens United, 558 U.S. at 368–71; McConnell v. FEC, 540 

U.S. 93, 690–92 (2003); Buckley, 424 U.S. at 68. Even the loss of contributors for 

fear of disclosure does not create a First Amendment injury where disclosure is 

constitutional. Buckley, 424 U.S. at 68 (recognizing “public disclosure of 

contributions . . . will deter some individuals who otherwise might contribute” but 

nonetheless “appear[s] to be the least restrictive means of curbing the evils of 

campaign ignorance and corruption”). As Crossroads cannot “show that their First 

Amendment interests are either threatened or in fact being impaired” by the 
26 

statute, it cannot establish irreparable injury from such application. See 

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 301 (D.C. Cir. 2006) 

(citing Elrod v. Burns, 427 U.S. 347, 373 (1976) (finding irreparable harm only 

because First Amendment freedoms were “in fact being impaired”)). 

Crossroads tries to convert its noninjury into an irreparable injury by 

suggesting that it might stop making independent expenditures due to the court’s 

ruling. Crossroads Appl. 27 (asserting Crossroads is “deterred”) (quoting Add. L 

(Aff. Law) ¶ 10). But “self-censorship resulting from a statute is not enough to 

render [a law] unconstitutional.” Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 

60 (1989). Crossroads may believe it is “chill[ed],” Crossroads Appl. 1, but 

“subjective chill” is not a substitute for proof of “specific present objective harm or a 

threat of specific future harm,” Laird v. Tatum, 408 U.S. 1, 13–14 (1972). Moreover, 

Crossroads’s current lack of independent expenditures is not caused by the district 

court order: it ceased making independent expenditures in 2014. See FEC, 

Independent Expenditures, Crossroads Grassroots Policy Strategies (last visited 

Sept. 15, 2018), https://bit.ly/2wN08dz (showing Crossroads’s last independent 

expenditure was October 31, 2014). In fact, public reporting indicates that 

Crossroads has essentially terminated its political operations, with its leadership 

transferring activities to a new nonprofit. See Robert Maguire, One Nation rising: 

Rove-linked group goes from no revenue to more than $10 million in 2015, 

OpenSecrets News (Nov. 17, 2016), https://bit.ly/2fJebqp; see also Crossroads Appl. 

Add L (Law Aff.) ¶ 10 (asserting only that Crossroads “would like to maintain” the 
27 

ability to hide its contributors, but not identifying any concrete plans to create 

independent expenditures). The decision below does no irreparable injury to 

Crossroads because it has no current application to Crossroads. See D.C. Cir. Stay 

Op. 6 

In sum, Crossroads fails to prove any irreparable injury will certainly befall it 

because of the district court’s decision. Rather, it merely recognizes that it will be 

required to report its contributors, consistent with its First Amendment rights. 

That, however, is not an injury that could warrant the requested stay. 

D. The Equities Strongly Disfavor a Stay, Which Would Substantial Harm 

CREW and the Public 

Crossroads’s lack of injury also does not “clearly exceed” the harm its stay 

will impose on CREW and the public. Barnes v. E-Systems. Group Hosp. Medical & 

Surgical Ins. Plan, 501 U.S. 1301, 1305 (1991); see also Rostker, 448 U.S. at 1308. 

Accordingly, the balance of equities favors denying its application. 

First, the regulation at issue here has deprived CREW of information to 

which it is legally entitled: the identities of those who contributed to those making 

independent expenditures. See Akins, 524 U.S. at 24–25 (lack of access to 

information is an injury). CREW further needs access to such information to carry 

out its mission to “protect[] the rights of citizens to be informed about the activities 

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

our political system against corruption, and reducing the influence of money in 

politics.” Op. 5. The continued existence of the regulation continues to injure 

CREW, depriving CREW of its access to information to which it is entitled. See
28 

D.C. Cir. Stay Op. 5 (regulation is “continuing” to injure CREW). Indeed, 

Crossroads brings this application for the very purpose of denying CREW and the 

public access to the information to which they are entitled and to prevent them from 

discussing that information with others. Crossroads Appl. 29. 

Crossroads asserts, however, that because CREW has suffered this injury 

before, the court below lacked jurisdiction. Crossroads Appl. 33. Yet the authority 

it cites hardly supports that claim. CREW does not solely seek remedy for some 

long-past wrong, cf. U.S.P.S. v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 481 U.S. 

