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, 

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 

Civ. A. No. 16-259 (Hon. Beryl A. Howell) 

_________________________________________ 

OPENING BRIEF OF DEFENDANT-APPELLANT 

 CROSSROADS GRASSROOTS POLICY STRATEGIES 

_________________________________________ 

Thomas J. Josefiak Michael E. Toner 

J. Michael Bayes Thomas W. Kirby 

HOLTZMAN VOGEL JOSEFIAK Andrew G. Woodson 

 TORCHINSKY PLLC WILEY REIN LLP 

45 North Hill Drive, Suite 100 1776 K Street, NW

Warrenton, VA 20186 Washington, D.C. 20006 

Phone: 540.341.8808 Phone: 202.719.7000 

 E-mail: tkirby@wileyrein.com

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 1 of 78
CERTIFICATE AS TO PARTIES, 

RULINGS UNDER REVIEW, AND RELATED CASES 

Appellant Crossroads Grassroots Policy Strategies provides the following 

information in accordance with D.C. Circuit Rules 26.1 and 28(a)(1): 

A) Parties and Amici 

The appellant is Crossroads Grassroots Policy Strategies (“Crossroads”), 

which was an intervenor-defendant in the district court. Pursuant to Circuit Rule 

26.1, Crossroads certifies that no publicly held company has a ten-percent-orgreater ownership interest in Crossroads and that Crossroads has no parent 

companies as defined in the Circuit Rule. Crossroads is a non-partisan, non-profit 

§ 501(c)(4) organization that educates, equips, and engages American citizens on 

important economic and legislative issues. 

Citizens for Responsibility and Ethics in Washington and Nicholas Mezlak 

(collectively, “CREW”), which were plaintiffs in the district court, are appellees. 

The Federal Election Commission was a defendant in the district court. Counsel 

for the Commission has previously confirmed that the Commission did not have 

the sufficient number of affirmative votes to authorize an appeal and therefore is an 

appellee. 

No amicus curiae appeared in the district court. Crossroads understands that 

one or more parties may appear as an amicus in this appeal. 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 2 of 78
B) Rulings Under Review 

The rulings under review are the August 3, 2018 judgment of the district 

court (Docket Nos. 42 (order) and 43 (memorandum opinion)), entered by the 

Honorable Beryl A. Howell in Civil Action No. 16-cv-00259-BAH, along with the 

court’s March 22, 2017 order and memorandum opinion (Docket Nos. 21 and 22 

respectfully). The August 3, 2018 opinion is available at 316 F.Supp.3d 349 and 

located on page 396 of the Joint Appendix. The March 22, 2017 opinion is 

available at 243 F.Supp.3d 91 and located on page 77 of the Joint Appendix. The 

orders are not published in the Federal Supplement but are available in the Joint 

Appendix on pages 75 and 367. 

C) Related Cases 

This case was previously before this Court on Crossroads’ emergency 

motion for a stay pending appeal. This Court’s resulting decision is titled CREW v. 

FEC, 904 F.3d 1014 (D.C. Cir. 2018) (per curiam) (Henderson, Millett, and 

Wilkins, JJ.). Crossroads is not aware of any other related case, as defined by 

Circuit Rule 28. 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 3 of 78
i 

TABLE OF CONTENTS

Table of Contents .................................................................................................... i

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

Glossary ................................................................................................................ xi

Jurisdictional Statement ......................................................................................... 1

The Issues Presented .............................................................................................. 2

Statutory and Regulatory Provisions ...................................................................... 3

Statement of the Case............................................................................................. 3

I. The Evolution of the FECA’s Limited Reporting Regime for 

Independent Expenditures. ....................................................................... 3

II. Crossroads’ Historic and Future Reliance on the Regulation .................... 9

III. CREW’s Administrative Complaint Against Crossroads and the 

FEC’s First Dismissal. .............................................................................10

IV. CREW’s District Court Complaint and the Court’s March 22, 2017 

Ruling. .....................................................................................................13

V. Further Proceedings Before the District Court and Appellate Courts. ......15

VI. CREW’s Standing Motion and Its Abandonment of Its 

Administrative Complaint. ......................................................................18

Summary of the Argument ....................................................................................19

Standard of Review ...............................................................................................21

Argument ..............................................................................................................22

I. CREW Is Not Entitled to Challenge the FEC’s Regulation. .....................22

A. CREW Failed to Properly Challenge the Regulation’s 

Implementation of 30104(c) During the Administrative 

Proceedings Before the FEC. ............................................................22

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 4 of 78
ii 

B. The District Court Correctly Rejected CREW’s APA Challenge 

to the FEC’s Implementation of FECA (c)(1), But Then Later 

Erred by Permitting Such a Challenge to Proceed. ............................28

C. CREW Cannot Challenge a Regulation Outside the Statute of 

Limitations in an Enforcement Proceeding Where the Validity 

of the Agency’s Rule Was Immaterial to Resolution of the 

Matter. ..............................................................................................31

II. The Regulation Is Valid Under Chevron Steps One and Two. .................34

A. Chevron Step 1: Congress Tailored the FECA to Require AdBased Identification of Contributors, Not the Wholesale 

Reporting of an Organization’s Entire Donor List. ............................35

B. Chevron Step 2: The FEC’s Regulatory Construction Is 

Reasonable and Within the Range of Permissible Options 

Under the Statute. .............................................................................42

1. The FEC Was Heavily Involved in the Statute’s Drafting. ..........42

2. Congress Has Not Disagreed with the FEC’s Contemporaneous 

Interpretation of the Statute, But Rather Has Ratified It. ...................44

3. The FEC’s Interpretation of the Statute Has Remained Consistent 

for Nearly Four Decades. ..................................................................48

4. The FEC’s Regulation Accords with Expressed Congressional 

Intent and Important First Amendment Principles. ............................49

III. CREW Cannot Challenge Alleged Procedural Defects in a 

Regulation Decades After Its Promulgation and, in Any Event, 

Those Claims Lack Merit. .......................................................................52

Conclusion ............................................................................................................54

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 5 of 78
 iii 

TABLE OF AUTHORITIES 

Cases Page(s) 

Abbott GmbH & Co. KG v. Yeda Research & Development Co., 

516 F. Supp. 2d 1 (D.D.C. 2007) ..................................................................... 40 

Abourezk v. Reagan, 

785 F.2d 1043 (D.C. Cir. 1986), aff’d, 484 U.S. 1 (1987) ................................ 48 

Action on Smoking and Health v. C.A.B., 

699 F.2d 1209 (D.C. Cir. 1983) ....................................................................... 47 

AFL-CIO v. FEC, 

333 F.3d 168 (D.C. Cir. 2003) ......................................................................... 46 

American Scholastic TV Programming Foundation v. F.C.C., 

46 F.3d 1173 (D.C. Cir. 1995) ......................................................................... 31 

Associated Builders & Contractors, Inc. v. Shiu, 

773 F.3d 257 (D.C. Cir. 2014) ......................................................................... 35 

Black Citizens for a Fair Media v. F.C.C., 

719 F.2d 407 (D.C. Cir. 1983) ................................................................... 44, 45 

Brotherhood of Rail Road Signalmen v. Surface 

Transportation Board, 

638 F.3d 807 (D.C. Cir. 2011) ......................................................................... 49 

Buckley v. Valeo, 

424 U.S. 1 (1976)........................................................................................... 3, 4 

Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk A/S, 

566 U.S. 399 (2012) ......................................................................................... 40 

Center for Sustainable Economy v. Jewell, 

779 F.3d 588 (D.C. Cir. 2015) ......................................................................... 23 

Chamber of Commerce of United States v. FEC, 

69 F.3d 600 (D.C. Cir. 1995) ........................................................................... 52 

*Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 

467 U.S. 837 (1984) ..................................................................................... 3, 34 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 6 of 78
iv 

Citizens United v. FEC, 

558 U.S. 310 (2010) ......................................................................................... 41 

Coalition for Common Sense in Government Procurement 

v. United States, 

707 F.3d 311 (D.C. Cir. 2013) ......................................................................... 35 

Coburn v. McHugh, 

679 F.3d 924 (D.C. Cir. 2012) ......................................................................... 25 

Common Cause v. FEC, 

108 F.3d 413 (D.C. Cir. 1997) ......................................................................... 25 

Common Cause v. FEC, 

842 F.2d 436 (D.C. Cir. 1988) ................................................................... 49, 50 

Creekstone Farms Premium Beef, L.L.C. v. Dept. of Agriculture, 

539 F.3d 492 (D.C. Cir. 2008) ......................................................................... 48 

CREW v. FEC, 

316 F. Supp. 3d 349 (D.D.C. 2018)............................................................ 16, 17 

CREW v. FEC, 

475 F.3d 337 (D.C. Cir. 2007) ................................................................... 22, 26 

CREW v. FEC, 

892 F.3d 434 (D.C. Cir. 2018) ......................................................................... 33 

Delaware Department of Natural Resources & Environmental 

Control v. EPA, 

895 F.3d 90 (D.C. Cir. 2018) ........................................................................... 35 

Department of Transportation v. Public Citizen, 

541 U.S. 752 (2004) ......................................................................................... 23 

FDA v. Brown & Williamson Tobacco Corp., 

529 U.S. 120 (2000) ......................................................................................... 47 

*FEC v. DSCC, 

454 U.S. 27 (1981) ............................................................................... 13, 46, 48 

FEC v. Furgatch, 

807 F.2d 857 (9th Cir. 1987) ............................................................................ 39 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 7 of 78
v 

FEC v. Massachusetts Citizens for Life, 

479 U.S. 238 (1986) ................................................................................... 39, 40 

FEC v. NRSC, 

966 F.2d 1471 (D.C. Cir. 1992) ....................................................................... 13 

FEC v. Survival Education Fund, Inc., 

65 F.3d 285 (2d Cir. 1995) ............................................................................... 52 

FEC v. Ted Haley Congressional Committee, 

852 F.2d 1111 (9th Cir. 1988) .................................................................... 44, 46 

Foo v. Tillerson, 

244 F. Supp. 3d 17 (D.D.C. 2017) ................................................................... 42 

Good Samaritan Hospital v. Shalala, 

508 U.S. 402 (1993) ......................................................................................... 43 

Hagelin v. FEC, 

411 F.3d 237 (D.C. Cir. 2005) ......................................................................... 48 

Hispanic Affairs Project v. Acosta, 

901 F.3d 378 (D.C. Cir. 2018) ......................................................................... 21 

JEM Broadcasting Co. v. F.C.C., 

22 F.3d 320 (D.C. Cir. 1994) ........................................................................... 52 

Johnson v. Transportation Agency, 

480 U.S. 616 (1987) ......................................................................................... 45 

Joseph v. United States Civil Service Commission, 

554 F.2d 1140 (D.C. Cir. 1977) ....................................................................... 33 

Jost v. Surface Transportation Borad, 

194 F.3d 79 (D.C. Cir. 1999) ........................................................................... 53 

Judicial Watch, Inc. v. FEC, 

180 F.3d 277 (D.C. Cir. 1999) ......................................................................... 26 

King v. Burwell, 

135 S. Ct. 2480 (2015) ..................................................................................... 36 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 8 of 78
vi 

Koretoff v. Vilsack, 

707 F.3d 394 (D.C. Cir. 2013) ................................................................... 24, 26 

Koretoff v. Vilsack, 

841 F. Supp. 2d 1 (D.D.C. 2012), aff’d, 

707 F.3d 394 (D.C. Cir. 2013) ......................................................................... 23 

Lamar, Archer & Cofrin, LLP v. Appling, 

138 S. Ct. 1752 (2018) ..................................................................................... 45 

In re Lehman Brothers Mortgage-Backed Securities Litigation, 

650 F.3d 167 (2d Cir. 2011) ............................................................................. 36 

Lindeen v. SEC, 

825 F.3d 646 (D.C. Cir. 2016) ......................................................................... 35 

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 

456 U.S. 353 (1982) ......................................................................................... 45 

Middle South Energy, Inc. v. F.E.R.C., 

747 F.2d 763 (D.C. Cir. 1984) ......................................................................... 43 

Miller v. Youakim, 

440 U.S. 125 (1979) ......................................................................................... 42 

Moore v. District of Columbia, 

907 F.2d 165 (D.C. Cir. 1990) ......................................................................... 43 

Multicultural Media, Telecom and Internet Council v. FCC, 

873 F.3d 932 (D.C. Cir. 2017) ......................................................................... 53 

National Ass’n of Manufacturers v. United States 

Department of Interior, 

134 F.3d 1095 (D.C. Cir. 1998) ....................................................................... 25 

*National Conservative Political Action Commitee v. FEC, 

626 F.2d 953 (D.C. Cir. 1980) ................................................. 27, 32, 34, 46, 49 

National Wildlife Federation v. Environmental Protection Agency, 

286 F.3d 554 (D.C. Cir. 2002), supplemented sub nom. In re 

Kagan, 351 F.3d 1157 (D.C. Cir. 2003) ........................................................... 23 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 9 of 78
vii 

