ORAL ARGUMENT NOT YET SCHEDULED 

No. 18-5261 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

––––––––––––

CROSSROADS GRASSROOTS POLICY STRATEGIES

Defendant-Appellant, 

v.

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON

AND NICHOLAS MEZLAK, 

Plaintiffs-Appellees, 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

–––––––––––– 

On Appeal from the United States District Court 

for the District of Columbia, No. 16-cv-259 

––––––––––––

BRIEF OF MITCH MCCONNELL, 

MAJORITY LEADER OF THE UNITED STATES SENATE, 

AS AMICUS CURIAE IN SUPPORT OF APPELLANT 

––––––––––––

BOBBY R. BURCHFIELD

GABRIEL KRIMM* 

KING & SPALDING LLP 

1700 Pennsylvania Avenue N.W. 

Washington, D.C. 20006 

(202) 626-5524 

bburchfield@kslaw.com 

*Admitted only in Tennessee. 

Practice in the District of Columbia 

supervised by principals of the Firm.

March 18, 2019 Counsel for Amicus Curiae

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CERTIFICATE AS TO PARTIES, 

RULINGS, AND RELATED CASES 

A. Parties and Amici

To counsel’s knowledge, the parties, intervenors, and amici 

appearing before this Court are listed in the brief for appellant 

Crossroads Grassroots Policy Strategies. 

B. Rulings Under Review 

An accurate reference to the ruling at issue appears in the brief for 

appellant Crossroads Grassroots Policy Strategies. 

C. Related Cases

This case was previously before this Court on Crossroads’ 

Emergency Motion for Stay. See CREW v. FEC, 904 F.3d 1014 (D.C. Cir. 

2018) (per curiam). Amicus is not aware of any other related case, as 

defined by Rule 28. 

/s/ Bobby R. Burchfield 

 Bobby R. Burchfield 

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TABLE OF CONTENTS 

CERTIFICATE AS TO PARTIES, RULINGS, 

AND RELATED CASES ......................................................................... i 

TABLE OF AUTHORITIES ...................................................................... iv 

GLOSSARY OF ABBREVIATIONS ....................................................... viii 

STATUTES AND REGULATIONS ........................................................ viii 

INTEREST OF AMICUS CURIAE ............................................................ 1 

INTRODUCTION ....................................................................................... 4 

SUMMARY OF ARGUMENT .................................................................... 2 

BACKGROUND .......................................................................................... 5 

A. The Statutory Provisions ......................................................... 5 

B. The Regulations ..................................................................... 12 

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

I. CROSSROADS HAS STANDING TO APPEAL. ............................ 14 

II. THE REGULATION REPRESENTS THE BEST, OR AT 

LEAST A REASONABLE, INTERPRETATION OF THE 

STATUTE. ....................................................................................... 16 

A. By Failing To Read Subsection 30104(c) in Proper 

Context, the District Court Misconstrued It. ........................ 17 

B. The Commission Construed Section 30104(c) With 

Reference to Proper Context. ................................................. 23 

1. The Regulation Follows the Mandate for a 

“Statement” in (c)(1) and (c)(2). .................................... 24 

2. Subsection 30104(c)(2)(C) Confirms the 

Commission’s Reading. ................................................. 25 

3. Subsection 30104(c)(3) Further Confirms the 

Commission’s Interpretation. ....................................... 29 

C. Even If Not the Best Interpretation, the Commission’s 

Reading Passes Chevron Step Two. ...................................... 30 

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III. THE REPORTING FRAMEWORK SET FORTH IN THE 

REGULATIONS HAS BEEN REPEATEDLY ACCEPTED BY 

CONGRESS, HAS STOOD THE TEST OF TIME, AND 

APPROPRIATELY BALANCES IMPORTANT INTERESTS. ..... 32 

A. The Commission’s Regulation Has Withstood Repeated 

Congressional Reviews and the Test of Time. ...................... 32 

B. The Commission’s Regulation Balances Competing 

Interests Regarding Political Speech. ................................... 33 

CONCLUSION ......................................................................................... 35 

CERTIFICATE OF COMPLIANCE 

CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES 

CASES

Act Now to Stop War & End Racism Coalition v. Dist. Of Columbia, 

589 F.3d 433 (D.C. Cir. 2009) ......................................................... 15, 16 

Am. Fed'n of Labor & Cong. of Indus. Organizations v. FEC, 

333 F.3d 168 (D.C. Cir. 2003) ............................................................... 32 

Associated Builders & Contractors, Inc. v. Shiu, 

773 F.3d 257 (D.C. Cir. 2014) ............................................................... 17 

Buckley v. Valeo, 

424 U.S. 1 (1976) ..................................................................................... 2 

Cape Cod Hosp. v. Sebelius, 

630 F.3d 203 (D.C. Cir. 2011) ............................................................... 33 

Caraco Pharm. Labs., Ltd. V. Novo Nordisk A/S, 

566 U.S. 399 (2012) .......................................................................... 27, 28 

*Chevron USA Inc. v. Nat. Res. Def. Council, Inc., 

467 U.S. 837 (1984) ............................................................. 16, 17, 30, 34 

*Citizens for Responsibility and Ethics in Washington v. FEC, 

316 F. Supp. 3d 349 (D.D.C. 2018) ................. 5, 6, 18, 19, 20, 21, 25, 26 

Citizens for Responsibility and Ethics in Washington v. FEC, 

892 F.3d 434 (D.C. Cir. 2018) ................................................................. 6 

Citizens United v. FEC, 

558 U.S. 310 (2010) ....................................................................... 2, 6, 10 

Commodity Futures Trading Comm’n v. Schor, 

478 U.S. 833 (1986) ............................................................................... 33 

Del. Dep’t of Nat. Res. & Envtl. Control v. EPA, 

895 F.3d 90 (D.C. Cir. 2018) ................................................................... 24 

Doris Day Animal League v. Veneman, 

315 F.3d 297 (D.C. Cir. 2003) ............................................................... 33 

FDA v. Brown & Williamson Tobacco Corp., 

529 U.S. 120 (2000) ................................................................................ 23 

* Authorities upon which we chiefly rely are marked with asterisks. 