1301, 1303 (1987) (finding employee harm suffered three years earlier could not 

prevent stay), nor is CREW’s injury solely the result of some inaction on its part 

long ago, cf. Lucas v. Townsend, 486 U.S. 1301, 1305 (1988) (respondent injury was 

self-caused).15 Rather, CREW is injured each time a report is made that omits the 

information required by 52 U.S.C. § 30104(c)(1) and (c)(2)(C), including those that 

would be issued during any extended stay here.16 

Second, the public interest here weighs heavily against a stay. A long line of 

decisions from this Court show the public’s interest is in being “fully informed about 

 15 That CREW did not submit a comment in one public request for a rulemaking 

does not undercut CREW’s injury, as Crossroads suggests. See Op. 33. CREW’s 

standing is not conditioned on its prior participation in such a proceeding. At any 

rate, CREW submitted comments to the FEC about the regulation’s invalidity at 

other times, Op. 105 n.54, including by means of the administrative complaint 

below. 

16 In addition, the facts show that any attempt by CREW to seek remedy for its 

injury through requested rulemaking would be futile. See Op. 13–14, 49 n.30, 99; 

see also Crossroads Appl. 13 (quoting commitment by two commissioners to not 

correct the regulation). 
29 

the person or group who is speaking” on election-related matters. Citizens United, 

558 U.S. at 368; id. at 369 (holding “the public has an interest in knowing who is 

speaking about a candidate shortly before an election” that extends to “the funding 

sources for the ads”). The public’s interest in disclosure includes knowing “where 

political campaign money comes from and how it is spent” in order to know the 

“sources of a candidate’s financial support,” and “deter[ing] actual corruption and 

avoid[ing] the appearance of corruption by exposing large contributions and 

expenditures to the light of publicity.” Buckley, 424 U.S. at 66–68. Disclosure also 

protects the public’s “interest . . . in preventing foreign influence over U.S. 

elections.” Bluman v. FEC, 800 F. Supp. 2d 281, 288 n.3 (D.D.C. 2011) (Kavanaugh, 

J., for a three-judge District Court). 

The stay requested by Crossroads would severely undermine these interests, 

depriving the public of knowledge about the sources of huge sums spent in our 

elections. See OpenSecrets.org, Outside Spending by Disclosure, Excluding Party 

Committees (last visited Sept. 15, 2018), https://bit.ly/1AzZeKb ($57 million spent 

on election without disclosure in the 2018 election cycle so far). When foreign 

powers are interfering in our elections, that deprivation is particularly worrisome. 

See, e.g., Senate Select Committee on Intelligence, The Intelligence Community 

Assessment: Assessing Russian Activities and Intentions in Recent U.S. Elections 

(July 3, 2018), https://bit.ly/2u1i6GP (finding Russia engaged in covert attempts to 

influence recent U.S. elections through funding campaign communications). 
30 

Standing against these overwhelming interests, Crossroads contends that the 

public also has an interest in anonymous and unaccountable speech, and that 

disclosure might reduce the amount of speech created. Crossroads Appl. 24. 

Congress, however, considered those interests and decided they weighed in favor 

disclosing of “all contributions” over $200. 52 U.S.C. § 30104(c)(1); see also Buckley, 

424 U.S. at 68 (recognizing Congress enacted FECA because protect public interests 

in disclosure outweigh risk “public disclosure of contributions . . . will deter some 

individuals who otherwise might contribute”).17

Unable to show that the public has an interest in knowing less about who is 

funding their candidates, Crossroads argues that courts should hesitate to change 

election procedures shortly before an election, lest it result in “voter confusion and 

consequent incentive to remain away from the polls.” Purcell v. Gonzalez, 549 U.S. 

1, 4–5 (2006). That principle has no application here. First, Crossroads fails to 

show how a change that will result in more information being made available to 

voters could result in voter “confusion.” Cf. id. at 5; STOP Hillary PAC v. FEC, 166 

F. Supp. 3d 643, 647–49 (E.D. Va. 2015) (refusing to enjoin provision designed to 

“alleviate the constant public confusion”). Second, the change in law effected by the 

district court’s decision does not serve to upset expectations, leaving parties at a 

comparative disadvantage. Unlike the candidates in Lair v. Bullock, 697 F.3d 1200 

(9th Cir. 2012), Crossroads has not been placed at a fundraising disadvantage, 

finding itself needing to unexpectedly play catchup in the final weeks before an 

 17 Crossroads’s concern is also not being borne out. See supra at p. 23. 
31 

election against an opposing candidate who received a surprising windfall, id. at 

1214. Rather, Crossroads is still free to spend as much as it previously had planned 

on independent expenditures. Cf. Respect Maine PAC v. McKee, 622 F.3d 13, 16 

(1st Cir. 2010) (rejecting challenge that would deprive candidates of public 

matching funds within the “final weeks before an election”); McComish v. Brewer, 

No. cv-08-1550-PHX-ROS, 2008 WL 4629337, at *10 (D. Ariz. Oct. 17, 2008) (same). 

