Oral Argument Not Yet Scheduled

No. 18-5261

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

CROSSROADS GRASSROOTS POLICY STRATEGIES.

Appellant,

v.

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, ET AL.,

Appellees

On appeal from the United States District Court 

for the District of Columbia, No. 16-259 (Hon. Beryl A. Howell)

Amicus Curiae Brief of the Institute for Free Speech

in Support of Appellant

Allen Dickerson (D.C. Cir. No. 54137) 

Zac Morgan (D.C. Cir. No. 61231)

INSTITUTE FOR FREE SPEECH

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703.894.6800

Facsimile: 703.894.6811

adickerson@ifs.org

Counsel for Amicus Curiae

March 18, 2019 

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CERTIFICATES AS TO PARTIES, RULINGS UNDER REVIEW, AND RELATED CASES

Pursuant to Circuit Rule 28(a)(1), Amicus Curiae Institute for Free Speech 

submits its Certificate as to Parties, Rulings, and Related Cases. 

A. Parties and Amici1

Appellant is Crossroads Grassroots Policy Strategies, intervenor-defendant

below. Appellees, both Plaintiffs below, are respectively Citizens for Responsibility 

and Ethics in Washington and Nicholas Mezlak. The Federal Election Commission 

was a defendant in district court, but it was unable to authorize an appeal and is also 

an Appellee. In addition to its own brief, Amicus is aware that briefs will be filed by 

other parties.

B. Rulings Under Review

On August 3, 2018, in Citizens for Responsibility and Ethics in Washington v. 

Federal Election Commission, 316 F. Supp. 3d 349 (D.D.C. 2018) (Howell, J.), the 

United States District Court for the District of Columbia vacated 11 C.F.R. § 

109.10(e)(1)(vi). In addition, on March 22, 2017, Judge Howell issued an earlier 

opinion regarding motions to dismiss, which is reported at 243 F. Supp. 3d 91.

 1

The Institute reaffirms its previous filing, stating that it has no parent company, and 

that no publicly-held company has a 10 percent or greater ownership interest in it.

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C. Related Cases

There are no related cases, aside from Crossroads Grassroots Policy 

Strategies’s earlier emergency motion for a stay pending appeal, reported at 904 F.3d 

1014 (D.C. Cir. 2018) (per curiam) (Henderson, Millett, and Wilkins, JJ.)

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TABLE OF CONTENTS

CERTIFICATES AS TO PARTIES, RULINGS UNDER REVIEW,

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

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

GLOSSARY............................................................................................................... viii

STATUTES AND REGULATIONS ....................................................................................1

STATEMENT OF IDENTITY, INTEREST IN CASE, AND SOURCE OF AUTHORITY

TO FILE........................................................................................................................1

INTRODUCTION AND SUMMARY OF ARGUMENT ..........................................................1

ARGUMENT .................................................................................................................3

I. The Federal Election Commission’s regulation properly balanced 

cornerstone First Amendment precedent against the plain text of the 

Federal Election Campaign Act .................................................................3

II. The district court’s decision inadvertently created a new constitutional 

dilemma ....................................................................................................13

CONCLUSION.............................................................................................................17

CERTIFICATE OF COMPLIANCE ..................................................................................18

CERTIFICATE OF SERVICE..........................................................................................19

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TABLE OF AUTHORITIES

CASES

Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett,

564 U.S. 721 (2011).........................................................................................8

Am. Fed’n of Labor-Congress of Indus. Orgs v. Fed. Election Comm’n,

333 F.3d 168 (D.C. Cir. 2003).....................................................................2, 5

Bates v. City of Little Rock,

361 U.S. 516 (1960).........................................................................................5

Buckley v. Valeo,

424 U.S. 1 (1976)........................................................ 5, 6, 7, 9, 10, 12, 13, 16

Buckley v. Valeo,

519 F.2d 821 (D.C. Cir. 1975).......................................................................14

Calif. Bankers Ass’n v. Shultz,

416 U.S. 21 (1974)...........................................................................................5

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

467 U.S. 837 (1984).........................................................................................9

Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm’n,

904 F.3d 1014 (D.C. Cir. 2018)...................................................................... ii

Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm’n,

316 F. Supp. 3d 349 (D.D.C. 2018)............................... i, 2, 6, 8, 9, 10, 11, 13

Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm’n,

243 F. Supp. 3d 91 (D.D.C. 2017)....................................................................i

Citizens United v. Fed. Election Comm’n,

558 U.S. 310 (2010)...............................................................................7, 9, 15

Eu v. San Francisco Cnty. Democratic Cent. Comm.,

489 U.S. 214 (1989).........................................................................................4

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Fed. Election Comm’n v. Survival Educ. Fund,