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FEC v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986) ................................................................................. 6 

Goldstein v. SEC, 

451 F.3d 873 (D.C. Cir. 2006) ............................................................... 31 

Good Fortune Shipping SA v. Comm’r of Internal Revenue Serv., 

897 F.3d 256 (D.C. Cir. 2018) ............................................................... 31 

King v. Burwell, 

135 S. Ct. 2480 (2015) ............................................................................ 28 

Liberty Mut. Ins. Co. v. Travelers Indem. Co., 

78 F.3d 639 (D.C. Cir. 1996) ................................................................. 14 

McConnell v. FEC, 

540 U.S. 93 (2003) ................................................................................... 2 

McCutcheon v. FEC, 

134 S. Ct. 1434 (2014) ............................................................................. 2 

Michigan v. EPA, 

135 S. Ct. 2699 (2015) ........................................................................... 30 

Midtec Paper Corp. v. United States, 

857 F.2d 1487 (D.C. Cir. 1988) ............................................................. 31 

Mylan Labs., Inc. v. Thompson, 

389 F.3d 1272 (D.C. Cir. 2004) ............................................................. 30 

Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 

551 U.S. 644 (2007) ................................................................................ 23 

Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 

545 U.S. 967 (2005) ............................................................................... 30 

NLRB v. United Food & Commercial Workers Union, Local 23, 

484 U.S. 112 (1987) ............................................................................... 31 

Pub. Citizen, Inc. v. HHS, 

332 F.3d 654 (D.C. Cir. 2003) ............................................................... 33 

S. Calif. Edison Co. v. FERC, 

195 F.3d 17 (D.C. Cir. 1999) ................................................................... 23 

Serono Labs., Inc. v. Shalala, 

158 F.3d 1313 (D.C. Cir. 1998) ............................................................. 30 

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Spectrum Pharm., Inc. v. Burwell, 

824 F.3d 1062 (D.C. Cir. 2016) ............................................................. 34 

U.S. Telecom Ass’n v. FCC, 

825 F.3d 675 (D.C. Cir. 2016) ............................................................... 15 

*Van Hollen, Jr. v. FEC, 

811 F.3d 486 (D.C. Cir. 2016) ..................................................... 27, 31, 34 

STATUTES

21 U.S.C. § 355(j) ....................................................................................... 27 

52 U.S.C. § 30101(8) ............................................................................. 9, 18 

*52 U.S.C. § 30104(a) ................................................................. 5, 8, 10, 19 

*52 U.S.C. § 30104(b) ................................................................... 10, 13, 20 

*52 U.S.C. § 30104(c) ........ 3, 7, 8, 10, 11, 17, 19, 20, 22, 24, 25, 28, 29, 30 

52 U.S.C. § 30104(d) ................................................................................. 10 

52 U.S.C. § 30104(g) ................................................................................... 8 

52 U.S.C. § 30109...................................................................................... 16 

52 U.S.C. § 30116(f) .................................................................................... 7 

52 U.S.C. § 30118(a) ................................................................................... 7 

Pub. L. No. 99-514, 100 Stat. 2085 (1986) ............................................... 32 

Pub. L. No. 104-79, 109 Stat. 791 (1995) ................................................. 32 

Pub. L. No. 106-346, 114 Stat. 1356 (2000) ............................................. 32 

Pub. L. No. 106-58, 113 Stat. 430 (1999) ................................................. 32 

Pub. L. No. 107-155, 116 Stat. 81 (2002) ................................................. 32 

Pub. L. No. 108-199, 118 Stat. 3 (2004) ................................................... 32 

Pub. L. No. 110-81, 121 Stat. 735 (2007) ................................................. 32 

REGULATIONS

11 C.F.R. § 104.1 ....................................................................................... 19 

11 C.F.R. § 104.3 ....................................................................................... 19 

11 C.F.R. § 104.4(a) .................................................................................... 7 

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11 C.F.R. § 109.10(b) ................................................................................ 13 

*11 C.F.R. § 109.10(c) ........................................................................... 8, 12 

11 C.F.R. § 109.10(d) ............................................................................ 8, 12 

11 C.F.R. § 109.10(e) ................................................................. 4, 12, 13, 16 

11 C.F.R. § 114.2(a) .................................................................................... 7 

11 C.F.R. § 114.2(d) .................................................................................... 7 

LEGISLATIVE MATERIAL

163 Cong. Rec. S3678 (daily ed. June 21, 2018) ........................................ 1 

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GLOSSARY OF ABBREVIATIONS 

BCRA Bipartisan Campaign Reform Act 

Commission Federal Election Commission 

CREW Citizens for Responsibility and Ethics in Washington 

Crossroads Crossroads Grassroots Policy Strategies 

FEC Federal Election Commission 

FECA Federal Election Campaign Act of 1971, as amended 

MAFS Muslim American Freedom Society 

MCFL FEC v. Massachusetts Citizens for Life, 

479 U.S. 238 (1986) 

STATUTES AND REGULATIONS 

The pertinent statutes and regulations are reproduced in an 

addendum to Appellant’s opening brief.

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INTEREST OF AMICUS CURIAE1

Senator Mitch McConnell is the Majority Leader of the United 

States Senate and the senior United States Senator from the 

Commonwealth of Kentucky. He is the former Chairman of the National 

Republican Senatorial Committee, a national political party committee 

comprising the Republican members of the United States Senate. 

Leader McConnell is a respected senior statesman and is 

recognized as the Senate’s most passionate defender of the First 

Amendment guarantee of unrestricted political speech. As he said on the 

Senate floor just a few months ago, “[t]his fundamental right [to free 

speech] is one of our most cherished. It forms the beating heart of our 

democracy. It sits at the core of our civic identity. Yet, these days, it 

seems to be coming under an increasing threat all across our country.” 

163 Cong. Rec. S3678 (daily ed. June 21, 2018) (statement of Sen. 

McConnell). 

 

1 All parties have consented to the filing of this brief. No counsel for any 

party authored this brief in whole or part; no party or counsel made a 

monetary contribution intended to fund the preparation or submission of 

this brief; and no person other than Senator McConnell made such a 

contribution. See Fed. R. Civ. P. 29(c); D.C. Cir. R. 29. 

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The Leader has acquired considerable experience over the last 

three decades complying with federal and state campaign finance 

restrictions and legislating on campaign finance issues. For many years, 

Leader McConnell has participated in litigation challenging restrictions 

on political speech. For example, he was the lead plaintiff challenging 

the Bipartisan Campaign Reform Act (“BCRA”) in McConnell v. FEC, 540 

U.S. 93 (2003). In addition, he participated as amicus by brief and oral 

argument in both Citizens United v. FEC, 558 U.S. 310 (2010), which 

overruled McConnell v. FEC in part, and in McCutcheon v. FEC, 134 S. 