New Hampshire Motor Transp. Ass’n v. Rowe, 

448 F.3d 66 (1st Cir. 2006), aff’d, 552 U.S. 364 (2008) ................................... 40 

Northeast Hospital Corp. v. Sebelius, 

657 F.3d 1 (D.C. Cir. 2011) ............................................................................. 42 

Nuclear Energy Institute, Inc. v. Environmental Protection Agency, 

373 F.3d 1251 (D.C. Cir. 2004) (per curiam) ............................................. 22, 23 

Orloski v. FEC, 

795 F.2d 156 (D.C. Cir. 1986) ......................................................................... 34 

Owens v. Republic of Sudan, 

864 F.3d 751 (D.C. Cir. 2017) ......................................................................... 45 

Paralyzed Veterans of America v. United States 

Department of Transportation, 

909 F.3d 438 (D.C. Cir. 2018) ......................................................................... 21 

Pauley v. BethEnergy Mines, Inc., 

501 U.S. 680 (1991) ......................................................................................... 49 

Perot v. FEC, 

97 F.3d 553 (D.C. Cir. 1996) ..................................................................... 24, 30 

Petit v. United States Department of Education, 

675 F.3d 769 (D.C. Cir. 2012) ......................................................................... 35 

RNC v. FEC, 

76 F.3d 400 (D.C. Cir. 1996) ........................................................................... 52 

*Shays v FEC, 

414 F.3d 76 (D.C. Cir. 2005) ..................................................... 8, 32, 34, 35, 47 

Sims v. Apfel, 

530 U.S. 103 (2000) ......................................................................................... 24 

Teper v. Miller, 

82 F.3d 989 (11th Cir. 1996) ............................................................................ 46 

Texas Department of Housing & Community Affairs v. Inclusive 

Communities Project, Inc., 

135 S. Ct. 2507 (2015) ..................................................................................... 45 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 10 of 78
viii 

United States v. Ashurov, 

726 F.3d 395 (3d Cir. 2013) ............................................................................. 36 

United States v. Hagler, 

700 F.3d 1091 (7th Cir. 2012) .................................................................... 40, 41 

United States v. Sun-Diamond Growers, 

941 F. Supp. 1277 (D.D.C. 1996) .................................................................... 46 

United States v. Wilson, 

290 F.3d 347 (D.C. Cir. 2002) ......................................................................... 47 

United Transportation Union v. Lewis, 

711 F.2d 233 (D.C. Cir. 1983) ......................................................................... 43 

*Van Hollen v. FEC, 

811 F.3d 486 (D.C. Cir. 2016) ........................................ 9, 35, 39, 46, 50, 51, 52 

Vasser v. McDonald, 

228 F. Supp. 3d 1 (D.D.C. 2016) ..................................................................... 25 

Village of Barrington, Illinois v. Surface Transportation Board, 

636 F.3d 650 (D.C. Cir. 2011) ................................................................... 23, 35 

Vote Choice, Inc. v. Di Stefano, 

814 F. Supp. 186 (D.R.I. 1992) ........................................................................ 40 

Wallaesa v. Federal Aviation Administration, 

824 F.3d 1071 (D.C. Cir. 2016) ....................................................................... 24 

Weaver v. Federal Motor Carrier Safety Administration, 

744 F.3d 142 (D.C. Cir. 2014) ......................................................................... 31 

Weber v. Heaney, 

793 F. Supp. 1438 (D. Minn. 1992), aff’d, 995 F.2d 872 (8th Cir. 

1993) ............................................................................................................... 46 

Weber v Heaney, 

995 F.2d 872 (8th Cir. 1993) ...................................................................... 44, 45 

Zuber v. Allen, 

396 U.S. 168 (1969) ......................................................................................... 44 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 11 of 78
ix 

Statutes and Regulations 

2 U.S.C. § 434 .................................................................................. 4, 5, 26, 42, 46 

28 U.S.C. § 2401................................................................................................... 31 

28 U.S.C. § 2462................................................................................................... 33 

52 U.S.C. § 30101 ............................................................................................. 3, 17 

52 U.S.C. § 30103 ................................................................................................. 38 

52 U.S.C. § 30104 ................................................................................. 9, 17, 37, 38 

52 U.S.C. § 30109 ............................................................................... 10, 11, 13, 24 

52 U.S.C. § 30111 ................................................................................... 6, 7, 32, 45 

Pub. L. No. 104-79, 109 Stat. 791 (1995) ................................................................ 8 

Pub. L. No. 106-58, 113 Stat. 430 (1999) ................................................................ 8 

Pub. L. No. 106-346, 114 Stat. 1356 (2000) ............................................................ 8 

Pub. L. No. 107-155, 116 Stat. 81 (2002) ................................................................ 8 

Pub. L. No. 108-199, 118 Stat. 3 (2004).................................................................. 8 

Pub. L. No. 110-81, 121 Stat. 735 (2007) ................................................................ 8 

11 C.F.R. § 100.22 .................................................................................................. 4 

11 C.F.R. § 109.10 .................................................................................. 6, 7, 29, 30 

68 Fed. Reg. 404 (Jan. 3, 2003)............................................................................. 49 

72 Fed. Reg. 72,899 (Dec. 26, 2007) ....................................................................... 9 

Legistlative Materials 

H.R. Res. 780, 94th Cong. (1975) ........................................................................... 7 

H.R. Res. 5175, 111th Cong. (2010) ..................................................................... 48 

S. Res. 236, 96th Cong. (1979) ............................................................................... 7 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 12 of 78
x 

S. Res. 275, 94th Cong. (1975) ............................................................................... 7 

143 Cong. Rec. S10485-01 (Oct. 7, 1997)............................................................. 47 

143 Cong. Rec. S10661-02 (Oct. 8, 1997)............................................................. 47 

145 Cong. Rec. S12734-02 (Oct. 18, 1999) ........................................................... 47 

Other Authorities 

Chair Caroline C. Hunter and Commissioner Matthew S. Petersen, 

Statement on CREW v. FEC, NO. 16-CV-259 (Sept. 6, 2018), at 

https://www.fec.gov/resources/cmscontent/documents/Statement_of_Chair_Hunter_and_Commission

er_Petersen_in_CREW_v._FEC.pdf ................................................................ 18 

Daniel Zenkel, Presidential “Draft” Committees and the Federal 

Election Campaign Act, 84 Colum. L. Rev. 198 (1984) ................................... 44 

FEC, Instructions for Preparing FEC Form 5 (rev. Sept. 2013), at 

https://www.fec.gov/resources/cmscontent/documents/fecfrm5i.pdf......................................................................... 7 

FEC Independent Expenditures, at 

https://www.fec.gov/data/independentexpenditures/?data_type=processed&committee_id=C90011719&i

s_notice=true ..................................................................................................... 9 

FEC Reg. §§ 111.4-6 ............................................................................................ 10 

Legislative History of Federal Election Campaign Act Amendments of 

1979 (1983), at 

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

pdf ............................................................................................................. 4, 5, 6 

Rep. Chris Van Hollen, Petition for Rulemaking to Revise and Amend 

Regulations Relating to Disclosure of Independent Expenditures

(Apr. 21, 2011), available at 

http://classic.fec.gov/pdf/nprm/citizensunited/van_hollen.pdf .................... 33, 34 

Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 

Admin. L. Rev. 363 (1986) .............................................................................. 43 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 13 of 78
 xi 

GLOSSARY 

APA Administration Procedure Act 

BCRA Bipartisan Campaign Reform Act of 2002 

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 

FECA (c)(1) 52 U.S.C. § 30104(c)(1) 

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

Form FEC Form 5 

JA Joint Appendix 

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

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 14 of 78
1 

JURISDICTIONAL STATEMENT 

This is a timely appeal, pursuant to 28 U.S.C. § 1291, of judgments of the 

United States District Court for the District of Columbia entered March 22, 2017 

and August 3, 2018. See JA482. The district court exercised federal question 

jurisdiction under 28 U.S.C. § 1331 over claims asserted under 5 U.S.C. § 706 (the 

Administrative Procedure Act (“APA”)), and 52 U.S.C. § 30109(a)(8) (the Federal 

Election Campaign Act of 1971, as amended (“FECA”)). 

The jurisdiction of both this Court, and the district court, are contested by 

the parties. Defendant-Appellant Crossroads Grassroots Policy Strategies 

(“Crossroads”) respectfully disagrees that Plaintiffs-Appellees Nicholas Mezlak 

and Citizens for Responsibility and Ethics in Washington (collectively, “CREW”) 

could pursue its claims before the district court, or take this appeal, for the reasons 

articulated infra at 22-34. In short, CREW failed to raise the core issues of this 

appeal in its underlying administrative and judicial complaints, and CREW has 

abandoned its administrative enforcement complaint, which was CREW’s sole 

means of evading the APA’s six-year statute of limitations. 

For its part, CREW moved to dismiss on October 15, 2018, claiming that 

Crossroads lacked standing to appeal because CREW had abandoned its 

administrative complaint and Crossroads had stopped relying on the regulation. In 

briefing, CREW pointedly did not claim the appeal was moot. On December 14, 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 15 of 78
2 

2018, the motions panel referred the standing issue to the merits panel. See ECF 

No. 1764258. 

As Crossroads explains infra at 9-10, Crossroads has standing to appeal the 

district court’s judgment invalidating the FEC’s regulation because Crossroads 

historically relied upon that regulation to facilitate core electoral speech and 

preserve associational privacy, and Crossroads will resume such speech if the legal 

cloud over the regulation is removed. Moreover, at the outset of this litigation – 

which is when standing is assessed – Crossroads still was relying on the regulation 

as one defense to CREW’s then-pending administrative complaint. 

THE ISSUES PRESENTED 

(1) Whether a party can collaterally attack a 37-year-old regulation by 

filing an administrative enforcement complaint where, inter alia, the regulation’s 

validity was not directly challenged in the administrative proceedings below, was 

immaterial to resolution of the complaint, and the party subsequently abandoned its 

administrative enforcement efforts. 

(2) Whether, consistent with Circuit precedent, CREW has met its “heavy 

burden” of showing that 52 U.S.C. § 30104(c), which establishes the reporting 

requirements for non-political committees that make independent expenditures, 

“unambiguously forecloses” the FEC’s regulation at 11 C.F.R. § 109.10(e)(1)(vi) 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 16 of 78
3 

at step one of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 

467 U.S. 837 (1984). 

(3) Whether 11 C.F.R. § 109.10(e)(1)(vi) follows from a reasonable 

interpretation of the FECA, under the second step of Chevron. 

(4) Whether CREW may challenge 11 C.F.R. § 109.10(e)(1)(vi) as 

arbitrary and capricious under the APA. 

(5) Whether the judgments below should be vacated and this appeal 

dismissed for lack of Article III jurisdiction. 

STATUTORY AND REGULATORY PROVISIONS 

The pertinent statutes and regulations are reproduced in an addendum to this 

brief. 

STATEMENT OF THE CASE 

I. The Evolution of the FECA’s Limited Reporting Regime for 

Independent Expenditures. 

Spending for candidate advocacy that is not coordinated with any candidate 

or political party is termed an “independent expenditure.” 52 U.S.C. § 30101(17). 

Because independent expenditures implicate core First Amendment rights of 

speech and association, the FECA provision subjecting independent expenditures 

to mandatory reporting is construed narrowly to burden only “express advocacy” – 

i.e., speech that uses terms such as “vote for”, “elect,” or “defeat.” Buckley v. 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 17 of 78
4 

Valeo, 424 U.S. 1, 44 n.52, 80 & n.108 (1976); see also 11 C.F.R. § 100.22 

(defining “expressly advocating”). 

Following Buckley, the FECA’s independent expenditure reporting 

requirements were limited to identifying particular expenditures and contributions 

given to fund those expenditures. See Memo. from Orlando B. Potter, Staff 

Director, Federal Elec. Comm’n (Mar. 29, 1978) at 2, 3 (“Potter Memo.”);1

Legislative History of Federal Election Campaign Act Amendments of 1979 at 451 

(1983), at http://classic.fec.gov/pdf/legislative_hist/legislative_history_1979.pdf

(“1979 FECA History”). Two entities were required to report when an 

independent expenditure was made: (1) the speaker reported its independent 

expenditure, and (2) other persons “who contribute to the independent expenditure 

would disclose the contribution (i.e., payee, particulars, date, amount and 

candidate)” on a separately-filed contributor report. Id. at 2, 3 (emphasis added); 

see also as 2 U.S.C. § 434(e)(2) (1976); 1979 FECA History at 451. 

During this post-Buckley period, the FEC also advocated for the statutory 

changes to simplify and improve the FECA’s reporting provisions that form the 

heart of this case. See 1979 FECA History at 10. In July 1979, the Senate 

 

1

 This memorandum, and the minutes from the FEC’s meeting where the pre1979 independent expenditure reporting options were discussed, are included as 

part of the Addendum to this brief. These materials were also attached as an 

addendum to Crossroads’ earlier motion for emergency relief before this Court, 

available on PACER as Addendum E to ECF Docket No. 1748559. 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 18 of 78
5 

Committee on Rules and Administration (“Committee”) conducted a hearing on 

the FEC’s proposals. See id. at 7. The FEC Chair and Vice-Chair testified, 

accompanied by key staff, and FEC personnel remained engaged with the 

Committee following the hearing. See id. at 8, 10, 20, 39, 150-60. One FEC 

recommendation was to require that all reporting be done by the speaker, whose 

reports would include “the sources of any contributions . . . donated with a view 

toward bringing about an independent expenditure.” Id. at 24-25. 