65 F.3d 285 (2d Cir. 1995) ......................................................................14, 15

Fed. Election Comm’n v. Wis. Right to Life, Inc.,

551 U.S. 449 (2007)...................................................................................9, 10

In re Cuozzo Speed Techs., LLC,

793 F.3d 1268 (Fed. Cir. 2015).......................................................................2

Kusper v. Pontikes,

414 U.S. 51 (1973).........................................................................................10

McCutcheon v. Fed. Election Comm’n,

572 U.S. 185 (2014).........................................................................................7

Mills v. Ala.,

384 U.S. 214 (1966).........................................................................................4

Monitor Patriot Co. v. Roy,

401 U.S. 265 (1971).........................................................................................4

NAACP v. Ala.,

357 U.S. 449 (1958).........................................................................................4

Natural Resources Defense Council, Inc. v. U.S. Food and Drug Admin.,

760 F.3d 151 (2d Cir. 2014) .................................................................... 11-12

N.Y. Times Co. v. Sullivan,

376 U.S. 254 (1964).......................................................................................15

Shelton v. Tucker,

364 U.S. 479 (1960).......................................................................................10

SpeechNow.org v. Fed. Election Comm’n,

599 F.3d 686 (D.C. Cir. 2010).........................................................................7

Thomas v. Collins, 

323 U.S. 516 (1945).......................................................................................15

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United States v. Nat’l Comm. for Impeachment,

469 F.2d 1135 (2d Cir. 1972)..........................................................................5

Van Hollen v. Fed. Election Comm’n,

811 F.3d 486 (D.C. Cir. 2016).............................................5, 7, 10, 11, 12, 17

Wis. Right to Life, Inc. v. Barland,

751 F.3d 804 (7th Cir. 2014).........................................................................14

CONSTITUTIONS, STATUTES, RULES, AND REGULATIONS

U.S. Const. art. VI, cl. 2...........................................................................................10

26 U.S.C. § 6104(d)(3)(A).......................................................................................13

52 U.S.C. § 30101(8)(A)............................................................................................6

52 U.S.C. § 30104......................................................................................................6

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

52 U.S.C. § 30104(c)(1)-(2).......................................................................................8

52 U.S.C. § 30107(a)(8)......................................................................................... 3-4

52 U.S.C. § 30109....................................................................................................15

11 C.F.R. § 109.10(e)(1)(vi)........................................................ i, 3, 6, 8, 11, 14, 17

Fed. R. App. P. 29(a)(4)(E)........................................................................................1

OTHER AUTHORITIES

Ctr. for Responsive Politics, “2018 Outside Spending, by Group”.........................11

Nihal Krishan, Elections Commission Chief Uses the “Nuclear Option” to Rescue 

the Agency From Gridlock, 

Mother Jones, Feb. 20, 2019..........................................................................12

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Legislative History of the Federal Election Campaign Act Amendments of 1976...5

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GLOSSARY

CREW ...................................Citizens for Responsibility and Ethics in Washington

Crossroads GPS......................................... Crossroads Grassroots Policy Strategies

FEC..............................................................................Federal Election Commission

FECA........................................................................Federal Election Campaign Act

PAC...............................................................................................political committee

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STATUTES AND REGULATIONS

The pertinent statutes and regulations are provided in Appellant’s Brief and 

Addendum.

STATEMENT OF IDENTITY,INTEREST IN CASE,

AND SOURCE OF AUTHORITY TO FILE 2

Founded in 2005, the Institute for Free Speech is a nonpartisan, nonprofit 

organization that works to protect and defend the rights to free speech, assembly, 

press, and petition. As part of that mission, the Institute often represents clients in 

cases both before and against the Federal Election Commission and is familiar with

the mosaic of constitutional and statutory law informing that body’s regulatory and 

enforcement decisions.

