NOT YET SCHEDULED FOR ORAL ARGUMENT 

____________________ 

No. 19-5072 

____________________ 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

____________________ 

REPRESENTATIVE TED LIEU, et al., 

Plaintiffs-Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

____________________ 

On Appeal from the United States District Court 

for the District of Columbia 

Case No. 1:16-cv-02201-EGS 

____________________ 

BRIEF OF AMICUS CURIAE CITIZENS FOR RESPONSIBILITY AND 

ETHICS IN WASHINGTON IN SUPPORT OF PLAINTIFFSAPPELLANTS’ PETITION FOR INITIAL HEARING EN BANC 

Stuart C. McPhail 

smcphail@citizensforethics.org

Adam J. Rappaport 

arappaport@citizensforethics.org

Laura C. Beckerman 

lbeckerman@citizensforethics.org 

CITIZENS FOR RESPONSIBILITY AND 

ETHICS IN WASHINGTON

1101 K Street, N.W., Suite 201 

Washington, D.C. 20005 

Telephone: (202) 408-5565 

Fax: (202) 588-5020 

Counsel for Amici 

USCA Case #19-5072 Document #1795068 Filed: 06/28/2019 Page 1 of 24
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CORPORATE DISCLOSURE STATEMENT 

Pursuant to Federal Rule of Appellate Procedure 26.1 and 29, and D.C. 

Circuit Rule 26.1, Citizens for Responsibility and Ethics in Washington (“CREW”) 

submits its corporate disclosure statement. 

(a) CREW has no parent company, and no publicly-held company has a ten 

percent or greater ownership interest in CREW. 

(b) CREW is a non-profit, non-partisan corporation organized under section 

501(c)(3) of the Internal Revenue Code. Through a combined approach of 

research, advocacy, public education, and litigation, CREW seeks to protect the 

rights of citizens to be informed about the activities of government officials and to 

ensure the integrity of those officials. Among its principal activities, CREW files 

complaints with the Federal Election Commission to ensure enforcement of federal 

campaign finance laws and to ensure its and voters’ access to information about 

campaign financing to which CREW and voters are legally entitled. CREW 

disseminates, through its website and other media, information it learns in the 

process of those complaints to the wider public.

USCA Case #19-5072 Document #1795068 Filed: 06/28/2019 Page 2 of 24
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TABLE OF CONTENTS 

Corporate Disclosure Statement .............................................................................. i

Table of Contents .................................................................................................... ii

Table of Authorities ............................................................................................... iii

Statement of Interest ............................................................................................... 1

Glossary................................................................................................................... 1

Argument................................................................................................................. 1

I. SpeechNow has Proven Fundamentally Flawed ................................. 2

A. The Value in “Valueless” Speech ............................................ 3

B. The False Promise of Transparency ......................................... 8

II. Review Here is De Novo .................................................................. 12

Certificate of Compliance ....................................................................................... 1

Certificate of Service .............................................................................................. 1

USCA Case #19-5072 Document #1795068 Filed: 06/28/2019 Page 3 of 24
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TABLE OF AUTHORITIES 

Cases

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996) (en banc) ............................... 2, 12, 13 

Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014) ........................................... 1 

Buckley v. Valeo, 424 U.S. 1 (1976) ................................................................... 8, 11 

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) ................................................ 2 

CREW v. FEC, 209 F. Supp. 3d 77 (D.D.C. 2016) ........................................... 12, 13 

CREW v. FEC, 316 F. Supp. 3d 349 (D.D.C. 2018) ................................................ 13 

FEC v. Akins, 524 U.S. 11 (1998) ....................................................................... 2, 12 

Hagelin v. FEC, 411 F.3d 237 (D.C. Cir. 2005) ...................................................... 12 

Libertarian Nat’l Comm., Inc. v. FEC, 924 F.3d 533 (D.C. Cir. 2019) ......... 7, 8, 11 

McConnell v. FEC, 540 U.S. 93 (2003) ................................................................... 11 

Meredith v. Fed. Mine Safety & Health Review Comm’n, 

177 F.3d 1042 (D.C. Cir. 1999) ............................................................................ 13 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) ................................................. 2, 12 

