1 

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, 

Intervenor Defendant-Appellant, 

v. 

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON

& NICHOLAS MEZLAK, 

Plaintiffs-Appellees, 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

____________________ 

On Appeal from the United States District Court for the District of Columbia 

Case No. 1:16-cv-00259-BAH 

____________________ 

PLAINTIFFS-APPELLEES’ OPPOSITION TO DEFENDANTAPPELLANT CROSSROADS GRASSROOTS POLICY STRATEGIES’S 

EMEREGENCY MOTION FOR A STAY PENDING APPEAL 

Having had every one of its arguments rejected below, Defendant-Appellant 

Crossroads Grassroots Policy Strategies (“Crossroads”) now seeks the 

“extraordinary remedy” of a stay pending its appeal, Cuomo v. U.S. Nuclear 

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Regulatory Comm’n, 772 F.2d 972, 978 (D.C. Cir. 1985) (per curiam), a remedy 

that will do immeasurable damage to the American people by “depriv[ing] the 

electorate of donor information that was intended and supposed to be disclosed,” 

Op. 96.1

 Indeed, Crossroads’s motion appears calculated to deny voters in the next 

federal election knowledge about “[t]he sources of a candidate’s financial support” 

before they must cast their ballot. Buckley v. Valeo, 424 U.S. 1, 67 (1976). 

Crossroads fails, however, to meet the “stringent requirements” for the relief 

it seeks. Van Hollen v. FEC, Nos. 12-5117, 12-5118, 2012 WL 1758569 (D.C. 

Cir. 2012) (per curiam). It fails to show any likelihood of success in its appeal and, 

in fact, it cannot do so. Indeed, as the court below held in its thorough and wellreasoned opinion, the FEC regulation limiting disclosure by those making 

independent expenditures to only campaign contributors who contribute to fund 

“the reported” independent expenditure—a category so narrowly defined as to be 

nonexistent, see Op. 7, 8 —is inconsistent with the Federal Election Campaign 

Act’s far broader command to report the sources of “all contributions” over $200 

and to further identify those who contribute for the purpose of furthering “an” 

independent expenditure. Op. 53–92. Further, Crossroads fails to show any 

cognizable and irreparable harm, fails to show its requested relief will not harm 

appellees Citizens for Responsibility and Ethics in Washington and Nicholas 

 

1

 Crossroads Mot. Add. B.

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Mezlak (together “CREW”), and utterly fails to show that the public interest favors 

a stay. Accordingly, CREW respectfully requests this Court deny Crossroads’s 

motion.2

BACKGROUND 

In 1979, Congress amended the FECA’s reporting provisions for those who 

make “independent expenditures,” FECA Amendments of 1979, Pub. L. 96-187, 

§ 104(c), 93 Stat. 1339, 1354 (1980), defined as communications that expressly 

advocate for the election or defeat of a federal candidate, 52 U.S.C. § 30101(17). 

Mirroring the prior statute’s requirements for those making independent 

expenditures,3

 the 1979 Amendments imposed two separate but complementary 

reporting obligations. First, the amendments imposed parallel reporting 

obligations for political committees and on others making $250 in independent 

expenditures, mandating that “[qualifying persons] shall file a statement containing 

the information required under subsection (b)(3)(A) for all contributions received 

by such person.” PL 96-187, § 304(c)(1) (emphasis added) (codified at 52 U.S.C. 

 

2

 Crossroads’s request to stay CREW’s FECA claim is now moot. Crossroads 

Mot. 10; FEC Resp. to Mot. 

3

 The decision below provides a lengthy discussion of the history of the relevant 

portions of the FECA. See Op. 25–35.

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§ 30104(c)(1)). The referenced subsection (b)(3)(A) mandates disclosure of the 

identities of contributors of more than $200 annually, 52 U.S.C. § 30104(b)(3)(A).4

 

Second, the amendments required those making independent expenditures 

identify “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.” PL 96-187, § 304(c)(2)(C) (emphasis added) (codified at 52 U.S.C. 

§ 30104(c)(2)(C)). Previously, contributors self-reported if they contributed to 

fund any independent expenditure. Op. 30–32. The amendments shifted that 

burden on to those making the independent expenditure to “[s]implif[y] reporting 

without affecting meaningful disclosure.” Op. 85 n. 33. 

Notwithstanding these unambiguous statutory commands, the FEC issued a 

regulation that failed to capture the dual reporting requirements Congress imposed. 