As this Court recognized, disclosure of funding sources “does not result in a cash 

windfall to [one’s] opponent. Ariz. Free Enterprise Club’s Freedom Club PAC v. 

Bennett, 564 U.S. 721, 743 (2011) (Roberts, C.J.) (enjoining matching grant 

program in part because it was not a disclosure regime). 

Moreover, the district court’s judgment, rendered many months before the 

upcoming mid-term election, did not impact an “impending” election. Purcell, 549 

U.S. at 3 (characterizing election within five weeks of decision as impending); see 

also Lair, 697 F.3d 1202 (refusing to issue order within three weeks of election); 

McKee, 622 F.3d at 16 (refusing to enjoin matching funds within four weeks of 

election); Catholic Leadership Coal. of Tex. v. Reisman, No. A-12-CA-566-SS, 2012 

WL 12873174, at *2 (W.D. Tex. July 20, 2012) (refusing to invalidate entire political 

committee regulatory structure eleven days before election). This Court has also 

issued weighty decisions impacting campaign finance regimes in the summer before 

an election without any order to stay its decision until after an election. See Reed, 

561 U.S. at 246 (upholding public disclosure of referendum signatories in summer 

before 2010 elections); Davis v. FEC, 554 U.S. 724, 743–44 (2008) (invalidating 
32 

“Millionaire’s Amendment” and attendant disclosure rule in summer before 

election); Randall v. Sorrell, 548 U.S. 230, 253 (2006) (invalidating state campaign 

finance regime in summer before election). Crossroads ignores the fact that the 

decision below similarly was issued months before an election, and focuses instead 

on when the court’s 45-day stay expires. Crossroads Appl. 25. Yet, given that 

Purcell’’s concern was with upset expectations, it is absurd to treat the end of the 

district court’s 45-day stay as the operative date. Voters and regulated parties had 

notice no later than August 3 (and likely well before then, see, e.g., Op. 107) that 

the regulation was invalid and that independent expenditure reports must meet the 

requirements of 52 U.S.C. § 30104(c)(1) and (c)(2)(C). 

Finally, Crossroads asserts the lack of a stay would harm the FEC—an 

argument it has no standing to make. Warth v. Seldin, 422 U.S. 490, 498 (1975). 

Moreover, the fact that the FEC has neither appealed the judgment nor sought a 

stay demonstrates that the agency does not share Crossroads’s view. See

Crossroads Appl. Add. K.18 

Simply put, the relief Crossroads seeks—the indefinite violation of voters’ 

statutory right to information critical to the operation of our democracy, a right they 

now expect to finally be realized—would do immense harm to the public. The 

balance of equities is tilted decidedly against the grant of a stay here. 

 18 Crossroads contends that two commissioners nonetheless would have preferred 

an appeal. Two commissioners, however, do not speak for the FEC, 52 U.S.C. 

§ 30106(c), particularly where an equal number of commissioners apparently 

believe the district court was right. 
33 

* * * 

In sum, Crossroads has failed to carry its “heavy burden” here for the 

“extraordinary” relief it seeks. Whalen, 423 U.S. at 1316. 

E. Vacatur was the Appropriate Remedy, and This Application is Not the 

Proper Vehicle to Seek Reconsideration of that Remedy 

Not only did the district court below exhaustively review the case on the 

merits, it also carefully and thoroughly determined the appropriate remedy. Op. 

93–99. Crossroads here improperly seeks to alter that remedy by obtaining a 

remand by default through an indeterminate stay of the decision. Cf. Fed. R. Civ. 

P. 60. Yet the court below properly analyzed the appropriate factors under AlliedSignal, Inc., 988 F.2d at 150–51, finding they “militat[e] strongly in favor of 

vacatur,” Op. 94. Crossroads provides no reason to second guess that decision. See 

Weinberger v. Romero-Barcelo, 456 U.S. 305, 320 (1982) (district court’s equitable 

remedy reviewed for “abuse[ of] discretion”). 

Contrary to Crossroads’s suggestion, the FEC does not enjoy a special right 

among agencies to keep invalid regulations on the books. Crossroads Appl. 28. 