Sierra Club v. Jackson, 648 F.3d 848 (D.C. Cir. 2011) ............................................ 1 

SpeechNow.Org v. FEC, 599 F.3d 686 

(D.C. Cir. 2010) (en banc) ............................................................. 1, 2, 6, 8, 10, 11 

Tangwall v. Stuckey, 135 F.3d 51 (7th Cir. 1998) ................................................... 13 

United States v. Burwell, 690 F.3d 500 (D.C. Cir. 2012) .......................................... 1 

United States v. Menendez, 291 F. Supp. 3d 606 (D.N.J. 2018) ............................... 7 

Univ. of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) .............................. 12 

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Statutes

52 U.S.C. § 30109(a)(8)(C) ..................................................................................... 12 

Other Authorities

U.S. Attorney’s Office, Southern District of California, Mexican 

Businessman Jose Susumo Azano Matsura Sentenced for Trying to 

Buy Himself A Mayor (Oct. 27, 2017), https://bit.ly/2WxmHkk .......................... 7 

Albert W. Alschuler, Limiting Political Contributions After McCutcheon, 

Citizens United, and SpeechNow, 67 FLA. L. REV. 389 (2016) .............................. 5 

Ashley Balcerzak, How Democrats use ‘dark money’ to win elections, 

despite the rhetoric, The Center for Public Integrity (Feb. 20, 2018), 

https://bit.ly/2t6hwaY ............................................................................................. 9 

Ashley Balcerzak, Inside Donald Trump’s army of super PACS and MAGA 

nonprofits, The Center for Public Integrity (Feb. 18, 2019), 

https://bit.ly/2WujK43 ............................................................................................ 5 

Ashley Balcerzak, Pop-Up PACS are Spending Big in Election 2018’s 

Final Days—But They’re Hiding Their Bankrollers, The Center for Public 

Integrity (Nov. 2, 2018), https://bit.ly/2MeZKyr ................................................... 9 

Brent Ferguson, Super PACs: Gobbling Up Democracy, Brennan Center for 

Justice (June 23, 2015), https://bit.ly/2X6dg8F ..................................................... 5 

Committee for Economic Development, The Landscape of Campaign 

Contributions: Campaign Finance after Citizens United (July 2017), 

https://bit.ly/2tkkKqQ ........................................................................................... 10 

FEC, Individual Contributions, https://bit.ly/2HH9M7d ........................................... 5 

FEC, Individual Contributions, https://bit.ly/2WsInOt ............................................. 5 

FEC, One Nation, https://bit.ly/2wmpiPA ............................................................... 10 

FEC, Receipts, https://bit.ly/2ZD2tUm ................................................................... 10 

FEC, Receipts, https://bit.ly/31Oa8kt ...................................................................... 10 

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FEC, Spending, https://bit.ly/2VZJUrn ..................................................................... 4 

FEC, American Action Network, Inc., https://bit.ly/2HJcrgV ................................ 10 

Ian Vandewalker, The Rise of Shadow Parties, Brennan Center for 

Justice (Oct. 22, 2018), https://bit.ly/30IqScm ....................................................... 6 

Indictment, United States v. Lindberg, No. 5:19-CR-22-FDW-DSC 

(W.D.N.C. May 18, 2019) ...................................................................................... 7 

Indictment, United States v. Michel, No. 19-cv-00148-CKK (D.D.C. 

May 2, 2019), https://bit.ly/2YRfCbZ .................................................................. 10 

Lawrence Lessig, Republic Lost (Aug. 23, 2011), https://bit.ly/2Lpw4wv .............. 8 

Letter from Atty. Gen. Eric Holder to Sen. Harry Reid, June 16, 2010, 

https://bit.ly/1MhojVD ........................................................................................... 3 

Matt Corley and David Crockett, Dead End Disclosure 2014: The Dark 

End of the Street, CREW (Dec. 15, 2014), https://bit.ly/2QudxQk ....................... 9 

Michael Beckel, Rapper-Backed Group Illustrates Blind Spot in Political 

Transparency, The Center for Public Integrity (Apr. 14, 2016), 

https://bit.ly/2W8kjBk .......................................................................................... 11 