Committee staff soon circulated a draft to implement the “FEC legislative 

recommendation[s].” Id. at 101, 103, 145. The legislation first revised the 

introductory subsection, then codified at 2 U.S.C. § 434(e)(1), which identified 

who must file the independent expenditure report and at what monetary threshold 

such a filing became necessary. See, e.g., id. at 145 (explaining that the purpose of 

the 1979 amendment was to eliminate the separate contributor report and raise the 

reporting threshold from $100 to $250 per year). These changes did not expand 

the substantive reporting obligations, were subsequently codified at 2 U.S.C. 

§ 434(c)(1), and are hereinafter referred to as “FECA (c)(1).” See id.

As also recommended by the FEC, the Committee staff draft eliminated 

reporting by contributors and required the person making the independent 

expenditure to identify “each person who has made a contribution of more than 

$200 to the person filing such statement, which was made for the purpose of 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 19 of 78
6 

furthering an independent expenditure.” Id. at 78, 123. This provision became 

subsection (C) to 2 U.S.C. § 434(c)(2) (“FECA (c)(2)(C)”). Committee staff 

explained this revision required “the person who receives the contribution and 

subsequently makes the independent expenditure [to] report having received that 

contribution.” Id. at 103, 145 (emphasis added). The FEC’s combined proposals 

were enacted as part of H.R. Res. 5010, signed into law by President Carter on 

January 8, 1980. See id. at 187, 558, 573. 

The new law directed the FEC to transmit proposed implementing 

regulations to Congress within 50 days. See id. at 562, 563. Accordingly, the FEC 

called for expedited public comment on proposed regulations developed by FEC 

staff. See JA305. The Commission then conducted a two-day “section-by section 

review.” See JA299, 309. On February 19, FEC staff revised the proposed 

regulations to reflect “the Commission’s discussion of the proposed regulations” 

during the preceding month and to comprehensively address all FECA reporting 

requirements except those directed at political committees. See JA312, 313. The 

proposal included the regulation at issue here in its present form. See JA306, 314. 

On February 21, 1980, the FEC approved the proposed regulations and 

transmitted them to Congress for the special review mandated by the FECA. See

52 U.S.C. § 30111(d); JA317. The FEC’s accompanying Explanation and 

Justification explained that the regulation at issue here, 11 C.F.R. 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 20 of 78
7 

§ 109.10(e)(1)(vi) (hereinafter the “Regulation”), “incorporate[s] the changes set 

forth at 2 USC 434(c)(1) and (2) regarding reporting requirements for persons, 

other than a political committee, who make independent expenditures.” JA327. 

The FEC’s explanation further reiterated that the new regulations were 

comprehensive with respect to “persons other than a political committee.” Id. And 

importantly, the Regulation then was in its present form. It did not require 

speakers to report all of their contributions generally but specifically limited 

disclosure to contributions given to support the independent expenditure being 

reported. 

Congressional review was not pro forma. In fact, Congress had previously 

disapproved several FEC regulations. See, e.g., S. Res. 236, 96th Cong. (1979); 

H.R. Res. 780, 94th Cong. (1975); S. Res. 275, 94th Cong. (1975). In this case, 

however, there was no such disapproval. The Regulation took effect in its present 

form with no contemporaneous judicial review. 

The FECA also required the FEC to submit proposed reporting forms to 

Congress for prior review. See 52 U.S.C. § 30111(d)(1). The submitted form has 

paralleled the Regulation, providing for disclosure only of contributions given to 

support the reported expenditure. See, e.g., FEC, Instructions for Preparing FEC 

Form 5 (rev. Sept. 2013), at https://www.fec.gov/resources/cmscontent/documents/fecfrm5i.pdf (“Form”). Congress did not object to the form. 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 21 of 78
8 

As indicated above, participants in this process sometimes referred to “an” 

independent expenditure and sometimes to “the” expenditure. The terms were 

used interchangeably and there is no indication that anyone at the time perceived 

any difference in meaning. 

For the next 37 years, the FEC Regulation and corresponding Form have 

required reporting of contributions made to support “the” particular express 

advocacy independent expenditure being reported – not all funds an organization 

has received, nor even funds given to support an organization’s independent 

expenditures generally. During those decades, Congress has been active with 

respect to reporting obligations, amending the statute in 1995, 1999, 2000, 2002, 

2004, and 2007.2

 Indeed, Congress even “ordered the FEC to rewrite its 

regulations” regarding coordinated communications during this period, a provision 

directly relevant to independent expenditures. Shays v FEC, 414 F.3d 76, 97-98 

(D.C. Cir. 2005) (“Shays I”). Yet Congress did not express any dissatisfaction 

with the Regulation. 

Notably, in 2002 Congress adopted reporting requirements for certain nonexpress advocacy spending close to elections – i.e., for so-called “electioneering 

 

2

 See Pub. L. 104-79, §§ 1(a), 3(b), 109 Stat. 791, 792 (1995); Pub. L. 106-58, 

Title VI, §§ 639(a), 641(a), 113 Stat. 430, 476, 477 (1999); Pub. L. 106-346, 

§ 101(a) [Title V, § 502(a), (c)], 114 Stat. 1356, 1356A-49 (2000); Pub. L. 107-

155, Title I, § 103(a), Title II, §§ 201(a), 212, Title III, §§ 304(b), 306, 308(b), 

Title V, §§ 501, 503, 116 Stat. 81, 87, 88, 93, 99, 102, 104, 114, 115 (2002); Pub. 

L. 108-199, Div. F, Title VI, § 641, 118 Stat. 359 (2004); Pub. L. 110-81, Title II, 

§ 204(a), 121 Stat. 735, 744 (2007). 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 22 of 78
9 

communications.” Pub. L. No. 107–155, 116 Stat. 81 (2002); 52 U.S.C. 

§ 30104(f)(3). In adopting implementing regulations, the FEC tailored the 

electioneering communication reporting requirements to align in ways similar to 

the requirements applicable to independent expenditures. Electioneering 

Communications, 72 Fed. Reg. 72,899 72,911 n.22 (Dec. 26, 2007). When a 

district court ruled the FEC’s electioneering communications regulation was 

unlawfully narrow, this Court reversed, holding the FEC’s regulation was fully 

consistent with the new statutory text. See Van Hollen v. FEC, 811 F.3d 486 

(D.C. Cir. 2016). 

II. Crossroads’ Historic and Future Reliance on the Regulation 

Crossroads is a Section 501(c)(4) non-profit organization founded in 2010 to 

educate, equip, and engage American citizens on important economic and 

legislative issues. See JA484 [¶¶ 1-2]. One tool Crossroads has used is express 

candidate advocacy in the form of independent expenditures, amounting to more 

than $100 million in recent election cycles. See id. [¶ 3]; FEC Independent 

Expenditures, at https://www.fec.gov/data/independentexpenditures/?data_type=processed&committee_id=C90011719&is_notice=true. 

Crossroads tailors its speech to comply with the FEC’s reporting 

requirements. When Crossroads engaged in express advocacy, it relied on the 

Regulation to assure donor privacy and did not seek contributions to support 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 23 of 78
10 

specific independent expenditures. Crossroads’ reliance on the Regulation has 

been important to Crossroads’ donors and its ability to raise funds. It has allowed 

Crossroads to advocate freely and flexibly without concern that its advocacy will 

incorrectly be attributed to particular donors. 

Recently, groups such as CREW have argued that the FECA demands 

broader disclosure. For example, in 2013 CREW filed the administrative 

complaint against Crossroads that led to this appeal. Some judges (e.g., the district 

court in Van Hollen) showed a receptiveness to broadening the scope of

independent organizations’ donor reporting obligations. Accordingly, for the time 

being, Crossroads has chosen to pursue its mission without making independent 

expenditures. However, Crossroads has attested that, once the legal cloud over the 

Regulation is lifted, Crossroads will once again rely on it. See JA485-486 [¶ 10]. 

III. CREW’s Administrative Complaint Against Crossroads and the FEC’s 

First Dismissal. 

The FECA and FEC regulations allow any entity to file an administrative 

enforcement complaint. However, because the enforcement process itself targets 

and burdens core speech and association, pleading standards are demanding. A 

valid complaint must be sworn under penalty of perjury, be accompanied by all 

supporting documents, and clearly recite facts showing the supposed violation. See 

52 U.S.C. § 30109(a)(1); FEC Reg. §§ 111.4-.6. Initial review focuses on the 

complaint, and the responding party is guaranteed an opportunity to present 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 24 of 78
11 

evidence and arguments showing that no enforcement action should be taken “on 

the basis of a complaint.” See id. 

On November 15, 2012, CREW filed an administrative complaint against 

Crossroads. Because CREW abandoned its complaint after the FEC’s second 

dismissal (on remand from the District Court), which now is unreviewable, see 52 

U.S.C. § 30109(a)(8)(B), many of the details of the underlying administrative 

action are not important to this appeal. However, because CREW’s only arguable, 

cognizable injury and standing flow from its administrative complaint, some 

aspects merit attention. 

In its administrative complaint, CREW asserted Crossroads failed to disclose 

contributions earmarked for several specific examples of express advocacy, 

purportedly violating the Regulation.3

 Crossroads responded with evidence that 

the supposed violation arose from a factual misunderstanding and demonstrated 

that it had fully complied with the Regulation. 

The operative counts of CREW’s administrative complaint did not claim the 

Regulation was invalid or that FECA (c)(1) contained a separate reporting 

 

3

 See, e.g., JA207 [¶ 44] (Crossroads’ reports failed to identify “the person who 

made $3 million in contributions for the purpose of furthering those independent 

expenditures”), JA213 (Crossroads failed to report “each person who made a 

contribution . . . for the purpose of furthering the reported independent 

expenditures”). Note that CREW’s original complaint was superseded by an 

amended complaint filed on April 24, 2013, and – accordingly – all citations herein 

are to this amended filing. 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 25 of 78
12 

requirement that the Regulation failed to implement.

4

 Crossroads’ response 

addressed the violations alleged by CREW in its complaint. 

The FEC’s Office of General Counsel then prepared a memorandum to the 

agency’s Commissioners that determined Crossroads had complied with the 

Regulation and settled practice, and confirmed that “there were no facts suggesting 

that a donor made a contribution for the purpose of furthering a specific 

communication.” First General Counsel’s Report, MUR 6696R, at 8 (Aug. 24, 

2018) https://www.fec.gov/files/legal/murs/6696/6696R_2.pdf (“Gen. Counsel’s 

Rept. on Remand”) (summarizing the conclusions from the original report). The 

Office of General Counsel observed in passing that FECA (c)(1) might be read to 

require more, but said it would be inequitable to consider such a claim and did not 

discuss the legal merits. See JA270-271.5 More broadly, the memorandum 

recommended invoking prosecutorial discretion rather than attack Crossroads for 

relying on the longstanding Regulation and settled practice. See JA261, 271. 

 

4

 CREW’s amended complaint recited in passing the language from FECA (c)(1), 

but did not allege that Crossroads had violated this provision, whether by reference 

to the provision’s statutory designation or its substance. Compare JA199 [¶14] 

with JA206-213 [¶¶ 40-67]. And though CREW observed in a footnote to its legal 

introduction that the Regulation fails to give full effect to 52 U.S.C. 

30104(c)(2)(C), CREW did not advance the footnoted thought in the operative 

counts of its complaint. 

5

 In fact, having researched the issue further, the FEC subsequently told the 

district court that the agency has “never issued any . . . guidance suggesting that it 

intend[s] to enforce 52 U.S.C. § 30104(c)(1) as a standalone reporting 

requirement.” JA112-113. 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 26 of 78
13 

The FEC Commissioners divided three-to-three on whether to find reason to 

believe a violation had occurred. Because four affirmative votes were required to 

proceed to the next step in the FECA’s enforcement process, the Commissioners 

then unanimously voted to dismiss the complaint. The FEC Office of General 

Counsel staff memorandum became the controlling Commissioners’ statement of 

reasons for voting to dismiss. See, e.g., FEC v. DSCC, 454 U.S. 27, 39 n.19 (1981) 

(“DSCC”); FEC v. NRSC, 966 F.2d 1471, 1476 (D.C. Cir. 1992). 

IV. CREW’s District Court Complaint and the Court’s March 22, 2017 

Ruling. 

The FECA permits a private complainant with standing to bring suit for an 

order declaring an FEC dismissal “contrary to law” and requiring conforming 

action by the FEC. 52 U.S.C. § 30109(a)(8). CREW filed such a FECA action, 

joining with it an APA challenge to the Regulation. Crossroads intervened as a codefendant with the FEC. 

CREW’s judicial complaint included three counts: 

Claim 1 asserted that the record compelled a finding of reason to believe 

Crossroads had violated the Regulation or, at minimum, the FEC failed to provide 

an adequate explanation for not so finding. See JA033-035 [¶¶ 110-116]. 

Claim 2 asserted that, even if Crossroads complied with the Regulation, it 

did not make the broader disclosures supposedly mandated by § 30104(c)(2). See 

JA035-036 [¶¶ 117-124]. Stated differently, CREW alleged the FEC unlawfully 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 27 of 78
14 

failed to find Crossroads violated 52 U.S.C. § 30104(c)(2) because it only applied 

the Regulation. See JA036 [¶¶ 122-123]. 