The Institute certifies that its brief will be of unique help to the Court, as the 

filing will provide an experienced perspective on both points. 

Counsel for all Parties have consented to the Institute’s participation as amicus 

curiae.

INTRODUCTION AND SUMMARY OF THE ARGUMENT

This Court has recognized that because it “has as its sole purpose the 

regulation of core constitutionally protected activity—the behavior of individuals 

 2 No other party’s counsel authored this brief in whole or in part, nor did any person 

contribute money that was intended to fund the preparation or submission of this 

brief. Fed. R. App. P. 29(a)(4)(E).

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and groups only insofar as they act, speak[,] and associate for political purposes,” 

the Federal Election Commission (“Commission” or “FEC”) is “[u]nique among 

federal administrative agencies.” Am. Fed’n of Labor-Congress of Indus. Orgs. v. 

Fed. Election Comm’n, 333 F.3d 168, 170 (D.C. Cir. 2003) (“AFL-CIO”) (quotation 

marks and citation omitted). The Commission’s delicate task is especially

complicated because much of the statute it administers, the Federal Election 

Campaign Act (“FECA”), has been invalidated or modified by the judiciary, and 

because Congress has often abdicated its responsibility to re-write or reform the 

statute in response. 

Thus, “the plain language, structure, history, and purpose of the statute at 

issue,” Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm’n, 

316 F. Supp. 3d 349, 387 (D.D.C. 2018) (“CREW”), often demonstrates an 

unconstitutional Congressional intent, rendering a rote application of “the familiar 

Chevron framework,” In re Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1279 (Fed. 

Cir. 2015), insufficient.

Such was the case here. The district court’s application of Chevron has had a 

profoundly negative effect: a regulation that limited the scope of damage to First 

Amendment privacy interests – interests identified by the Supreme Court in the 

context of this very statute – was eliminated. That decision will affect many 

organizations not before this court, including entities that behave very differently 

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from Appellant Crossroads Grassroots Policy Strategies (“Crossroads GPS”), and

groups lacking the means to adequately defend themselves when the FEC abdicates 

the defense of its own enforcement decisions. Left to stand, the district court’s

opinion will open the door to future efforts to conduct regulation-through-litigation 

by ideological interests seeking to vacate rules with which they disagree. Those 

decisions will be made by district courts, based upon the specific facts of a carefully 

chosen defendant, instead of by an expert agency with the benefit of notice and 

comment. Nevertheless, those judicial rulings will function, for all intents and 

purposes, as rules of general applicability.

In addition, vacatur of 11 C.F.R. § 109.10(e)(1)(vi) inadvertently created new 

constitutional difficulties, which the lower court failed to address. While the district 

court professed to limit its ruling only to those donors giving “for political purposes,” 

it failed to explain that inherently vague term. As a result, groups cannot know 

whether their intended activities will fall within or without that constitutionallyrequired safe harbor. Reversal would close this unwisely opened box.

ARGUMENT

I. The Federal Election Commission’s regulation properly balanced 

cornerstone First Amendment precedent against the plain text of the 

Federal Election Campaign Act.

The FEC has been tasked with “mak[ing], amend[ing], and repeal[ing] such 

rules...as are necessary to carry out” the Federal Election Campaign Act. 52 U.S.C. 

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§ 30107(a)(8). This routine statutory language belies the unusual nature of the FEC’s 

mission.

FECA operates in an area of extraordinary constitutional sensitivity, directly 

regulating the “free discussion of governmental affairs...discussions of candidates, 

structures and forms of government, the manner in which government is operated or 

should be operated, and all such matters relating to political processes.” Mills v. Ala., 

384 U.S. 214, 218-219 (1966). “[T]here is practically universal agreement,” id. at 

218, that in such circumstances “the First Amendment ‘has its fullest and most 

urgent application.’” Eu v. San Francisco Cnty. Democratic Cent. Comm., 489 U.S. 

214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)). 