Nick Corasaniti, At Many Carly Fiorina Events, Her ‘Super PAC’ Covers the 

Costs, New York Times (Oct. 21, 2015), https://nyti.ms/2HFP7Ao ..................... 6 

OpenSecrets.org, 2018 Outside Spending, by Super PAC, 

https://bit.ly/30SUXGv ........................................................................................... 5 

OpenSecrets.org, Missouri Senate Race, Outside Spending, 

https://bit.ly/2HJaAZv ............................................................................................ 4 

OpenSecrets.org, Outside Spending, Super PACs, https://bit.ly/2XbYaP0 .............. 3 

OpenSecrets.org, Outside Spending, All Outside Groups, 

https://bit.ly/1Qn72Gh ............................................................................................ 3 

OpenSecrets.org, Pennsylvania Senate Race, Outside Spending, 

https://bit.ly/2JHOubX ........................................................................................... 4 

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OpenSecrets.org, Races in Which Outside Spending Exceeds Candidate 

Spending, 2018 Election Cycle, https://bit.ly/2YTzScR ........................................ 4 

OpenSecrets.org, Super PACs: How Many Donors Give, 

https://bit.ly/2XbwGcn ........................................................................................... 5 

Paul Blumenthal and Ryan Grim, The Inside Story of How Citizens United 

Has Changed Washington Lawmaking, HuffPost (Dec. 6, 2017), 

https://bit.ly/2FB5Raw ........................................................................................... 6 

Paul S. Herrnson, The Impact of Organizational Characteristics on Super 

PAC Financing and Independent Expenditures (Nov. 3, 2017), 

https://bit.ly/2IWn94l ............................................................................................. 4 

Peter Overby, Arnie Seipel, and Domenico Montanaro, As Bush Campaign 

Goes Down, the Knives Come Out, NPR (Feb. 23, 2016), 

https://n.pr/2KaI7gH ............................................................................................... 6 

Robert Maguire, A Classic Case of Promised Payback, OpenSecrets.org 

(Mar. 19, 2014), https://bit.ly/2xfrfhe .................................................................... 7 

Third Superseding Indictment, United States v. Matsura, No. 14-cr-0388- 

MMA (S.D. Cal. July 8, 2016) ............................................................................... 7 

Trip Gabriel, ‘Super PACs’ Take on New Role, Organizing Voters, New York 

Times (July 7, 2015), https://nyti.ms/30NnZqO .................................................... 6 

Trump Campaign Statement on Dishonest Fundraising Groups 

(May 7, 2019), https://bit.ly/2VRRWm1 ...........................................................5, 6 

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STATEMENT OF INTEREST1

Citizens for Responsibility and Ethics in Washington (“CREW”) is a 

nonpartisan, nonprofit corporation organized under section 501(c)(3) of the 

Internal Revenue Code. Through a combined approach of research, advocacy, 

public education, and litigation, CREW seeks to combat corrupting influences in 

government and protect citizens’ right to be informed about the source of 

contributions used to fund campaign expenditures. Among its principal activities, 

CREW monitors FEC filings to ensure proper and complete disclosure as required 

by law and utilizes those filings to craft reports for public consumption. If CREW 

observes a violation of campaign finance laws, CREW files complaints with the 

FEC under 52 U.S.C. § 30109(a). When necessary, CREW seeks judicial review of 

complaints unlawfully dismissed by the FEC pursuant to 52 U.S.C. 

§ 30109(a)(8)(A). 

 

1 Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), CREW affirms that 

no counsel for a party authored this brief in whole or in part, no party or counsel 

for a party contributed money that was intended to fund preparing or submitting 

this brief, and no person other than CREW or its counsel contributed money that 

was intended to fund the preparation or submission of this brief.

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GLOSSARY 

CREW Citizens for Responsibility and Ethics in Washington 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

ARGUMENT 

Initial en banc review is warranted to reconsider SpeechNow.Org v. FEC, 

599 F.3d 686 (D.C. Cir. 2010) (en banc). That decision rested on a false premise—

that funds donated to supposedly independent organizations would be of so little 

value to candidates that they do not risk corruption—and a false promise—that 

such donated funds, though unlimited, would still be transparent. Time has proven 

both “fundamentally flawed.” United States v. Burwell, 690 F.3d 500, 504 (D.C. 