Ct. 1434 (2014), which overruled Buckley v. Valeo, 424 U.S. 1 (1976), in 

part. Senator McConnell submits this brief in support of Appellant 

Crossroads Grassroots Policy Strategies (“Crossroads”). 

SUMMARY OF ARGUMENT 

The Commission’s regulation implements 52 U.S.C. § 30104(c) by 

construing the section as an integrated whole. The regulation requires 

prompt disclosure of information in a “statement” about who is funding a 

particular independent expenditure, for or against which candidate, on 

which dates, by what means, and with how much money. The disclosed 

information is precisely the information Congress mandated the 

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Commission to produce in “indices” on “a candidate-by-candidate basis” 

for publication on “a timely pre-election basis.” Id. § 30104(c)(3). The 

Commission’s interpretation of Section 30104(c) as an integrated whole 

is the most reasonable interpretation but, even if not the most 

reasonable, is at least a permissible interpretation. 

To hold that the Commission’s interpretation is “unambiguously 

foreclosed” by the statute, the district court disaggregated the statute 

into divergent parts. It held that subsection (c)(1) imposes a separate 

disclosure obligation for “all contributions” to the spending entity, 

whether or not those contributions were used for independent 

expenditures. It held that subsection (c)(2)(C) requires a separate 

disclosure identifying “each person” who contributed more than $250 “for 

the purpose of furthering [any] independent expenditure.” And it held 

that subsections (c)(2)(A) and (B) require yet a third type of statement 

focused on particular independent expenditures. By failing to take the 

full context of the section into account, the district court reached a result 

that would unnecessarily complicate and proliferate disclosure 

obligations by persons who make independent expenditures. 

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Because the district court erred in holding that the Commission’s 

regulation is foreclosed by the statute, Majority Leader McConnell 

supports the request of appellant Crossroads GPS that the ruling be 

reversed and the regulation reinstated. 

INTRODUCTION 

 Sweeping aside four decades of uncontroversial history, as well as 

contemporaneous and repeated congressional reviews, the lower court 

invalidated portions of 11 C.F.R. § 109.10(e) as contrary to the Federal 

Election Campaign Act (“FECA”) Amendments of 1979. By reading the 

statutory provisions in isolation, however, the district court failed to 

appreciate the interrelationships among FECA’s independent 

expenditure disclosure provisions. The Federal Election Commission 

understood these statutory interrelationships and forged a regulatory 

regime that has repeatedly passed review by Congress and has also 

passed the test of time. A careful review of the entire statutory structure, 

set forth below, demonstrates the lower court’s errors. Accordingly, the 

decision below must be reversed and the regulation at issue upheld as an 

appropriate exercise of regulatory discretion. 

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BACKGROUND 

 This case concerns a challenge to a regulation adopted by the 

Commission in 1980 to implement certain amendments to the FECA 

adopted by Congress in 1979. Because Plaintiffs, Citizens for 

Responsibility and Ethics in Washington and Nicolas Mezlak (together 

“CREW”), have withdrawn their administrative complaint, the focus of 

this case is now directly on the validity of the Commission’s regulation. 

A. The Statutory Provisions 

 Under FECA and Commission regulations, “political committees” 

are subject to extensive and regular reporting obligations. Since the 

“primary purpose” of political committees is either to elect a specific 

candidate or to engage in federal election-related activities, Citizens for 

Responsibility and Ethics in Washington v. FEC, 316 F. Supp. 3d 349, 

368 (D.D.C. 2018) (“CREW”), all their contributions and expenditures are 

subject to regulation and regular reporting. See, e.g., 52 U.S.C. 

§ 30104(a)(4)(A) (quarterly report option) and (B) (monthly report 

option). 

 The parties agree that Crossroads is not a “political committee,” 

and thus is not subject to these same regular reporting requirements. 

Rather, it is a social welfare organization qualified under section 

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501(c)(4) of the Internal Revenue Code. CREW, 316 F. Supp. 3d at 

356 n.1. No formal structure is necessary to make an independent 

expenditure, and the First Amendment protects the right of all domestic 

individuals, persons, and entities to engage in independent express 

advocacy.2 Indeed, social welfare organizations like Crossroads, fully 

taxable corporations, labor unions, partnerships, and even informal 

groups of individuals now regularly make independent expenditures. It 

is difficult to capture the scope of non-political entities that make 

independent expenditures in a single phrase, but this brief will refer to 

them as “independent spenders.”3

Many independent spenders collect money through their business 

operations, dues, or donations that are not subject to the FECA source 

 

2 See e.g., Citizens United, 558 U.S. at 365 (for profit corporations may 

make independent expenditures from corporate treasury funds); FEC v. 

Massachusetts Citizens for Life, Inc., 479 U.S. 238, 259 (1986) 

(“MCFL”)(non-profit corporation may make independent expenditures 

under certain conditions notwithstanding its corporate form). 

3 This Court referred to entities that make independent expenditures, but 

that are not political committees, as “independent expenditure 

committees.” CREW v. FEC, 904 F.3d 1014, 1016 (D.C. Cir. 2018) (per 

curiam). The district court referred to them as “not-political committees.” 

CREW, 316 F.Supp.3d at 368. Neither term is precise, since individuals, 

groups, corporations, or other entities making independent expenditures 

may not be “committees” of any sort. See Brief of Crossroads GPS at 18 

n.6 (“Crossroads Br.”). 

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and amount restrictions. Such independent spenders are not allowed to 

make contributions to candidate committees, political party committees, 

or political committees, and those political entities are not allowed to 

receive money from such independent spenders.4

 Disclosure obligations for independent spenders who are not 

political committees are set forth in statutory provisions and regulations 

different from those governing political committees. See 52 U.S.C. 

§ 30104(c). See also 11 C.F.R. § 104.4(a) (distinguishing independent 

expenditure disclosures by political committees from those by persons 

who are not political committees). An independent spender must disclose 

under FECA only when it makes an independent expenditure; unless and 

until it does so, it has no disclosure obligation under FECA whatsoever. 

If, however, an independent spender makes independent expenditures 

“in excess of $250 during a calendar year,” it becomes subject to a unique 

reporting regime. See 52 U.S.C. § 30104(c)(1). 

