UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 18-76 (RC) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) MEMORANDUM 

 ) 

 Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S MEMORANDUM IN SUPPORT OF ITS 

MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO PLAINTIFFS’ 

MOTION FOR SUMMARY JUDGMENT 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

Haven G. Ward (D.C. Bar No. 976090) 

Attorney 

hward@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Charles Kitcher (D.C. Bar No. 986226) 

Acting Assistant General Counsel 

ckitcher@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, D.C. 20463 

(202) 694-1650 

August 24, 2018 

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i

TABLE OF CONTENTS 

 

 Page 

INTRODUCTION .....................................................................................................................1 

BACKGROUND ...................................................................................................................... 2 

I. STATUTORY AND REGULATORY BACKGROUND .............................................2 

A. The FEC and FECA’s Administrative Enforcement Process ............................2 

1. The Commission ....................................................................................2 

2. FECA’s Administrative Enforcement and Judicial-Review 

 Provisions ...............................................................................................3 

B. Regulation of “Political Committees” ................................................................4 

II. FACTUAL BACKGROUND ........................................................................................6 

A. The Administrative Complaint ..........................................................................6 

B. Dismissal of the Administrative Complaint .......................................................7 

1. New Models ...........................................................................................7 

2. The Controlling Commissioners’ Approach to Determining Political 

Committee Status ...................................................................................9 

3. The Controlling Group’s Analysis of New Models .............................10 

a. New Models and the Statutory Threshold ...............................10 

b. New Models’ Major Purpose ...................................................11 

4. Dismissal on the Basis of Prosecutorial Discretion .............................14 

ARGUMENT ...........................................................................................................................15 

I. THE DISMISSAL BASED ON PROSECUTORIAL DISCRETION IS NOT 

JUDICIALLY REVIEWABLE ...................................................................................15 

II. IN THE ALTERNATIVE, THE DISMISSAL WAS NOT CONTRARY TO LAW 

 ................................................................................................................................19 

Case 1:18-cv-00076-RC Document 13-1 Filed 08/24/18 Page 2 of 49
A. Standard of Review ..........................................................................................19 

1. FECA’s Contrary to Law Standard of Review for Reviewable 

Decisions Is “Limited” and “Extremely Deferential” ..........................19 

 2. Deference Applies Equally to Split-Vote Decisions ............................20 

3. The Controlling Commissioners’ Rationale Does Not Change the 

Deference Accorded Their Dismissal Decision ...................................22 

4. The Court Reviews the Dismissal Based Solely on the Administrative 

Record ..................................................................................................23 

B. Under the Applicable Deferential Standard of Review, the Dismissal Was Not 

Contrary to Law ...............................................................................................24 

1. The Controlling Commissioners’ Interpretation of FECA’s Statutory 

Threshold for Political Committees Was Reasonable .........................24 

2. The Controlling Commissioners’ Fact-Based Application of the Major 

Purpose Test Was Reasonable and Not Contrary to Law. ...................32 

CONCLUSION ........................................................................................................................42 

 

Case 1:18-cv-00076-RC Document 13-1 Filed 08/24/18 Page 3 of 49
TABLE OF AUTHORITIES 

 Pages 

Cases 

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996) (en banc), vacated on other grounds, 

FEC v. Akins, 524 U.S. 11 (1998) ....................................................................................... 22 

Akins v. FEC, 736 F. Supp. 2d 9 (D.D.C. 2010) ..................................................................... 40 

*Buckley v. Valeo, 424 U.S. 1 (1976) .............................................................................. passim

Campaign Legal Center v. FEC, 312 F. Supp. 3d 153 (D.D.C. 2018) ................. 17, 18, 20, 40 

Carter/Mondale Presidential Comm., Inc. v. FEC, 775 F.2d 1182 (D.C. Cir. 1985)............. 20 

Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) .......... 19, 21, 22, 23 

*CREW v. FEC, 892 F.3d 434 (D.C. Cir. 2018), petition for rehearing en banc filed, 

No. 17-5049, Doc. # 1742905 (July 27, 2018) ...................................... 1, 3, 4, 15, 16, 17, 18

CREW v. FEC, 475 F.3d 337 (D.C. Cir. 2007) ....................................................................... 19 

CREW v. FEC, -- F. Supp. 3d --, No. 16-259, 2018 WL 3719268 (D.D.C. Aug. 3, 2018) ... 18 

CREW v. FEC, 236 F. Supp. 3d 378 (D.D.C. 2017), aff’d, 892 F.3d 434 (D.C. Cir. 2018) ... 17 

CREW v. FEC, 209 F. Supp. 3d 77 (D.D.C. 2016) .......................................................... passim 

Citizens United v. FEC, 558 U.S. 310 (2010). ...................................................... 30, 31, 35, 40 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) ........................................ 4, 19, 20, 23 

Crossroads Grassroots Policy Strategies v. FEC, 788 F.3d 312 (D.C. Cir. 2015) ................ 21 

Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131 (D.C. Cir. 1987) ...................... 4 

FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009).................................................... 30 

FEC v. Akins, 524 U.S. 11 (1998) ................................................................................. 5, 15, 22 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981) ........................... 19, 22 

FEC v. GOPAC, Inc., 917 F. Supp. 851 (D.D.C. 1996) ............................................. 12, 37, 38 

FEC v. Machinists Non-Partisan Political League, 655 F.2d 380 (D.C. Cir. 1981) .............. 41 

FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004) ..................................................... 12, 39 

FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471 (D.C. Cir. 1992) ............ 4, 19, 20 

FEC v. Nat’l Rifle Ass’n of Am., 254 F.3d 173 (D.C. Cir. 2001)...................................... 19, 21 

Case 1:18-cv-00076-RC Document 13-1 Filed 08/24/18 Page 4 of 49
FEC v. Wisc. Right to Life, Inc., 551 U.S. 449 (2007) ............................................................ 22 

Fogo De Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Security, 

769 F.3d 1127 (D.C. Cir. 2014) ........................................................................................... 21 

Free Speech v. FEC, 720 F.3d 788 (10th Cir. 2013) .................................................. 23, 39, 40 

Heckler v. Chaney, 470 U.S. 821 (1985) ........................................................ 14, 15, 16, 17, 18 

Hill Dermaceuticals, Inc. v. FDA, 709 F.3d 44 (D.C. Cir. 2013) ........................................... 24 

In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000) ...................................................... 19, 20, 21 

LaShawn A. v. Barry, 87 F.3d 1389 (D.C. Cir. 1996)............................................................. 21 

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Automobile Ins. Co., 

463 U.S. 29 (1983). ............................................................................................................. 41 

Nader v. FEC, 823 F. Supp. 2d 53 (D.D.C. 2011) .................................................................. 17 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) .................................................... 19, 20, 27, 41 

Public Citizen, Inc. v. FERC, 839 F.3d 1165 (D.C. Cir. 2016) .............................................. 21 

Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544 (4th Cir. 2012) ................. 6, 23, 39, 40 

Shands Jacksonville Med. Ctr. v. Burwell, 139 F. Supp. 3d 240 (D.D.C. 2015) .................... 24 

Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007) .................................................................. 39 

Sierra Club v. Jackson, 648 F.3d 848 (D.C. Cir. 2011).......................................................... 21 

Skidmore v. Swift & Co., 323 U.S. 134 (1994) ....................................................................... 21 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) .................................................. 30, 31 

United States v. Mead Corp., 533 U.S. 218 (2001) ................................................................ 21 

Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016) ............................................. 22, 30, 40, 41

Warger v. Shauers, 135 S. Ct. 521 (2014) .............................................................................. 26 

Statutes and Regulations

52 U.S.C. § 30101(4)(A)......................................................................................... 5, 24, 25, 27