Courts have recognized the “common remedy when [courts] find a rule is invalid is 

to vacate,” even for the FEC. Humane Soc’y of U.S. v. Zinke, 865 F.3d 585, 614 

(D.C. Cir. 2017); see also Emily’s List v. FEC, 581 F.3d 1, 25 (D.C. Cir. 2009); Shays 

v. FEC, 414 F.3d 76, 95, 100–02 (D.C. Cir. 2005). Indeed, given the regulation is 

inconsistent with the statute, remand would be illogical: the only action the FEC 

could lawfully take on remand is to vacate the offending regulation. See City of 

Arlington, 569 U.S. at 296 (“If the intent of Congress is clear, that is the end of the 
34 

matter; for the court, as well as the agency, must give effect to the unambiguously 

expressed intent of Congress.”). 

Further, the district court properly found the risk of “disruptive 

consequences” favored vacatur, Op. 95, notwithstanding Crossroads’s fear of 

“chaos,” Crossroads Appl. 22. The district court reviewed defendants’ arguments, 

noted the lack of any evidence of the purported disruption and the strong evidence 

none would result, Op. 95–96, and compared that to the disruption to elections from 

the continued denial of essential information for voters by allowing the regulation to 

stand, Op. 96. Further, the district court recognized that remand here would be an 

empty reward as the FEC has proven that it will “drag[] its feet” in correcting the 

error. Op. 98 & n.52. 

The district court also carefully crafted a limited stay of 45 days to allow the 

FEC to issue “interim regulations that comport with the statutory disclosure 

requirement of 52 U.S.C. § 30104(c),” Op. 99—rules which are not subject to the 30 

day congressional submission requirement, cf. Crossroads Appl. 2; see, e.g., FEC, 

Definition of Federal Election Activity, Interim Final Rule, 71 Fed. Reg. 14357 

(Mar. 22, 2006) (interim rule made “effective March 24,” two days after publication). 

But the district court did not suggest the FEC needed those days to “ignore, narrow 

or misconstrue” the statute’s reporting obligations—and therefore there is no need 

for a longer stay to provide time for groups like Crossroads make comments in a 

rulemaking about their disagreement with Congress’s mandated disclosure. Cf. 

Crossroads Appl. 27–28. Moreover, the district court’s fear of undue delay by the 
35 

FEC has proven true: the agency apparently has not even started the process to 

provide the limited guidance contemplated by the district court. Rather, the 

indefinite stay Crossroads seeks would simply mean the regulations are never 

corrected and voters are to be forever denied the information for which they have 

been far too long deprived. 

The district court properly weighed all the relevant interests and rendered 

appropriate and moderate relief. Crossroads fails to demonstrate the district court 

abused its discretion in doing so. 

Dated: Sept. 15, 2018. 

Respectfully submitted, 

/s/ Stuart McPhail 

Stuart C. McPhail 

smcphail@citizensforethics.org

(D.C. Bar. No. 1032529) 

/s/ Adam J. Rappaport 

Adam J. Rappaport 

arappaport@citizensforethics.org

(D.C. Bar No. 479866) 

Citizens for Responsibility and Ethics 

in Washington 

455 Massachusetts Ave., N.W. 

Washington, D.C. 20001 

Telephone: (202) 408-5565 

Fax: (202) 588-5020 

Attorneys for Citizens for Responsibility 

and Ethics in Washington and Nicholas 

Mezlak 
1 

CERTIFICATE OF SERVICE 

I certify that on September 15, 2018, one copy of CREW’s RESPONSE IN 

OPPOSITION TO EMEREGENCY APPLICATION TO CHIEF JUSTICE 

ROBERTS, CIRCUIT JUSTICE FOR THE DISTRICT OF COLUMBIA, FOR A 

STAY PENDING APPEAL, was sent electronically and on the following business 

day were mailed to each of the following: 

Office of the Solicitor General 

950 Pennsylvania Avenue, NW 

Washington, DC 20530 

supremectbriefs@usdoj.gov

Kevin Deeley (kdeeley@fec.gov) 

Harry Jacob Summers (hsummers@fec.gov) 

Seth E. Nesin (snesin@fec.gov ) 

Federal Election Commission 

Office of General Counsel 

1050 First Street, NE 

Washington, DC 20463 

Thomas W. Kirby (tkirby@wileyrein.com ) 

Michael E. Toner (mtoner@wileyrein.com) 

Andrew Woodson (awoodson@wileyrein.c om

Eric Wang (ewang@wileyrein.com) 

Wiley Rein LLP 

1776 K Street, NW 

Washington, DC 20006 

Thomas Josefiak (tjosefiak@holtzmanlaw.net) 

J. Michael Bayes (mbayes@hotzmanlaw.net) 

Holtzman Vogel Josefiak Torchinsky PLLC 

45 North Hill Drive, Suite 100 

Warrenton, VA 20186 

/s/ Stuart McPhail

Stuart McPhail