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,1

Plaintiffs-Appellees, 

Federal Election Commission, 

Defendant-Appellee.

_________________________________________ 

DEFENDANT-APPELLANT 

 CROSSROADS GRASSROOTS POLICY STRATEGIES’ 

REPLY BRIEF CONCERNING ITS EMERGENCY MOTION 

FOR A STAY PENDING APPEAL 

_________________________________________ 

 

1

 Hereinafter, “CREW.” 

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Crossroads Grassroots Policy Strategies (“Crossroads”) respectfully replies 

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

Appeal. CREW’s rhetoric notwithstanding, it is clear that the district court’s 

existing 45-day stay is inadequate, that it should be extended pending this appeal, 

and that this Court should confirm that speakers may rely upon the regulation 

during the pendency of the appeal. 

Vacating a foundational reporting regulation just weeks before the upcoming 

November election obviously threatens serious and irreparable injury. This is true 

for Crossroads as well as the public, which is denied the speech of groups that will 

be compelled to restrain constitutionally protected and statutorily permitted speech 

because of sudden uncertainty over the standards ensuring the privacy of donors to 

statutorily defined nonpolitical organizations. The district court acknowledged this 

confusion and injury when it stayed its vacatur for 45 days, and two commissioners 

on the Federal Election Commission (“Commission”) similarly have warned “the 

court’s decision is already causing confusion. Even though the vacatur has not yet 

gone into effect, members of the public are in doubt as to whether they can rely on 

the challenged regulation because the court declared it legally invalid.” 

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

Statement on CREW v. FEC, No. 16-cv-259 (Sept. 6, 2018).2

 

 

2

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

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As the commissioners further explained, the district court’s hope that a short 

stay would lead the Commission to adopt a pre-election interim regulation will not 

materialize because (i) systemic constraints, including a mandatory 30-day 

congressional review period, preclude such rapid Commission action, and 

(ii) several commissioners believe the existing regulation remains lawful and 

expect it will be vindicated by this appeal. 

This appeal has great merit. Far from demonstrating the regulation is invalid 

under Chevron step one, the district court issued 113 pages of complex 

construction that relied heavily on the same policy arguments this Court recently 

rejected when it upheld a similar Commission disclosure regulation. See Van 

Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016). Moreover, after studying the 

district court’s analysis, two of four commissioners remain convinced “the court 

should have upheld the Commission’s regulation as a reasonable interpretation of 

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

district court opposition that it first articulated the statutory reading it now claims 

to be clear only in 2012. Dkt. No. 52 at 14. Clear statutory subsections do not 

require 113 pages to parse, do not divide their administrative agency’s 

commissioners, and do not reveal newly-discovered clarity decades later. 

 

Hunter_and_Commissioner_Petersen_in_CREW_v._FEC.pdf. 

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After 38 years and 19 elections without the donor information vacatur 

supposedly will produce, CREW cannot plausibly claim that allowing a few more 

months for orderly appellate review will seriously injure it. This Court therefore 

should grant a stay pending appeal and also confirm that speakers may rely upon 

the regulation throughout the appellate process.3

I. Crossroads and CREW Agree That, at a Minimum, This Case “Raises a 

Serious Legal Question.” 

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

probable success and the possibility of irreparable injury” or that the court has 

“ruled on an admittedly difficult legal question and . . . the equities of the case 

suggest that the status quo should be maintained.” Wash. Metro. Area Transit 

Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 844-45 (D.C. Cir. 1977). Under the 

second formulation, it “will ordinarily be enough that the [movant] has raised 

serious legal questions going to the merits, so serious, substantial, [and] difficult as 

to make them a fair ground of litigation and thus for more deliberative 

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

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

 

3

 CREW’s Opposition (23 n.13) complains that Fed. R. App. P. 8(a)(2)(A) 

bars relief because a stay motion remains pending before the district court. Not so. 

Crossroads’ motion before this Court (at 2) explained that it waited as long as it 

could for the district court to act. 

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authority for its legal position” may suffice. John Doe Co. v. Consumer Fin. 

Protection Bureau, 849 F.3d 1129, 1132 (D.C. Cir. 2017). 