Claim 3 asserted that the FEC staff memorandum had recognized the 

possibility that FECA (c)(1) compelled broader reporting than FECA (c)(2), but 

the FEC had arbitrarily and unlawfully dismissed without analyzing the potential 

violation, merely commenting in passing that retroactive assertion of such a novel 

theory would raise equitable concerns over fair notice. See JA036-038 [¶¶ 125-

131]. 

The FEC moved to dismiss Claim 2’s challenge to the validity of the 

regulation on grounds that the six-year statute of limitations for such review had 

expired. Crossroads joined in the limitations challenge and also moved to dismiss 

all APA claims because the availability of FECA review precluded APA review. 

On March 22, 2017, the district court, JA088-093, recognized that the sixyear statute of limitations limits judicial review of regulations but held an 

exception applied to the extent CREW claimed injury from the application of a 

substantively invalid Regulation. It ruled (JA096-097) that, because “Counts I and 

III advance garden-variety challenges to the FEC’s dismissal,” they did not permit 

an APA claim. However, because Count II complained of injury “predicated on an 

‘unlawful and invalid’ regulation,” the court ruled (JA097) it could support an 

APA claim. Thus, it ruled “Crossroads GPS’s Supplemental Motion to Dismiss is 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 28 of 78
15 

denied insofar as the plaintiffs may challenge the validity and lawfulness of [the 

Regulation] under the APA, as raised in Count II. Crossroads GPS’s motion is 

granted in all other respects.” JA098. CREW did not cross-appeal from this 

decision. 

Significantly, Count II does not allege the FEC applied the Regulation in 

violation of FECA (c)(1). Its caption speaks only of FECA (c)(2), and its 

paragraph 120 alleges that the FEC applied the Regulation “in a way that conflicts 

with § 30104(c)(2).” JA035 [¶ 120]. In other words, CREW sought a declaration 

“that 11 C.F.R. § 109.10(e)(1)(vi) is unlawful and invalid” only as it interprets 

FECA (c)(2). With respect to FECA (c)(1), CREW sought “solely ‘an order 

reversing the FEC’s unlawful dismissal of [the plaintiffs’] complaint,’” not a 

finding the Regulation was invalid in interpreting FECA (c)(1). JA096 (emphasis 

added); compare JA035-036 [¶¶ 119-121, 122, 124] with JA038 [¶ 131]. 

V. Further Proceedings Before the District Court and Appellate Courts. 

On August 3, 2018, following cross-motions for summary judgment, the 

district court rejected Crossroads’ and the FEC’s other procedural challenges to 

CREW’s lawsuit, vacated the challenged regulation at Chevron step one, and 

remanded the administrative enforcement complaint to the agency for further 

proceedings. See JA372, 390, 420. 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 29 of 78
16 

The district court again acknowledged that CREW’s regulatory challenge 

fell outside the ordinary statute of limitations for such actions. JA416 [n.30]. 

Nevertheless, the court allowed the challenge to proceed, “regardless of whether 

enforcement against Crossroads . . . is available on remand,” because the 

administrative complaint put Crossroads’ reporting obligations at issue. Id. 

On the substantive question, the district court found that “the regulation’s 

implementation of the FECA Amendments of 1979 clearly ignore[d] the 

requirement in subsection (c)(1) and substantially narrow[ed] subsection (c)(2)” 

beyond the bounds permitted by the statute. JA433. While the district court’s 

opinion was lengthy, it relegated discussion of some important substantive points – 

such as congressional acquiescence in the FEC’s interpretation – to footnotes. See 

JA459 [n.47]; see also JA460 [n.48] (concluding that the challenged regulation 

was defective under the arbitrary and capricious standard). 

The district court’s ruling contained an important ambiguity, describing the 

information required to be disclosed by FECA (c)(1) in several different ways. At 

one point the court ruled CREW was “incorrect [in asserting] that the reporting of 

contributors under subsection (c)(1) is ‘unbounded.’” CREW v. FEC, 316 F. Supp. 

349, 388–89 (D.D.C. 2018). Elsewhere, the court said that “[n]o parameters are set 

in § 30104(c)(1) that the contributions be earmarked for a specific or single 

political purpose so long as the purpose is in connection with a federal election 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 30 of 78
17 

and, thus, this disclosure requirement is analogous to the requirements applicable 

to political committees.” Id. at 376. But political committees generally must 

disclose every dollar they receive, regardless of the purpose for which the money is 

given. See id. Without acknowledging its own inconsistent rulings, the district 

court still recognized the “[non-] trivial concern” that “entities engaged in 

independent expenditures might have inadequate guidance” on this issue. JA466. 

With the 2018 midterm election fast-approaching, Crossroads asked this 

Court for an emergency stay pending appeal on August 31, 2018. See ECF No. 

1748550. Although the Court recognized that Crossroads’ abbreviated merits 

arguments showed “some promise,” the motions panel held they did not meet the 

high standard for obtaining emergency relief. ECF No. 1750838 at 4.6

 On 

September 15, 2018, Chief Justice Roberts stayed the district court’s ruling, see

Crossroads v. CREW, 139 S. Ct. 5 (2018), but the full Supreme Court lifted the 

stay on September 18, 2018, see Crossroads v. CREW, No. 18A274, 139 S.Ct. 50 

(2018). The FEC was unable to participate in any of the appellate proceedings 

because a commissioner blocked the agency from appealing the district court’s 

 

6

 In its opinion, this Court referred to Crossroads and similar organizations that 

make independent expenditures as “independent committees.” See, e.g., ECF No. 

1750838. Respectfully, however, Crossroads is not a “committee,” which is a term 

of art under the FECA. Compare 52 U.S.C. § 30101(4) (defining a “political 

committee”) with id. § 30104(c) (explaining the reporting requirements for 

“[e]very person other than a political committee”) (emphasis added) (internal 

parenthesis omitted). See also CREW v. FEC, 316 F. Supp. 3d 349, 368 (D.D.C. 

2018) (explaining “[a]t issue in this case are the disclosure requirements imposed 

on persons ‘other than political committees’ (‘not-political committees’) that make 

independent expenditures”). 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 31 of 78
18 

ruling, apparently against the recommendation of the FEC’s Office of General 

Counsel. See Chair Caroline C. Hunter and Commissioner Matthew S. Petersen, 

Statement on CREW v. FEC, No. 16-CV-259 at 1, 3 (Sept. 6, 2018), at 

https://www.fec.gov/resources/cmscontent/documents/Statement_of_Chair_Hunter_and_Commissioner_Petersen_in_

CREW_v._FEC.pdf. 

VI. CREW’s Standing Motion and Its Abandonment of Its Administrative 

Complaint. 

As noted in the Jurisdictional Statement, CREW then moved to dismiss, 

asserting Crossroads lacked standing to appeal. CREW argued that, in recent 

years, Crossroads had not relied on the invalidated Regulation. CREW also 

claimed that Crossroads no longer needed the Regulation as a defense because, on 

remand, the FEC had dismissed – for a second time – CREW’s administrative 

complaint as a matter of prosecutorial discretion and that CREW was not further 

pursuing the administrative action. See generally Gen. Counsel’s Rept. on 

Remand at 14-17. Crossroads responded that it had stopped relying on the 

Regulation only while it was under a legal cloud and would resume reliance when 

this appeal dissipated that cloud. Moreover, at the time the Crossroads litigation 

commenced – the critical moment for standing – the administrative complaint still 

was live, so Crossroads also had a live defensive interest in the Regulation’s 

validity as one justification for its conduct. 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 32 of 78
19 

SUMMARY OF THE ARGUMENT 

This appeal arises from a severe case of mission creep. CREW started out 

with a garden-variety administrative complaint seeking sanctions from the FEC 

against one organization: Crossroads. But when the agency dismissed its 

administrative complaint, CREW sought judicial review of the dismissal under the 

FECA and used that as an excuse to mount an untimely APA challenge to a 

regulation promulgated nearly four decades ago. Now, CREW has abandoned its 

administrative complaint – after a dismissal on remand that did not turn on the 

validity of the Regulation – which has left only the district court’s APA 

invalidation of the Regulation at issue. In essence, this proceeding has become the 

standalone, facial APA attack that CREW did not present to the FEC and could not 

lawfully have pursued in the district court. 

The district court’s APA ruling is wrong. The FECA’s language certainly 

permits – and likely compels – the construction adopted in the FEC Regulation. 

The FEC’s Regulation is supported not only by conventional Chevron deference, 

but also by a host of other considerations: the FEC proposed and thus surely 

understood the underlying 1979 Amendments to the FECA; the FEC worked 

closely with the relevant House and Senate committees during the legislative 

process; the FEC Regulation and implementing Form both were subjected to and 

survived special congressional review; the Regulation then operated without 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 33 of 78
20 

controversy for decades while Congress repeatedly reviewed and amended the 

FECA; Congress ratified the Regulation by adopting a comparable reporting 

provision to which the FEC gave a comparable construction approved by this 

Court; CREW relies on supposed recent campaign finance developments that were 

not before the FEC when it adopted the Regulation and cannot affect its 

lawfulness; and the broader reporting of contributions not earmarked for specific 

advocacy sought by CREW would do as much to confuse as to illuminate voters. 

But this Court need not reach the APA merits. Instead, as one would expect 

from a matter that emerged in this haphazard way, the APA ruling should be 

vacated for a series of procedural and even jurisdictional reasons. To begin with, 

CREW failed to exhaust its administrative remedies. Some of its APA claims were 

never presented to the FEC at all; others were merely hinted at in an isolated 

footnote. Moreover, CREW no longer has a cognizable interest traceable to 

application of the Regulation. The now-final FEC dismissal does not turn on the 

validity of the Regulation, but on the imprudence of pursuing sanctions against 

Crossroads for complying with a long-standing regulation, valid or not. Moreover, 

nothing in this appeal can affect the finality of that dismissal. Instead, CREW is 

pursuing the type of generalized prospective facial challenge that the statute of 

limitations forbids. 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 34 of 78
21 

Ironically, CREW challenged Crossroads’ standing to bring this appeal, a 

challenge the motions panel deferred to merits briefing. CREW asserts that its 

abandonment of its administrative complaint deprives Crossroads of any defensive 

interest in the Regulation and that Crossroads no longer relies on the Regulation. 

Crossroads has demonstrated, however, that it has a history of relying extensively 

on the Regulation; it ceased that reliance only when the Regulation came under a 

legal cloud; and it wishes to resume reliance when that legal cloud is dissipated. 

These interests, unconstrained by any statute of limitations since Crossroads is a 

defendant, are sufficient in themselves. Moreover, CREW pointedly has declined 

to assume the burden of asserting mootness, carefully limiting its challenge to 

standing. Yet standing is assessed at the outset of litigation, and the remanded 

FEC complaint remained live at that time. In short, Crossroads has standing. Its 

immediate interests can be vindicated by vacating the judgments below and then 

dismissing this appeal. But so long as the judgments below continue to impair the 

Regulation, Crossroads can and will pursue this appeal. 

STANDARD OF REVIEW 

This Court reviews a district court’s decisions to determine jurisdiction and 

to grant summary judgment de novo. See Paralyzed Veterans of Am. v. U.S. Dep’t 

of Trans., 909 F.3d 438, 443 (D.C. Cir. 2018); Hispanic Affairs Project v. Acosta, 

901 F.3d 378, 385 (D.C. Cir. 2018). 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 35 of 78
22 

ARGUMENT 

I. CREW Is Not Entitled to Challenge the FEC’s Regulation. 

CREW is not entitled to pursue a challenge to the Regulation for three 

distinct reasons: (1) its administrative complaint, in the first instance, did not 

squarely present to the FEC CREW’s claims that either FECA (c)(1) or (c)(2) 

contradicted the Regulation, or even that FECA (c)(1) was at issue in this case; 

(2) CREW’s judicial complaint failed to allege the Regulation was inconsistent 

with (c)(1); and (3) due to the FEC’s reliance on prosecutorial discretion, the 

Regulation’s validity was immaterial to resolution of CREW’s now-abandoned 

administrative complaint. These basic flaws in CREW’s administrative complaint 

mean that this Court may – and should – vacate the district court’s opinion without 

reaching all, or at the very least most, of the Chevron questions discussed in 

Part II. Indeed, this Court has already rejected a prior CREW enforcement effort 

where the underlying administrative complaint failed to allege the form of relief 

CREW ultimately sought in federal court. See CREW v. FEC, 475 F.3d 337, 340 

(D.C. Cir. 2007). 

A. CREW Failed to Properly Challenge the Regulation’s 

Implementation of 30104(c) During the Administrative 

Proceedings Before the FEC. 

A “hard and fast rule of administrative law, rooted in simple fairness, [is] 

that issues not raised before an agency are waived and will not be considered by a 

court on review.” Nuclear Energy Inst., Inc. v. Envtl. Prot. Agency, 373 F.3d 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 36 of 78
23 

1251, 1297–98 (D.C. Cir. 2004) (per curiam). In fact, there is an almost “absolute 

bar against raising new issues—factual or legal—on appeal in the administrative 

context,” Nat’l Wildlife Fed’n v. E.P.A., 286 F.3d 554, 562 (D.C. Cir. 2002), 

supplemented sub nom. In re Kagan, 351 F.3d 1157 (D.C. Cir. 2003) (emphasis 

added). 

