1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CITIZENS FOR RESPONSIBILITY AND 

ETHICS IN WASHINGTON, et al., 

 Plaintiffs, 

 v. 

FEDERAL ELECTION COMMISSION, 

 Defendant, 

CROSSROADS GRASSROOTS POLICY 

STRATEGIES, 

 

 Intervenor-Defendant. 

Civil Action No. 1:16-cv-00259-BAH 

CROSSROADS GRASSROOTS POLICY STRATEGIES’ REPLY 

TO PLAINTIFF’S OPPOSITION TO THE MOTION 

FOR A STAY PENDING APPEAL 

Crossroads Grassroots Policy Strategies (“Crossroads GPS”) respectfully replies to 

CREW’s Opposition (“Opp.”) to its Motion for a Stay Pending Appeal. CREW’s rhetoric 

notwithstanding, it is clear that the Court’s existing 45-day stay is inadequate, that it should be 

extended pending this appeal, and that the Court should confirm that speakers may rely upon the 

regulation during the pendency of the appeal. 

Vacating a foundational reporting regulation just weeks before the upcoming November 

election obviously threatens serious and irreparable injury. This is true for Crossroads GPS as 

well as the public, which is denied the speech of groups that will be compelled to restrain 

constitutionally protected and statutorily permitted speech because of sudden uncertainty over 

the standards ensuring the privacy of donors to statutorily defined nonpolitical organizations. 

The Court acknowledged this confusion and injury when it stayed its vacatur for 45 days, and 

two commissioners on the Federal Election Commission (“Commission” or “FEC”) similarly 

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have warned “the Court’s decision is already causing confusion. Even though the vacatur has 

not yet gone into effect, members of the public are in doubt as to whether they can rely on the 

challenged regulation because the court declared it legally invalid.” FEC Chair Caroline C. 

Hunter and Commissioner Matthew S. Petersen, Statement on CREW v. FEC, No. 16-cv-259 

(Sept. 6, 2018).1 

As the commissioners further explained, the Court’s hope that a short stay would lead the 

Commission to adopt a pre-election interim regulation will not materialize because (i) systemic 

constraints, including a mandatory 30-day congressional review period, preclude such rapid 

Commission action, and (ii) several commissioners believe the existing regulation remains 

lawful and expect it will be vindicated on appeal. 

Respectfully, Crossroads GPS’s appeal has great merit. Far from demonstrating the 

regulation is invalid under Chevron step one, the Court issued 113 pages of complex 

construction that relied heavily on the same policy arguments the D.C. Circuit recently rejected 

when it upheld a similar Commission disclosure regulation. See Van Hollen v. FEC, 811 F.3d 

486 (D.C. Cir. 2016). Moreover, after studying the Court’s analysis, two of four commissioners 

remain convinced “the court should have upheld the Commission’s regulation as a reasonable 

interpretation of the [statute].” Hunter and Petersen, supra. Finally, CREW acknowledged in its 

opposition that it first articulated the statutory reading it now claims to be clear only in 2012. 

Opp. (Dkt. No. 52) at 14. Clear statutory subsections do not require 113 pages to parse, do not 

divide their administrative agency’s commissioners, and do not reveal newly-discovered 

“clarity” decades later. 

                                                            

1

 https://www.fec.gov/resources/cms-content/documents/Statement_of_Chair_ 

Hunter_and_Commissioner_Petersen_in_CREW_v._FEC.pdf. 

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After 38 years and 19 elections without the donor information vacatur supposedly will 

produce, CREW cannot plausibly claim that allowing a few more months for orderly appellate 

review will seriously injure it. This Court therefore should grant a stay pending appeal and also 

confirm that speakers may rely upon the regulation throughout the appellate process. 

I. CROSSROADS GPS AND CREW AGREE THAT, AT A MINIMUM, THIS CASE 

RAISES A “SERIOUS LEGAL QUESTION” ON THE MERITS. 

A movant may obtain a stay either by demonstrating “a combination of probable success 

and the possibility of irreparable injury” or that the court has “ruled on an admittedly difficult 

legal question and . . . the equities of the case suggest that the status quo should be maintained.” 

Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 844-45 (D.C. Cir. 

1977); see also Dunlap v. Presidential Adv. Comm’n on Election Integrity, No. CV 17-2361, 

2018 WL 3150217, at *25 (D.D.C. Jun. 27, 2018); Arpaio v. Obama, 27 F. Supp. 3d 185, 197 

(D.D.C. 2014), aff’d, 797 F.3d 11 (D.C. Cir. 2015); Citizens for Responsibility & Ethics in 

Washington v. Cheney, 577 F. Supp. 2d 328, 335 (D.D.C. 2008).2

 Under the second formulation, 

it “will ordinarily be enough that the [movant] has raised serious legal questions going to the 

merits, so serious, substantial, [and] difficult as to make them a fair ground of litigation and thus 

for more deliberative investigation.” Population Inst. v. McPherson, 797 F.2d 1062, 1078 (D.C. 

Cir. 1986) (quoting Holiday Tours, 559 F.2d at 844). Indeed, “potentially persuasive authority 

for its legal position” may suffice. Cigar Ass’n of Am. v. U.S. Food & Drug Admin., 317 F. 

                                                            

2

 This Court has even observed that, under existing D.C. Circuit precedent, “[i]f the movant makes an unusually 

strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another 

factor.” Daily Caller v. U.S. Dep’t of State, 152 F. Supp. 3d 1, 6 (D.D.C. 2015) (citing Davis v. Pension Ben. Guar. 

Corp., 571 F.3d 1288, 1291–1292 (D.C.Cir.2009)); Stop This Insanity, Inc. Employee Leadership Fund v. FEC, 902 

F. Supp. 2d 23, 30 (D.D.C. 2012), aff’d, 761 F.3d 10 (D.C. Cir. 2014) (discussing this Court’s application of this 

principle to another case involving the FEC). “For example, if the movant makes a very strong showing of 

irreparable harm and there is no substantial harm to the non-movant, then a correspondingly lower standard can be 

applied for likelihood of success.” Davis, 571 F.3d at 1292. 

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Supp. 3d 555 (D.D.C. 2018) (applying “binding [Circuit] precedent” and quoting from John Doe 

Co. v. Consumer Fin. Protection Bureau, 849 F.3d 1129, 1132 (D.C. Cir. 2017) in finding that 

“compelled disclosures” presented a “serious legal question” justifying preservation of 

regulatory status quo pending appeal); see also Pan Am Flight 73 Liaison Grp. v. Dave, 711 F. 

Supp. 2d 13, 37 (D.D.C. 2010), aff’d, 639 F.3d 1102 (D.C. Cir. 2011) (finding serious question 

test met where court was first to interpret a law). 

As explained below and earlier, see Mot. at 3-8, Crossroads has a strong likelihood of 

success on appeal. Moreover, CREW conceded in its opposition that this case “admittedly raises 

a serious legal question.” Opp. (Dkt. No. 52) at 3-4. That fact alone is sufficient to tip the first 

stay factor in Crossroads GPS’s favor.3

 And, as discussed in the next section, Crossroads GPS is 

likely to ultimately succeed on appeal. 

II. CROSSROADS IS LIKELY TO SUCCEED ON APPEAL. 

Crossroads GPS has a strong likelihood of success on appeal. Crossroads GPS’s motion 

for summary judgment brief (Dkt. No. 28 at 8-15) reviewed the legislative history of 52 U.S.C. 

                                                            

3

 In addition to its other arguments, CREW cites (Opp. at 4) the D.C. Circuit’s unpublished decision in Goddard 

Eng’rs Ass’n v. Nat’l Aeronautics and Space Admin., 917 F.2d 1313, at *2-3 (1990), to argue that the moving party

must also show a “likelihood of success on the merits” even where they have identified a “serious legal question.” 

Even apart from the concerns with citing such an unpublished decision, see generally D.C. Cir. Rule 32.1(b)(1)(A), 

the Court still indicated that the movant would have been eligible for a stay had it met the “serious legal question” 

standard. Goddard Eng’rs Ass’n, 917 F.2d 1313, at *2. 