Cir. 2012); see also Al Bahlul v. United States, 767 F.3d 1, 11 n.7 (D.C. Cir. 2014) 

(“[O]verruling our precedent on plain-error review is within the authority of the en 

banc court.”). Moreover, because “this Court is bound to follow circuit precedent 

until it is overruled either by an en banc court or the Supreme Court,” Sierra Club 

v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011), proceeding first before a panel 

here will simply waste judicial resources. 

In addition, and contrary to the FEC’s argument, review here is of a pure 

question of law. The FECA’s “contrary to law” standard, in relevant part, calls on 

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the Court to determine whether a dismissal is “a result of an impermissible 

interpretation” of law. Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). Where 

deference to the FEC’s interpretation is not warranted under Chevron U.S.A., Inc. 

v. NRDC, 467 U.S. 837 (1984), as here, the permissibility of that interpretation is 

determined “de novo,” Akins v. FEC, 101 F.3d 731, 740 (D.C. Cir. 1996) (en 

banc), vacated on other grounds, 524 U.S. 11 (1998). 

I. SpeechNow has Proven Fundamentally Flawed 

In SpeechNow, this Court held the First Amendment barred long-standing 

limits on contributions to political committees, reasoning that “contributions to 

groups that make only independent expenditures”—ads “independent from 

candidates and uncoordinated with their campaigns”—“cannot corrupt or create the 

appearance of corruption.” SpeechNow, 599 F.3d at 693–94. Nonetheless, this 

Court promised the public that existing disclosure laws would reveal “who is 

speaking about a candidate and who is funding that speech” and “dete[r] and hel[p] 

expose violations of other campaign finance restrictions, like those barring 

contributions from foreign corporations and individuals.” Id. at 698. Those 

predications have proven fundamentally flawed, and appropriately named “super 

PACs” rose to exploit those flaws. 

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A. The Value in “Valueless” Speech 

Though the decision initially impacted “only a small subset of federally 

regulated contributions,” Letter from Atty. Gen. Eric Holder to Sen. Harry Reid, 

June 16, 2010, https://bit.ly/1MhojVD, super PACs soon exploded to eclipse 

traditional election participants. The raw numbers are staggering: 

OpenSecrets.org, Outside Spending, All Outside Groups, https://bit.ly/1Qn72Gh2; 

Id., Super PACs, https://bit.ly/2XbYaP0. The FEC estimates that political 

committees, which includes super PACs, spent more in the 2016 cycle than all 

 

2

 All referenced materials last visited June 27, 2019 unless otherwise noted. 

$0

$200

$400

$600

$800

$1,000

$1,200

$1,400

$1,600

2008 2012 2016

Outside Spending on Independent Expenditures Per 

Presidential Election Cycle (in millions)

Super PACs Other Outside Spending

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political parties, and spent more than all federal candidates. FEC, Spending, 

https://bit.ly/2VZJUrn (01/01/2015 – 12/31/2016). 

The picture is even starker on the individual-race level. In 2018, outside 

groups spent more than candidates in 28 races. OpenSecrets.org, Races in Which 

Outside Spending Exceeds Candidate Spending, 2018 Election Cycle, 

https://bit.ly/2YTzScR. Of that, super PACs played the largest role. For example, 

in the 2018 Missouri Senate race, all candidates spent $52 million but super PACs 

spent $56.5 million, with $40.4 million coming from just two super PACs. 

OpenSecrets.org, Missouri Senate Race, Outside Spending, https://bit.ly/2HJaAZv. 

Similarly, in the 2016 Pennsylvania Senate Race, all candidates spent $52.8 

million but super PACs spent $72.7 million. OpenSecrets.org, Pennsylvania Senate 

Race, Outside Spending, https://bit.ly/2JHOubX. 