But the First Amendment does not merely protect speech and discussion—it also 

defends freedom of association and the ability to create—and fund—organizations 

that collectively enhance the speech of their members. Six uninterrupted decades of 

Supreme Court precedent have held that this right embraces a donor’s privacy in 

choosing to associate with such an organization. NAACP v. Ala., 357 U.S. 449, 462 

(1958) (“This Court has recognized the vital relationship between freedom to 

associate and privacy in one’s associations”). As Justice Thurgood Marshall 

acknowledged, “[t]he First Amendment gives organizations such as the ACLU the 

right to maintain in confidence the names of those who belong or contribute to the 

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organization, absent a compelling governmental interest requiring disclosure.” Calif. 

Bankers Ass’n v. Shultz, 416 U.S. 21, 98 (1974) (Marshall, J., dissenting). 

FECA’s registration, reporting, and disclosure provisions, which advance 

“transparency, an extra-constitutional value,” Van Hollen v. Fed. Election Comm’n, 

811 F.3d 486, 501 (D.C. Cir. 2016), operate in this area of core constitutional 

concern. Buckley, 424 U.S. at 64 (“We long have recognized th[e] significant 

encroachments on First Amendment rights of the sort that compelled disclosure 

imposes...”); Bates v. City of Little Rock, 361 U.S. 516, 523 (1960) (“[I]t is now 

beyond dispute that freedom of association for the purpose of advancing ideas...[is]

protected not only against heavy-handed frontal attack, but also from being stifled 

by more subtle governmental interference”).

Indeed, the FEC’s “sole” mission is the regulation of precisely these First 

Amendment liberties. AFL-CIO, 333 F.3d at 170. 3 It occupies a “[u]nique” space in 

 3 Initially, there was no Federal Election Commission to enforce the Federal Election 

Campaign Act. But after the first prosecution brought under FECA was engineered 

by John Mitchell’s Justice Department against a group calling for President Nixon’s 

impeachment, United States v. Nat’l Comm. for Impeachment, 469 F.2d 1135 (2d 

Cir. 1972), Congress constructed the FEC, ultimately providing it with an evenmembered, bipartisan structure in recognition of FECA’s mission to 

“regulate[]...core constitutionally protected activity.” AFL-CIO, 333 F.3d at 170; 

Legislative History of the Federal Election Campaign Act Amendments of 1976 at 

89 (design intended to ensure the FEC could not “become a tool for harassment by 

future imperial Presidents who may seek to repeat the abuses of Watergate”) (written 

statement of Sen. Alan Cranston);

https://transition.fec.gov/pdf/legislative_hist/legislative_history _1976.pdf.

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the firmament of the administrative state. Id. This was not lost on the courts that first 

reviewed FECA’s restrictions in the 1970s and sharply curtailed the reach of federal 

law, regardless of Congress’s desire “to achieve ‘total disclosure’ by reaching ‘every 

kind of political activity.’” CREW, 316 F. Supp. 3d at 371 (quoting Buckley, 424 

U.S. at 76). 

For instance, under FECA, contributions and expenditures were defined by 

reference to their purpose and reached money raised or spent “for the purpose 

of...influencing” an election—a startlingly subjective standard that the statute did 

not define. Buckley, 424 U.S. at 78 (quotation marks omitted, ellipsis in original); 

see id. at 77 (“It appears to have been adopted without comment from earlier 

disclosure Acts”). Concerned that such vague language was intended to achieve

“total disclosure” by regulating the totality of civil society, the Buckley Court 

facially narrowed those provisions to cordon their reach.

Congress never responded to Buckley by imposing a constitutional definition 

of those terms. The underlying definition of “contribution,” which is essential to 

understanding the meaning of both 52 U.S.C. § 30104 and 11 C.F.R. § 

109.10(e)(1)(vi) at issue here, is still the constitutionally problematic “anything of 

value made by any person for the purpose of influencing any election for Federal 

office.” 52 U.S.C. § 30101(8)(A). And this is no outlier: Congress has refused to

properly re-define the similarly overbroad definition of “expenditure,” Buckley, 424 

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U.S. at 79-81, repeal the ban against corporate independent expenditures, Citizens 

United v. Fed. Election Comm’n, 558 U.S. 310 (2010), recognize the existence of 

independent expenditure-only committees (“Super PACs”), SpeechNow.org v. Fed. 