The FECA provision directly at issue in this case is not the only 

provision of FECA that addresses independent expenditure disclosure, 

however. If the independent spender makes one or more independent 

 

4 See 52 U.S.C. §§ 30116(f), 30118(a); 11 C.F.R. § 114.2(a), (d) 

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expenditures exceeding $10,000 more than 20 days before an election, it 

must file a statement as to each expenditure within 48 hours. See 52 

U.S.C. § 30104(g)(2); 11 C.F.R. § 109.10(c). If the independent spender 

makes one or more independent expenditures exceeding $1,000 within 20 

days of an election, it must file a statement as to each expenditure within 

24 hours. See 52 U.S.C. § 30104(g)(1); 11 C.F.R. § 109.10(d). For each 

calendar year in which it makes independent expenditures exceeding 

$200, the independent spender also becomes subject to the same regular 

disclosure schedule as an authorized House or Senate committee, 52 

U.S.C. § 30104(c)(2) (incorporating 52 U.S.C. § 30104(a)(2)), although the 

content of the disclosures is different. 

 The two statutory provisions at issue in this case fall within 52 

U.S.C. § 30104(c), which states in full (with bold italics added): 

(c) Statements by other than political committees; filing; 

contents; indices of expenditures 

(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) 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-- 

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(A) the information required by subsection 

(b)(6)(B)(iii), 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. 

(3) The Commission shall be responsible for 

expeditiously preparing indices which set forth, on a 

candidate-by-candidate basis, all independent 

expenditures separately, including those reported under 

subsection (b)(6)(B)(iii) of this section, made by or for 

each candidate, as reported under this subsection, and 

for periodically publishing such indices on a timely preelection basis. 

 The word choices by Congress in this provision are significant. 

First, “contribution” is a defined term in FECA meaning anything of 

value given “for the purpose of influencing any election for Federal office.” 

52 U.S.C. § 30101(8)(A). Independent spenders may now make 

expenditures from a broader range of funds than just “contributions,” 

including funds from dues, business operations, and other monies not 

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received for the purpose of influencing a federal election.5 Second, to 

describe the disclosure obligation of independent spenders, these 

provisions use the term “statement” rather than “report.” FECA uses the 

term “report” to describe the disclosures required of political committees. 

See, e.g., § 30104(a) (concerning “reports” of political committees); 

§ 30104(b) (describing content of “reports”). In contrast, Congress 

generally (but not unfailingly) used “statement” to describe the disclosure 

obligations of independent spenders. See, e.g., §§ 30104(c), (d). 

 The cross-references within Section 30104(c) are also significant, 

Section 30104(c)(1) requires the filing of a “statement” containing “the 

information required under subsection (b)(3)(A).” Section 30104(b)(3)(A) 

sets forth one element of political committee reports, and requires the 

reporting committee to identify each contributor of more than $250, 

together with the date and amount of the contribution. In contrast, 

Section 30104(c)(2) says that “[s]tatements required to be filed by this 

subsection”—that is 30104(c)—“shall include” information set forth in 

(c)(2)(A), (B), and (C). Section 30104(c)(2)(A) requires “the information 

 

5 Cf. Citizens United, 558 U.S. at 365 (2010) (holding that prohibitions on 

corporations using treasury funds for independent expenditures were 

contrary to First Amendment).

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required by subsection (b)(6)(B)(iii),” which requires detailed disclosures 

regarding specific independent expenditures by political committees. 

Section 30104(c)(2)(B) requires a certification of no coordination. Most 

important for present purposes, Section 30104(c)(2)(C) requires “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 evident purpose of requiring disclosure of independent 

expenditures within 24 or 48 hours of the time they are made is to let the 

public know immediately and precisely who is advocating the election or 

defeat of which specific candidate, in what manner, and with how much 

money. Thus, the focus of the disclosure regime is, necessarily, on specific

independent expenditures and on the date, amount, location, candidate, 

and contributors related to each specific expenditure. Subsection 

30104(c)(3) confirms this purpose by requiring the Commission 

“expeditiously” to prepare and publish “indices” setting forth the 

independent expenditures made by or for “each candidate.” 

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B. The Regulations 

 In its expedited effort to comply with the congressional mandate to 

implement these requirements, the Commission promulgated a number 

of regulations addressing independent expenditures, including the one at 

issue here, 11 C.F.R. § 109.10(e). See especially id. § 109.10(c), (d) (24- 

and 48-hour disclosures). These regulations also use “statement” rather 

than “report” to refer to disclosures by independent spenders, and set 

forth a cohesive disclosure regime. Because the 24- and 48-hour 

statements are triggered by specific independent expenditures, section 

109.10(e) of the regulations requires the reports to be specific to those 

independent expenditures. The statements, on FEC Form 5, must 

identify the independent spender; the person (e.g., the television station) 

receiving the expenditure, the amount, date, and purpose of the 

expenditure; whether it was made in support of or in opposition to a 

federal candidate; a verified certification that it was made independently; 

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

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

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the purpose of furthering the reported independent expenditure.” 11 

C.F.R. § 109.10(e)(1)(vi) 

 In addition to this immediate reporting, Commission regulations 

also require parallel quarterly disclosures on FEC Form 5 “for any 

quarterly period during which any such independent expenditures that 

aggregate in excess of $250 are made.” 11 C.F.R. § 109.10(b). 

ARGUMENT 

To invalidate the regulation, CREW must show that the statute 

unambiguously precludes the Commission’s interpretation of the statute. 

Put a different way, the regulation survives in either of two 

circumstances: (a) the regulation is consistent with the plain language of 

the statute, or (b) the statute is ambiguous and the regulation represents 

a reasonable, even if not the best, interpretation of the statute. 

The statute addresses a number of complexities and an evolving 

landscape of independent expenditures. The regulation reflects a 

straightforward interpretation of the pertinent provisions, considered 

within the broad framework of FECA and its effort to require disclosure 

of independent expenditures by entities other than political committees 

without subjecting those independent spenders to excessive regulation. 

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Even if the statute could have more than one meaning, the meaning 

reflected in the regulations is at least a reasonable one, if not the most 

reasonable one. 

 To invalidate the regulation, the district court adopted an 

interpretation of subsection (c)(1) that makes it a stand-alone disclosure 

obligation, rather than an integral part of subsection (c) as a whole. The 

district court committed the same error with regard to subsection 

(c)(2)(C), again reading it as a standalone disclosure obligation—apart 

from not only (c)(1) but also from (c)(2)(A) and (B)—to require disclosures 

that are not sensible in the overall context. As explained below, the 

district court reached this result by ignoring the unifying term in both 

subsections (c)(1) and (c)(2)—“statement.” 

