NOT YET SCHEDULED FOR ORAL ARGUMENT 

No. 18-5261 

_________________________________________ 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_________________________________________ 

Crossroads Grassroots Policy Strategies,1

Defendant-Appellant, 

v. 

Citizens for Responsibility and Ethics in Washington and Nicholas Mezlak,2

Plaintiffs-Appellees, 

Federal Election Commission, 

Defendant-Appellee.

_________________________________________ 

DEFENDANT-APPELLANT 

 CROSSROADS GRASSROOTS POLICY STRATEGIES’ 

EMERGENCY MOTION FOR A STAY PENDING APPEAL 

_________________________________________ 

 

1

 Crossroads Grassroots Policy Strategies’ D.C. Cir. R. 8 and 28 Certificate as to 

Parties, Rulings, and Related Cases and Fed. R. App. P. 26.1 and D.C. Cir. R. 26.1 

Corporate Disclosure Statement are attached as Addendum A. 

2 Hereinafter, “CREW.” 

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To prevent irreparable First Amendment injury to itself and its donors, 

others similarly situated, and the American public, defendant-appellant Crossroads 

Grassroots Policy Strategies (“Crossroads”) moves this Court to stay pending 

appeal a district court’s judgment that, mere weeks before the impending election, 

invalidates and will shortly vacate a foundational regulation the Federal Election 

Commission (the “Commission”) promulgated without controversy over 38 years 

ago. Nineteen prior elections have been held under the existing regulation, and 

there is no compelling reason to throw the clear legal standards it articulates into 

confusion just prior to a major national election – thereby chilling core First 

Amendment speech – before there can be orderly appellate review of the 

substantial legal grounds supporting this long-standing regulation. 

The regulation and statute at issue balance First Amendment free speech 

rights and associational privacy against the burdens of compelled donor disclosure 

by groups that are not classified under the law as political committees. The 

Federal Election Campaign Act calls for reporting contributions “made for the 

purpose of furthering an independent expenditure.”3

 52 U.S.C. § 30104(c)(2)(C). 

For 38 years, the Commission, through the regulation, has reasonably construed 

this requirement to apply only where the contribution was earmarked for a 

 

3

 An “independent expenditure” is a communication that expressly advocates 

the election or defeat of federal candidates. 

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particular independent expenditure. See 11 C.F.R. § 109.10(e)(1)(vi). Now, only 

weeks before a national election, the district court decided that the statute 

unambiguously compels much broader reporting of contributions that, in some 

vague sense, fund an organization’s broader “political purposes.” The district 

court refused Chevron deference, invalidated the regulation, and directed the 

Commission to reopen an administrative complaint against Crossroads from 2012, 

which was the vehicle plaintiff-appellee CREW used to bootstrap its untimely 

challenge to the regulation. See Addendum B. 

The district court stayed its vacatur of the regulation for 45 days (i.e., until 

September 17) to pressure the Commission to promulgate an entirely new interim 

regulation. The Commission is unlikely to act so swiftly – nor should it, given the 

sensitive First Amendment issues at stake – and thus the stay serves only to shift 

much of the disruption closer to the election. Crossroads moved the district court 

for a stay pending appeal, expedited briefing on its motion, and a decision by 

August 30, 2018. The district court constructively denied Crossroads’ motion by 

ordering a briefing schedule that extends beyond the requested relief date. See

Addendum C. 

Crossroads and similarly situated entities find themselves in an impossible 

position. The district court’s decision throws into disarray the laws governing core 

First Amendment speech just prior to a national election. It forces Crossroads and 

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other organizations to choose between exercising their long-protected free speech 

rights and thereby incurring severe legal risks – including violating their donors’ 

privacy – or remaining silent. As a result, core political speech is chilled far more 

than the statute or regulation ever contemplated, causing irreparable harm to 

groups, donors, and the public. 

Crossroads will demonstrate in its merits brief that the district court’s 

judgment is profoundly mistaken. The mere fact that the court required 113 pages 

to justify its novel construction of the statute undermines its conclusion that the 

statute is so clear as to not permit any other construction. Moreover, this Court 

recently rejected the district court’s policy arguments in holding that a similar 

statutory donor reporting regime for “electioneering communications”4

 permits the 

general approach the Commission implemented in the challenged regulation here. 

See Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016) (“Van Hollen II”). 

Although the statutory language differs, the policy arguments are the same. 