There is “no exception [to these principles] for lawsuits alleging that an 

agency has exceeded its statutory authority or committed a procedural error,” 

Koretoff v. Vilsack, 841 F. Supp. 2d 1, 5 (D.D.C. 2012), aff’d, 707 F.3d 394 (D.C. 

Cir. 2013); see also Nuclear Energy Inst., Inc., 373 F.3d at 1297–98, particularly 

since agencies “have no obligation to anticipate every conceivable argument about 

why they might lack . . . statutory authority” to “issue a particular regulation,” 

Koretoff, 707 F.3d at 398. 

To exhaust a claim, it must be presented “forcefully,” Vill. of Barrington, Ill. 

v. Surface Transp. Bd., 636 F.3d 650, 655–56 (D.C. Cir. 2011), so that it “alerts the 

agency to the [parties’] position and contentions,” Dep’t of Transp. v. Pub. Citizen, 

541 U.S. 752, 764–65 (2004) (internal quotation and citation omitted). The 

“question . . . is not simply whether [an issue] was raised in some fashion, but 

whether it was raised with sufficient precision, clarity, and emphasis to give the 

agency a fair opportunity to address it.” Ctr. for Sustainable Econ. v. Jewell, 779 

F.3d 588, 602 (D.C. Cir. 2015). 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 37 of 78
24 

These principles apply with particular force to FECA matters. “‘Congress 

specifically mandate[d that] exhaustion is required’” before courts may intervene 

under 52 U.S.C. § 30109(a)(8), Perot v. FEC, 97 F.3d 553, 558–59 (D.C. Cir. 

1996) (quoting McCarthy v. Madigan, 503 U.S. 140, 144 (1992)), and Congress 

explicitly limited such judicial review “to remedy[ing] the violation involved in the 

original complaint.” 52 U.S.C. § 30109(a)(8)(C) (emphasis added). Moreover, 

where “an appeal follows adversarial administrative proceedings in which parties 

are expected to present issues material to their case,” Wallaesa v. Fed. Aviation 

Admin., 824 F.3d 1071, 1078 (D.C. Cir. 2016), “the rationale for requiring issue 

exhaustion is at its greatest,” Sims v. Apfel, 530 U.S. 103, 110 (2000). Because the 

FECA contemplates an adversarial process, and this process is set up to minimize 

speech burdens by providing respondents with an opportunity to have a complaint 

dismissed at an early stage of the enforcement process, see 52 U.S.C. 

§ 30109(a)(1), the exhaustion requirement unquestionably has “special force,” 

Wallaesa, 824 F.3d at 1078. 

In this case, CREW failed to exhaust its remedies through its administrative 

complaint by: (1) not squarely challenging the validity of the Regulation, as 

implementing FECA (c)(1) or (c)(2)(C); and (2) not alleging that Crossroads 

violated FECA (c)(1) at all. 

As to the first point, none of the administrative complaint’s five “counts” 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 38 of 78
25 

alleging violations of the law contended the regulation was invalid. Compare 

JA200, 136-137 with JA206-213, 143-149. Indeed, the complaint’s opening 

paragraph spoke only of the need for “an immediate investigation and enforcement 

action against Crossroads” for campaign finance violations, not that CREW was 

seeking to invalidate the regulation or to have the regulation declared ultra vires. 

JA196. 

CREW made a passing comment in a footnote in the background section of 

the administrative complaint that the underlying regulation “fails to give full effect 

[to FECA (c)(2)(C)].” JA200. But discussing a potential issue “as background,” 

without asserting the agency action “was unlawful in its ‘Discussion,’” Coburn v. 

McHugh, 679 F.3d 924, 929-30 (D.C. Cir. 2012), does not transform a statement 

into “a separately actionable legal claim,” Vasser v. McDonald, 228 F. Supp. 3d 1, 

17 (D.D.C. 2016). Indeed, a plaintiff may not proceed to court by merely 

referencing a “general legal issue,” Koretoff, 707 F.3d at 398, or dropping a 

“scattered reference[]” to a theory in an agency filing, Nat’l Ass’n of Mfrs. v. U.S. 

Dep’t of Interior, 134 F.3d 1095, 1111 (D.C. Cir. 1998). 

Notably, this Court has even halted a prior FEC enforcement matter where 

the complainant referenced a particular issue in just one of thirteen paragraphs of 

its administrative complaint. See Common Cause v. FEC, 108 F.3d 413, 418 (D.C. 

Cir. 1997). If this Court determined that the allegation in Common Cause’s 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 39 of 78
26 

pleading was “nominal at best” and warranted dismissal, see id., this Court should 

have no trouble dismissing CREW’s claims here, as the administrative complaint 

devoted even less space to articulating a claim to the type of relief CREW now 

seeks. See also CREW v. FEC, 475 F.3d at 340-41; Judicial Watch, Inc. v. FEC, 

180 F.3d 277, 278 (D.C. Cir. 1999) (applying the Common Cause framework). 

CREW likewise failed to fairly – much less forcefully – signal in its 

administrative complaint that FECA (c)(1) imposed a substantive donor reporting 

requirement at all. In fact, it did not cite this provision in any of the claims it 

alleged against Crossroads. Compare JA199, 137 with JA206-213, 143-149. 

Instead, CREW principally described FECA (c)(1) as a coverage provision that 

provides an overview of what activity triggers the independent expenditure 

reporting requirement generally: The FECA and FEC regulations require “every 

person who is not a political committee who makes independent expenditures 

totaling more than $250 in a calendar year to file quarterly reports regarding the 

expenditures. 2 U.S.C. § 434(c)(1); 11 C.F.R. § 109.10(b).” JA200, 138 

(emphasis added). But this language, which said nothing about the enhanced 

disclosure CREW now seeks to impose through this litigation, did not place 

Crossroads or the FEC on notice that CREW intended to pursue a claim as to 

FECA (c)(1). Indeed, CREW’s administrative request for relief negated reliance 

on FECA (c)(1) by seeking only the scope of disclosure encompassed by the 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 40 of 78
27 

Regulation: 

[CREW requests] that the FEC conduct an investigation 

into these allegations, declare the respondents to have 

violated the FECA and applicable FEC regulations, order 

Crossroads GPS to correct these violations by amending 

the relevant independent expenditure disclosure reports 

to identify and make public each person who made a 

contribution in excess of $200 made for the purpose of 

furthering the reported independent expenditures. 

JA213(emphasis added). 

CREW’s suggestions that FEC’s Office of General Counsel perceived a 

claim under FECA (c)(1) are unfounded. The Office of General Counsel’s 

memorandum explained that the issue had arisen in a different, unidentified 

enforcement matter and said that, “to the extent that the facts here may also give 

rise to a claim that Crossroads allegedly violated” FECA (c)(1), that unmade 

hypothetical claim would properly be dismissed as a matter of prosecutorial 

discretion. JA260-261, 271 (emphasis added). This is not a case in which an 

agency sua sponte raised and gave full consideration to an issue. 

In sum, this Court should vacate the ruling invalidating the Regulation 

because CREW failed to comply with the most basic of procedural steps: to present 

its arguments to the agency in the first instance. See Nat’l Conservative Political 

Action Comm. v. FEC, 626 F.2d 953, 957 (D.C. Cir. 1980) (“NCPAC”). 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 41 of 78
28 

B. The District Court Correctly Rejected CREW’s APA Challenge to 

the FEC’s Implementation of FECA (c)(1), But Then Later Erred 

by Permitting Such a Challenge to Proceed. 

CREW’s judicial complaint also precludes relief, at least as to CREW’s 

attempt to challenge the FEC’s implementation of FECA (c)(1). In relevant part, 

CREW’s complaint before the district court provided as follows: 

CLAIM TWO 

The FEC’s Failure to Find Reason to Believe that 

Crossroads GPS violated 52 U.S.C. § 30104(c)(2) was

Arbitrary, Capricious, an Abuse of Discretion, and 

Contrary to Law 

* * * 

120. The FEC provided no explanation for drafting 11 

C.F.R. § 109.10(e)(1)(vi) in a way that conflicts with 52 

U.S.C. § 30104(c)(2). See FEC, Amendments to Federal 

Election Campaign Act of 1971, 45 Fed. Reg. 15080, 

15087 (Mar. 7, 1980) (discussing amendment to 

11C.F.R. § 109.2, now codified at 11 C.F.R. § 109.10; 

stating amendment to “incorporate changes” to statute, 

but not explaining difference in language between statute 

and regulation). 

121. Because 11 C.F.R. § 109.10(e)(1)(vi) imposes a

reporting obligation that conflicts with the one imposed 

by statute under the FECA, 11 C.F.R. § 109.10(e)(1)(vi) 

is unlawful and invalid. 

* * * 

124. Plaintiffs are therefore entitled to relief in the form 

of a declaratory order that defendant FEC is in violation 

of its statutory responsibilities under 52 U.S.C. 

§ 30109(a)(8) and 5 U.S.C. § 706, that the FEC has acted 

arbitrary or capriciously, abused its discretion, or acted 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 42 of 78
29 

contrary to law in dismissing MUR 6696, and that 11

C.F.R. § 109.10(e)(1)(vi) is unlawful and invalid. . . . 

CLAIM THREE 

The FEC’s Failure to Find Reason to Believe that 

Crossroads GPS violated 52 U.S.C. § 30104(c)(1) was

Arbitrary, Capricious, an Abuse of Discretion, and 

Contrary to Law 

* * * 

131. Plaintiffs are therefore entitled to relief in the form 

of a declaratory order that defendant FEC is in violation 

of its statutory responsibilities under 52 U.S.C. 

§ 30109(a)(8) and 5 U.S.C. § 706 and has acted 

arbitrarily or capriciously, abused its discretion, or acted 

contrary to law in dismissing MUR 6696. 

See JA035-036, 038 [¶¶ 120-121, 124, 131] (emphasis added and omitted). 

As the FEC explained in its initial Explanation and Justification for the 

Regulation, 11 C.F.R. § 109.10(e)(1)(vi) “incorporate[s] the changes set forth at 

2 USC 434(c)(1) and (2) regarding reporting requirements for persons, other than a 

political committee, who make independent expenditures.” JA327. Yet, as the 

underscored language above in CREW’s judicial complaint makes clear, CREW 

did not challenge the regulation’s implementation of 52 U.S.C. 30104(c)(1). 

Instead, CREW only alleged that “11 C.F.R. § 109.10(e)(1)(vi) is unlawful and 

invalid [as to FECA (c)(2)].” JA036 [¶ 121]. 

In its March 22, 2017 opinion ruling on CREW’s motion to dismiss, the 

district court correctly identified this issue and narrowed CREW’s attempt to 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 43 of 78
30 

expand the complaint’s scope. Specifically, the court recognized that CREW’s 

Claim Three “advance[d only a] garden-variety challenge[] to the FEC’s dismissal 

of the plaintiffs’ administrative complaint,” and that “plaintiffs seek solely ‘an 

order reversing the FEC’s unlawful dismissal of [the plaintiffs’] complaint.’” 

JA096; see also JA097 (explaining that Claim II differs from Claim III “by 

alleging that the FEC’s dismissal of the plaintiffs’ administrative complaint was 

improper because the dismissal was predicated on an ‘unlawful and invalid’ 

regulation, i.e., 11 C.F.R. § 109.10(e)(1)(vi)”). Accordingly, because the FECA’s 

remedies were adequate to address the dismissal, the district court held that the 

portion of Claim III “seeking relief under the APA [is] dismissed.” Put another 

way, CREW could “challenge the validity and lawfulness of 11 C.F.R. 

§ 109.10(e)(1)(vi) under the APA, as raised in Count II.” JA098. But outside the 

specific context of the underlying enforcement complaint, CREW could not obtain 

any relief from the court as to FECA (c)(1), as the “FECA has no provisions 

governing judicial review of regulations, so an action challenging its implementing 

regulations [must] be brought under the judicial review provisions of the [APA].” 

Perot, 97 F.3d at 560–61. CREW did not cross-appeal this ruling. 

When the FEC on remand dismissed the FECA (c)(1) claim as a matter of 

prosecutorial discretion, CREW acquiesced and abandoned its pursuit of the 

enforcement complaint. As a result, this action cannot remedy CREW’s claimed 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 44 of 78
31 

injury, i.e. the donor information that Crossroads supposedly was required to 

report. 

C. CREW Cannot Challenge a Regulation Outside the Statute of 

Limitations in an Enforcement Proceeding Where the Validity of 

the Agency’s Rule Was Immaterial to Resolution of the Matter. 

The running of a statute of limitations on judicial review precludes “facial 

challenges to the rule or the procedures by which it was promulgated,” but when 

the agency thereafter “seeks to apply the rule, those affected may challenge that 

application on the grounds that it conflicts with the statute.” Weaver v. Fed. Motor 

Carrier Safety Admin., 744 F.3d 142, 145 (D.C. Cir. 2014) (collecting authority) 

(emphasis added and citation omitted). Because the six-year period for reviewing 

the Regulation expired decades ago, see 28 U.S.C. § 2401, CREW never was 

entitled to attack the Regulation as facially contrary to FECA (c)(2). At most, 

CREW might be able to challenge the application of the Regulation to the extent 

necessary to protect its claimed right to Crossroads’ donor information. But see 

Am. Scholastic TV Programming Found. v. F.C.C., 46 F.3d 1173, 1178 n.2 (D.C. 