I. CROSSROADS HAS STANDING TO APPEAL. 

CREW’s motion to dismiss the appeal calls into question whether 

the district court’s ruling has injured Crossroads in a legally cognizable 

way. See Liberty Mut. Ins. Co. v. Travelers Indem. Co., 78 F.3d 639, 642 

(D.C. Cir. 1996).6 When a law burdening expressive rights also empowers 

 

6 Notably CREW argues lack of appellate standing, which would deprive 

this Court of jurisdiction to decide the appeal but leave the district court’s 

order in place, rather than mootness, which would require that the 

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15 

the government to punish a violation of the law, the presumption of 

enforcement establishes imminent injury-in-fact. U.S. Telecom Ass’n v. 

FCC, 825 F.3d 675, 739 (D.C. Cir. 2016). 

Indeed, this court found appellate standing on markedly similar 

facts in Act Now to Stop War & End Racism Coalition v. Dist. Of 

Columbia (“ANSWER II”), 589 F.3d 433, 435 (D.C. Cir. 2009). In that 

case, the plaintiff organization, Muslim American Society Freedom 

Foundation (“MASF”), challenged a District of Columbia sign-posting 

ordinance on First Amendment grounds. See id. at 433. The district 

court held MASF lacked standing to sue because it had not alleged any 

plans to violate the law. See id. at 435. But this court reversed. See id. 

It recognized that MASF’s desire to post signs for longer than the 

ordinance allowed amounted to “a credible statement ... of intent to 

commit violative acts.” Id. (citations omitted). And it further recognized 

 

district court’s order be vacated and thus nullified. United States v. 

Munsingwear, Inc., 340 U.S. 36, 38–41 (1950). 

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16 

that the District’s past efforts to enforce the ordinance against MASF 

established an imminent threat of enforcement. See id.

So too here. For years, Crossroads operated under a regulatory 

regime that included 11 C.F.R. § 109.10(e)(1)(vi). It hopes to continue 

operating in that manner after resolution of this lawsuit. See App. at __ 

(Law Affidavit at 2). Doing so in defiance of the district court’s order 

would, however, invite liability for civil penalties and injunctive relief 

under FECA. See 52 U.S.C. § 30109. Thus, because Crossroads intends 

to resume operations that would, at present, violate the law as 

interpreted by the district court, see App. at __ (Law Affidavit at 5), it 

need not actually violate the law to establish an imminent injury-in-fact. 

See ANSWER II, 589 F.3d at 435. Accordingly, Crossroads has standing 

to appeal the order. 

II. THE REGULATION REPRESENTS THE BEST, OR AT 

LEAST A REASONABLE, INTERPRETATION OF THE 

STATUTE. 

This Court is familiar with the two-step process for reviewing 

agency regulations set forth in Chevron USA Inc. v. Nat. Res. Def. 

Council, Inc., 467 U.S. 837 (1984). First, the Court must ask “whether 

Congress has directly spoken to the precise question at issue.” Id. at 842. 

USCA Case #18-5261 Document #1778186 Filed: 03/18/2019 Page 25 of 46
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Second, if Congress has not “directly addressed the precise question at 

issue,” then the Court must determine “whether the agency’s answer is 

based on a permissible construction of the statute.” Id. at 843. Only if 

CREW can show that FECA “‘unambiguously forecloses’ [the 

Commission’s] interpretation” can it prevail at Chevron step one. 

Associated Builders & Contractors, Inc. v. Shiu, 773 F.3d 257, 262 (D.C. 

Cir. 2014) (citation omitted) (emphasis added). 

We begin by explaining how the district court failed to take account 

of the statute’s full context, and then overstepped the appropriate bounds 

of judicial review. Then, we show that the Commission avoided that error 

and set forth an accurate interpretation of the statute in its regulation. 

And finally, we show that, even if the statute were ambiguous, the 

Commission’s interpretation is at least a reasonable interpretation. 

A. By Failing To Read Subsection 30104(c) in Proper 

Context, the District Court Misconstrued It. 

The district court read the components of Section 30104(c) as 

divisible parts rather than as a unified whole. By doing so, it interpreted 

the provision as requiring at least three different types of independent 

expenditure disclosures: a first, general statement disclosing “all 

contributions” received by the spender, to comply with subsection (c)(1); 

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a second, more limited statement disclosing all “contribution[s] . . . made 

for the purpose of furthering an independent expenditure,” to comply 

with subsection (c)(2)(C); and yet a third statement disclosing details 

about individual independent expenditures, to comply with subsections 

(c)(2)(A) and (B). CREW, 316 F. Supp. 3d at 395–403 (regarding (c)(1); 

403–06 (regarding distinctions between (c)(1) and (c)(2)(C), and between 

(c)(2)(C) and (c)(2)(A) and (B)). This interpretation is erroneous. 

 In construing subsection (c)(1) to require free-standing reporting of 

“all contributions” required by the independent spender, the district 

court confronted a number of obstacles. The first obstacle was the term 

“all contributions.” It recognized that FECA defines “contribution” as 

including only those monies given “for the purpose of influencing any 

election for Federal office.” 52 U.S.C. § 30101(8)(A)(i). Since independent 

spenders “may include social welfare organizations” which “may have 

non-political primary missions,” CREW, 316 F. Supp. 3d at 400, “donors 

. . . who want to fund only the organization’s administrative expenses or 

not-political activities, may do so without being identified.” Id. at 400–

01. But the court left unsaid what to do about donations from donors who 

do not specify how the spender must use their donations. 

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The district court next suggested that Section 30104(c)(1) requires 

independent spenders to disclose all monies received for the purpose of 

“making contributions to candidates, political committees, or political 

parties.” Id. at 401. This construction is odd for three reasons. First, 

Section 30104(c) is plainly structured to address reporting of independent 

expenditures by independent spenders, not contributions from 

independent spenders to political committees. Second, independent 

spenders frequently hold unregulated money—earnings from operations, 

donations in amounts exceeding the FECA contribution limits, union 

dues, and so forth. For this reason, many independent spenders are not 

allowed to make “contributions” to political parties, candidates, or 

committees. (See p. 7 n.4, above). Finally, in those rare situations in 

which independent spenders may be allowed to make “contributions” to 

candidates, parties, or other political committees, FECA imposes the 

obligation to report contributions from non-political committees on the 

recipient, not on the contributor. See 52 U.S.C. § 30104(a), (b); 11 C.F.R. 

§§ 104.1 and 104.3. 