Election Comm’n, 599 F.3d 686 (D.C. Cir. 2010) (en banc), repeal the aggregate 

contribution limits, McCutcheon v. Fed. Election Comm’n, 572 U.S. 185 (2014), or 

codify the major purpose requirement for political committees (“PACs”) announced 

in Buckley, 424 U.S. at 79. It is only carefully constructed Commission regulations 

that keep these unconstitutional statutes from collapsing in on themselves, taking 

much of the edifice of federal campaign law with them.

In short, the Commission must “administer[]” its “particular statute” in this 

constitutionally-fraught environment. Van Hollen, 811 F.3d at 499. Focusing on 

Congress’s limited 1979 work regarding independent expenditure reporting, as the 

district court did, is akin to critiquing impressionist artwork from a vantage point of 

six inches. Pulling back, it becomes plain that “every action the FEC takes implicates 

fundamental rights,” and yet the Commission is constantly applying statutory text 

that the Supreme Court has repeatedly found to have been enacted by a Congress 

intending unconstitutional results. Van Hollen, 811 F.3d at 499. 

It is against this backdrop that the FEC interpreted FECA’s demand that 

“[e]very person (other than a political committee) who makes independent 

expenditures in an aggregate amount or value in excess of $250 during a calendar 

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year shall file a statement” that “identifi[es]...each person who made a contribution 

in excess of $200 to the” maker of independent expenditures “for the purpose of 

furthering an independent expenditure.” 52 U.S.C. § 30104(c)(1)-(2). The FEC’s 

narrow reading, reaching only donors that earmark a particular gift for a particular 

independent expenditure, ensures that the statutory scheme remains loyal to a greater

constitutional framework. 11 C.F.R. § 109.10(e)(1)(vi) (“...which contribution was 

made for the purpose of furthering the reported independent expenditure”) 

(emphasis supplied).

Below, this nuance fell victim to the buzzsaw of Chevron. That precedent fails 

to explain how agencies should interpret statutes that have been placed in judicial 

receivership due to their constitutional infirmities.

4 For example, the district court 

showed little concern that its understanding of the “plain meaning” of 52 U.S.C. § 

30104(c) imposed “similar” “obligation[s]” on civil society groups as “the donor 

identification...applicable to political committees.” CREW, 316 F. Supp. 3d at 389. 

Yet, much of the Supreme Court’s campaign finance jurisprudence, from the 

“seminal campaign finance case” of Buckley, Ariz. Free Enter. Club’s Freedom Club 

PAC v. Bennett, 564 U.S. 721, 757 (2011) (Kagan, J., dissenting), to the present day, 

has been dedicated to preventing the imposition of PAC or PAC-like obligations on

 4 It is unsurprising, then, that the opinion below dispatches with significant 

constitutional considerations in a few paragraphs and instead embraces

“congressional policy choice.” CREW, 316 F. Supp. 3d at 401-402, 414.

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civil society groups merely because they engage in some electioneering. See Citizens 

United, 558 U.S. at 337 (rejecting alternative of allowing corporations to form PACs 

because “PACs are burdensome alternatives; they are expensive to administer and 

subject to extensive regulations”). Similarly, rather than read the Commission’s 

action as a bulwark protecting associational liberties, the district court fretted that 

disclosure might risk certain nonprofits being transformed into “pass-through 

entities” for super PACs, CREW, 316 F. Supp. 3d at 380, even though no super PAC 

was before the district court and pass-through activity is already illegal. See Fed. 

Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 479 (2007) (“WRTL II”)

(discouraging “a prophylaxis-upon-prophylaxis approach to regulating expression”). 

At bottom, since Congressional intent in enacting FECA was an “effort to 

achieve total disclosure by reaching every kind of activity,” Buckley, 424 U.S. at 76 

(quotation marks and citation omitted), a phrase the Supreme Court did not intend 

as a compliment, the district court imposed what it thought was required by that 

intention—whatever the constitutional consequence. Chevron, U.S.A., Inc. v. 

Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843 (1984) (“If the 

intent of Congress is clear, that is the end of the matter; for the court, as well as the 

agency, must give effect to the unambiguously expressed intent of Congress”).

In the context of a typical Administrative Procedure Act case with mere 

financial equities at stake, perhaps such an approach would have been appropriate. 