Cir. 1995) (untimely regulatory challenges should generally be entertained only 

“when raised as a defense to an agency enforcement action”) (emphasis added). 

But even if CREW has a theoretical ability to use the FEC’s enforcement process 

to attack regulations outside the statute of limitations, that principle cannot sustain 

CREW’s litigation here. 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 45 of 78
32 

First, and most straightforwardly, CREW abandoned its administrative 

enforcement complaint once the FEC made clear that the dismissal did not turn on 

the validity of the Regulation. A party’s “failure to prosecute their [FEC] 

administrative action completely undercuts their argument that they have 

exhausted their administrative remedies.” NCPAC, 626 F.2d at 957 n.8. This is 

particularly true here given that CREW’s judicial complaint couched its request for 

relief not in the regulatory abstract, but rather in terms of whether the “FEC’s 

failure to find reason to believe Crossroads . . . violated [the law] was arbitrary, 

capricious, an abuse of discretion, and contrary to law.” JA033 (internal 

capitalization omitted). 

Second, 52 U.S.C. § 30111(e) 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 I, 414 F.3d at 84, 95 (emphasis 

added). Thus, when Crossroads acted in compliance with an existing FEC 

regulation, the regulation’s validity or invalidity affected neither the Commission’s 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 46 of 78
33 

obligation to dismiss the enforcement case nor the ultimate outcome for CREW.7

 

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

FEC dismissals of enforcement cases based on prosecutorial discretion are 

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

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

its discretionary dismissal on reasons other than the regulation’s validity (e.g., 

concerns about fair notice, etc.). 

Fourth, 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 FEC, this case would have been dismissed regardless of the 

regulation’s validity. 

And fifth, CREW’s misuse of the enforcement process could have been 

avoided had it participated in a rulemaking petition filed on behalf of thenRepresentative Chris Van Hollen, where campaign finance attorneys at 

Democracy 21 and the Campaign Legal Center characterized the FEC’s 

independent expenditure reporting regulation as being limited in scope and 

dispositive in effect. See Rep. Chris Van Hollen, Petition for Rulemaking to 

 

7

 Even aside from 52 U.S.C. § 30111(e), the regulation’s validity would still 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). 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 47 of 78
34 

Revise and Amend Regulations Relating to Disclosure of Independent Expenditures

at 4 (Apr. 21, 2011), available at 

http://classic.fec.gov/pdf/nprm/citizensunited/van_hollen.pdf. That CREW failed 

to participate in these proceeding further underscores why its challenge should not 

be allowed to proceed here. Cf. NCPAC, 626 F.2d at 957 (dismissing challenge to 

validity of regulation after noting party failed to participate in rulemaking). 

At bottom, because CREW’s challenge to the validity of the underlying 

regulation is integral to and inseparable from its administrative complaint against 

Crossroads, the FEC’s dismissal of the administrative enforcement complaint – and 

CREW’s failure to challenge that second dismissal in court – necessitates dismissal 

of CREW’s regulatory challenge as well. 

II. The Regulation Is Valid Under Chevron Steps One and Two. 

For all the reasons just discussed, this Court should not and need not reach 

the merits of CREW’s arguments that the Regulation is inconsistent with the 

FECA. But if the issue were reached, the Regulation would be vindicated. 

Chevron, USA, Inc. v. NRDC, 467 U.S. 837 (1984), requires CREW to 

establish either that (i) the statutory text unambiguously foreclosed the Regulation 

or, if not, (ii) that the Regulation was highly irrational in light of the statute’s 

purpose. See Shays I, 414 F.3d at 96. CREW can establish neither, particularly 

given the high level of deference afforded FEC interpretations of the FECA, see, 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 48 of 78
35 

e.g., Orloski v. FEC, 795 F.2d 156, 164 (D.C. Cir. 1986), and the fact that 

Congress “already endorsed” the FEC’s approach to the reporting of independent 

expenditures, Van Hollen, 811 F.3d at 493. 

A. Chevron Step 1: Congress Tailored the FECA to Require AdBased Identification of Contributors, Not the Wholesale 

Reporting of an Organization’s Entire Donor List. 

CREW faces a “heavy burden” at step one. Coal. for Common Sense in 

Gov’t Procurement v. United States, 707 F.3d 311, 316 (D.C. Cir. 2013). CREW 

cannot merely offer a better reading of the statute, Associated Builders & 

Contractors, Inc. v. Shiu, 773 F.3d 257, 262–63 (D.C. Cir. 2014), or even show the 

FEC’s reading was “improbable,” Delaware Dep’t of Nat. Res. & Envtl. Control v. 

EPA, 895 F.3d 90, 99 (D.C. Cir. 2018). Instead, CREW must show from the entire 

statute and its text, structure, and legislative history, using all traditional tools of 

construction, that Congress spoke to the precise issue and “unambiguously 

foreclosed the agency’s statutory interpretation.” Vill. of Barrington, Ill., 636 F.3d 

at 659 (internal quotation marks and citation omitted); Petit v. U.S. Dep’t of Educ., 

675 F.3d 769, 781–82 (D.C. Cir. 2012); Shays I, 414 F.3d at 105; Lindeen v. SEC, 

825 F.3d 646, 653 (D.C. Cir. 2016). 

The statutory language pertinent here is as follows (with the key language in 

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

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

(c)(1) Every person (other than a political committee) who makes 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 49 of 78
36 

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)8

 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),9

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 

such10 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. 

 

8

 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, or in any lesser amount if the 

reporting committee should so elect, together with the date and amount of any such 

contribution.” 

9

 This provision provides that the report will disclose “the full name and mailing 

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

whom expenditures have been made by such committee or on behalf of such 

committee or candidate within the calendar year in an aggregate amount or value in 

excess of $100, the amount, date, and purpose of each such expenditure and the 

name and address of, and office sought by, each candidate on whose behalf such 

expenditure was made.” 

10

 See King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (defining “such” as “That or 

those; having just been mentioned”); United States v. Ashurov, 726 F.3d 395, 398 

(3d Cir. 2013) (explaining that “such” means “of the character, quality, or extent 

previously indicated or implied”); In re Lehman Bros. Mortg.-Backed Sec. Litig., 

650 F.3d 167, 176–77 (2d Cir. 2011) (citing Webster’s Third New International 

Dictionary’s definition of “such” as “something ‘previously characterized or 

specified’”). 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 50 of 78
37 

Any independent expenditure (including those described in subsection 

(b)(6)(B)(iii)) aggregating $1,000 or more made after the 20th day, 

but more than 24 hours, before any election shall be reported within 

24 hours after such independent expenditure is made. Such statement 

shall be filed with the Clerk, the Secretary, or the Commission and the 

Secretary of State and shall contain 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. 

(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), made by or for each candidate, as 

reported under this subsection, and for periodically publishing such 

indices on a timely pre-election basis.” 

FECA (c)(1) is naturally read as a generalized opening statement requiring 

persons that make independent expenditures exceeding a particular monetary 

threshold to file a report with the government. FECA (c)(2) then logically 

provides the contents of what such reports filed pursuant to FECA (c)(1) must 

contain. This reading is consistent with the overall introductory header to 

subsection (c), which equates subsection (c)(1) as “filing,” (c)(2) as “content,” and 

(c)(3) as “indices of expenditures.”11 This breakdown of coverage vs. contents is 

 

11 The “filing; contents; indices of expenditures” language is preceded in the 

header by the words “Statements by other than political committees.” (Emphasis 

added.) But this introductory clause does not describe (c)(1)-(3) specifically, but 

rather contrasts (c)(1) as a whole with subsection (a)’s “Receipts and 

disbursements by treasurers of political committees.” (Emphasis added.) Cf. 52 

U.S.C. § 30104(f) (“Disclosure of electioneering communications”), (f)(1) 

(“Statement required”), (f)(2) (“Contents of Statement”). 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 51 of 78
38 

also consistent with how other FECA provisions are arranged. See, e.g., 52 U.S.C. 

§ 30103(a) (explaining who must file a statement of organization and when it must 

be filed) & (b) (outlining the contents of such statement), § 30104(f)(1) (explaining 

who must file an electioneering communications report and when it must be filed), 

(f)(2) (outlining the contents of such report). 

CREW claims that FECA (c)(1)’s reference to subsection (b)(3)(A) imposes 

reporting obligations beyond those articulated in FECA (c)(2). But this reading is 

inconsistent with the FECA’s structure and conflicts with judicial precedent. 

FECA (c)(1)’s introductory requirement that the statement contain “the 

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

such person” simply means that any information about contributors to be disclosed, 

pursuant to FECA (c)(2), must include “the date and amount of any such 

contribution.” These two elements, which were historically a part of the FEC’s 

Independent Expenditure Reporting form, see supra at 4, are not otherwise 

required to be disclosed by the language of FECA (c)(2), a provision that 

contemplates only a list of contributors who gave more than $200. 

CREW’s reading of the statute would also frustrate congressional intent by 

decreasing the information reported. FECA (c)(1) contains an affirmative 

reporting obligation – i.e., “Every person . . . shall file a statement” – but 

FECA (c)(2) does not actually contain an affirmative statement that the 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 52 of 78
39 

independent expenditure maker do anything. Without linking the two provisions 

together, there would be no requirement that an independent expenditure maker 

file a certification that the independent expenditure was independent of a 

candidate’s campaign, for example. That would effectively read out of the statute 

certain information that Congress clearly wanted to have filed with the FEC. 

Crossroads’ reading of the statute also accords with judicial precedent. 

Indeed, in reviewing and approving the FEC’s regulation of electioneering 

communications – which required disclosure not of all donors, but rather only 

those who gave “for the purpose of furthering electioneering communications” – 

this Court determined that this electioneering communications law works “in 

precisely the same way BCRA itself regulates express advocacy disclosures.” Van 

Hollen, 811 F.3d at 493; see also id. at 495. For its part, the Ninth Circuit has 

explained the interaction of the two provisions as follows: “Section 434(c)(1) 

requires that any person making an ‘independent expenditure’ greater than $250 

file a statement with the FEC. The contents of the statement are specified in 

434(c)(2).” FEC v. Furgatch, 807 F.2d 857, 859 n.2 (9th Cir. 1986) (emphasis 

added).12

 

12 A comment in FEC v. Massachusetts Citizens for Life (“MCFL”), 479 U.S. 238 

(1986), could be read to suggest that FECA (c)(1) & (c)(2) constitute separate 

reporting obligations. But as the district court recognized, this language was 

peripheral to MCFL’s main discussion, [Op. at 61]. In any event, Furgatch did not 

treat the comment as binding, and both the Chief Justice and other courts have 

observed that the non-essential portions of MCFL are dicta. See, e.g., MCFL, 479 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 53 of 78
40 

To prevail on its interpretative theory regarding (c)(2)(C), CREW must show 

that Congress chose an indefinite article – “an” – to convey a concept with such 

unmistakable clarity that the FEC’s explicit rulemaking authority and discretion 

were displaced. But to the contrary, “‘an’ means ‘one,’” New Hampshire Motor 

Transp. Ass’n v. Rowe, 448 F.3d 66, 72 (1st Cir. 2006), aff’d, 552 U.S. 364 (2008) 

(citing Merriam Webster’s Collegiate Dictionary at 40, 53 (10th ed. 2001)), which 

is the “normal” reading of such an indefinite article, Abbott GmbH & Co. KG v. 

Yeda Research & Dev. Co., 516 F. Supp. 2d 1, 6 n.10 (D.D.C. 2007) (quotation 

omitted), aff’d, 857 F.3d 1341 (Fed. Cir. 2016). This is particularly true where the 

modified term is singular, as “independent expenditure” is here. See United States 

v. Hagler, 700 F.3d 1091, 1097 (7th Cir. 2012). 

Moreover, in determining the meaning of “an,” “context matters.” Caraco 

Pharm. Labs., Ltd. v. Novo Nordisk A/S, 566 U.S. 399, 413-14 (2012) (interpreting 

“not an” language to mean “not a particular one”). Here, the FECA’s structure and 

history support the FEC’s reading of the statute. For example, as discussed above, 

see supra at 5-6, the Summary of Committee Working Draft and the Senate 

Committee’s report confirm that the statute targets reporting of contributions 

received for “the independent expenditure.” (Emphasis added.) Furthermore, 

where “the rest of the statute is written using definite articles,” it indicates 

 

U.S. at 271 (Rehnquist, J., concurring and dissenting); Vote Choice, Inc. v. Di 

Stefano, 814 F. Supp. 186, 191 n.12 (D.R.I. 1992). 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 54 of 78
41 

specificity of the modified item. Hagler, 700 F.3d at 1097. Here, the two 

paragraphs above and two paragraphs below the relevant provision all contain 

terms underscoring that independent expenditure contribution reporting relates to 

funds designated for a particular advertisement. 

If, as CREW maintains, Congress intended a broader level of contributorrelated reporting for independent expenditures, it easily could have said so, 

beginning with a reference to giving “for the purpose of furthering any

independent expenditures.” But Congress did not do that. Instead, it required 

earmarking to support “an expenditure.” If that language does not compel the 

FEC’s reading of the statute – and Crossroads submits that it does – it certainly 

permits such a reading, given the FEC’s broad Chevron discretion.13

Other textual arguments support Crossroads’ position, particularly given that 

the 1979 Amendments to the FECA did not substantively expand the information 

to be reported. For example, the congressionally reviewed and approved reporting 

form the FEC used prior to 1979 required identification of the candidate and office 

that the contribution supported. See supra at 4. It would not have been possible 

for supporters who gave to another to influence federal elections generally – or 

 

13 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). 