In conducting the rulemaking, the FEC initially published draft regulations which 

reflected the second reporting obligation—that the maker of the independent 

expenditure report the identity of those contributing more than $200 “for the 

purpose of furthering an independent expenditure,” Op. 38 (quoting 45 Fed. Reg. 

 

4

 While parallel in scope, they are not parallel in duration. Compare 11 C.F.R. 

§§ 102.3, 104.5 with 11 C.F.R. § 109.10(b)–(d). Further, all funds donated to a 

political committee are contributions because political committees are “by 

definition, campaign related,” Buckley, 424 U.S. 78, while only donations to those 

making independent expenditures “for the purpose of influencing elections” are 

contributions, Op. 55. 

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5564)—but proposed no regulation reflecting the first reporting obligation. The 

FEC then issued a final regulation which still omitted the subsection (c)(1) 

reporting obligation, but now also inexplicably changed the scope of reporting 

under subsection (c)(2)(C) to require only the reporting of contributions given “for 

the purpose of furthering the reported independent expenditure.” Id. at 39 

(emphasis added); 11 C.F.R. § 109(e)(1)(vi). The rulemaking record reveals no 

reason for this change. Op. 39. 

In its public explanation for the regulation, the FEC issued a single sentence 

stating that it was intended to “incorporate the changes set forth in 2 U.S.C. 

[§] [30104](c)(1) and (2) regarding reporting requirements for persons, other than 

political committee, who make independent expenditures.” Op. 39 (quoting 45 

Fed. Reg. 14831, 15087) (Mar. 7, 1980)); see also 11 C.F.R. § 109(e)(1)(vi). It 

offered no explanation, or indeed any recognition, of its variance in the language 

from that of subsection (c)(2)(C) or its omission of subsection (c)(1)’s requirement. 

The FEC subsequently interpreted the regulation to require reporting only 

where a contributor “earmarked contributions for specific expenditures in the 

precise form set out in a particular report.” Op. 80. Accordingly, the FEC has 

found the regulation did not require reporting of contributions where the reporter 

knew funds were given to “support the election” of a specific federal candidate, 

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Op. 102, or where the contributors were solicited after watching “example” 

independent expenditures, Op. 88. 

In an action arising from the application of the invalid regulation to CREW 

in an administrative proceeding, see Op. 47–48, the court below considered the 

reporting obligations imposed by 52 U.S.C. § 30104(c)(1) and (c)(2)(C) and found 

they “unambiguously require separate and complementary” reports of contributors 

and “mandate significantly more disclosure than” 11 C.F.R. § 109.10(e)(1)(vi). 

Op. 92. Evaluating the factors outlined in Allied-Signal, Inc. v. Nuclear 

Regulatory Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 1993), the district court 

further found vacatur was the proper remedy. Op. 93–99. The district court 

recognized the “regulation has deprived the electorate of donor information that 

was intended and supposed to be disclosed” and that remand rather than vacatur 

raised the “significant concern” about the proven “inaction by the FEC to address 

flaws” in the regulation.5

 Op. 96, 99 

ARGUMENT 

Crossroads seeks “an extraordinary remedy.” Cuomo, 772 F.2d at 978. A 

stay pending appeal is “an intrusion into the ordinary processes of administration 

and judicial review . . . and accordingly is not a matter of right, even if irreparable 

 

5 The FEC has known since at least 2011 that the regulation is inconsistent with the 

statute but has refused to take action. See Op. 13–15.

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injury might otherwise result to the appellant.” Nken v. Holder, 556 U.S. 418, 427 

(2009). As a result, Crossroads must meet “stringent requirements,” Van Hollen, 

2012 WL 1758569, at *1, and bears the “heav[y]” burden of justifying the exercise 

of such an extraordinary remedy, Landis v. N. Am. Co., 299 U.S. 248, 255–56 

(1936). 

Specifically, Crossroads must “‘(1) . . . [make] a strong showing that [it] is 

likely to succeed on the merits; (2) [show it] will be irreparably injured absent a 

stay; (3) [show] the stay will [not] substantially injure the other parties; and (4) . . . 

[show] the public interest lies’” in favor of a stay. Nken, 556 U.S. at 426 (citation 

omitted); accord Doe 1 v. Trump, No 17-5267, 2017 WL 6553389, at *1 (D.C. Cir. 

Dec. 22, 2017); D.C. Cir. R. 8(a)(1). Crossroads fails to show any of these factors 

favor a stay here. 