 As explained below and earlier, see Mot. at 11-15, Crossroads has a strong 

likelihood of success on appeal. Moreover, CREW conceded in its district court 

opposition that this case “admittedly raises a serious legal question.” Dkt. No. 52 

at 3-4. 

II. Crossroads Is Likely to Succeed on Appeal. 

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

(at 4-7) reviewed the legislative history of 52 U.S.C. § 30104(c)(1) and (c)(2)(C) 

showing that the 1979 Amendments merely consolidated the previously separate 

requirements for contributors to and the makers of a particular independent 

expenditure to report their respective contributions and spending. Crossroads also 

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

FEC’s longstanding statutory construction. 

Crossroads’ motion (at 7-8) further detailed how the Commission

transmitted the challenged regulation to Congress under a special congressional 

review provision, how Congress did not disapprove the rule, how the Commission 

consistently interpreted and enforced the statute and implementing regulation for 

more than 38 years, and how Congress amended the independent expenditure 

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reporting statute six times without disturbing the Commission’s interpretation 

embodied in the regulation. 

Rather than directly respond to these abundant authorities, CREW makes 

two other merits rebuttals that are easily dispatched. 

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

Buckley. 

CREW and the district court mistakenly rely on the Supreme Court’s 

definition of a “contribution” in Buckley v. Valeo, 424 U.S. 1, 78 (1976) to 

construe subsection 30104(c)(1) to require the reporting of funds “that are 

earmarked for political purposes.” Opp. at 9; Memo Op. at 28-30. At the same 

time, the district court articulated at least three not entirely consistent definitional 

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

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

be converted to independent expenditures. 

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

provision at issue here – imposed “disclosure requirements . . . on spending that is 

unambiguously campaign related . . . [that] takes the form of independent 

expenditures or of contributions to an individual or group” that makes independent 

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expenditures. 424 U.S. at 81 (emphasis added).4 On the prior page, Buckley uses 

the phrase “spending that is unambiguously campaign related” to refer to “only 

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

clearly identified candidate” (i.e., an independent expenditure). Id. at 80. 

Therefore, when Buckley used shorthand to describe section 434(e)’s contributor 

reports as applying to “contributions earmarked for political purposes,” id., “[t]he 

only contributions . . . with which the Buckley Court appears to have been 

concerned are those that will be converted to expenditures subject to regulation 

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

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

B. The District Court Lacked Jurisdiction to Hear CREW’s Untimely 

Challenge to the Regulation. 

CREW claims standing to challenge the regulation because the Commission 

relied on its validity to dismiss the original administrative complaint. But on 

remand the Commission dismissed without any such reliance, see Hunter and 

Petersen, supra (referencing 52 U.S.C. § 30111(e)’s “good faith” reliance 

provision), and CREW concedes its claim on the underlying administrative 

complaint “is now moot,” Opp. at 3 n.2, 11 n.9. 

 

4

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

the contributors who formerly reported their contributions separately] on to those 

making the independent expenditure.” Opp. at 4 (emphasis added). 

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

action . . . but that portion of the action is rendered moot, the plaintiff does not 

retain standing to challenge the regulation that was the basis for that action apart 

from any concrete application that threatens imminent harm to his interests.” 

Cierco v. Mnuchin, 857 F.3d 407, 417 (D.C. Cir. 2017) (citing Summers v. Earth 

Island Inst., 555 U.S. 488, 494 (2009)). Indeed, as this Court has already 

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

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

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

2005). 

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

after it had been in existence for over three decades. See, e.g., Opp. at 6 n.5; Dkt. 

No. 52 (district court) at 14. But a party generally forfeits “an opportunity to 

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

agency” during the rulemaking process. Koretoff v. Vilsack, 707 F.3d 394, 397 

(D.C. Cir. 2013). In general, untimely regulatory challenges should be entertained 

only “when raised as a defense to an agency enforcement action,” Am. Scholastic 

TV Programming Found. v. F.C.C., 46 F.3d 1173, 1178 n.2 (D.C. Cir. 1995) 

(emphasis added), by “a party against whom a rule is applied,” Indep. Cmty. 