Behind this spending are a few large super PACs fueled by a few big 

contributors. The fifteen biggest super PACs between 2010 and 2016 collected 

about two-thirds of all super PAC receipts. Paul S. Herrnson, The Impact of 

Organizational Characteristics on Super PAC Financing and Independent 

Expenditures, 6 (Nov. 3, 2017), https://bit.ly/2IWn94l. The biggest super PACs 

collected more than a hundred million dollars in 2018, and 70.6% of all super PAC 

receipts in that cycle came from just 100 donors. OpenSecrets.org, 2018 Outside 

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Spending, by Super PAC, https://bit.ly/30SUXGv; OpenSecrets.org, Super PACs: 

How Many Donors Give, https://bit.ly/2XbwGcn. For example, Thomas Steyer 

gave $72.8 million in 2017-18 alone. FEC, Individual Contributions, 

https://bit.ly/2WsInOt. Miriam and Sheldon Adelson gave $112.3 million in the 

same two years to just six super PACs. FEC, Individual Contributions, 

https://bit.ly/2HH9M7d. 

Predictably, these vast sums of money attracted candidates’ attention, who 

turned super PACs into “trusted” campaign surrogates. Trump Campaign 

Statement on Dishonest Fundraising Groups (May 7, 2019), 

https://bit.ly/2VRRWm1. “[C]andidate’s top aides ... now leav[e] campaign teams 

to work for supportive super PACs.” Brent Ferguson, Super PACs: Gobbling Up 

Democracy, Brennan Center for Justice (June 23, 2015), https://bit.ly/2X6dg8F. 

For example, recently, “[a] group of former Trump aides designed the super PAC 

America First Action.” Ashley Balcerzak, Inside Donald Trump’s army of super 

PACS and MAGA nonprofits, The Center for Public Integrity (Feb. 18, 2019), 

https://bit.ly/2WujK43. The managers of the super PAC supporting President 

Obama’s bid were also close to him. Albert W. Alschuler, Limiting Political 

Contributions After McCutcheon, Citizens United, and SpeechNow, 67 FLA. L.

REV. 389, 394 & n.23 (2016). Two of the largest super PACs were set up by 

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congressional aides to the Republican and Democratic leadership, respectively. 

Paul Blumenthal and Ryan Grim, The Inside Story of How Citizens United Has 

Changed Washington Lawmaking, HuffPost (Dec. 6, 2017), 

https://bit.ly/2FB5Raw. Campaigns outsource their work to these trusted groups, 

because “that’s where the real money is.” Trip Gabriel, ‘Super PACs’ Take on 

New Role, Organizing Voters, New York Times (July 7, 2015), 

https://nyti.ms/30NnZqO; see also Nick Corasaniti, At Many Carly Fiorina Events, 

Her ‘Super PAC’ Covers the Costs, New York Times (Oct. 21, 2015), 

https://nyti.ms/2HFP7Ao; Peter Overby, Arnie Seipel, and Domenico Montanaro, 

As Bush Campaign Goes Down, the Knives Come Out, NPR (Feb. 23, 2016), 

https://n.pr/2KaI7gH. 

Candidates demonstrate the value of super PAC funds by fundraising for 

them. Ian Vandewalker, The Rise of Shadow Parties, Brennan Center for Justice 

(Oct. 22, 2018), https://bit.ly/30IqScm. Indeed, President Trump’s campaign 

recently announced that a supposedly independent super PAC was the “approved 

outside non-campaign group” because it was “run by allies of the President and is a 

trusted supporter of President Trump’s policies and agendas.” Trump Campaign 

Statement. 

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It is perhaps then no surprise that, despite SpeechNow’s assurances that these 

funds could never give rise to quid-pro-quo corruption, 599 F.3d at 694–95, super 

PAC contributions have done just that. For example, a foreign national was 

convicted for funding super PACs “in an effort to buy influence” with elected 

officials. U.S. Attorney’s Office, Southern District of California, Mexican 

Businessman Jose Susumo Azano Matsura Sentenced for Trying to Buy Himself A 

Mayor (Oct. 27, 2017), https://bit.ly/2WxmHkk; Third Superseding Indictment 

¶¶ 11, 28(g), 29(i), (j), (t), (v), 34(a), (d), United States v. Matsura, No. 14-cr0388-MMA (S.D. Cal. July 8, 2016). Recently, individuals in North Carolina were 

indicted in a bribery scheme involving contributions “through an independent 

expenditure committee, [given] in exchange for specific official action favorable 

to” the contributor. Indictment ¶¶ 14, 16(a), 38, 53–61, 65, 86, United States v. 