A. Crossroads Fails to Make a Strong Showing of a Likelihood of 

Success on Appeal 

1. The District Court Rightfully Rejected Crossroads’s Suggestions to 

Ignore the Clear Statutory Text 

Crossroads’s motion immediately falters because, rather than make a strong 

showing of a likelihood of success in reversing the district court’s well-reasoned 

decision below, it resorts to misconstruing the court’s analysis to attack straw men, 

while ignoring the reasoning the district court actually gave. 

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Below, Crossroads argued that the regulation was valid because the agency 

and the court were free to ignore the plain text of the FECA, which requires those 

making independent expenditures (1) disclose “all contributions” over $200 

annually in the same manner that political committees do, and (2) identify 

contributors who intended to fund “an independent expenditure.” 52 U.S.C. 

§ 30104(c)(1), (c)(2)(C). Crossroads argued that the FECA “does not require 

disclosure at all costs,” Crossroads Mot. 11 (quoting Van Hollen v. FEC, 811 F.3d 

486, 494–95 (D.C. Cir. 2012)), and that the FEC could thus ignore the disclosure 

Congress had commanded to supplant it with a narrower focus. The district court 

rightfully rejected that argument. Op. 77. 

Now Crossroads remarkably tries to argue that it was the district court that 

relied on an over-expansive purposive analysis at the cost of the text. Crossroads 

Mot. 11. But even a cursory reading of the district court’s opinion shows it found 

the statute was unambiguous based on the text itself, the structure of the FECA, the 

statutory history, and contemporary dictionary definitions. Op. at 53–60.6

 The 

district court further recognized that the Supreme Court had also previously 

 

6

 Crossroads faults the district court for recognizing the FECA commands the same 

“broad disclosure” from those making independent expenditures as from political 

committees. Crossroads Mot. 11. But the court did so to reject defendants’ 

suggestion that it ignore the unambiguous text of subsection (c)(1), which 

expressly incorporates by reference the reporting obligations of political 

committees under subsection (b)(3)(A). See Op. 76–77, 88. 

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interpreted the relevant statutory sections to provide “two donor requirements” that 

included the obligation to “identify all contributors who annually provide” $200 

“to influence elections,” and that “the Supreme Court’s unequivocal description of 

this statutory section is probative of what the plain text says.” Op. 60–62 

(discussing FEC v. Mass. Citizens for Life, 479 U.S. 238, 262 (1986)). 

Crossroads also insists that “contribution” is vague because it is defined in 

the statute as funds “intended to influence elections” and by the Supreme Court as 

funds “earmarked for political purposes,” and therefore the FEC could ignore 

subsection (c)(1). Crossroads Mot. 12. Even if there were some ambiguity as to 

what a contribution is (and there is not7

), Congress still commanded the same 

disclosure of “all” contributors that it imposes on political committees, which 

alone invalidates the regulation. See City of Arlington, Tex. v. FCC, 569 U.S. 290, 

296 (2013). Further, it was the Supreme Court that defined funds “intended to 

influence elections” to include funds “earmarked for political purposes,” Buckley, 

424 U.S. at 78, which it did to render the statute not vague, see id.; Mott v. FEC, 

 

7

 Both the FECA and FEC implementing regulations contain long explanations of 

what is and is not a contribution. See 52 U.S.C. § 30101(8)(a)(1)–(b)(xiv); 11 

C.F.R. §§ 100.71–94. The mere fact there may be “close cases” on the facts does 

not mean the definition is vague. United States v. Williams, 553 U.S. 285, 305–06 

(2008).

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494 F. Supp. 131, 136 (D.D.C. 1980) (recognizing Buckley interpreted 

“contribution” to eliminate vagueness).8

2. The District Court Had Jurisdiction Below 

Crossroads also tries to resuscitate a twice-rejected argument that CREW 

lacked standing to challenge the regulation. Crossroads Mot. 12–15. As the 

district court properly held, the FEC “applied” the regulation to CREW in 

dismissing CREW’s administrative complaint, depriving CREW of access to 

information to which it is legally entitled. Op. 47–48 (citing Weaver v. Fed. Motor 

Carrier Safety Admin., 744 F.3d 142, 145 (D.C. Cir. 2014)); AT&T Co. v. FCC, 

978 F.2d 727 (D.C. Cir. 1992)); see also Op. 17 (discussing prior denial of motion 

to dismiss on same grounds). As before, Crossroads bootstraps irrelevant issues—

whether the FEC could lawfully dismiss CREW’s complaint on remand as timebarred or because Crossroads relied on the regulation, and whether prosecutorial 

discretion blocked CREW’s FECA claim—on to its attack on CREW’s standing. 