The district court’s interpretation of (c)(1) as a free-standing 

disclosure requirement also confronts subsection (c)(1)’s cross reference 

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20 

to subsection (b)(3)(A). Subsection (c)(1) applies to independent spenders 

and (b)(3)A) applies to political committees. Subsection (c)(1) requires a 

“statement” and (b)(3)(A) specifies one element of a “report.” Although 

recognizing that (b)(3)(A) did not quite mesh with (c)(1), the district court 

nevertheless concluded that “the gist” of (b)(3)(A) “appears easily 

applicable” to independent spenders, 316 F. Supp. 3d at 397 (emphasis 

added), that “the cross-reference to subsection (b)(3)(A) is viable” when 

applied to independent spenders, id., and that (c)(2) imposes “similar

disclosure requirements as those imposed on political committees” by 

(b)(3)(A). Id. “Gist,” “viable,” and “similar” are not words reflecting plain 

meaning; they are words reflecting interpretation of a cross reference 

that does not quite match the referring provision. Nevertheless, the 

district court muscled through the mis-match by imposing its own gloss 

on how the two provisions should work together. 

 The district court next turned to Section 30104(c)(2), which says 

“[s]tatements required to be filed” by Section 30104(c) “shall include” 

three categories of information on specific independent expenditures. 

Section 30104(c)(2)(A) requires the independent committee’s statement 

to contain information required by Section 30104(b)(6)(B)(iii), which 

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relates to specific expenditures: it requires identification of the person 

receiving the disbursement (e.g., the television station), a statement of 

the date, amount, and purpose of the expenditure, whether the 

expenditure is in support or opposition to any candidate and if so which 

candidate, and an affirmation that the expenditure was not made in 

cooperation, consultation, or concert with” any candidate. Next, Section 

30104(c)(2)(B) requires a statement under penalty of perjury whether 

“the independent expenditure is made in cooperation, consultation, or 

concert” with any candidate. And finally, section 30104(c)(2)(C) requires 

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

$200” to the reporting committee “for the purpose of furthering an 

independent expenditure.” (emphasis added). 

Although the district court recognized (correctly) that (c)(2)(A) and 

(B) require disclosure of specific independent expenditures, it determined 

that they “stand in stark contrast to the third paragraph (C),” which it 

construed as more generally applicable. 316 F. Supp. 3d at 406. Thus, 

the district court believed that (c)(1) requires disclosure of “all 

contributions” (as modified by the district court), whereas (c)(2)(C) 

requires disclosure of the more limited group of contributions over $250 

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“made for the purpose of furthering [any] independent 

expenditure.” Under the district court’s interpretation, (c)(1) does not 

correlate to (c)(2)(C), and neither of those provisions correlate to (c)(2)(A) 

or (B). The court did not explain how the divergent information required 

by its interpretation would allow the Commission to issue the indices 

required by subsection (c)(3). In short, the district court’s reading is not 

a natural reading of Section 30104(c) as a whole. 

As shown below, a reading that unifies subsections (c)(1) and (c)(2) 

is more consistent with the mandate in (c)(2) that “[s]tatements required 

to be filed by this subsection . . . shall include” the information in (c)(2)(A), 

(B), and (C). In the district court’s reading, the statements required by 

(c)(1) do not include the information required by (c)(2)(A), (B), and (C), 

and the statements required by (c)(2)(C) do not include the information 

required by (c)(2)(A) and (B). Read as a whole, 52 U.S.C. § 30104(c) 

requires an independent spender to file a “statement” disclosing the 

specified information for each independent expenditure. 

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B. The Commission Construed Section 30104(c) With 

Reference to Proper Context. 

In contrast to the district court’s atomized reading of the statute, 

the Commission read the disclosure provisions as part of an integrated 

whole. 

The text provides the proper starting point for this analysis. See S. 

Calif. Edison Co. v. FERC, 195 F.3d 17, 23 (D.C. Cir. 1999). The court 

“should not confine itself to examining ... particular statutory provision[s] 

in isolation.” Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 

666 (2007) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 

120, 132 (2000)). “It is a ‘fundamental canon of statutory construction that 

the words of a statute must be read in their context and with a view to their 

place in the overall statutory scheme.’” Brown & Williamson Tobacco, 529 

U.S. at 133 (citations omitted). “‘In expounding a statute, we must not be 

guided by a single sentence or member of a sentence, but look to the 

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provisions of the whole law.’” Del. Dep’t of Nat. Res. & Envtl. Control v. 

EPA, 895 F.3d 90, 97 (D.C. Cir. 2018) (citations omitted). 

1. The Regulation Follows the Mandate for a 

“Statement” in (c)(1) and (c)(2). 

The Commission’s regulation requires persons other than political 

committees to file a statement when they make an independent 

expenditure, as required by subsection (c)(1), and requires each such 

statement to have the content set forth in subsection (c)(2), which focuses 

on particular independent expenditures. As shown (pp. 11–13 above), the 

regulation requires the independent spender to disclose, for each 

expenditure, the spender’s name; the name of the recipient of the 

expenditure; amount, date, and purpose of the expenditure; whether it was 

intended to support or oppose a candidate, and if so which one; a 

certification on non-coordination; and “identification of each person who 

made a contribution in excess of $200 . . . for the purpose of furthering the 

reported independent expenditure.” This reading of the statute achieves 

what the district court’s reading does not: it unifies all elements of Section 

30104(c) into an integrated whole, with each provision accounted for, and it 

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also collects in a statement all information necessary for publication of the 

indices required by (c)(3) on a timely basis. 

The Commission’s reading is not only sensible, but more faithful to 

the “two over-arching goals” of the 1979 amendments to FECA, which the 

district court summarized as “(1) [t]o simplify reporting requirements for 

candidates and committees under [FECA], and (2) to encourage grass roots 

participation in Federal election campaigns.” CREW, 316 F. Supp. 3d at 

375. Proliferation of statements with overlapping but inconsistent 

information would not serve those goals. 

2. Subsection 30104(c)(2)(C) Confirms the 

Commission’s Reading. 

Subsection (c)(2)(C) requires “the persons submitting such statement” 

to disclose each person who made a contribution over $200 “for the purpose 

of furthering an independent expenditure.” Id. § 30104(c)(2)(C) (emphasis 

added). Subsection (c)(2)(C) confirms the Commission’s interpretation, and 

further rebuts the district court’s. To begin, it falls within the same 

subsection as two provisions that plainly refer to specific independent 

expenditures. The district court recognized that (c)(2)(A) uses “the

independent expenditure,” and that (c)(2)(B) uses “such independent 

expenditure,” but believed that these usages of the singular “stand in stark 

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contrast to the third paragraph (C), which uses the indefinite article ‘an’ to 

modify ‘independent expenditure.’” See 316 F. Supp. 3d at 406. According 

to the district court, subsection (c)(2)(C) requires disclosure of any and all 

contributions made for the purpose of furthering any independent 

expenditure. As shown (pp. 20–21 above), the district court’s interpretation 

requires a different statement than required by (c)(1) (“all contributions”) 

and a different statement than required by (c)(2)(A and B) (which focus on 

specific expenditures). 