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But here, it was error for the district court to give such short shrift to the 

Commission’s efforts to regulate with an eye toward maximizing privacy in 

“association...a ‘basic constitutional freedom,’ that is ‘closely allied to freedom of 

speech and right which, like free speech, lies at the foundation of a free society.’” 

Buckley, 424 U.S. at 25 (internal citation omitted) (quoting Kusper v. Pontikes, 414 

U.S. 51, 57 (1973); Shelton v. Tucker, 364 U.S. 479, 486 (1960)). 

Just three years ago, this Court emphatically affirmed the FEC’s “unique 

prerogative to safeguard the First Amendment when implementing its congressional 

directives.” Van Hollen, 811 F.3d at 501; cf. WRTL II., 551 U.S. at 474 (“Where the 

First Amendment is implicated, the tie goes to the speaker, not the censor”). The 

district court erred in not following that guidance.

5

Undoing the Commission’s efforts to “tailor the regulations such that they 

both effectuate [FECA’s] purpose in disclosure while also minding carefully the 

constitutional interests in privacy also at stake” had significant ramifications. Van 

 5 The district court argued that Van Hollen was inapposite because this Court referred 

to the agency’s balancing act after it determined the statute at issue was ambiguous 

and Congress could not have anticipated the need to regulate disclosure of corporate 

electioneering communications. CREW, 316 F. Supp. 3d at 409. But the dictates of 

the Constitution always trump the vicissitudes of Chevron review. U.S. Const. art. 

VI, cl. 2. Moreover, just as the 2002 Congress could not have anticipated the 

Supreme Court’s decision to permit certain corporate electioneering 

communications, it is impossible to assume the 1979 Congress could have foreseen 

the Supreme Court’s decision in Citizens United, which allowed corporations like 

Crossroads GPS to make independent expenditures.

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Hollen, 811 F.3d at 499. The disclosure regulation at issue here did not simply apply 

to Crossroads GPS. It protected many groups. The district court struck down these 

protections on the basis of facts carefully chosen by an activist, non-governmental 

plaintiff, in a single case, involving an organization that is not representative of the 

larger regulated community. Ctr. for Responsive Politics, “2018 Outside Spending, 

by Group”6 (showing that the vast majority of groups making independent 

expenditures spent far less than $1 million in 2018); cf. CREW, 316 F. Supp. 3d at 

359 (“Crossroads GPS ultimately reported spending $6,363,711 in independent 

expenditures in the 2012 Ohio race opposing Senator Brown...”)

That is the worst of all worlds. Instead of general notice and comment open 

to the whole public, a federal court invalidated a constitutionally-protective 

regulation based upon a limited record involving a carefully chosen defendant. 

Instead of a consideration of both the statute and the many ways in which it has been 

narrowed by the courts, the district court sliced text from context to engineer a result 

aimed at stifling super PACs—a type of regulated committee that was not before it. 

And instead of a situation where an agency makes its decision and defends it,7 certain 

 6

https://www.opensecrets.org/outsidespending/summ.php?cycle=2018&chrt=V&di

sp=O&type=I

7 It is noteworthy that this case is before this Court due to an administrative 

complaint that was dismissed by the Commission in its prosecutorial discretion. 

Nevertheless, it has been transmogrified into a facial attack on a regulation. See 

Crossroads Br. at 22-34 (arguing that Appellee is not entitled to attack 11 C.F.R. § 

109.10(e)(1)(vi)); cf. Natural Resources Defense Council, Inc. v. U.S. Food and 

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members of the Commission appear to have intentionally outsourced their agency’s 

responsibilities to private, agenda-driven actors.8 Cf. Buckley, 424 U.S. at 66 (need 

for “strict test[s]” and suspicion of regimes which would enact more disclosure).

Left to stand, then, the district court’s decision will serve as a homing beacon 

for additional regulation-via-targeted-litigation. That is not a recipe for the 

considered rulemaking required by the Administrative Procedure Act and public 

notice and comment, because the resulting “rules” will be based only on carefully 

cherry-picked cases. And because this approach will only be available to those who 

seek greater enforcement, it will inevitably serve as a one-way regulatory ratchet–

despite the First Amendment concerns presented, uniquely, in this regulatory sphere. 