 

8

 Crossroads also improperly introduces evidence not presented below. See 

Crossroads Mot. 6 & Add. D, E. Regardless, Crossroads’s nonsensical underlining 

of the word “the” everywhere it can find it in the historical record does not 

somehow imply that Congress must have meant to use “the” and not “an” in 52 

U.S.C. § 30104(c)(2)(C). See id. The district court properly rejected this absurd 

form of statutory interpretation. See Op. 83–86 & n.45. “Congress knew the 

difference between ‘[the]’ and ‘[an]’ and used the words advisedly.” Pillsbury v. 

United Eng’g Co., 342 U.S. 197, 199 (1952). Nor does the form Crossroads cites 

help it: it required contributors to report, even if the eventual independent 

expenditure differed in form and content. See Crossroads Mot., Add. E; cf. Op. 80.

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Crossroads Mot. 13–15. Yet Crossroads continues to miss the point. It is because 

the regulation blocks CREW’s access to information, whether directly or because 

groups like Crossroads can rely on it to block FEC enforcement, that CREW is 

injured by the regulation. CREW’s past and future lack of access will be remedied 

when the regulation is struck.9

 

In short, Crossroads provides no grounds to think it has any possibility of 

success on the merits of its appeal, never mind a “strong showing” of likely 

success. Nken, 556 U.S. at 426; Van Hollen, 2012 WL 1758569, at *1 (Rogers, J.). 

B. Crossroads Fails to Show Any Irreparable Injury 

To justify the extraordinary remedy of a stay, a showing of irreparable harm 

is crucial, see Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985), even if 

insufficient, Nken, 556 U.S. at 427 (“A stay . . . is not a matter of right, even if 

irreparable injury might otherwise result to the appellant.”). The harm must be 

both “certain and great; it must be actual and not theoretical,” and where the harm 

has not yet occurred, the burden is even higher: the movant must “pro[ve] . . . the 

harm is certain to occur in the near future” and the “harm will directly result” from 

 

9

 The issues Crossroads raises go only to the possibility of relief on CREW’s 

FECA claim, which is now moot, and have no bearing on CREW’s APA claim 

against the regulation. Crossroads is also wrong that those issues barred CREW’s 

FECA claim, as the court explained below. Op. 109–110 & n.57. 

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the decision below. Wis. Gas, 758 F.2d at 674. Crossroads proves no such harm 

here. 

Indeed, in its entire argument supposedly devoted to the irreparable harm it 

will face, Crossroads never mentions anything that will actually happen to it. See 

Crossroads Mot. 15–22. Rather, it misleadingly conflates the second (irreparable 

harm) and fourth (public interest) factors, then exclusively focuses on what it 

asserts is the public’s interest. 

At best, Crossroads speculates that groups like it “will be forced to decide 

whether to refrain from speaking at all pending appeal or risk exposing their 

donors.” Crossroads Mot. 21.10 Yet this Court has already found that the risk of 

disclosure of donors for those engaging in campaign advocacy is not “an 

irreparabl[e] injur[y]” because disclosures do not “prevent [the movant] from 

speaking.” Van Hollen, 2012 WL 1758569, at *1, *3 (Rogers, J.). Indeed, that 

case considered and rejected an identical request from an intervening defendant to 

 

10 Crossroads notably does not state that it intends to run any independent 

expenditures before the 2018 elections. Indeed, Crossroads has not run any such 

ads since 2014. See FEC, Independent Expenditures, Crossroads Grassroots Policy 

Strategies (last visited Sept. 3, 2018), https://bit.ly/2wN08dz (showing 

Crossroads’s last independent expenditure was October 31, 2014). There is no 

reason, therefore, to think the independent expenditure reporting rules will apply to 

Crossroads. Cf. Crossroads Mot., Add. F, ¶ 10 (Aff. of Steven Law) (asserting 

Crossroads “would like to maintain the ability” to make anonymous independent 

expenditures, but not that it actually intends and has concrete plans to do so). 

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stay a district court order invalidating an FEC regulation, which the intervenors 

argued would require them to file disclosures. Id. at *2–3. 