Also, in a footnote, CREW initially tries to avoid the Population Institute and Holiday Tours decisions by 

claiming there is a distinction between the test for a stay and injunction pending appeal. Opp. at 3 n.2. But the “test 

for a stay or injunction pending appeal is essentially the same,” Al-Anazi v. Bush, 370 F. Supp. 2d 188, 193 n.5 

(D.D.C. 2005) (collecting authority), as the D.C. Circuit long ago concluded that the “serious legal question” test 

applies to all forms of “interim injunctive relief, whether by preliminary injunction or by stay pending appeal,” 

CREW, 577 F. Supp. 2d at 335, 336. See also Nat’l Ass’n of Mfrs. v. Taylor, 549 F. Supp. 2d 68, 71 n.1 (D.D.C. 

2008) (explaining that the “test for a stay or injunction pending appeal is essentially the same” as the test for a 

preliminary injunction, ‘although courts often recast the likelihood of success factor as requiring only that the 

movant demonstrate a serious legal question on appeal where the balance of harms favors a stay[.]’”). 

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§ 30104(c)(1) and (c)(2)(C) showing that the 1979 Amendments merely consolidated the 

previously separate requirements for contributors to and the makers of a particular independent 

expenditure to report their respective contributions and spending. Crossroads GPS also 

illustrated how Congress’s alternating use of the articles “an” and “the” justify the FEC’s 

longstanding statutory construction. 

Crossroads GPS further detailed how the Commission transmitted the challenged 

regulation to Congress under a special congressional review provision, how Congress did not 

disapprove the rule, how the Commission consistently interpreted and enforced the statute and 

implementing regulation for more than 38 years, and how Congress amended the independent 

expenditure reporting statute six times without disturbing the Commission’s long-standing 

interpretation embodied in the regulation. 

Rather than further engage with these abundant authorities, CREW protests (at 4-5) that 

Crossroads GPS’s reliance upon the strength of its earlier arguments is insufficient to justify a 

stay pending appeal. But CREW knows better. Another court in this district granted “CREW’s 

motion for a stay pending appeal [notwithstanding that it] ‘offer[ed] no new arguments in its 

motion, but rather rehashe[d] arguments that have been rejected.’”  Citizens for Responsibility & 

Ethics in Washington v. Office of Admin., 565 F. Supp. 2d 23, 28 (D.D.C. 2008). And CREW’s 

citation to In re Special Proceedings, 840 F. Supp. 2d 370, 373 (D.D.C. 2012), undermines its 

argument further, as that case actually holds that no new arguments or facts are necessary to 

justify a stay where, inter alia, the court’s initial decision was a “close call.” 

CREW also makes two other merits arguments that are easily dispatched. 

 

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A. CREW and the Court Misconstrue the Statute by Misreading Buckley. 

CREW and the Court mistakenly rely on the Supreme Court’s definition of a 

“contribution” in Buckley v. Valeo, 424 U.S. 1, 78 (1976) to construe subsection 30104(c)(1) to 

require the reporting of funds “that are earmarked for political purposes.” Opp. at 10;4 Memo 

Op. at 28-30. At the same time, the Court articulated at least three not entirely consistent 

definitional standards for the term “contribution,” see Memo Op. at 55, 56, 61, none of which 

recognized that Buckley construed “contributions” in this context as funds given to be converted 

to independent expenditures. 

As Buckley explained, 2 U.S.C. § 434(e) – the predecessor of the statutory provision at 

issue here – imposed “disclosure requirements . . . on spending that is unambiguously campaign 

related . . . [that] takes the form of independent expenditures or of contributions to an individual 

or group” that makes independent expenditures. 424 U.S. at 81 (emphasis added).5 On the prior 

page, Buckley uses the phrase “spending that is unambiguously campaign related” to refer to 

“only funds used for communications that expressly advocate the election or defeat of a clearly 

identified candidate” (i.e., an independent expenditure). Id. at 80. Therefore, when Buckley used 

shorthand to describe section 434(e)’s contributor reports as applying to “contributions 

earmarked for political purposes,” id., “[t]he only contributions . . . with which the Buckley Court 

                                                            