What the lower court missed, however, was that (c)(2)(C) also refers 

to “the person filing such statement”—a plain reference back to the same 

term in (c)(1) and (c)(2). The most direct interpretation, if not the only one, 

is that (c)(2)(C) instructs the independent committee filing a statement

regarding a particular independent expenditure in compliance with 

subsection (c)(2)(A) and (c)(2)(B), to include in that statement the identity of 

persons who contributed “for the purpose of furthering an independent 

expenditure” being disclosed in the statement. It makes perfect sense to 

require an independent spender to include in its statement disclosing an 

independent expenditure supporting candidate Jones in Nebraska a list of 

all contributors who supported that specific independent expenditure. It 

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does not, we respectfully submit, make sense for that statement also to 

identify a donor who specifically supported an expenditure (disclosed in a 

different statement) opposing candidate Smith in New York. Such a 

disclosure inaccurately suggests that all disclosed donors support Smith, 

and thus would confuse rather than enlighten the public. Cf. Van Hollen, 

Jr. v. FEC, 811 F.3d 486, 497 (D.C. Cir. 2016) (Republican donor to the 

American Cancer Society should not be identified as a supporter of 

advertisements critical of Republican lawmakers). 

The Supreme Court’s decision in Caraco Pharm. Labs., Ltd. V. Novo 

Nordisk A/S, 566 U.S. 399 (2012), supports this construction. In Caraco, 

the Court considered whether a statute allowed the generic drug 

manufacturer to bring a counterclaim “‘on the ground that the patent does 

not claim ... an approved method of using the drug.’” Id. at 413 (quoting 

21 U.S.C. § 355(j)(5)(C)(ii)(I)) (emphasis added). After carefully reviewing 

the statutory context, the Court held that the provision allows a generic 

drug manufacturer to file a counterclaim to correct an Orange Book listing 

if the patent holder claims methods that are not, in fact, covered by its 

patent, even if the patentee also does claim “at least one method that is 

approved.” In other words, the statute permits a counterclaim if patentee 

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claims a method that is not approved, even if the patentee also claims 

another method that is approved. Id. at 412. “Truth be told, the answer to 

the general question ‘What does ‘not an’ mean?’ is ‘It depends’”: The 

meaning of the phrase turns on its context.” Id. at 413. Cf. King v. Burwell, 

135 S. Ct. 2480, 2495 (2015) (“strong” arguments about “plain meaning” 

“turn[] out to be untenable in light of [the statute] as a whole.’”) (citation 

omitted). 

In short, it would add more confusion than clarity to the information 

about independent expenditures available to the public to have a 

“statement” disclosing the identity of persons responsible for “all 

contributions” (subsection (c)(1)), another disclosing the identity of persons 

responsible for any contribution “in excess of $200 which was made for the 

purpose of furthering [any] independent expenditure” (subsection (c)(2)(C)), 

and yet additional statements disclosing for each expenditure the candidate 

being supported or opposed and certifying no coordination (subsection 

(c)(2)(A) and (B)). As in Caraco, the statutory context avoids this untoward 

result. Taking context and the statutory purpose into account, “an 

independent expenditure” in subsection (c)(2)(C) more likely means the 

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independent expenditure being disclosed in the statements discussed in 

subsections (c)(2)(A) and (B).

3. Subsection 30104(c)(3) Further Confirms the 

Commission’s Interpretation. 

The final subsection, (c)(3), supports the focus on disclosing 

information concerning particular independent expenditures. It charges 

the Commission with “expeditiously preparing . . . and periodically 

publishing” “indices” based on the information “reported under this 

subsection.” Id. § 30104(c)(3). Those indices must list “all independent 

expenditures . . . as reported under [the] subsection” “on a candidate-bycandidate basis.” Id. (emphasis added). 

Notably absent from (c)(3), however, is any broader command to 

publish a list of persons who have generally funded the activities of the 

filers, or who have generally supported the making of independent 

expenditures. Indeed, statements that disclose all funders—general and 

specific—of independent expenditures would complicate if not undermine 

the Commission’s mandate to report the expenditures on a candidate-bycandidate basis, and would confuse rather than enlighten the voting public. 

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C. Even If Not the Best Interpretation, the Commission’s 

Reading Passes Chevron Step Two. 

Even if the statute does not unambiguously support the 

interpretation embodied in the regulation, it certainly does not 

unambiguously foreclose that interpretation. The Court will defer to the 

administrative interpretation so long as it is “based on a permissible

construction of the statute.” Chevron, 467 U.S. at 843 (emphasis added); 

see Mylan Labs., Inc. v. Thompson, 389 F.3d 1272, 1280 (D.C. Cir. 2004). 

It does not matter that “the agency’s reading differs from what the court 

believes is the best statutory interpretation.” Nat’l Cable & Telecomms. 

Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005). Deference is 

due “regardless whether there may be other reasonable, or even more 

reasonable, views.” Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1321 

(D.C. Cir. 1998). In fact, the central point of Chevron is that “a court may 

not substitute its own construction of a statutory provision for a 

reasonable” agency interpretation. Chevron, 467 U.S. at 844; see, e.g., 

Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015). 

In the event the Court proceeds to Chevron step two, the 

Commission’s regulation is easily defensible for the reasons set forth 

above. It unifies Section 30104(c) as a cohesive whole, better achieves 

USCA Case #18-5261 Document #1778186 Filed: 03/18/2019 Page 39 of 46
31 

the congressional purpose of simplifying reporting and promoting grass 

roots participation, and provides the information needed for the indices 

required by (c)(3). As in Van Hollen, which upheld a regulation governing 

disclosure of donors supporting electioneering communications, the 

Commission’s interpretation is “more than just a permissible construction 

[of the statute]; it’s a persuasive one.” 811 F.3d at 493. 

 The Commission’s regulation draws the subsection together in 

relative harmony, and is consistent with the extensive regulatory 

scheme. The reasonableness of an agency’s regulation “depends, in part, 

‘on [its] “fit” with the statutory language, as well as its conformity to 

statutory purposes.’” Good Fortune Shipping SA v. Comm’r of Internal 

Revenue Serv., 897 F.3d 256, 262 (D.C. Cir. 2018) (quoting Goldstein v. 