The Court should reject that request again here. The disclosure Crossroads 

fears “could” happen has been upheld against First Amendment challenge in 

numerous cases, even where it does chill speech. See Citizens United v. FEC, 558 

U.S. 310, 370 (2010) (holding disclosure laws were warranted despite “chill [to] 

donations to an organization”); McConnell v. FEC, 540 U.S. 93, 690–92 (2003); 

Buckley, 424 U.S. at 68. Even the loss of contributors for fear of disclosure does 

not render the regulation unconstitutional. Buckley, 424 U.S. at 68 (recognizing 

“public disclosure of contributions . . . will deter some individuals who otherwise 

might contribute” but nonetheless “appear[s] to be the least restrictive means of 

curbing the evils of campaign ignorance and corruption”); United States v. Fin. 

Comm. to Re-Elect the President, 507 F.2d 1194, 1200 (D.C. Cir. 1974) 

(speculation of chill to donors insufficient to warrant relief). As Crossroads cannot 

“show that their First Amendment interests are . . . in fact being impaired” by the 

application of the statute, it cannot establish irreparable injury from such 

application. See Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 

301 (D.C. Cir. 2006). 

Crossroads attempts to convert its noninjury into an irreparable injury by 

suggesting that it might stop making independent expenditures due to the court’s 

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ruling, inferring that the statute would therefore cause it First Amendment injury. 

Crossroads Mot. 21. But “self-censorship resulting from a statute is not enough to 

render [a law] unconstitutional.” Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 

60 (1989); accord Am. Library Ass’n v. Reno, 33 F.3d 78, 87 (D.C. Cir. 1994). 

Crossroads may believe it is “chill[ed],” Crossroads Mot. 1, but “subjective chill” 

is not a substitute for proof of “specific present objective harm or a threat of 

specific future harm,” Laird v. Tatum, 408 U.S. 1, 13–14 (1972). 

In sum, Crossroads fails to prove any irreparable injury will certainly befall 

it because of the Court’s decision. Rather, it merely recognizes that it will be 

required to report its contributors, consistent with its First Amendment rights. 

That, however, is not an injury that could warrant the requested stay. 

C. A Stay Would Substantially Harm CREW 

The regulation at issue here has deprived CREW of information to which it 

is legally entitled: the identities of those who contributed to those making 

independent expenditures. See FEC v. Akins, 524 U.S. 11, 24–25 (1998) (lack of 

access to information is an injury); Shays v. FEC, 528 F.3d 914, 923 (D.C. Cir. 

2008) (same). CREW further needs access to such information to carry out its 

mission to “protect[] the rights of citizens to be informed about the activities of 

government officials, ensuring the integrity of government officials, protecting our 

political system against corruption, and reducing the influence of money in 

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politics.” Op. 5. The continued existence of the regulation will continue to injure 

CREW. Van Hollen, 2012 WL 1758569, at *1 (Rogers, J.). Indeed, Crossroads 

brings this motion for the very purpose of denying CREW and others access to the 

information to which they are legal entitled. Crossroads Mot. 21. 

Crossroads asserts, however, that because CREW has suffered this injury 

before, the court below lacked jurisdiction. Crossroads Mot. 22. Yet Crossroads 

cites nothing for that principle.11 Rather, CREW is entitled to know the 

contributors behind every qualifying independent expenditure, and CREW’s 

deprivation of such information for past communications does nothing to mitigate 

the injury to CREW from every new independent expenditure report that omits the 

information required by 52 U.S.C. § 30104(c)(1) and (c)(2)(C), including those 

that would be issued during any extended stay here. 

Finally, Crossroads asserts the lack of a stay would harm the FEC—an 

argument it has no standing to make. Warth v. Seldin, 422 U.S. 490, 498 (1975). 

Moreover, the fact that the FEC has neither appealed the judgment nor sought a 

stay demonstrates that it does not share Crossroads’s view. See FEC Resp. to Mot. 

 

11 Similarly, that CREW did not submit a comment in one public request for a 

rulemaking does not undercut CREW’s injury. See Op. 14 n.8. Crossroads cites 

nothing that would render CREW’s standing conditional on prior participation in 

such a proceeding. At any rate, CREW submitted comments to the FEC about the 

regulation’s invalidity at other times, Op. 105 n.54, including by means of the 

administrative complaint below. 