4

 CREW’s citation here to Mott v. FEC, 494 F. Supp. 131, 136 (D.D.C. 1980) for the proposition that “Buckley 

decided ‘contribution’ as interpreted to include donations earmarked for political purposes was not 

unconstitutionally vague” also is inapposite. Mott specifically addressed “the definition of ‘contributions’ . . . as it 

applies to donations by a person to a political committee made for the purpose of enabling that committee to 

undertake independent expenditures.” 494 F. Supp. at 136 (emphasis added). However, as CREW has 

acknowledged in its D.C. Circuit filing (Doc. No. 1749810 at 4 n.4), “all funds donated to a political committee are 

contributions,” while the scope of donations to a non-political committee making independent expenditures is more 

limited (emphasis added). 

5

 As CREW acknowledges, the current statute merely “shifted [the] burden [of the contributors who formerly 

reported their contributions separately] on to those making the independent expenditure.” Opp. at 4 (emphasis 

added). 

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appears to have been concerned are those that will be converted to expenditures subject to 

regulation under [the statute]” (i.e., independent expenditures), FEC v. Survival Educ. Fund, 65 

F.3d 285, 295 (2d Cir. 1995). 

B. The Court Lacks Jurisdiction to Hear CREW’s Untimely Challenge to the 

Regulation. 

CREW claims standing to challenge the regulation because the Commission relied on its 

validity to dismiss the original administrative complaint. But on remand the Commission 

dismissed without any such reliance, see Hunter and Petersen, supra (referencing 52 U.S.C. 

§ 30111(e)’s “good faith” reliance provision), and CREW concedes its claim on the underlying 

administrative complaint “is now moot,” Opp. at 7 n.6. 

When “a plaintiff has sued to challenge the lawfulness of certain [agency] action . . . but 

that portion of the action is rendered moot, the plaintiff does not retain standing to challenge the 

regulation that was the basis for that action apart from any concrete application that threatens 

imminent harm to his interests.” Cierco v. Mnuchin, 857 F.3d 407, 417 (D.C. Cir. 2017) (citing 

Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009)). Indeed, as the D.C. Circuit has 

already concluded, “given that reliance on that regulation would afford a defense to ‘any 

sanction,’ . . . the court might well uphold FEC non-enforcement without ever reaching the 

regulation’s validity.” Shays v. FEC, 414 F.3d 76, 95–96 (D.C. Cir. 2005). 

Relatedly, CREW admits it failed to raise concerns about the regulation until after it had 

been in existence for over three decades. See, e.g., Opp. at 14. But a party generally forfeits “an 

opportunity to challenge an agency rulemaking on a ground that was not first presented to the 

agency” during the rulemaking process. Koretoff v. Vilsack, 707 F.3d 394, 397 (D.C. Cir. 2013). 

In general, untimely regulatory challenges should be entertained only “when raised as a defense 

to an agency enforcement action,” Am. Scholastic TV Programming Found. v. F.C.C., 46 F.3d 

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1173, 1178 n.2 (D.C. Cir. 1995) (emphasis added), by “a party against whom a rule is applied,”

Indep. Cmty. Bankers of Am. v. Bd. of Governors of Fed. Reserve Sys., 195 F.3d 28, 34 (D.C. 

Cir. 1999) (emphasis added).6 CREW should not have been allowed to end-run the statute of 

limitations by bringing a complaint that now has been dismissed on grounds unrelated to the 

long-standing regulation. 

III. CROSSROADS GPS HAS DEMONSTRATED IRREPARABLE HARM. 

Notwithstanding CREW’s assertions, Crossroads GPS has demonstrated irreparable 

injury. Steven Law, Crossroads’ president, attests that Crossroads “is at present deterred and 

constrained from sponsoring any independent expenditures for the remainder of this election 

cycle” as a result of this Court’s decision. Law Aff. (Dkt. No. 45-2) ¶ 10. Mr. Law cites 

CREW’s threats to use the decision to file complaints against groups making independent 

expenditures that do not report their donors pursuant to the decision as an additional deterrent on 

Crossroads GPS’s speech. Id. ¶ 11. The practical constraint imposed on Crossroads GPS 

regarding its ability to make independent expenditures as a result of the Court’s decision is 

informed by its experience in Van Hollen I, when a similar decision also inhibited Crossroads 

GPS’s and others’ speech. Id. ¶ 12. “[W]here, as here, prosecutions are actually threatened, this 

challenge, if not clearly frivolous, will establish the threat of irreparable injury.” Dombrowski v. 