SEC, 451 F.3d 873, 881 (D.C. Cir. 2006)). A regulation that is “rational 

and consistent with the statute” should thus be upheld. Midtec Paper 

Corp. v. United States, 857 F.2d 1487, 1497 (D.C. Cir. 1988) (quoting 

NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 

112 (1987)). That is the case here. 

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III. THE REPORTING FRAMEWORK SET FORTH IN THE 

REGULATIONS HAS BEEN REPEATEDLY ACCEPTED BY 

CONGRESS, HAS STOOD THE TEST OF TIME, AND 

APPROPRIATELY BALANCES IMPORTANT INTERESTS. 

A. The Commission’s Regulation Has Withstood Repeated 

Congressional Reviews and the Test of Time. 

This court has given “particular[]” weight to campaign finance 

regulations that have cleared legislative review. See Am. Fed'n of Labor 

& Cong. of Indus. Organizations v. FEC, 333 F.3d 168, 175 (D.C. Cir. 

2003). As shown in the brief of Crossroads (Br. at 41–43), the 

Commission was intimately involved in drafting this statute, acted 

promptly after enactment of the statute to draft the regulations, and then 

immediately submitted the regulation for review in 1980. Since 1980, 

this subsection and the Commission’s regulations have survived seven

revisions to the overarching section. See Pub. L. No. 99-514, § 2, 100 Stat. 

2085 (1986); Pub. L. No. 104-79, §§ 1(a), 3(b), 109 Stat. 791, 792 (1995); 

Pub. L. No. 106-58, Title VI, §§ 639(a), 641(a), 113 Stat. 430, 476, 477 

(1999); Pub. L. No. 106-346, § 101(a), 114 Stat. 1356, 1356A-49 (2000); 

Pub. L. No. 107-155, §§ 103(a), 201(a), 212, 304(b), 306, 308(b), 501, 503, 

116 Stat. 81, 87, 88, 93, 99, 102, 104, 114, 115 (2002); Pub. L. No. 108-

199, § 641, 118 Stat. 3 (2004); Pub. L. No. 110-81, § 204(a), 121 Stat. 735, 

744 (2007). History therefore confirms that the Commission’s 

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33 

interpretation of the statute is at least reasonable, if not spot-on. The 

survival of the regulation through numerous campaign finance law 

amendments provides “persuasive evidence that the interpretation is the 

one intended by Congress.” Doris Day Animal League v. Veneman, 315 

F.3d 297, 300 (D.C. Cir. 2003) (quoting Commodity Futures Trading 

Comm’n v. Schor, 478 U.S. 833, 846 (1986)). Each of these factors 

supports deference to the Commission. 

 Although the courts will not always “[p]resum[e] ratification based 

on congressional inaction,” they may do so when they have “some 

evidence of” or some “reason to assume ... congressional familiarity with” 

the regulation at issue. Cape Cod Hosp. v. Sebelius, 630 F.3d 203, 214 

(D.C. Cir. 2011) (quoting Pub. Citizen, Inc. v. HHS, 332 F.3d 654, 669 

(D.C. Cir. 2003)). In this case, the court may assume congressional 

familiarity by virtue of the fact that this regulation is part of the rulebook 

that regulates spending during congressional campaigns. 

B. The Commission’s Regulation Balances Competing 

Interests Regarding Political Speech. 

 Finally, the Commission’s regulation strikes an adequate balance 

between the competing interests of transparency and privacy, which are 

always at play in the realm of elections law. “[A]n agency’s ‘reasonable 

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34 

accommodation of conflicting policies . . . committed to [its] care by 

statute’ should control” absent evidence of contrary legislative intent. 

Spectrum Pharm., Inc. v. Burwell, 824 F.3d 1062, 1068 (D.C. Cir. 2016) 

(quoting Chevron, 467 U.S. at 845). 

 In the context of campaign finance law, the public’s interest in 

transparency has always competed with the individual interest in private 

participation. As this Court observed in a very similar context, 

unfettered political speech and robust disclosure rules are on an 

“ineluctable collision course.” Van Hollen, 811 F.3d at 488. To a point, 

disclosures help educate the voting public and deter corruption, but an 

inordinate disclosure burden imposes undue expense, exposes speakers 

to retribution, and dampens public discussion. This Court said it best in 

Van Hollen: “[j]ust because one of [the statute’s] purposes (even chief

purposes) was broader disclosure does not mean that anything less than 

maximal disclosure is subversive.” Id. at 494. CREW’s desire to stretch 

the statute to impose greater disclosure burdens cannot justify 

invalidating a regulation that has worked well for almost four decades. 

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35 

CONCLUSION 

For the reasons set forth above and in the brief for Crossroads, Senate 

Majority Leader Mitch McConnell urges the court to reverse the order 

below and remand the case with instructions to reinstate the regulation. 

 Respectfully submitted, 

/s/ Bobby R. Burchfield

Bobby R. Burchfield 

Gabriel Krimm* 

KING & SPALDING LLP 

1700 Pennsylvania Avenue, N.W. 

Washington, D.C. 20006 

(202) 737-0500 

bburchfield@kslaw.com 

*Admitted only in Tennessee. 

Practice in the District of Columbia 

supervised by principals of the Firm.

Counsel for Amicus Curiae 

March 18, 2019

USCA Case #18-5261 Document #1778186 Filed: 03/18/2019 Page 44 of 46
CERTIFICATE OF COMPLIANCE 

Pursuant to Rule 32(a) of the Federal Rules of Appellate Procedure, 

I hereby certify: 

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

App. P. 29(a)(5) because it contains 6,465 words, excluding the parts of 

the brief exempted by Fed. R. App. P. 32(f). 

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

App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 

32(a)(6) because it has been prepared in a proportionally spaced typeface 

using Microsoft Word 2010 in 14-point Century Schoolbook font. 

/s/ Bobby R. Burchfield 

 Bobby R. Burchfield

USCA Case #18-5261 Document #1778186 Filed: 03/18/2019 Page 45 of 46
CERTIFICATE OF SERVICE 

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

hereby certify that I have on this day, March 18, 2019, served a copy of the 

foregoing document electronically through the Court’s CM/ECF system on 

all registered counsel. 

/s/ Bobby R. Burchfield 

Bobby R. Burchfield 

USCA Case #18-5261 Document #1778186 Filed: 03/18/2019 Page 46 of 46