Krishan, Elections Commission Chief... (“More than a third of the current litigation 

against the FEC has been filed by CREW”). This cannot be what Congress intended, 

nor what the judiciary should wish. Cf. Van Hollen, 811 F.3d at 499 (“By tailoring 

 

Drug Admin., 760 F.3d 151, 171 (2d Cir. 2014) (“Ordinarily, administrative 

discretion is at its zenith when an agency decides whether to initiate enforcement 

proceedings”).

8 The Commission has shown an unwillingness to appeal cases, including this one, 

and its Chair has expressed a policy of not defending even its own enforcement 

decisions and, possibly, ignoring court orders that are contrary to her personal policy 

preferences. Nihal Krishan, Elections Commission Chief Uses the “Nuclear Option” 

to Rescue the Agency From Gridlock, Mother Jones, Feb. 20, 2019 (“[T]he agency’s 

new chair says she won’t allow FEC lawyers to defend the government when the 

FEC has been sued for not enforcing the law,” and “Weintraub says she might pursue 

a second nuclear option: refuse to comply with...court order[s]”); 

https://www.motherjones.com/politics/2019/02/elections-commission-chief-usesthe-nuclear-option-to-rescue-the-agency-from-gridlock/.

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the disclosure requirements to satisfy constitutional interests in privacy, the FEC 

fulfilled its unique mandate”).

II. The district court’s decision inadvertently created a new 

constitutional dilemma.

Given the district court’s reliance on a limited record and its decision not to 

emphasize the constitutional limitations imposed by Buckley and its progeny, it is 

unsurprising that its order has accidentally opened a new First Amendment question. 

The district court averred that its order would not force universal disclosure of all

donors who give to nonprofit, non-political committees such as Crossroads GPS. 

CREW, 316 F. Supp. 3d at 400 (discounting as “erroneous” the “plaintiffs’...view 

of the [statute]...as requiring identification of all contributors over $200 to a notpolitical committee”) (emphasis in original); cf. 26 U.S.C. § 6104(d)(3)(A) 

(privileging the confidentiality of donors to § 501(c) nonprofit corporations). Rather, 

the district court limited its ruling to “only those donors contributing” over $200 “for 

political purposes to influence any federal election.” CREW, 316 F. Supp. 3d at 400

(emphasis supplied); see Buckley, 424 U.S. at 23, n.24 (“[D]ollars given to another 

person or organization that are earmarked for political purposes are contributions 

under the Act”).

But the phrase “for political purposes” was never explained by either the 

Buckley Court or the court below. CREW, 316 F. Supp. 3d at 372. And after Buckley 

was handed down, Congress never amended FECA’s definition of “contribution” to 

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14

give concrete meaning to the phrase. This is unfortunate, because the phrase is 

inherently vague, and might be read to cover contributions funding “completely 

nonpartisan public discussion of issues of public importance” or “issue discussions 

unwedded to the cause of a particular candidate, [which] hardly threaten the purity 

of elections,” rather than candidate advocacy. Buckley v. Valeo, 519 F.2d 821, 832, 

873 (D.C. Cir. 1975) (en banc); see also Wis. Right to Life, Inc. v. Barland, 751 F.3d 

804, 832 (7th Cir. 2014) (“the statutory definition of ‘political purposes’...is vague 

and overbroad”). The Second Circuit, specifically in the context of FECA, conceded 

that the Constitution demands that this phrase must be “give[n] content.” Fed. 

Election Comm’n v. Survival Educ. Fund, 65 F.3d 285, 294 (2d Cir. 1995). 

11 C.F.R. § 109.10(e)(1)(vi) avoided this issue entirely, by only requiring the 

disclosure of contributions specifically earmarked for an independent expenditure.

But with that regulation vacated, the safe harbor has been dammed and drained.9

Organizations that once knew precisely what donors to report—contributors that 

earmarked their gift for the propagation of a specific independent expenditure—must 

now guess as to which donors to report, or outsource the question to compliance 

 9 Amicus has submitted a petition to the Federal Election Commission for a 

rulemaking on this question. But given the posture of this very case, even a 

regulation that provides a definition for “political purposes” may only spur another 

round of litigation.

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15

attorneys.10 Citizens United, 558 U.S. at 324 (“The First Amendment does not permit 

laws that force speakers to retain a campaign finance attorney”). 