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D. The Public Interest Strongly Favors Denying the Stay 

Finally, the public interest here weighs heavily against a stay. The public 

interest is a “uniquely important consideration” in evaluating a request for the 

extraordinary remedy of a stay pending appeal. Nat’l Ass’n of Farmworkers Orgs. 

v. Marshall, 628 F.2d 604, 616 (D.C. Cir. 1980). A long line of cases show the 

public’s interest is in knowing “who is speaking about a candidate and who is 

funding that speech.” SpeechNow.org v. FEC, 599 F.3d 686, 698 (D.C. Cir. 2010). 

“Campaign finance law has long recognized the value of disclosure as a 

means of enabling the electorate to make informed decisions about candidates, to 

evaluate political messaging, to deter actual, or the appearance of, corruption, and 

to aid in enforcement of the ban on foreign contributions, which may result in 

undue influence on American politicians.” Op. 1–3 (citing Citizens United, 558 

U.S. at 366–71; Buckley, 424 U.S. at 64–68; SpeechNow.org, 599 F.3d at 689;

Bluman v. FEC, 800 F. Supp. 2d 281, 283, 288 n.3 (D.D.C. 2011) (Kavanaugh, 

J.)). The statutory provisions at issue here are squarely “part of Congress’ efforts 

to achieve ‘total disclosure’ by reaching ‘every kind of political activity’ in order 

to ensure that voters are fully informed and to achieve through publicity the 

maximum deterrence to corruption and undue influence possible.’” Buckley, 424 

U.S. at 76 (quoting S. Rep. No. 229, 92d Cong., 2d Sess. at 57 (1971)). 

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Standing against these overwhelming interests, Crossroads contends that the 

public also has an interest in anonymous and unaccountable speech, and that 

disclosure might reduce the amount of speech created. Crossroads Mot. 17. 

Congress, however, considered those interests and decided they weighed in favor 

disclosing of “all contributions” over $200. 52 U.S.C. § 30104(c)(1). Thus, the 

FECA itself reflects the public’s overwhelming interest in disclosure. Cuomo, 772 

F.2d at 978 (the views of “Congress, the elected representatives of the entire 

nation,” are “another sense by which the public interest should be gauged”). 

The stay requested by Crossroads would severely undermine the public’s 

interest in disclosure, depriving the public of knowledge about the sources of huge 

sums spent in our elections. See Outside Spending by Disclosure, Excluding Party 

Committees, OpenSecrets.org (last visited Sept. 10, 2018), https://bit.ly/1AzZeKb

($57 million spent on election without disclosure in the 2018 election cycle so far). 

When foreign powers are interfering in our elections, that deprivation is 

particularly worrisome. See, e.g., Senate Select Committee on Intelligence, The 

Intelligence Community Assessment: Assessing Russian Activities and Intentions 

in Recent U.S. Elections (July 3, 2018), https://bit.ly/2u1i6GP (finding Russia 

engaged in covert attempts to influence recent U.S. elections through funding 

campaign communications). Indeed, the stay Crossroads requests would almost 

certainly deprive voters in the next federal election of information that Congress 

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determined was essential for them to have. A stay here would only serve to do 

immeasurable damage to the public, putting the very “free functioning of our 

national institutions” at risk. Buckley, 424 U.S. at 66. That is why this Court 

denied a stay pending appeal of another decision upholding the public’s interest in 

campaign finance disclosure. Van Hollen, 2012 WL 1758569, at *3 (Rogers, J). 

Unable to show that the public has an interest in knowing less about who is 

funding their candidates, Crossroads argues that courts should hesitate to change 

election procedures shortly before an election, lest it result in “voter confusion and 

consequent incentive to remain away from the polls.” Purcell v. Gonzalez, 549 

U.S. 1, 4–5 (2006). That principle has no application here. First, Crossroads fails 

to show how a change that will result in more information being made available to 

voters could result in voter “confusion.” Cf. id. at 5; STOP Hillary PAC v. FEC, 

166 F. Supp. 3d 643, 647–49 (E.D. Va. 2015) (refusing to enjoin provision 

designed to “alleviate the constant public confusion surrounding Political Action 

Committees” by preventing non-authorized PACs from using candidate names in 

their titles). Second, the change in law effected by the district court’s decision 

does not serve to upset expectations, leaving parties at a comparative disadvantage. 