There are also other grounds for challenging the district court’s judgment, 

including that: (1) the district court lacked authority to invalidate the regulation 

because the Commission had other reasons to dismiss the complaint independent of 

the regulation’s validity; and (2) the district court’s solution to the regulatory 

 

4

 Generally, an “electioneering communication” is a broadcast ad that refers to 

a federal candidate and is targeted to the relevant jurisdiction within certain preelection windows. See 52 U.S.C. § 30104(f)(3). 

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problem it created – i.e., directing the Commission to promulgate a new regulation 

in secret within the next 45 days – will further regulate and burden First 

Amendment rights without public notice and comment. 

Citizens pay closest attention to electoral messaging starting after Labor 

Day, and early voting in some states begins in just two weeks. Every day that 

passes is another lost opportunity for Crossroads and similar organizations across 

the political spectrum to exercise their core First Amendment rights. With the 

district court unwilling to enter a stay expeditiously, Crossroads now respectfully 

requests that this Court stay the district court’s opinion and order pending final 

appeal as soon as practicable, but in any event no later than 11:00 A.M. on Friday, 

September 14, 2018. 

Pursuant to D.C. Cir. R. 27(f), counsel for Plaintiffs-Appellees were notified 

by telephone of this motion, which they oppose. Counsel for Defendant-Appellee 

were notified by telephone of this motion and took no position on it. 

I. BACKGROUND 

A. The Independent Expenditure Reporting Statute and the 

Commission’s Implementing Regulation. 

This case involves a reporting requirement adopted by Congress in 1979 and 

signed into law on January 8, 1980. The pertinent language from the 1979 Federal 

Election Campaign Act amendments is as follows (with the key language in italics 

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and other language to be discussed shortly in bold/underlined):5 

2 U.S.C. 434 REPORTS . . . 

(c)(1) 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)6

 for all contributions 

received by such person. 

(2) Statements required to be filed by this subsection shall be filed in 

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

(A) the information required by subsection (b)(6)(B)(iii),7

indicating whether the independent expenditure is in support 

of, or in opposition to, the candidate involved; 

(B) under penalty of perjury, a certification whether or not such 

independent expenditure is made in cooperation, consultation, 

or concert, with, or at the request or suggestion of, any 

candidate or any authorized committee or agent of such 

candidate; and 

(C) 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. 

The Commission worked extensively with Congress on these amendments. 

 

5

 2 U.S.C. § 434 was subsequently recodified at 52 U.S.C. § 30104. 

6

 This provision provides that: “(b) Each report under this section shall 

disclose . . . (3) the identification of each . . . (A) person (other than a political 

committee) who makes a contribution to the reporting committee during the 

reporting period, whose contribution or contributions have an aggregate amount or 

value in excess of $200 within the calendar year . . . together with the date and 

amount of any such contribution.” 

7

 This provision provides that the report will identify “the full name and 

mailing address (occupation and the principal place of business, if any) of each 

person to whom expenditures have been made . . . .” 

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See Legislative History of Federal Election Campaign Act Amendments of 1979 at 

7-8, 10, 20, 39, 150-60 (1983) (“1979 FECA History”).8

 One of the Commission’s 

recommendations to Congress was to consolidate pre-1979 reporting requirements 

that obligated the person making an independent expenditure and the persons “who 

contribute to the independent expenditure” to separately report their respective 

expenditures and contributions (the person making the expenditure previously did 

not report its donors). Id. at 451; FEC Form 5 (1978) (attached as Addendum D); 

Memo. from Orlando B. Potter, Staff Director, Federal Elec. Comm’n (Mar. 29, 

1978) at 2, 3 (emphasis added) (attached as Addendum E). Under the 1979 

amendments, only the person making an independent expenditure would report the 

expenditure and the source of funds for it. See 1979 FECA History at 25. 

Senate committee staff implemented the Commission’s legislative

recommendation, see id. at 78, 101, 103, 123, 145, with the accompanying 

Summary of Committee Working Draft confirming that the changes required “the 

person who receives the contributions, and subsequently makes the independent 

expenditure, [to] report having received the contribution to the Commission” id. at 

103, 145 (emphasis added). That Congress understood the Section 434(c)(2)(C) 

reporting requirement to apply only where funds were given to support “the” – i.e., 

a specific – independent expenditure, rather than for any independent expenditures 

 

8

 http://classic.fec.gov/pdf/legislative_hist/legislative_history_1979.pdf. 

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an organization may make (as the district court mistakenly concluded), logically 

follows from the legislative history, the surrounding statutory text, and pre-existing 

reporting practices. 

Consistent with the authorities above, the Commission’s implementing 

regulation required independent expenditure reports to identify “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.” 11 C.F.R. § 109.10(e)(1)(vi) (emphasis added). 