Lindberg, No. 5:19-CR-22-FDW-DSC (W.D.N.C. May 18, 2019). Other examples 

abound. See, e.g., Robert Maguire, A Classic Case of Promised Payback, 

OpenSecrets.org (Mar. 19, 2014), https://bit.ly/2xfrfhe. 

Given the “notoriou[s] difficult[y]” in “ferret[ing] out” corrupting 

transactions, Libertarian Nat’l Comm., Inc. v. FEC, 924 F.3d 533, 544 (D.C. Cir. 

2019), and the incredibly high standard of proof courts have imposed on 

contribution-bribery schemes, see United States v. Menendez, 291 F. Supp. 3d 606, 

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624 (D.N.J. 2018), there are almost certainly many more super PAC bribery 

schemes that go unindicted. Moreover, since “bribery laws ‘deal with only the 

most blatant and specific attempts of those with money to influence governmental 

action,’” they simply do not encompass the full scope of transactions Congress 

may regulate consistent with the First Amendment. Libertarian Nat’l Comm., 924 

F.3d at 543 (quoting Buckley v. Valeo, 424 U.S. 1, 28 (1976)). 

SpeechNow relied on the premise that unlimited contributions to nominally 

independent organizations present “no corrupting ‘quid’ for which a candidate 

might in exchange offer a corrupt ‘quo.’” 599 F.3d at 694–95. Time has proven 

this assumption false. 

B. The False Promise of Transparency 

In addition to a flawed premise, SpeechNow also relied on a false promise: 

that the unlimited contributions would still be transparent, allowing public scrutiny 

to deter and bring to light any corrupting influence of money that arose. 599 F.3d 

at 696. Even at the time, the promise was overly optimistic. See Lawrence Lessig, 

Republic Lost (Aug. 23, 2011), https://bit.ly/2Lpw4wv (nonreportable threat of 

contributions to opposing groups just as corrupting as completed contributions to 

supporting groups). But here too, experience has proven the Court wrong as 

SpeechNow’s promise of unlimited donations has motivated donors to game the 

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FEC’s reporting deadlines and engage in dead-end disclosure to deny information 

to the public. 

First, the FEC’s reporting deadlines are easily gamed. To avoid disclosure, 

contributors can delay contributing until after October 18—the last quarterly 

reporting deadline before an election. This method was used in the 2018 Alabama 

special Senate election to shield the sources behind one super PAC. Ashley 

Balcerzak, How Democrats use ‘dark money’ to win elections, despite the rhetoric, 

The Center for Public Integrity (Feb. 20, 2018), https://bit.ly/2t6hwaY. Between 

October 18 and November 2, 2018, 44 political committees were formed—groups 

who would not report any of their contributors until after the election. Ashley 

Balcerzak, Pop-Up PACS are Spending Big in Election 2018’s Final Days—But 

They’re Hiding Their Bankrollers, The Center for Public Integrity (Nov. 2, 2018), 

https://bit.ly/2MeZKyr. Contribution limits would complicate this strategy—

donors couldn’t withhold a single massive contribution until the last minute—but 

SpeechNow made it easy. 

Second, super PAC contributors can take advantage of “dead-end 

disclosure,” where super PAC contributions are routed through organizations that 

are not themselves subject to disclosure (so the public cannot follow the flow of 

money past the dark money source). Matt Corley and David Crockett, Dead End 

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Disclosure 2014: The Dark End of the Street, CREW (Dec. 15, 2014), 

https://bit.ly/2QudxQk. SpeechNow permits unlimited sums to flow through these 

dark-money organizations to super PACS, preventing voters from ever learning 

“who is funding that [super PAC’s] speech.” SpeechNow, 599 F.3d at 698. 