But such post-promulgation developments do not bear on whether the FEC 

correctly interpreted the statute in 1980, particularly since most of the spending 

today is by groups that were unable to make independent expenditures in 1980. 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 55 of 78
42 

even for independent expenditures generally – to know what candidate to list on 

that form unless the form required earmarking. Moreover, the law prior to the 

1979 Amendments spoke of contributors filing a statement “containing the 

information required of a person who makes a contribution . . . .” 2 U.S.C. 

§ 434(e)(1) (1976). The “information required” language, terminology that also 

appears post-1979, does not mean that all contributions must be disclosed. Rather, 

it means that of those contributions that must already be disclosed, certain types of 

information (e.g., date, amount) must be reported for those contributions. 

B. Chevron Step 2: The FEC’s Regulatory Construction Is 

Reasonable and Within the Range of Permissible Options Under 

the Statute. 

That leaves the issue of whether the FEC’s decision was “reasonable.” Ne. 

Hosp. Corp. v. Sebelius, 657 F.3d 1, 4–5 (D.C. Cir. 2011).14 Four considerations in 

addition to the statutory text show that the FEC’s regulation is consistent with 

legislative intent: 

1. The FEC Was Heavily Involved in the Statute’s Drafting. 

Administrative interpretations of statutes are “especially persuasive” where 

either “the agency participated in developing the provision,” Miller v. Youakim, 

440 U.S. 125, 144 (1979), or where there is “a contemporaneous construction of a 

statute by those charged with the responsibility of setting its machinery in motion,” 

 

14 Cf. Foo v. Tillerson, 244 F. Supp. 3d 17 (D.D.C. 2017) (upholding the State 

Department’s interpretation of “an individual” under Chevron step two when 

Congress did not provide an explicit definition). 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 56 of 78
43 

United Transp. Union v. Lewis, 711 F.2d 233, 242 (D.C. Cir. 1983). As to the 

former, courts attach “‘great weight’ to agency representations to Congress when 

the administrators ‘participated in drafting and directly made known their views to 

Congress in committee hearings,’” since this forms “part of the legislative 

background” of the new law. Moore v. District of Columbia, 907 F.2d 165, 176 

(D.C. Cir. 1990) (quoting Zuber v. Allen, 396 U.S. 168, 192 (1969)). As to the 

latter, contemporaneous constructions are important because the agency “may 

possess an internal history in the form of documents or ‘handed-down oral 

tradition’ that casts light on the meaning of a difficult phrase or provision.” 

Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. 

Rev. 363, 368 (1986). Such a “contemporaneous construction” may even “carry 

the day against doubts that might exist from a reading of the bare words of a 

statute.” Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 414 (1993). The 

presence of both factors here together means deference principles apply with “even 

greater force.” Middle S. Energy, Inc. v. F.E.R.C., 747 F.2d 763, 769 (D.C. Cir. 

1984). 

As explained above, the statute upon which the Regulation was based was 

explicitly identified as an FEC legislative recommendation. See supra at 5. In 

fact, the FEC Commissioners and staff worked closely with Congress to develop 

the provision, and it is well known that Congress routinely “respects and relies on 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 57 of 78
44 

the Commission’s testimony and recommendations.” Daniel Zenkel, Presidential 

“Draft” Committees and the Federal Election Campaign Act, 84 Colum. L. Rev. 

198, 213-14, n.102 (1984). 

Thus, when it came time to implement the statute by regulation, which 

Congress mandated be done quickly, the FEC could do so expeditiously because 

the agency knew precisely what it had asked Congress to enact. Nothing in the 

legislative or administrative history suggests that Congress and the FEC discussed 

expanding the scope of the reporting requirements in the manner CREW – nearly 

four decades later – now seeks to impose. This is precisely the type of situation 

where “a court should [side in] favor of the administrative construction.” Zuber, 

396 U.S. at 192. 

2. Congress Has Not Disagreed with the FEC’s Contemporaneous 

Interpretation of the Statute, But Rather Has Ratified It. 

Because Congress repeatedly has amended the FECA – a statute that 

regulates matters of direct concern to elected Members, its “failure to revise or 

repeal the [FEC’s regulatory] interpretation is persuasive evidence that the 

interpretation is the one intended by Congress,” Weber v Heaney, 995 F.2d 872, 

877 (8th Cir. 1993) (quoting Young v. Cmty. Nutrition Inst., 476 U.S. 974, 983 

(1986)), and “strongly implies that the regulations accurately reflect congressional 

intent,” FEC v. Ted Haley Cong. Comm., 852 F.2d 1111, 1114 (9th Cir. 1988) 

(quoting Grove City Coll. v. Bell, 465 U.S. 555, 568 (1974)); see also Black 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 58 of 78
45 

Citizens for a Fair Media v. F.C.C., 719 F.2d 407, 429 (D.C. Cir. 1983). Use of 

this foundational canon of construction has repeatedly been reaffirmed by the 

Supreme Court, including just last term. See Lamar, Archer & Cofrin, LLP v. 

Appling, 138 S. Ct. 1752, 1762 (2018) (collecting authority); Merrill Lynch, 

Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 382 n.6 (1982) (collecting 

authority); see also Owens v. Republic of Sudan, 864 F.3d 751, 777–78 (D.C. Cir. 

2017). This principle has added weight given that Congress did not use the 

special, FECA-specific review provision to reject the regulation here.15

Reflecting Congress’s strong interest in regulation of federal elections, 52 

U.S.C. § 30111 provides “the FEC must submit a proposed regulation and an 

accompanying statement to both the House and the Senate. If neither house 

disapproves the proposed regulation within [the preset time period], the FEC may 

issue it.” Weber, 995 F.2d at 876-77. Courts “normally accord considerable 

 

15 The district court’s congressional acquiescence analysis, which consisted of a 

single footnote, did not address the FECA-specific process. See JA459 [n.47]. 

Moreover, and respectfully, not only did both of the cases the motions panel cited 

for this point also fail to deal with the special FECA review provision, but the 

language the panel cited disapproving of congressional acquiescence was taken 

from dissenting opinions. See ECF No. 1750838 at 4 (citing Texas Dep’t of 

Housing & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S.Ct. 2507, 2540, 

(2015) (Alito, J., dissenting); see Johnson v. Transportation Agency, 480 U.S. 616, 

672-673, (1987) (Scalia, J., dissenting). In other words, the majority opinions in 

both of these cases actually support Crossroads’ position. See Texas Dep’t of 

Hous. & Cmty. Affairs, 135 S. Ct. at 2520 (explaining that when Congress amends 

a law “without altering the text of [the relevant provision], it implicitly adopted 

[existing] construction of the statute”) (internal quotations omitted); Johnson, 480 

U.S. 616 at 629 n.7, 671 (observing that where “Congress has not amended the 

statute to reject [a] construction,” an entity “therefore may assume that [its] 

interpretation was correct”). 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 59 of 78
46 

deference to the Commission . . . [where] Congress took no action to disapprove 

the regulation when the agency submitted it for review pursuant to [the FECA’s 

special provision].” AFL-CIO v. FEC, 333 F.3d 168, 175 (D.C. Cir. 2003) 

(internal quotation omitted). 

Here, the FEC transmitted the regulation to Congress on February 28, 1980. 

Consistent with the congressional review timeline, the FEC waited 15 days before 

making the regulation effective. See supra at 6-7. Congress did not object to the 

independent expenditure reporting regulation during this period, thus bestowing 

considerable legitimacy on the agency’s interpretation. See DSCC, 454 U.S. at 34-

35 (citing the absence of congressional disapproval in approvingly discussing the 

FEC’s regulation); NCPAC, 626 F.2d at 956 & n.7 (same).16 Indeed, this Court has 

previously described the FEC’s independent expenditure reporting regulation as 

“already endorsed by Congress.” Van Hollen, 811 F.3d at 493. The same is true 

of the Independent Expenditure Reporting Form, which also was transmitted to 

Congress for review and not disapproved. See supra at 7-8. 

Congress also has ratified the regulation in other ways. During the nearly 40 

years the Regulation has been in effect, Congress has repeatedly debated 

 

16

 See also FEC v. Ted Haley Cong. Comm., 852 F.2d 1111, 1114–15 (9th Cir. 

1988) (noting that the process suggests FEC regulations not rejected are consistent 

with Congressional intent); Teper v. Miller, 82 F.3d 989, 996 (11th Cir. 1996) 

(Kravitch, J.); United States v. Sun-Diamond Growers of California, 941 F. Supp. 

1277, 1279–80 (D.D.C. 1996) (same); Weber v. Heaney, 793 F. Supp. 1438, 1452 

(D. Minn. 1992), aff’d, 995 F.2d 872 (8th Cir. 1993) (same). 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 60 of 78
47 

independent expenditures and the reporting thereof. See, e.g., 145 Cong. Rec. 

S12734, S12753 (Oct. 18, 1999) (Sen. Murray) (discussing the “right to know who 

is funding these so-called ‘independent expenditures’”); 143 Cong. Rec. S10485, 

S10486 (Oct. 7, 1997) (Sen. Torricelli Amdt., No. 1308, to the Bipartisan 

Campaign Reform Act of 1997); 143 Cong. Rec. S10661 (Oct. 8, 1997) (Sen. 

Murray Amdt. No. 1316 to the Bipartisan Campaign Reform Act of 1997)). 

Congress has also amended the statute containing the independent expenditure 

reporting requirements (2 U.S.C. § 434) in 1995, 1999, 2000, 2002, 2004, and 

2007, see supra at 8 & n.2, with BCRA and the Honest Leadership and Open 

Government Act of 2007, Pub. L. No. 110-81, 121 Stat. 735 (2001), in particular, 

making significant changes to the statute. Indeed, the BCRA “ordered the FEC to 

rewrite its regulations” on another provision relevant to independent expenditures. 

Shays I, 414 F.3d at 97-98. Yet in none of these instances did Congress actually 

revise or reject the FEC’s independent expenditure contributor reporting 

requirements. Given this record, and the fact that the FEC’s regulation operated as 

a “presumptive default” rule that Congress legislated against during this period, 

United States v. Wilson, 290 F.3d 347, 357 (D.C. Cir. 2002), it “would be 

inappropriate to overturn an interpretation that Congress has acquiesced in for [so 

many] years,” Action on Smoking and Health v. C.A.B., 699 F.2d 1209, 1215 (D.C. 

Cir. 1983). See also FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 61 of 78
48 

155-56 (2000) (cataloging the affirmative legislative “actions by Congress over the 

past 35 years” as having “effectively ratified” an agency’s position); Abourezk v. 

Reagan, 785 F.2d 1043, 1054–55 (D.C. Cir. 1986), aff’d, 484 U.S. 1 (1987) 

(explaining that 34 years of congressional acquiescence is “a significant indicator 

of the legislature’s will”). 

Instead, CREW should turn its attention toward advocating for one or more 

of the bills before Congress in recent years that would establish new reporting 

requirements for 501(c) organizations making independent expenditures. See, e.g., 

H.R. Res. 5175, 111th Cong. § 211 (2010) (the “Democracy is Strengthened by 

Casting Light on Spending in Elections Act” or “DISCLOSE Act”). Notably, 

Congress declined to enact the DISCLOSE Act and has otherwise refused to 

impose additional independent expenditure donor reporting requirements. 

3. The FEC’s Interpretation of the Statute Has Remained 

Consistent for Nearly Four Decades. 

At step two, courts also accord “great weight to the longstanding 

interpretation placed on a statute by an agency charged with its administration.” 

Creekstone Farms Premium Beef, L.L.C. v. Dep’t of Agric., 539 F.3d 492, 500 

(D.C. Cir. 2008). This is particularly true for the FEC, which “is precisely the type 

of agency to which deference should presumptively be afforded,” DSCC, 454 U.S. 

at 37; see also Hagelin v. FEC, 411 F.3d 237, 242 (D.C. Cir. 2005) (noting same),

and where that agency’s “consistent course of decision-making . . . is deserving of 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 62 of 78
49 

deference from the Court unless clearly repugnant to the provisions of the 

[FECA].” NCPAC, 626 F.2d at 957. This principle applies even where, unlike the 

present case, the agency’s interpretation may “not be the best or most natural one 

by grammatical or other standards.” Pauley v. BethEnergy Mines, Inc., 501 U.S. 

680, 702 (1991). 

Here, the FEC’s interpretation has been maintained – without change – for 

37 years. See supra at 13 n.5. And an agency’s consistent interpretation of a 

statute for just half that time “does indeed warrant deference.” Bhd. of R.R. 

Signalmen v. Surface Transp. Bd., 638 F.3d 807, 815 (D.C. Cir. 2011). Moreover, 

when the public was given an opportunity to submit comments on significant 

revisions to the independent expenditure reporting requirements that took effect in 

2003 – including revisions to 11 C.F.R. § 109.2(e) – “[t]he Commission received 

no comments on [the independent expenditure contributor reporting] section” and 

left 109.2(e)(1)(vi) unchanged. Bipartisan Campaign Reform Act of 2002 

Reporting, 68 Fed. Reg. 404, 415 (Jan. 3, 2003). All of this suggests that the 

FEC’s interpretation was the correct one and, in any event, warrants this Court’s 

deference. 