The Commission adopted this rule text on March 7, 1980, explaining that it 

“incorporate[s]” both “[52] USC [§ 30104](c)(1) and (2).” Id. AR1503 (emphasis 

added). (In contrast to the district court, the Commission understood and read 

(c)(1) as a preamble explaining who had to file the report.) The agency transmitted 

the rule to Congress for its review under a special congressional disapproval 

provision. Id. Now codified at 52 U.S.C. § 30111(d), Congress had already used 

this provision several times to disapprove Commission regulations, including 

shortly before the agency transmitted the independent expenditure reporting rule to 

Congress. See S. Res. 236, 96th Cong. (1979); H.R. Res. 780, 94th Cong. (1975); 

S. Res. 275, 94th Cong. (1975). Congress did not disapprove the Commission’s 

rule, and it went into effect on April 1, 1980. Joint App’x Part 2 (Dkt. No. 38-1) 

AR 1543, 1553. 

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Over the next 38 years, the Commission consistently interpreted the 

independent expenditure reporting requirement under the statute and implementing 

regulation as requiring only the identification of donors who gave for the purpose 

of furthering the reported independent expenditure. See Crossroads’ Cross-Mot. 

for S.J. Exh. A (Dkt. No. 28-1)); Joint App’x Part 1 (Dkt. No. 38) AR173. 

Congress has amended the independent expenditure reporting statute six times 

since 1980, but it has never overridden the Commission’s decades-long 

interpretation. 

B. The Administrative Complaint. 

This case arose from an administrative complaint CREW filed with the 

Commission in 2012. CREW alleged Crossroads violated the reporting statute and 

accompanying Commission regulation when Crossroads reported independent 

expenditures in 2012 without identifying donors. Joint App’x Part 1 AR1-52, 98-

159; AR 109, 110, 112, 114 (Amend. Admin. Compl. ¶¶ 44, 50, 54, 57, 62). 

 After reviewing CREW’s administrative complaint and Crossroads’ 

response, the agency’s Office of General Counsel recommended the Commission 

find no reason to believe that Crossroads violated the law. Joint App’x Part 1 

AR164-177. As the recommendation explained, even if, as CREW alleged, 

Crossroads had received funds for a “general purpose to support . . . its efforts to 

further the election of a particular federal candidate,” this “does not itself indicate 

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that the donor’s purpose was to further ‘the reported independent expenditure’ – 

the requisite regulatory test” described in 11 C.F.R. § 109.10(e)(1)(vi). Id. AR174. 

CREW’s administrative complaint did not clearly allege Crossroads had 

violated 52 U.S.C. § 30104(c)(1), and, consequently, Crossroads’ response did not 

address this claim. Nonetheless, the General Counsel’s report suggested sua 

sponte that, “to the extent the question is presented on these facts, we recommend 

that the Commission dismiss in the exercise of prosecutorial discretion” any 

allegation involving section 30104(c)(1) due to “equitable concerns,” “fair notice” 

defenses, and prior Commission precedent dismissing a theory that section 

30104(c)(1) required broader reporting of donors than the regulation. Id. AR165-

66, 172-73, 175-76 (citing Heckler v. Chaney, 470 U.S. 821 (1985)). 

The commissioners divided 3-3 on proceeding with enforcement and closed 

the case. See id. AR193-194. Even the commissioners who voted to proceed with 

enforcement did not embrace the district court’s novel statutory interpretation or 

express dissatisfaction with the regulation at issue. See id. AR198-199. 

 C. The District Court’s Opinion. 

CREW filed a complaint with the district court for judicial review of the 

agency’s dismissal under 52 U.S.C. § 30109(a)(8). The district court held that the 

challenged regulation conflicts with the language of both 52 U.S.C. § 30104(c)(1) 

and (c)(2)(C), and therefore was invalid under “step one” of Chevron U.S.A., Inc.

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v. Natural Resources Defense Council, Inc. (“Chevron”) 467 U.S. 837 (1984). Op. 

at 53. While the court recognized a “[non-] trivial concern” that “entities engaged 

in independent expenditures might have inadequate guidance” in the final weeks 

before Election Day, Op. at 98, the district court nonetheless invalidated and 

vacated the regulation, staying the latter for 45 days. 

Remarkably, the court also held that Crossroads could be liable for relying 

on the regulation as it stood in 2012 – six years before the court found it to be 

invalid. Accordingly, the court also remanded the underlying administrative 

complaint to the Commission, which then dismissed it again. See FEC’s Response 

to Mot. for Stay Pending Appeal (Dkt. No. 50). 