52 U.S.C. § 30101(4)(B) ......................................................................................................... 29

52 U.S.C. § 30101(8)(A)(i) ................................................................................................. 5, 25 

52 U.S.C. § 30101(9)(A)(i) ................................................................................................. 5, 25 

52 U.S.C. § 30101(17) .............................................................................................................. 8 

Case 1:18-cv-00076-RC Document 13-1 Filed 08/24/18 Page 5 of 49
52 U.S.C. § 30102 ..................................................................................................................... 4 

52 U.S.C. § 30103 ..................................................................................................................... 4 

52 U.S.C. § 30103(d)(1) ..................................................................................................... 5, 41

52 U.S.C. § 30104(a) ................................................................................................................ 4

52 U.S.C. § 30104(b) ................................................................................................................ 4

52 U.S.C. § 30104(b)(4)(H)(i) ................................................................................................ 32 

52 U.S.C. § 30104(b)(6)(B)(i) ................................................................................................ 32 

52 U.S.C. § 30104(c) ........................................................................................................ 25, 27 

52 U.S.C. § 30106(b)(1) ........................................................................................................... 3 

52 U.S.C. § 30106(c) ................................................................................................................ 3

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

52 U.S.C. § 30109(a)(1) ............................................................................................................ 3

52 U.S.C. § 30109(a)(2) ............................................................................................................ 3 

52 U.S.C. § 30109(a)(4) ............................................................................................................ 3 

52 U.S.C. § 30109(a)(4)(A) ...................................................................................................... 3 

52 U.S.C. § 30109(a)(4)(A)(i) .................................................................................................. 3 

52 U.S.C. § 30109(a)(6)(A) ...................................................................................................... 3

52 U.S.C. § 30109(a)(8) .......................................................................................................... 19

52 U.S.C. § 30109(a)(8)(A) ...................................................................................................... 3

52 U.S.C. § 30109(a)(8)(C) ................................................................................................ 4, 19 

52 U.S.C. § 30111(a)(8) ............................................................................................................ 3

52 U.S.C. § 30116(a)(7)(C)(ii) ............................................................................................... 28

FECA Amendments of 1976, Pub. L. 94-283, 90 Stat. 475 (1976) ........................................ 32 

11 C.F.R. § 100.16 .................................................................................................................... 8

11 C.F.R. § 102.3(a)................................................................................................................ 40

11 C.F.R. § 102.3(a)(1) ............................................................................................................. 5 

11 C.F.R. § 102.4 ................................................................................................................ 5, 41

Case 1:18-cv-00076-RC Document 13-1 Filed 08/24/18 Page 6 of 49
11 C.F.R. § 102.6 .................................................................................................................... 29

11 C.F.R. § 109.20 .................................................................................................................. 28

11 C.F.R. § 109.20(b) ............................................................................................................. 28

11 C.F.R. § 110.6(d)(2) ........................................................................................................... 29

Miscellaneous

Adv. Op. 2014-13 (ActBlue) (Sept. 12, 2014) ........................................................................ 29 

Adv. Op. 1996-18 (In’tl Ass’n of Fire Firefighters) (July 14, 1996) ................................ 28, 29 

Adv. Op. 1984-31 (First Bank & Trust Co.) (Aug. 22, 1984) ................................................ 29 

Adv. Op. 1983-3 (Philadelphia Elec. Co.) (Feb. 24, 1983) .................................................... 29 

Amendments to FECA of 1971,

 45 Fed. Reg. 15080 (Mar. 7, 1980) .................................................................................. 29 

Electioneering Commc’ns., 72 Fed. Reg. 50261 (Aug. 31, 2007) .......................................... 22 