Pfister, 380 U.S. 479, 490 (1965). 

CREW’s objection that Crossroads GPS “does not actually assert it intends to run 

independent expenditures,” Opp. at 10 n.10, also misses the point: the uncertainty caused by the 

truncated stay precludes such planning. The two obscenity cases CREW cites to refute 

Crossroads’ irreparable harm also are inapposite, as those authorities do not apply to the core 

                                                            

6

 See also Grid Radio v. F.C.C., 278 F.3d 1314, 1320–21 (D.C. Cir. 2002); N.L.R.B. Union v. Fed. Labor 

Relations Auth., 834 F.2d 191, 195 (D.C. Cir. 1987). 

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political speech at issue here. Id. at 11; cf. R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 422 

(1992) (“[c]ore political speech occupies the highest, most protected position . . . obscenity and 

fighting words receive the least protection of all”). 

IV. THE HARMS TO THE FEC AND THE PUBLIC – AND THE LACK THEREOF

TO CREW – SUPPORT A STAY.

While Crossroads GPS’s motion (at 9-19) details the relevant harms to the parties and the 

public, it offers four points here in response to CREW’s Opposition on this issue. First, 

Crossroads GPS has noted how CREW never claimed to be harmed by the challenged regulation 

until only recently, notwithstanding its ample opportunity to do so earlier. Such late-breaking 

“injury” is not the type of substantial, irreparable harm that precludes a stay. See, e.g., U.S. 

Postal Serv. v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 481 U.S. 1301, 1303 (1987) (Rehnquist, 

Circuit Justice) (granting stay, in part, after finding party could not claim “irreparable harm” 

where status quo had existed for at least three years); Lucas v. Townsend, 486 U.S. 1301, 1305 

(1988) (Kennedy, Circuit Justice) (discounting harm where such “burdens can fairly be ascribed 

to the [non-movant’s] own failure” to timely raise issue with agency). CREW’s response is that 

“[t]he continued existence of the regulation will continue to injure CREW.” Opp. at 

15. However, CREW’s claim to injury by being “deprived of [] information to which it is 

entitled,” id., begs the very question that must be resolved on appeal: viz., whether the statute in 

fact “legally entitle[s]” CREW to the donor information it seeks. Therefore, CREW’s claim to 

injury is entirely speculative. 

Second, CREW remarkably claims “there is no need or opportunity for either FEC 

rulemaking or public comment” on the independent expenditure reporting requirement at issue 

here. Opp. at 14. This directly conflicts with general administrative law principles, specific 

congressional intent when that body directed the FEC to conduct a rulemaking in 1980, and the 

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Court’s 45-day stay and opinion, the latter of which specifically contemplated the need to resolve 

some specific reporting scenarios in an interim rulemaking. 

Third, CREW suggests the Commission’s failure to take a position on Crossroads GPS’s 

motion to stay pending appeal evidences a lack of harm to the agency. Opp. at 14 n.13. Not so. 

At least two commissioners – and apparently the Commission’s professional staff – wanted to 

appeal but were frustrated from doing so by at least one other commissioner, and presumably 

also were frustrated from taking a position on this motion to stay for the same reason. See

Hunter and Petersen, supra. Nonetheless, the agency already advised the district court that 

“vacatur could result in ‘inadequate guidance’ for speakers ahead of the 2018 elections.” FEC’s 

Mot. for S.J. (Dkt. No. 30) at 50; see also FEC’s Reply to CREW’s Opp. to FEC’s Mot. for S.J. 