4. The FEC’s Regulation Accords with Expressed Congressional 

Intent and Important First Amendment Principles. 

“The general purpose of the 1979 amendments to the FECA . . . was to 

simplify reporting and administrative procedures,” Common Cause, 842 F.2d 436, 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 63 of 78
50 

444 (D.C. Cir. 1988), and to eliminate the separate reporting requirements for 

those contributing to a specific expenditure – not to expand the types of 

information reported. The FEC regulation at issue here is consistent with that 

legislative goal. Furthermore, as explained above (see supra at 4-6), Congress 

intended contributor reporting to be tied to contributions for “the” expenditure. 

CREW attempted below to convert the 1979 FECA amendments into a 

“disclosure at all costs” directive. But this type of dogmatic voyeurism was 

soundly rejected in Van Hollen, where this Court observed that “[j]ust because one

of [the FECA’s] purposes (even chief purposes) was broader disclosure does not 

mean that anything less than maximal disclosure is subversive.” 811 F.3d at 494–

95 (emphasis in the original). The law, this Court held, “does not require 

disclosure at all costs; it limits disclosure in a number of ways.” Id. Had the 

district court below adhered to Van Hollen and properly considered “the 

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

upheld the Commission’s regulation here under Chevron. As Van Hollen

illustrates, not every FECA provision must be interpreted to require the maximum 

disclosure theoretically possible.17

 

 

17 CREW’s own filings in this case concede that the public interest fails to support 

the broad-based donor disclosures it seeks, particularly under its interpretation of 

FECA (c)(1). For example, CREW explained, that voters “have a vital interest in 

knowing the identities of those [contributors] who pay for independent 

expenditures” or, expressed similarly, “the contributors behind [an organization’s] 

independent expenditures.” JA014 [¶ 5] (emphasis added). That is not the same as 

requiring reporting of an organization’s full list of donors. 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 64 of 78
51 

Relatedly, CREW argued below that it was irrational for the FEC’s 

independent expenditure reporting regulation to include an earmarking principle 

under which no contributor is identified unless the contribution is earmarked for a 

particular independent expenditure. The D.C. Circuit, however, rejected precisely 

this argument with respect to the parallel FEC regulation containing an earmarking 

principle for identifying funders of electioneering communications. There, the 

Court observed that it was “hard to escape the intuitive logic behind [the] 

rationale” that “some individuals who contribute to a union or corporation’s 

general treasury may not support that entity’s electioneering communications, and 

a robust disclosure rule would thus mislead voters as to who really supports the 

communications.” Van Hollen, 811 F.3d at 497. 

The same holds true here, as CREW’s reading would lead to misleading 

reporting and the imposition of reporting burdens on core political speech that are 

not clearly necessary. Take, for example, an Alaska donor who helps fund an 

environmental conservation group’s independent expenditures attacking an Alaska 

congressional candidate’s support for drilling in the Arctic National Wildlife 

Refuge. Under the FEC’s regulation, that donor is not identified on the group’s 

FEC reports for an independent expenditure promoting an Arkansas U.S. Senate 

candidate’s opposition to fracking in the Fayetteville Shale. Similarly, a New 

York resident who sees a television ad featuring homeless puppies and gives to an 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 65 of 78
52 

animal welfare organization to lobby the local city council for a shelter is not 

disclosed when that organization uses some of its funds to run an independent 

expenditure against a California candidate who supports the continued use of 

elephants in circuses. Thus, it makes sense that Congress – and this Court – would 

want to carefully tailor the reporting requirements to avoid these and other types of 

“constitutional difficulties.” Chamber of Commerce of United States v. FEC, 69 

F.3d 600, 605 (D.C. Cir. 1995); see also RNC v. FEC, 76 F.3d 400, 409 (D.C. Cir. 

1996) (same); Van Hollen, 811 F.3d at 497 (discussing an example involving the 

American Cancer Society). Such tailoring also avoids problems – like those the 

district court’s opinion created – when trying to define the vaguely-worded term 

“contribution.” See, e.g., FEC v. Survival Educ. Fund, Inc., 65 F.3d 285, 295 (2d 

Cir. 1995); supra at 17. 

III. CREW Cannot Challenge Alleged Procedural Defects in a Regulation 

Decades After Its Promulgation and, in Any Event, Those Claims Lack 

Merit. 

CREW cannot challenge any procedural defects in the regulation because it 

is outside the six-year statute of limitations period. Only substantive complaints 

are permissible at this stage. See, e.g., JEM Broad. Co. v. FCC, 22 F.3d 320, 325 

(D.C. Cir. 1994). This makes sense. Where a party promptly challenges an 

agency’s explanation, for example, personnel with direct knowledge of the 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 66 of 78
53 

rulemaking procedure often can provide a quick remedy. But 37 years later, that is 

not possible. 

Even if it were not time-barred, CREW’s claim that the FEC failed to 

adequately explain and justify the regulation falls wide of the mark. All that is 

required is “that an agency take whatever steps it needs to provide an explanation 

that will enable the court to evaluate the agency’s rationale at the time of decision.” 

Jost v. Surface Transp. Bd., 194 F.3d 79, 85 (D.C. Cir. 1999) (internal citation and 

quotation marks omitted). There is no “word count; a short explanation can be a 

reasoned explanation.” Multicultural Media, Telecom & Internet Council v. FCC, 

873 F.3d 932, 939 (D.C. Cir. 2017) (internal citation and quotation marks omitted). 

Here, the bipartisan FEC did not feel obliged to write an exhaustive treatise 

explaining its decision to follow congressional intent. Instead, given the legislative 

history and the integral role the FEC played in recommending the statutory 

revisions to Congress and assisting with the legislative drafting, see supra at 4-5, 

all that was necessary was for the FEC to state that the regulatory revisions 

“incorporate the changes set forth at 2 USC 434(c)(1) and (2)” that it helped enact 

into law, see JA327. In other words, the FEC wrote the Regulation as it did 

because that is what the new law meant. 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 67 of 78
54 

CONCLUSION 

CREW should not be allowed to exploit its abandoned administrative 

complaint to maintain an unexhausted and untimely challenge to the longstanding 

Regulation. Instead, this appeal should be remanded with instructions to vacate the 

judgments and dismiss. Alternatively, if this Court reaches the merits, it should 

reverse the district court judgments and uphold the Regulation as fully lawful, thus 

permitting Crossroads to resume its historical reliance. 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 68 of 78
 55 

Dated: March 11, 2019 

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

WILEY REIN LLP 

1776 K St., NW 

Washington, D.C. 20006 

202.719.7000 

Counsel for Defendant-Appellant

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 69 of 78
56 

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME 

LIMIT, TYPEFACE REQUIREMENTS, AND TYPE-STYLE 

REQUIREMENTS 

I hereby certify, on this 11th day of March, 2019, 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 12,705 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 #1790021 Filed: 05/29/2019 Page 70 of 78
57 

CERTIFICATE OF SERVICE 

I certify that on March 11, 2019, one copy of the Defendant/Appellant’s 

Opening Brief 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 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 71 of 78
Addendum

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 72 of 78
TABLE OF CONTENTS 

Federal Statutes Pages 

2 U.S.C. § 434(e) (1976)..........................................................1a 

2 U.S.C. § 434(c) (1980)..........................................................1a 

52 U.S.C. § 30109(a)(1), (2), (8).................................................2a 

52 U.S.C. § 30111(d), (e).........................................................2a 

Federal Rules 

 11 C.F.R. § 109.10(b), (e).........................................................4a 

FEC Memoranda

Memorandum from Orlando B. Potter, Staff Director, 

Federal Elec. Comm’n (Mar. 29, 1978).........................................6a 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 73 of 78
1a 

2 U.S.C. § 434 (1976) 

* * * 

(e)(1) Every person (other than a political committee or candidate) who makes 

contributions or independent expenditures expressly advocating the election or 

defeat of a clearly identified candidate, other than by contribution to a political 

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

calendar year, shall file with the Commission, on a form prepared by the 

Commission, a statement containing the information required of a person who 

makes a contribution in excess of $100 to a candidate or political committee 

and the information required of a candidate or political committee 

receiving such a contribution. 

(2) Statements required by this subsection shall be filed on the dates on which 

reports by political committees are filed. Such statements shall include (A) the 

information required by subsection (b)(9), stated in a manner indicating whether 

the contribution or independent expenditure is in support of, or opposition to, the 

candidate; and (B) under penalty of perjury, a certification whether 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. Any independent expenditure, including those 

described in subsection (b)(13), of $1,000 or more made after the fifteenth day, but 

more than 24 hours, before any election shall be reported within 24 hours of such 

independent expenditure. 

* * * 

2 U.S.C. § 434 (1980) 

* * * 

(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) 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—, 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 74 of 78
2a 

(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. 

* * * 

52 U.S.C. § 30109. Enforcement 

(a) Administrative and judicial practice and procedure 

(1) Any person who believes a violation of this Act or of chapter 95 or chapter 96 

of Title 26 has occurred, may file a complaint with the Commission. Such 

complaint shall be in writing, signed and sworn to by the person filing such 

complaint, shall be notarized, and shall be made under penalty of perjury and 

subject to the provisions of section 1001 of Title 18. Within 5 days after receipt of 

a complaint, the Commission shall notify, in writing, any person alleged in the 

complaint to have committed such a violation. Before the Commission conducts 

any vote on the complaint, other than a vote to dismiss, any person so notified shall 

have the opportunity to demonstrate, in writing, to the Commission within 15 days 

after notification that no action should be taken against such person on the basis of 

the complaint. The Commission may not conduct any investigation or take any 

other action under this section solely on the basis of a complaint of a person whose 

identity is not disclosed to the Commission. 

(2) If the Commission, upon receiving a complaint under paragraph (1) or on the 

basis of information ascertained in the normal course of carrying out its 

supervisory responsibilities, determines, by an affirmative vote of 4 of its 

members, that it has reason to believe that a person has committed, or is about to 

commit, a violation of this Act or chapter 95 or chapter 96 of Title 26, the 

Commission shall, through its chairman or vice chairman, notify the person of the 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 75 of 78
3a 

alleged violation. Such notification shall set forth the factual basis for such alleged 

violation. The Commission shall make an investigation of such alleged violation, 

which may include a field investigation or audit, in accordance with the provisions 

of this section. 

* * * 

(8)(A) Any party aggrieved by an order of the Commission dismissing a complaint 

filed by such party under paragraph (1), or by a failure of the Commission to act on 

such complaint during the 120-day period beginning on the date the complaint is 

filed, may file a petition with the United States District Court for the District of 

Columbia. 

(B) Any petition under subparagraph (A) shall be filed, in the case of a dismissal of 

a complaint by the Commission, within 60 days after the date of the dismissal. 

(C) In any proceeding under this paragraph the court may declare that the dismissal 

of the complaint or the failure to act is contrary to law, and may direct the 

Commission to conform with such declaration within 30 days, failing which the 

complainant may bring, in the name of such complainant, a civil action to remedy 

the violation involved in the original complaint. 

* * * 

52 U.S.C. § 30111. Administrative provisions 

* * * 

(d) Rules, regulations, or forms; issuance, procedures applicable, etc. 

(1) Before prescribing any rule, regulation, or form under this section or any other 

provision of this Act, the Commission shall transmit a statement with respect to 

such rule, regulation, or form to the Senate and the House of Representatives, in 

accordance with this subsection. Such statement shall set forth the proposed rule, 

regulation, or form, and shall contain a detailed explanation and justification of it. 

(2) If either House of the Congress does not disapprove by resolution any proposed 

rule or regulation submitted by the Commission under this section within 30 

legislative days after the date of the receipt of such proposed rule or regulation or 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 76 of 78
4a 

within 10 legislative days after the date of receipt of such proposed form, the 

Commission may prescribe such rule, regulation, or form. 

* * * 

(e) Scope of protection for good faith reliance upon rules or regulations 

Notwithstanding any other provision of law, any person who relies upon any rule 

or regulation prescribed by the Commission in accordance with the provisions of 

this section 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 or 

by chapter 95 or chapter 96 of Title 26. 

* * * 

11 C.F.R. § 109.10 How do political committees and other persons report 

independent expenditures? 

* * * 

(b) Every person that is not a political committee and that makes independent 

expenditures aggregating in excess of $250 with respect to a given election in a 

calendar year shall file a verified statement or report on FEC Form 5 in accordance 

with 11 CFR 104.4(e) containing the information required by paragraph (e) of this 

section. Every person filing a report or statement under this section shall do so in 

accordance with the quarterly reporting schedule specified in 11 CFR 

104.5(a)(1)(i) and (ii) and shall file a report or statement for any quarterly period 

during which any such independent expenditures that aggregate in excess of $250 

are made and in any quarterly reporting period thereafter in which additional 

independent expenditures are made. 

* * * 

(e) Content of verified reports and statements and verification of reports and 

statements. 

(1) Contents of verified reports and statement. If a signed report or 

statement is submitted, the report or statement shall include: 

* * * 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 77 of 78
5a 

(vi) The identification of 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. 

USCA Case #18-5261 Document #1790021 Filed: 05/29/2019 Page 78 of 78