Unlike the candidates in Lair v. Bullock, 697 F.3d 1200 (9th Cir. 2012), Crossroads 

has not been placed at a fundraising disadvantage, finding itself needing to 

unexpectedly play catchup in the final weeks before an election against an 

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opposing candidate who received a surprising windfall, id. at 1214. Rather, 

Crossroads is still free to spend as much as it previously had planned on 

independent expenditures. Cf. Respect Maine PAC v. McKee, 622 F.3d 13, 16 (1st 

Cir. 2010) (rejecting challenge that would deprive candidates of public matching 

funds within the “final weeks before an election”), McComish v. Brewer, No. cv08-1550-PHX-ROS, 2008 WL 4629337, at *10 (D. Ariz. Oct. 17, 2008) (same).12 

Moreover, the district court’s judgment, rendered many months before the 

upcoming mid-term election, did not impact an “impending” election. Purcell, 549 

U.S. at 5 (characterizing election within five weeks of decision as impending); see 

also Lair, 697 F.3d 1200 (refusing to issue order within three weeks of election); 

McKee, 622 F.3d at 16 (refusing to enjoin matching funds within four weeks of 

election); Catholic Leadership Coal. of Tex. v. Reisman, 2012 WL 12873174 

(W.D. Tex. July 20, 2012) (refusing to invalidate entire political committee 

regulatory structure eleven days before election). Crossroads ignores the fact that 

the decision below came out months before an election, and focuses instead on 

when the court’s 45-day stay expires. Crossroads Mot. 18. Yet, given that 

Purcell’s concern was with upset expectations, it is absurd to treat the end of the 

 

12 Crossroads cites Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 

564 U.S. 721 (2011), for the proposition that burdens on independent expenditure 

groups support a stay. But the Court there justified the stay based not on any need 

to avoid impacting an impending election, but rather on the plaintiffs’ likelihood of 

success on their First Amendment claim. See id. at 728. 

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20 

district court’s 45-day stay as the operative date. Voters and regulated parties had 

notice no later than August 3 (and likely well before then, see, e.g., Op. 107) that 

the regulation was invalid and that independent expenditure reports must meet the 

requirements of 52 U.S.C. § 30104(c)(1) and (c)(2)(C). 

Courts have been willing to make rulings impacting disclosure substantially 

similar to the district court’s decision at times far closer to elections. For example, 

in Van Hollen, the district court invalidated an FEC regulation limiting disclosure 

within four days of three elections; see Van Hollen v. FEC, 851 F. Supp. 2d 69 

(D.D.C. Mar. 30, 2012); FEC, 2012 Presidential Primary Dates and Candidate 

Filing Deadlines for Ballot Access (June 18, 2012), https://bit.ly/2PDkZXF (“FEC 

2012 Election Dates”) (showing elections on April 3, 2012), and within twentyfive days of five more elections, see id. (showing elections on April 24, 2012). 

And this Court refused to stay that decision, issuing its own decision on May 14, 

2012, within days of six more primary elections. Van Hollen, 2012 WL 1758569; 

FEC 2012 Election Dates (showing elections on May 29 and June 5, 2012). 

Finally, this Court reversed the district court and altered reporting requirements on 

September 18, 2012, Ctr. for Individual Freedom v. FEC, 694 F.3d 108 (D.C. Cir. 

2012), within the sixty-day window for electioneering communications for the 

2012 general election, see FEC 2012 Election Dates. This Court had no concern 

USCA Case #18-5261 Document #1749810 Filed: 09/10/2018 Page 20 of 25
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with issuing these decisions impacting campaign disclosure, notwithstanding their 

proximity to elections. 

Simply put, the relief Crossroads seeks—the indefinite violation of voters’ 

statutory right to information critical to the operation of our democracy, a right 

they now expect to finally be realized—would do immense damage to the public 

interest. That alone is sufficient for the Court to deny Crossroads’s motion. See 

Nat’l Ass’n of Farmworkers Orgs., 628 F.2d at 616 (court may “withhold relief in 

furtherance of the public interest”). 

* * * 

In sum, Crossroads has failed to carry its heavy burden here to meet the 

“stringent requirements” for a stay pending appeal. Van Hollen, 2012 WL 

1758569, at *1. 

E. Vacatur was the Appropriate Remedy, and This Motion is Not the 

Proper Vehicle to Seek Reconsideration of that Remedy 

Not only did the district court below exhaustively review the case on the 

merits, it also carefully and thoroughly determined the appropriate remedy. Op. 

93–99. Crossroads here improperly seeks to alter that remedy by obtaining a 

remand by default through an indeterminate stay of the decision. Cf. Fed. R. Civ. 