II. ANALYSIS OF THE STAY FACTORS 

D.C. Cir. Rule 8(a)(1) sets forth four factors for evaluating a motion to stay 

pending appeal: (1) the likelihood the movant will prevail on the merits; (2) the 

prospect of irreparable injury to the movant if relief is withheld; (3) the possibility 

of harm to other parties if relief is granted; and (4) the public interest. Here, each 

factor supports a stay.9

 

9

 At the very least, where, as here, the other criteria support a stay, a stay is warranted under this first factor because there are “serious legal questions going to the merits” in the district court’s decision that are “a fair ground of litigation and thus for more deliberative investigation.” Population Inst. v. McPherson, 797 F.2d 1062, 1078 (D.C. Cir. 1986). 

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A. Crossroads Is Likely to Prevail on the Merits. 

1. The District Court Misconstrued the Reporting Statute. 

In the “Background” section above, Crossroads previewed some of its 

arguments that the district court fundamentally misconstrued a statute and 

regulation in place for nearly four decades. Cf. STOP Hillary PAC v. FEC, 166 F. 

Supp. 3d 643, 647 (E.D. Va. 2015) (disapproving a challenge to a 35-year-old 

Commission regulation). Most glaringly, the district court’s analysis asserted the 

supposed “broad disclosure goals of Congress” in enacting the reporting 

requirements, Op. at 77, and assumed “Congress expressly intended broad 

disclosure for not-political committees,” id. at 88. However, in Center for 

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

I”), and Van Hollen II, 811 F.3d 486, this Court upheld a similar Commission 

regulation for reporting non-political committee organizations’ donors and rejected 

the district court’s conclusion “that anything less than maximal disclosure is 

subversive” of the statute and that “unbounded disclosure” is always required. 811 

F.3d at 494, 494 n.4. This Court criticized a “district court’s invocation of such a 

sweeping disclosure purpose,” and found the law “does not require disclosure at all 

costs; it limits disclosure in a number of ways.” Id. at 811 F.3d at 494–95. Had 

the district court adhered to Van Hollen I and II and properly considered “the 

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conflicting privacy interests that hang in the balance,” id. at 494, it would have 

upheld the Commission’s regulation here under Chevron, 467 U.S. at 843. 

The district court also attempted to establish congressional clarity under 

Chevron step one by subordinating the clear legislative history to policy arguments 

articulated (anachronistically) after Citizens United v. FEC, 558 U.S. 310 (2010), 

to conclude that the agency had too narrowly construed the statute decades earlier. 

The court also freely invoked the statute’s “gist” in order to circumvent the law’s 

plain text. Op. at 69. And the varying standards the court used to describe the 

information Congress supposedly intended to be reported – e.g., contributions 

“earmarked for political purposes,” “intended to influence elections,” etc. – only 

underscores that Congress “has not directly addressed the precise question at issue” 

in the manner the district court suggested. Chevron, 467 U.S. at 843. 

In short, the contemporaneous legislative authorities confirm the strength of 

Crossroads’ arguments that the Commission’s regulation implements both the plain 

text and congressional intent far more faithfully than the district court’s improvised 

new standard. 

2. The District Court Lacked Authority to Invalidate the 

Regulation. 

The regulation at issue here was promulgated decades ago – i.e., outside the 

six-year statute of limitations for Administrative Procedure Act challenges. See 28 

U.S.C. § 2401. Nevertheless, the district court allowed CREW to challenge the 

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regulation on the theory that “those affected may challenge that application on the 

grounds that it conflicts with the statute from which its authority derives.” CREW 

v. Fed. Elec. Comm’n, 243 F. Supp. 3d 91, 101 (D.D.C. 2017) (citation omitted). 

But CREW was not “affected” by the regulation’s alleged invalidity at all. 

First, 52 U.S.C. § 30111(e) specifically provides that “any person who relies 

upon any rule or regulation prescribed by the Commission . . . and who acts in 

good faith in accordance with such rule or regulation shall not, as a result of such 

act, be subject to any sanction provided by this Act.” The statute “establish[es] 

‘legal rights’ to engage in that conduct” and categorically removes “any risk of 

enforcement,” even “if that conduct violates campaign statutes.” Shays v. 