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

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Cir. 1999) (emphasis added).5 CREW should not be allowed to end-run the statute 

of limitations by bringing a complaint that now has been dismissed on grounds 

unrelated to the long-standing regulation. 

III. Crossroads Has Demonstrated Irreparable Harm. 

Notwithstanding CREW’s assertions, Crossroads has demonstrated 

irreparable injury. Steven Law, Crossroads’ president, attests that Crossroads “is 

at present deterred and constrained from sponsoring any independent expenditures 

for the remainder of this election cycle” as a result of the ambiguities and 

deficiencies in the district court’s decision. Law Aff. (Doc. No. 1748550) ¶ 10. 

Law cites CREW’s threats to use the decision to file complaints against groups 

making independent expenditures that do not report their donors pursuant to the 

decision as an additional deterrent on Crossroads’ speech. Id. ¶ 11. The practical 

constraint imposed on Crossroads regarding its ability to make independent 

expenditures as a result of the district court’s decision is informed by its experience 

in Van Hollen I, when a similar decision also inhibited Crossroads’ and others’ 

speech. Id. ¶ 12. “[W]here, as here, prosecutions are actually threatened, this 

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

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

 

5

 See also Grid Radio v. F.C.C., 278 F.3d 1314, 1320–21 (D.C. Cir. 2002); 

N.L.R.B. Union v. Fed. Labor Relations Auth., 834 F.2d 191, 195 (D.C. Cir. 1987). 

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CREW’s objection that Crossroads “does not state it intends to run any 

independent expenditures before the 2018 elections,” Opp. at 12 n.10, misses the 

point: the uncertainty caused by the truncated stay precludes such planning. The 

two obscenity cases CREW cites to refute Crossroads’ irreparable harm also are 

inapposite, as those authorities do not apply to the core political speech at issue 

here. Id. at 14; cf. R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 422 (1992) 

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

obscenity and fighting words receive the least protection of all”). 

IV. The Harms to the FEC and the Public – and the Lack Thereof to 

CREW – Support a Stay. 

While Crossroads’ motion (at 15-23) details the relevant harms to the parties 

and the public, it offers three points here in response to CREW’s Opposition on 

this issue. First, Crossroads has noted how CREW never claimed to be harmed by 

the challenged regulation until only recently, notwithstanding its ample 

opportunity to do so earlier. Such late-breaking “injury” is not the type of 

substantial, irreparable harm that precludes a stay. See, e.g., U.S. Postal Serv. v. 

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

Circuit Justice) (granting stay, in part, after finding party could not claim 

“irreparable harm” where status quo had existed for at least three years); Lucas v. 

Townsend, 486 U.S. 1301, 1305 (1988) (Kennedy, Circuit Justice) (discounting 

harm where such “burdens can fairly be ascribed to the [non-movant’s] own 

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failure” to timely raise issue with agency). CREW’s response is that “[t]he 

continued existence of the regulation will continue to injure CREW.” Opp. at 

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

which it is legally entitled,” id. at 14, begs the very question that must be resolved 

on appeal: viz., whether the statute in fact “legally entitle[s]” CREW to the donor 

information it seeks. Therefore, CREW’s claim to injury is entirely speculative. 

Second, CREW suggests the Commission’s failure to appear in this appeal 

evidences a lack of harm to the agency. Not so. At least two commissioners – and 

apparently the Commission’s professional staff – wanted to appeal but were 

frustrated from doing so by at least one other commissioner. See Hunter and 

Petersen, supra. Notwithstanding the Commission’s lack of four votes to authorize 

an appeal, the agency already advised the district court that “vacatur could result in 

‘inadequate guidance’ for speakers ahead of the 2018 elections.” Dkt. No. 30 at 50 

(district court); see also Dkt. No. 37 at 43. 

Third, while CREW attacks application of the Purcell principle, the bottom 

line is that this principle has maximum force in the weeks leading up to a national 

election. Voting for this year’s national midterm election begins in just days. See, 

e.g., Minn. Stat. § 203B.081. 