P. 60. Yet the court below properly analyzed the appropriate factors under AlliedSignal, Inc., 988 F.2d at 150–51, finding they “militat[e] strongly in favor of 

vacatur,” Op. 94. Crossroads provides no reason to second guess that decision. 

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See Stand Up for California! v. U.S. Dep’t of Interior, 879 F.3d 1177, 1190 (D.C. 

Cir. 2018) (reviewing district court’s equitable remedy for “abuse of discretion”). 

Contrary to Crossroads’s suggestion, the FEC does not enjoy a special right 

among agencies to keep invalid regulations on the books. Crossroads Mot. 20. 

This Court has recognized the “common remedy when [courts] find a rule is 

invalid is to vacate,” even for the FEC. Humane Soc’y of U.S. v. Zinke, 865 F.3d 

585, 614 (D.C. Cir. 2017); see also Emily’s List v. FEC, 581 F.3d 1, 25 (D.C. Cir. 

2009); Shays v. FEC, 414 F.3d 76, 95, 100–02 (D.C. Cir. 2005). Indeed, given the 

regulation is inconsistent with the statute, remand would be illogical: the only 

action the FEC can lawfully take on remand is to vacate the offending regulation. 

Heartland Reg’l Med. Ctr. v. Sebelius, 566 F.3d 193, 199 (D.C. Cir. 2009) (“[A] 

fundamental flaw . . . requires vacatur of the rule.”); N.J. v. EPA, 517 F.3d 574, 

583 (D.C. Cir. 2008) (regulation conflicting with statute’s “plain text” of “requires 

vacation”); Fox Television Stations, Inc. v. FCC, 293 F.3d 537, 541 (D.C. Cir. 

2002). 

Further, the district court properly found the risk of “disruptive 

consequences” favored vacatur, Op. 95, notwithstanding Crossroads’s fears of 

“chaos,” Crossroads Mot. 16. The district court reviewed defendants’ arguments, 

noted the lack of any evidence of the purported disruption and the strong evidence 

none would result, Op. 95–96, and compared that to the disruption to elections 

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from the continued denial of essential information for voters by allowing the 

regulation to stand, Op. 97. Further, the district court recognized that remand here 

would be an empty reward as the FEC has proven that it will “drag[] its feet” in 

correcting the error. Op. 98 & n.52. The district court did not abuse its discretion 

in awarding vacatur as a remedy.13 

Dated: Sept. 10, 2018. 

Respectfully submitted, 

/s/ Stuart McPhail 

Stuart C. McPhail 

smcphail@citizensforethics.org

(D.C. Bar. No. 1032529) 

/s/ Adam J. Rappaport 

Adam J. Rappaport 

arappaport@citizensforethics.org

(D.C. Bar No. 479866) 

Citizens for Responsibility and Ethics 

in Washington 

455 Massachusetts Ave., N.W. 

Washington, D.C. 20001 

Telephone: (202) 408-5565 

Fax: (202) 588-5020 

Attorneys for Citizens for Responsibility 

and Ethics in Washington and Nicholas 

Mezlak 

 

13 Crossroads’s motion also fails to comply with Fed. R. App. P. 8(a)(2)(A) 

because the district court has not “failed to afford the relief requested.” In fact, the 

briefing on it has not even completed. 

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1 

CERTIFICATE OF COMPLIANCE 

1. This document complies with the type-volume limit of Fed. R. App. P. 

32(a)(7)(B)) because, excluding the parts of the document exempted by Fed. R. 

App. P. 32(f) and Circuit Rule 32(e)(1): 

[ X ] this document contains [5,200] words, or 

[ ] this brief uses a monospaced typeface and contains [state the number of] lines of 

text. 

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. P. 32(a)(6) because: 

[ X ] this document has been prepared in a proportionally spaced typeface 

using Microsoft Word 2016 in 14pt Times New Roman; or 

[ ] this document has been prepared in a monospaced typeface using [state 

name and version of word-processing program] with [state number of 

characters per inch and name of type style]. 

Dated: September 10, 2018 /s/ Stuart C. McPhail

 Counsel for Appellees

USCA Case #18-5261 Document #1749810 Filed: 09/10/2018 Page 24 of 25
1 

CERTIFICATE OF SERVICE 

I hereby certify that on September 10th, 2018, I electronically filed the 

foregoing document with the Clerk of Court for the United States Court of Appeals 

for the District of Columbia Circuit by using the appellate CM/ECF system, 

thereby serving all persons required to be served. 

/s/ Stuart McPhail 

Stuart C. McPhail 

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