FEC (“Shays I”), 414 F.3d 76, 84, 95 (D.C. Cir. 2005) (emphasis added). Thus, 

when Crossroads acted in compliance with an existing Commission regulation, the 

regulation’s validity or invalidity affected neither the Commission’s obligation to 

dismiss the enforcement case nor the ultimate outcome for CREW.10 

Second, in CREW v. FEC, 892 F.3d 434 (D.C. Cir. 2018), this Court held 

that Commission dismissals of enforcement cases based on prosecutorial discretion 

are generally “not subject to judicial review for abuse of discretion.” Id. at 441. 

 

10 Even aside from 52 U.S.C. § 30111(e), the regulation’s validity would be irrelevant: Under general principles of administrative law “any individual who 

relied on . . . [a regulation] prior to the date of [a] decision [invalidating it] can properly assert it as a defense to a charge that he otherwise violated the [statute].” Joseph v. U.S. Civil Serv. Comm’n, 554 F.2d 1140, 1157 (D.C. Cir. 1977). . 

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Here again, the regulation’s validity had no effect on CREW because the 

Commission grounded its dismissal on reasons other than the regulation’s validity 

(e.g., concerns about fair notice, etc.). 

The district court attempted to side-step this Court’s clear precedent by 

erroneously invoking two exceptions. The first “exception” – i.e., the assertion 

that the Commission “intentionally ‘abdicated’” its responsibilities, Op. at 110 – 

has never been endorsed by the Supreme Court, see Heckler, 470 U.S. at 844 n.4. 

In fact, the Commission has enforced the independent expenditure donor reporting 

requirement against a number of organizations in just the past few years alone. 

See, e.g., Conciliation Agreements, MUR 7085 (State Tea Party Express) (Sept. 

21, 2016); MUR 6816 (Americans for Job Security) (June 21, 2016), (The 60 Plus 

Association, Inc.) (July 7, 2016), (American Future Fund) (June 21, 2016). The 

district court offered nothing to justify finding that the Commission so abdicated 

enforcement as to deprive it of prosecutorial discretion. 

The district court also argued that the Commission’s dismissal was 

reviewable because the agency’s failure to pursue enforcement was “primarily” 

based upon a supposedly errant interpretation of the underlying statute. Op. at 

110. This exception applies only if an agency’s dismissal is based “entirely” on 

misreading the statute. CREW, 892 F.3d at 441-42 & n.11 (emphasis added) 

(rejecting “carving reviewable legal rulings out from the middle of non-reviewable 

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actions”). Here, as the district court acknowledged, the Commission dismissed the 

case on non-reviewable prosecutorial discretion considerations apart from the 

agency’s statutory interpretation. See Op. at 105. 

And third, there is a five-year statute of limitations for campaign finance 

violations. See 28 U.S.C. § 2462. Because that deadline expired before the district 

court’s remand to the Commission, this case would have been dismissed regardless 

of the regulation’s validity.

B. Absent a Stay, Crossroads and the Public Will Be Irreparably

Harmed. 

The second and fourth factors of the stay analysis also are satisfied here. 

1. Absent a Stay, the District Court’s Decision Will Continue 

Causing Major Disruption to the 2018 Elections. 

The extremely abbreviated schedule the district court set for Commission 

action is already creating significant disruption to Crossroads and others just weeks 

before the November elections. That is why “[c]ourt orders affecting elections” 

are particularly disfavored during pre-election periods, Purcell v. Gonzalez, 549 

U.S. 1, 4-5 (2006) – especially during the “45 days prior to an election,” Right to 

Life of Mich., Inc. v. Miller, 23 F. Supp. 2d 766, 767, 769-70 (W.D. Mich. 1998) – 

as this is when the public actually “begins to concentrate on elections” and speech 

has a “chance of persuading voters,” Citizens United, 558 U.S. at 327, 334. And as 

“an election draws closer, that risk will [only] increase,” STOP Hillary PAC, 166 

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F. Supp. 3d at 647, particularly since over 40% of all ballots in the last election 

were cast prior to Election Day, U.S. Election Assistance Comm’n, The Election 

Administration and Voting Survey: 2016 Comprehensive Report at 8.11 

The district court’s ruling here is precisely the type of status-quo-shattering 

judicial order that is “harm[ful] to the public interest,” Respect Maine PAC v. 