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V. The Centerpiece of CREW’s Opposition – the Van Hollen Litigation – 

Does Not Support Its Arguments. 

In arguing against a stay, CREW repeatedly links this case back to Van 

Hollen v. FEC, 2012 WL 1758569 (D.C. Cir. May 14, 2012) (per curiam). But 

Van Hollen cuts against CREW. 

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

stay largely – and, it turns out, errantly – on the movant’s perceived lack of 

success. See Ctr. For Individual Freedom v. Van Hollen, 694 F.3d 108 (D.C. Cir. 

2012) (reaching opposite conclusion at merits stage). Had the motions panel more 

accurately assessed the likelihood of success on the merits, it may well have 

granted the stay. 

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

Van Hollen, this Court found that the appellee, then-Congressman Van Hollen, 

would be harmed by a stay because he would not know the donors “to groups 

sponsoring ‘electioneering communications’ mentioning him by name.” 2012 WL 

1758569 at *3. Here, by definition, independent expenditures are not aimed at 

CREW, and therefore CREW cannot claim the same injury as the Van Hollen

appellee. 

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

with three general elections. For example, even though denying preliminary relief, 

the motions panel still prioritized oral argument for “the first appropriate date in 

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September 2012.” Id. at *1. The merits panel, in turn, issued its opinion on 

September 18, 2012 – just four days after oral argument. See Van Hollen, 694 F.3d 

108. On remand, after an October 29, 2013 hearing, the district court held its 

opinion until November 25, 2014 – i.e., shortly after the mid-term elections. See

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

final opinion in early January 2016, well in advance of the November election. See 

Van Hollen, 811 F.3d 486. This timeline illustrates a judicial desire to avoid 

upending the campaign finance landscape so close to a national election. This 

Court could achieve the same result by entering a stay here. 

CONCLUSION 

The district court correctly stayed its vacatur but cut the stay so short that it 

does not provide real protection. This Court should extend the stay for the duration 

of the appeal. 

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Dated: September 12, 2018 

Thomas J. Josefiak 

 E-mail: tjosefiak@holtzmanlaw.net

J. Michael Bayes (Bar No. 501845) 

 E-mail: mbayes@holtzmanlaw.net

HOLTZMAN VOGEL JOSEFIAK 

TORCHINSKY PLLC 

45 North Hill Drive, Suite 100 

Warrenton, VA 20186 

 

540.341.8808 

Respectfully submitted, 

/s/ Thomas W. Kirby 

Michael E. Toner (Bar No. 439707) 

 E-mail: mtoner@wileyrein.com

Thomas W. Kirby (Bar No. 915231) 

 E-mail: tkirby@wileyrein.com

Andrew G. Woodson (Bar No. 

494062) 

 E-mail: awoodson@wileyrein.com

Eric Wang (Bar No. 974038) 

 E-mail: ewang@wileyrein.com

WILEY REIN LLP 

1776 K St., NW 

Washington, D.C. 20006 

202.719.7000 

Counsel for Defendant-Appellant

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME 

LIMIT, TYPEFACE REQUIREMENTS, AND TYPE-STYLE 

REQUIREMENTS 

I hereby certify, on this 12th day of September, 2018, that: 

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

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

App. 32(f), this document contains 2,598 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 

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CERTIFICATE OF SERVICE 

I certify that on September 12, 2018, one copy of the Defendant/Appellant’s 

Reply Brief Concerning Its Emergency Motion for a Stay Pending Appeal was 

filed and served electronically upon the following counsel of record: 

Kevin Deeley (kdeeley@fec.gov) 

Harry Jacob Summers (hsummers@fec.gov) 

Seth E. Nesin (snesin@fec.gov) 

Federal Election Commission 

Office of General Counsel 

1050 First Street, NE 

Washington, DC 20463 

Stuart C. McPhail (smcphail@citizensforethics.org) 

Adam J. Rappaport (arappaport@citizensforethics.org) 

Citizens for Responsibility and Ethics in Washington 

455 Massachusetts Avenue, N.W. 

6th Floor 

Washington, DC 20001 

 /s/ Thomas W. Kirby 

 Thomas W. Kirby 

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