(Dkt. No. 37) at 43; see also Stop This Insanity, Inc. Employee Leadership Fund v. Fed. Election 

Comm’n, 902 F. Supp. 2d 23, 50 (D.D.C. 2012), aff’d, 761 F.3d 10 (D.C. Cir. 2014) (where “the 

plaintiffs do not seek a preservation of the status quo, but rather they seek fundamental change in 

how [entities] are regulated by the FEC, [this] would undoubtedly require new agency guidance 

and other burdens that are at least equal, if not far greater, than any burdens that would result 

from” the status quo). 

Four, while CREW attacks application of the Purcell principle, the bottom line is that 

this principle has maximum force in the weeks leading up to a national election. Voting for this 

year’s national midterm election begins in just days. See, e.g., Minn. Stat. § 203B.081. And 

there is a “strong public interest in the exercise of free speech rights,” Pursuing America’s 

Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016), that is served by “ensuring that [a 

party’s] First Amendment rights are not infringed before the [validity] of the regulation has been 

definitively determined,” Stewart v. District of Columbia Armory Bd., 789 F.Supp. 402, 406 

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(D.D.C. 1992). 

V. THE CENTERPIECE OF CREW’S OPPOSITION – THE VAN HOLLEN

LITIGATION – DOES NOT SUPPORT ITS ARGUMENTS. 

In arguing against a stay, CREW repeatedly links this case back to Van Hollen v. FEC, 

2012 WL 1758569 (D.C. Cir. May 14, 2012) (per curiam). But Van Hollen cuts against CREW. 

Over Judge Henderson’s objection, the Van Hollen motions panel denied a stay largely – 

and, it turns out, errantly – on the movant’s perceived lack of success. See Ctr. For Individual 

Freedom v. Van Hollen, 694 F.3d 108 (D.C. Cir. 2012) (reaching opposite conclusion at merits 

stage). Had the motions panel more accurately assessed the likelihood of success on the merits, 

it may well have granted the stay. 

CREW’s citation to Van Hollen for CREW’s injury claim is also inapt. In Van Hollen, 

this Court found that the appellee, then-Congressman Van Hollen, would be harmed by a stay 

because he would not know the donors “to groups sponsoring ‘electioneering communications’ 

mentioning him by name.” 2012 WL 1758569 at *3. Here, by definition, independent 

expenditures are not aimed at CREW, and therefore CREW cannot claim the same injury as the 

Van Hollen appellee. 

Furthermore, at nearly every step of Van Hollen, courts avoided interfering with three 

general elections. For example, even though denying preliminary relief, the motions panel still 

prioritized oral argument for “the first appropriate date in September 2012.” Id. at *1. The 

merits panel, in turn, issued its opinion on September 18, 2012 – just four days after oral 

argument. See Van Hollen, 694 F.3d 108. On remand, after an October 29, 2013 hearing, the 

district court held its opinion until November 25, 2014 – i.e., shortly after the mid-term elections. 

See Van Hollen v. FEC, 74 F. Supp. 3d 407 (D.D.C. 2014). And this Court issued its final 

opinion in early January 2016, well in advance of the November election. See Van Hollen, 811 

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F.3d 486. This timeline illustrates a judicial desire to avoid upending the campaign finance 

landscape so close to a national election. This Court could achieve the same result by entering a 

stay here. 

CONCLUSION 

The Court correctly stayed its vacatur but cut the stay so short that it does not provide 

real protection. The Court should extend the stay for the duration of the appeal. 

Respectfully submitted, 

/s/ Thomas W. Kirby 

Thomas J. Josefiak Michael E. Toner (D.C. Bar No. 439707) 

J. Michael Bayes (D.C. Bar No. 501845) Thomas W. Kirby (D.C. Bar No. 915231) 

HOLTZMAN VOGEL JOSEFIAK TORCHINSKY PLLC Andrew G. Woodson (D.C. Bar No. 494062) 

45 North Hill Drive, Suite 100 Eric Wang (D.C. Bar No. 974038) 

Warrenton, VA 20186 WILEY REIN LLP 

Tel.: 540.341.8808 1776 K Street, NW 

Fax: 540.341.8809 Washington, DC 20006 

Tel.: 202.719.7000 

Fax: 202.719.7049 

Counsel for Crossroads Grassroots Policy 

September 12, 2018 Strategies

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