McKee, 62 F.3d 13, 16 (1st Cir. 2010), invites “chaos” for those “who have relied 

on the challenged provisions,” id., disrupts “the significant interest the public has 

in the smooth functioning of an election, McComish v. Brewer, No. CV-08-1550, 

2008 WL 4629337, at *12 (D. Ariz. Oct. 17, 2008), and renders political actors 

“unable to deliver their message to voters as planned,” id. See also Lair v. Bullock, 

697 F.3d 1200, 1202 (9th Cir. 2012) (granting stay of campaign finance order 

pending appeal citing, inter alia, “the imminent nature of the election” and the 

“importan[ce of] not [] disturb[ing] long-established expectations” during the preelection period). Indeed, the United States Supreme Court granted a stay pending 

appeal when a lower court altered the status quo by imposing burdens on 

“independent expenditure groups.” Arizona Free Enter. Club’s Freedom Club 

PAC v. Bennett, 564 U.S. 721, 733, 739 (2011). 

The public interest in avoiding disruption is even greater when the 

“established system for regulating political contributions and expenditures” is 

 

11 https://www.eac.gov/assets/1/6/2016_EAVS_Comprehensive_Report.pdf. 

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upset and a “short time frame . . . and the delays inherent in lawmaking [make it] 

almost certain no amended regulatory scheme could be implemented before the 

general election in November.” Catholic Leadership Coal. of Texas v. Reisman, 

No. A-12-CA-566, 2012 WL 12873174, at *2 (W.D. Tex. July 20, 2012), aff’d, 

473 F. App’x 402 (5th Cir. 2012). Such concern is particularly salient here given 

the district court’s own “[non-]trivial concern” that “entities engaged in 

independent expenditures might have inadequate guidance” because of its vacatur 

decision. Op. at 98. 

Not only does the district court’s decision place a “considerable burden [and 

potential] risk[]” on speakers, who may well “choose simply to abstain from 

protected speech,” but it also harms “society as a whole, which is deprived of an 

uninhibited marketplace of ideas.” Virginia v. Hicks, 539 U.S. 113, 119 (2003). 

This is exactly what happened in Van Hollen I, when a district judge in this Circuit 

invalidated a similar Commission donor reporting regulation for “electioneering 

communications.” After the district court’s initial ruling, groups like Crossroads 

effectively stopped making electioneering communications. See, e.g., Law Aff. 

¶ 12 (attached as Addendum F). As Commission data show, only 11 electioneering 

communication reports were filed between the district court’s March 30, 2012 

decision and the D.C. Circuit’s September 18, 2012 reversal, as compared to the 33 

such reports that were filed in 2012 preceding the district court’s ruling and the 67 

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reports in connection with the November election that were filed following the 

D.C. Circuit’s reversal. Compare FEC Form 9 filings, Apr. 1, 2012, through Sep. 

18, 201212 with FEC Form 9 filings, Jan. 1, 2012, through Mar. 30, 2012,13 and 

Sep. 18, 2012, through Nov. 6, 2012.14 

The district court acknowledged its decision will have widespread impact 

and stayed vacatur of the regulation for 45 days, ostensibly “to ensure that notpolitical committees benefit from regulatory guidance.” Op. at 99. Yet the 

existing stay provides little comfort in that (a) it effectively expires halfway 

between August 3 and the November 6 general election; and (b) the Court’s order 

otherwise “declared [the regulation] to be invalid,” Order at 2, which calls into 

question whether “the invalidated regulation provides any real protection and 

guidance to would-be speakers during this 45-day stay period,” Inst. for Free 

Speech, Court Ruling on Independent Expenditures Creates New Risks for Groups

(Aug. 23, 2018).15 Moreover, after the 45-day stay ends, a quarterly disclosure 

report will be due on October 15 that covers independent expenditures made 

 

12 https://www.fec.gov/data/filings/?data_type=processed&min_receipt_date=0

4%2F01%2F2012&max_receipt_date=09%2F18%2F2012&form_type=F9. 

13 https://www.fec.gov/data/filings/?data_type=processed&min_receipt_date=

01%2F01%2F2012&max_receipt_date=03%2F30%2F2012&form_type=F9. 

14 https://www.fec.gov/data/filings/?data_type=processed&min_receipt_date=

09%2F18%2F2012&max_receipt_date=11%2F06%2F2012&form_type=F9. 

15 https://www.ifs.org/2018/08/23/court-ruling-on-independent-expenditurescreates-new-risks-for-groups/. 

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during the stay period, making it unclear what donor reporting rule will apply for 

that report. See 11 C.F.R. § 109.10(b). 

This uncertainty is not theoretical. While one prominent law firm has 

concluded that, during the existing 45-day stay, “organizations engaging in 

independent expenditure activity can continue to file reports as they have in the 

past,” Ezra Reese & Shanna Reulbach, Court Opens Door to Expanded Disclosure 

for Nonprofits Making Independent Expenditures in Federal Campaigns (Aug. 8, 

2018),16 CREW’s Executive Director has threatened legal action against those who 

rely upon the existing regulation during the current 45-day period: 

Major donors are now on notice that if they contribute to 

politically active 501(c)(4) organizations, their contributions

will have to be disclosed, and if they are not, CREW will 

pursue enforcement cases with the FEC and, if necessary, in 

court. 