In 2018, half of super PAC spending—$395 million—came from groups that 

accept untraceable funds, 2018 Outside Spending, by Super PAC (by Disclosure of 

Group), and untraceable super PACs donations more than quadrupled between 

2014 and 2016. Committee for Economic Development, The Landscape of 

Campaign Contributions: Campaign Finance after Citizens United, 17 (July 2017), 

https://bit.ly/2tkkKqQ. For example, one super PAC accepted $31 million in the 

2017-18 cycle from a single dark money group, and another accepted $18.6 million 

from another dark money group. FEC, Receipts, https://bit.ly/31Oa8kt; FEC, 

American Action Network, Inc., https://bit.ly/2HJcrgV (reporting “0” 

contributions); FEC, Receipts, https://bit.ly/2ZD2tUm; FEC, One Nation, 

https://bit.ly/2wmpiPA (reporting “0” contributions). 

Dead-end disclosure also provides an avenue for illicit funds to enter our 

elections. For example, the Department of Justice recently indicted a foreign 

national for illegally contributing more than $1 million to a super PAC by, in part, 

using a dark money LLC as a conduit. Indictment, United States v. Michel, No. 19-

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cv-00148-CKK (D.D.C. May 2, 2019), https://bit.ly/2YRfCbZ; see also Michael 

Beckel, Rapper-Backed Group Illustrates Blind Spot in Political Transparency, The 

Center for Public Integrity (Apr. 14, 2016), https://bit.ly/2W8kjBk. The availability 

of infinite contributions from dead-end disclosure entities deprives the public of 

“essential means of gathering the data necessary to detect violations” of campaign 

finance laws, like those restricting the use of money from foreign nationals. 

Buckley, 424 U.S. at 68. 

The ability to funnel unlimited, untraceable money into super PACs makes it 

ever-easier to keep the sources of election spending hidden. But, “[w]hile the 

public [is] not ... fully informed” about super PAC contributors, “candidates and 

officeholders” most assuredly are, McConnell v. FEC, 540 U.S. 93, 128–29 (2003), 

so they know who to thank for the “corrupting ‘quid,’” SpeechNow, 599 F.3d at 

694. 

* * * 

SpeechNow is fundamentally flawed. Its premise—that contributions to 

super PACs present no corrupting quid—has been proven demonstrably false, 

despite the “notoriou[s] difficul[ty]” in “ferret[ing] out” corrupting transactions. 

Libertarian Nat’l Comm., 924 F.3d at 544. The promise the Court made—that 

transparency would inform voters about the source of super PACs’ funds and help 

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deter corruption—has similarly proven false. This Court should reconsider its 

conclusion in SpeechNow, and en banc review presents an appropriate vehicle. 

II. Review Here is De Novo

The FEC’s dismissal below is reversable if it was “contrary to law.” 52 

U.S.C. § 30109(a)(8)(C). It is contrary to law if it was grounded on an 

“impermissible interpretation” of law. Orloski, 795 F.2d at 161.3

 As this Court held 

en banc, where Chevron deference is unavailable, as here,4

 that review is de novo. 

Akins, 101 F.3d at 740.5

In Akins, the en banc Court considered a similar challenge to an FEC 

dismissal brought under 52 U.S.C. § 30109(a)(8)(C). Rather than ask whether the 

FEC “reasonably adhered to precedent,” FEC Mot. for Summ. Aff. 16, the Court 

found the FEC’s “plea for deference” was “doctrinally misconceived” and held that 

 

3 Contrary to the FEC’s misleading cite, FEC Mot. for Summ. Aff. 15, Hagelin

states only Orloski’s second analytical step is “highly deferential”: whether “the 

FEC’s dismissal of the complaint, under a permissible interpretation of the statute, 

was arbitrary or capricious, or an abuse of discretion.” Orloski, 795 F.2d at 161; 

see Hagelin v. FEC, 411 F.3d 237, 242 (D.C. Cir. 2005) (“Highly deferential, the 

arbitrary and capricious standard presumes the validity of agency action.”). 

4 See Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1341 (D.C. Cir. 2002); CREW 

v. FEC, 209 F. Supp. 3d 77, 87 (D.D.C. 2016) (collecting cases). 5 Though the en banc decision in Akins was vacated by the Supreme Court, the 

Court did not fault the D.C. Circuit’s analysis of the “contrary to law” standard. 