Presented with this quandary, other groups will no doubt cease making 

independent expenditures, given the civil and criminal penalties for improper 

reporting and the possibility that they will become targets for their ideological 

opponents. 52 U.S.C. § 30109 (providing for civil and criminal enforcement for, 

inter alia, reporting violations under FECA); Thomas v. Collins, 323 U.S. 516, 535 

(1945) (“Whether words intended and designed to fall short of invitation would miss 

that mark is a question of both intent and of effect...Such a distinction offers no 

security”). Self-silence will only dampen our national debate, which ought to “be 

uninhibited, robust, and wide-open.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 

(1964); see also Citizens United, 558 U.S. at 393 (“We should celebrate,” not 

“condemn the addition of this speech to the public debate”) (Scalia, J., concurring).

At a bare minimum, this Court must provide meaning to the phrase “for 

political purposes.” If it chooses to act, it should apply the remedy given by the 

Second Circuit. There, the court simply made “for political purposes” synonymous 

with the express advocacy limitation imposed by the Buckley Court on the definition 

of independent expenditure. Survival Edu. Fund, 65 F.3d at 295. This approach 

 10 An option for well-financed operations like Appellant, certainly, but not for 

smaller grassroots groups.

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16

would reinforce the Supreme Court’s cornerstone campaign finance precedent and 

avoid the “shoals of vagueness,” Buckley, 424 U.S. at 78, while creating sensible 

parity for the scope of “contributions” and “expenditures”—the two central concepts 

of the campaign finance system.

A better approach, however, would be for the Court to reverse, upholding the 

FEC’s considered regulatory judgment and the constitutional constraints under 

which it operates. If Appellee Citizens for Responsibility and Ethics in Washington

wishes to change that regulation, it ought to do so by petitioning its government for 

a statutory change or by bringing a rulemaking petition before the agency itself, so 

that the merits and demerits of contribution reporting are treated in full, rather than 

on a narrow record concerning a single, specifically targeted entity.

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CONCLUSION

11 C.F.R. § 109.10(e)(1)(vi) constitutes the FEC’s “able attempt to balance 

the competing values that lie at the heart of campaign finance law” in accordance 

with its “unique prerogative to safeguard the First Amendment when implementing 

its congressional directives.” Van Hollen, 811 F.3d at 501. It should be reinstated. 

Respectfully submitted,

/s/ Allen Dickerson

Allen Dickerson (D.C. Cir. No. 54137) 

Zac Morgan (D.C. Cir. No. 61231)

INSTITUTE FOR FREE SPEECH

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703.894.6800

Facsimile: 703.894.6811

adickerson@ifs.org

Counsel for Amicus Curiae

USCA Case #18-5261 Document #1778184 Filed: 03/18/2019 Page 26 of 28
18

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume limitation set 

forth in Rule 32(a)(7)(B)(ii) of the Federal Rules of Appellate Procedure because it 

contains 3,797 words, according to a word count by Microsoft Word 2016, excluding 

the parts of the brief exempted by Circuit Rule 32(e)(1). 

This brief complies with the typeface requirements of Rule 32(a)(5) because 

it has been prepared in a proportionally-spaced typeface—Times New Roman—

using 14-point font.

/s/ Allen Dickerson

Allen Dickerson (D.C. Cir. No. 54137) 

Zac Morgan (D.C. Cir. No. 61231)

INSTITUTE FOR FREE SPEECH

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703.894.6800

Facsimile: 703.894.6811

adickerson@ifs.org

Counsel for Amicus Curiae

USCA Case #18-5261 Document #1778184 Filed: 03/18/2019 Page 27 of 28
19

CERTIFICATE OF SERVICE

I hereby certify that on March 18, 2019, I caused the foregoing to be filed 

with the Clerk of this Court via the appellate CM/ECF system. Counsel for all 

parties in the instant matter are registered CM/ECF users and will be served by 

the appellate CM/ECF system.

/s/ Allen Dickerson

Allen Dickerson (D.C. Cir. No. 54137) 

Zac Morgan (D.C. Cir. No. 61231)

INSTITUTE FOR FREE SPEECH

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703.894.6800

Facsimile: 703.894.6811

adickerson@ifs.org

Counsel for Amicus Curiae

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