Press Release, CREW Scores Major Court Victory Against Dark Money (Aug. 4, 

2018).17 This demonstrable confusion and uncertainty falls far short of the “fullest 

and most urgent” protections the First Amendment demands when the public 

debates the qualifications of political candidates. Bennett, 564 U.S. at 734, 739. 

 

16 https://www.perkinscoie.com/en/news-insights/court-opens-door-toexpanded-disclosure-for-nonprofits-making.html. 

17 https://www.citizensforethics.org/press-release/crew-scores-major-courtvictory-against-dark-money/. 

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2. The District Court’s Interim Rulemaking Remedy Conflicts 

with Standard Administrative Practices. 

The district court recognized that vacating the regulation and directing the 

Commission to promulgate a new rule was a “complex” task that required detailed 

analysis and consideration of numerous reporting scenarios. Op. at 88-89, 104 

n.53. Yet, instead of following standard practices, it tasked the Commission with 

secretly and “hastily cobbling together an alternative, interim set of regulations 

[that can well be] harmful to the public interest.” Emily’s List v. FEC, 362 

F. Supp. 2d 43, 59 (D.D.C. 2005), aff’d, 170 F. App’x 719 (D.C. Cir. 2005). 

Not only is the Court’s vacatur inconsistent with multiple past decisions 

invalidating Commission regulations, see, e.g., Shays I, 337 F. Supp. 2d 28, 130 

(D. D.C. 2004), aff’d, 414 F.3d 76 (D.C. Cir. 2005); Shays v. FEC, 508 F. Supp. 2d 

10, 71 (D.D.C. 2007), aff’d in part, rev’d in part and remanded, 528 F.3d 914 

(D.C. Cir. 2008); Shays v. FEC, No. 06-cv-01247 (D.D.C. Aug. 26, 2008), but it 

denies the public the standard notice and comment procedures that are particularly 

crucial when regulations burden First Amendment rights. See, e.g., Am. Bus. Ass’n 

v. United States, 627 F.2d 525, 528 (D.C. Cir. 1980), Weyerhaeuser Co. v. Costle, 

590 F.2d 1011, 1028 (D.C. Cir. 1978). 

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3. The District Court’s Decision Endangers Donors’ and 

Organizations’ Associational Privacy. 

While the district court focuses on “provid[ing] members of the public with 

the information that they need to participate as an informed electorate,” Op. at 97, 

it completely ignores the “significant” individual and associational privacy 

interests at stake for donors and organizations, see Van Hollen II, 811 F.3d at 499-

501. Specifically, the district court’s decision could require donors to be reported 

involuntarily under either subsection 30104(c)(1) or (c)(2)(C), even though such 

donors reasonably expected their giving would remain private – and even though 

the D.C. Circuit could uphold the current Commission regulation on appeal. In 

other words, the decision below, if not stayed, likely will create a situation where 

“[t]he egg has been scrambled and there is no apparent way to restore the status 

quo ante.” Op. at 97 (brackets in the original) (internal citation and quotation 

marks omitted). This is precisely the type of situation courts find “effectively 

unreviewable,” In re Sealed Case, 237 F.3d 657, 665 (D.C. Cir. 2001), and 

justifying injunctive relief, see Securities Industry and Financial Markets Ass’n v. 

Garfield, 469 F. Supp. 2d 25, 41-42 (D. Conn. 2007) (noting that disclosure cannot 

be undone in the modern information age). And in many situations, Crossroads 

and similarly situated organizations will be forced to decide whether to refrain 

from speaking at all pending appeal or risk exposing their donors – an irreparable 

harm that can never be redressed in the event that Crossroads’ appeal succeeds. 

USCA Case #18-5261 Document #1748550 Filed: 08/31/2018 Page 22 of 27
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See also Perry v. Schwarzenegger, 591 F.3d 1126, 1131–32 (9th Cir. 2009) 

(granting stay pending appeal where disclosure of confidential campaign 

information was sought). 