Akins, 524 U.S. at 27. Rather, it similarly rejected the FEC’s pleas for deference, 

id. at 26, stating the FEC’s interpretations of law would merely “aid the Court in 

reaching a more informed conclusion” of its own about the law, id. at 29. 

USCA Case #19-5072 Document #1795068 Filed: 06/28/2019 Page 20 of 24
13 

courts “must decide de novo” whether the FEC’s interpretation was permissible. Id.

at 740–41. Indeed, it recognized that deference to the FEC was not justified under 

Chevron or “any other principle.” Id. at 740; see also CREW v. FEC, 316 F. Supp. 

3d 349, 417 (D.D.C. 2018) (finding dismissal “contrary to law” where Commission 

relied on erroneous interpretation of law); CREW, 209 F. Supp. at 86–87 (noting 

FECA’s “contrary to law” standard “involves a straightforward application of the 

familiar two-step framework outlined in Chevron”; then reviewing legal 

interpretation de novo). 

The FEC attempts to supplant this analysis with a framework—“reasonabl[e] 

... adher[ence] to clearly established law,” Tangwall v. Stuckey, 135 F.3d 510, 516 

(7th Cir. 1998)—appropriate only in qualified immunity contexts. That inquiry has 

no place here, however, as “neither an agency nor a named government official can 

avoid judicial scrutiny by claiming that the particular action under review did not 

violate” clearly established law. Meredith v. Fed. Mine Safety & Health Review 

Comm’n, 177 F.3d 1042, 1049 (D.C. Cir. 1999). 

Accordingly, the question before the Court is whether SpeechNow, and the 

FEC’s reliance on it, reflects a permissible interpretation of the First Amendment. 

For the reasons stated above, this Court should consider that question en banc and 

de novo and decide that it does not. 

USCA Case #19-5072 Document #1795068 Filed: 06/28/2019 Page 21 of 24
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Dated: June 28, 2019 Respectfully submitted, 

/s/ Stuart McPhail 

Stuart C. McPhail 

smcphail@citizensforethics.org

(D.C. Bar. No. 1032529) 

Adam J. Rappaport 

arappaport@citizensforethics.org

(D.C. Bar No. 479866) 

Laura C. Beckerman 

lbeckerman@citizensforethics.org 

(D.C. Bar No. 1008120) 

Citizens for Responsibility and Ethics 

in Washington 

1101 K Street, N.W., Suite 201 

Washington, D.C. 20005 

Telephone: (202) 408-5565 

Fax: (202) 588-5020 

Attorneys for Citizens for Responsibility 

and Ethics in Washington

USCA Case #19-5072 Document #1795068 Filed: 06/28/2019 Page 22 of 24
1 

CERTIFICATE OF COMPLIANCE 

1. This document complies with the type-volume limit of Fed. R. App. P. 

32(a)(7)(B)) because, excluding the parts of the document exempted by Fed. 

R. App. P. 32(f) and Circuit Rule 32(e)(1): 

[ X ] this document contains 2,596 words, or 

[ ] this brief uses a monospaced typeface and contains [state the number 

of] lines of text. 

2. This document 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: 

[ X ] this document has been prepared in a proportionally spaced typeface 

using Microsoft Word 2016 in 14pt Times New Roman; or 

[ ] this document has been prepared in a monospaced typeface using [state 

name and version of word-processing program] with [state number of 

characters per inch and name of type style]. 

Dated: _June 28, 2019_____ /s/ Stuart McPhail 

 Stuart C. McPhail 

Counsel for Amicus-Curiae 

USCA Case #19-5072 Document #1795068 Filed: 06/28/2019 Page 23 of 24
1 

CERTIFICATE OF SERVICE 

I hereby certify that on June 28, 2019, I electronically filed the foregoing 

document with the Clerk of Court for the United States Court of Appeals for the 

District of Columbia Circuit by using the appellate CM/ECF system, thereby 

serving all persons required to be served. 

/s/ Stuart McPhail

Stuart C. McPhail 

Counsel for Amicus-Curiae 

USCA Case #19-5072 Document #1795068 Filed: 06/28/2019 Page 24 of 24