The district court downplays the effect of its order by observing that Section 

501(c) organizations are required to report their donors to the Internal Revenue 

Service (at least through 2018). Op. at 95. But the court ignores that the donor 

information on organizations’ tax filings is reported on a strictly confidential basis, 

see 26 U.S.C. § 6104(d)(3)(A), and severe criminal penalties apply to their 

unauthorized release, id. § 7213. In fact, the Internal Revenue Service recently 

abolished the donor reporting requirement for most organizations because even 

when such information is reported confidentially, it unduly compromises donors’ 

privacy. See IRS, Rev. Proc. 2018-38. 

C. A Stay Will Not “Substantially Harm” CREW, But the Absence 

of One Could Harm the Commission. 

Although a stay of the decision below would reduce the harm to Crossroads 

and the general public, a stay would not harm CREW in any meaningful – much 

less substantial – way. This election cycle is no different than the preceding

nineteen that were conducted largely free of CREW’s recently discovered 

grievances. Moreover, CREW failed to participate in a 2011 Commission 

rulemaking proceeding that proposed the very changes CREW now seeks in the 

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challenged regulation, further undermining CREW’s need for immediate relief. 

See Rep. Van Hollen Petition for Rulemaking (Apr. 21, 2011) at 4.18

In contrast to CREW, declining to grant a stay would divert the Commission 

away from providing guidance and enforcing the law in the remaining days before 

the election, with the risk that such efforts will be interrupted or completely 

undone by a successful appeal. Moreover, while the district court dismissed the 

agency’s concerns that a vacatur could result in “inadequate guidance” for speakers 

ahead of the 2018 elections, Op. at 98, this Court has held that a government 

agency “is in a better position than the court to assess the disruptive effect of 

vacating [a rule].” Chamber of Commerce v. SEC, 443 F.3d 890, 909 (D.C. Cir. 

2006). The district court’s decision contravenes this important principle. 

IV. CONCLUSION 

The district court’s ruling is unprecedented and its timing extraordinary. 

Rather than force Crossroads and similarly situated organizations to choose 

between sacrificing their core First Amendment speech rights just prior to a major 

national election and their donors’ associational and privacy rights – neither of 

which can be restored if Crossroads prevails on appeal – this Court should stay the 

district court’s ruling pending appeal. 

 

18 http://classic.fec.gov/pdf/nprm/citizensunited/van_hollen.pdf. 

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Dated: August 31, 2018 

Thomas J. Josefiak 

 E-mail: tjosefiak@holtzmanlaw.net

J. Michael Bayes (Bar No. 501845) 

 E-mail: mbayes@holtzmanlaw.net

HOLTZMAN VOGEL JOSEFIAK 

TORCHINSKY PLLC 

45 North Hill Drive, Suite 100 

Warrenton, VA 20186 

 

540.341.8808 

Respectfully submitted, 

/s/ Thomas W. Kirby 

Michael E. Toner (Bar No. 439707) 

 E-mail: mtoner@wileyrein.com

Thomas W. Kirby (Bar No. 915231) 

 E-mail: tkirby@wileyrein.com

Andrew G. Woodson (Bar No. 494062) 

 E-mail: awoodson@wileyrein.com

Eric Wang (Bar No. 974038) 

 E-mail: ewang@wileyrein.com

WILEY REIN LLP 

1776 K St., NW 

Washington, D.C. 20006 

202.719.7000 

Counsel for Defendant-Appellant

USCA Case #18-5261 Document #1748550 Filed: 08/31/2018 Page 25 of 27
 

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME 

LIMIT, TYPEFACE REQUIREMENTS, AND TYPE-STYLE 

REQUIREMENTS 

I hereby certify, on this 31st day of August, 2018, that: 

1. This document complies with the word limit of Fed. R. App. P. 

27(d)(2)(A) because, excluding the parts of the document exempted by Fed. R. 

App. 32(f), this document contains 5,177 words. 

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. 32(a)(6) because this 

document was prepared in a proportionally spaced typeface using Microsoft Word 

2016 in a 14-point Times New Roman font. 

 

 /s/ Thomas W. Kirby 

 Thomas W. Kirby 

USCA Case #18-5261 Document #1748550 Filed: 08/31/2018 Page 26 of 27
 2 

CERTIFICATE OF SERVICE 

I certify that on August 31, 2018, one copy of the Defendant/Appellant’s 

Emergency Motion for a Stay Pending Appeal was filed and served electronically 

upon the following counsel of record: 

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 

Stuart C. McPhail (smcphail@citizensforethics.org) 

Adam J. Rappaport (arappaport@citizensforethics.org) 

Citizens for Responsibility and Ethics in Washington 

455 Massachusetts Avenue, N.W. 

6th Floor 

Washington, DC 20001 

 /s/ Thomas W. Kirby 

 Thomas W. Kirby 

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