*Rules & Regulations: Political Comm. Status, 

72 Fed. Reg. 5595 (Feb. 7, 2007) ............................................................ 6, 12, 22, 33, 39, 40 

Case 1:18-cv-00076-RC Document 13-1 Filed 08/24/18 Page 7 of 49
INTRODUCTION 

 Plaintiffs Citizens for Responsibility and Ethics in Washington and Noah Bookbinder 

(collectively, “CREW”) challenge the Federal Election Commission’s (“FEC” or “Commission”) 

dismissal of their administrative complaints alleging certain campaign finance violations by New 

Models. Plaintiffs alleged that New Models violated the Federal Election Campaign Act 

(“FECA” or “Act”) due to three contributions to independent-expenditure-only committees it 

made in 2012 without registering with the Commission as a “political committee” and complying 

with the disclosure requirements that apply to such groups. After duly considering plaintiffs’ 

allegations, the Commission did not approve pursuing the matter further by the requisite votes, 

and so voted to close its file, thereby dismissing plaintiffs’ administrative complaint. 

Though plaintiffs may disagree with the dismissal of their administrative complaint, 

judicial review is not available where, as here, the controlling statement providing the agency’s 

rationale includes an independent justification based on prosecutorial discretion. In a recent D.C. 

Circuit case, the Court of Appeals held that FEC dismissals of administrative complaints based, 

in whole or in part, on prosecutorial discretion are “not subject to judicial review.” CREW v. 

FEC, 892 F.3d 434, 441 (D.C. Cir. 2018) (“CREW”), petition for rehearing en banc filed, 

No. 17-5049, Doc. # 1742905 (July 27, 2018). Because the FEC has “unreviewable 

prosecutorial discretion,” id. at 438, which it exercised in the underlying matter here, the Court 

should summarily award summary judgment in the Commission’s favor and need not reach the 

case’s merits. 

But even if the agency’s reasoning was reviewable, plaintiffs cannot meet their heavy 

burden of demonstrating that the dismissal was contrary to law. Instead, plaintiffs urge the Court 

to disregard the well-established standard of review and recent authority in favor of a resultsCase 1:18-cv-00076-RC Document 13-1 Filed 08/24/18 Page 8 of 49
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oriented analysis that plaintiffs claim is necessary to protect the government’s interest in 

disclosure. The undisputed importance of the government’s disclosure interest supporting each 

of FECA’s disclosure provisions, however, does not provide exact guidance on whether the 

provisions apply in different circumstances. The specific value of the information New Models 

in particular would have to disclose were it found to be a political committee is not part of the 

general tests that Congress and the Supreme Court designed to determine political-committee 

status in the first place. Plaintiffs’ disclosure argument wholly begs the question. 

At issue here is whether the controlling analysis of New Models’ political-committee 

status and concomitant dismissal of plaintiffs’ administrative complaint was contrary to law. It 

was not. The decision of the Commissioners who voted not to proceed was thoroughly explained 

in a statement of reasons, was grounded in the administrative record, and reflects a reasonable 

application of the FEC’s repeatedly upheld case-by-case method for determining politicalcommittee status using the Supreme Court’s “major purpose” test. It is also consistent with 

courts’ repeated admonitions to interpret the Act with sensitivity to the First Amendment area in 

which the Commission regulates. The analysis readily satisfies the review under heightened 

deference applicable here and should be affirmed. The Court accordingly should deny plaintiffs’ 

motion for summary judgment and grant the Commission’s cross-motion. 

BACKGROUND 

I. STATUTORY AND REGULATORY BACKGROUND 

A. The FEC and FECA’s Administrative Enforcement Process 

1. The Commission 

The FEC is a six-member, independent agency vested with statutory authority over the 

administration, interpretation, and civil enforcement of FECA. Congress authorized the 

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Commission to “formulate policy” with respect to FECA, 52 U.S.C. § 30106(b)(1); “to make, 

amend, and repeal such rules . . . as are necessary to carry out the provisions of [FECA],” id.

§§ 30107(a)(8), 30111(a)(8); and to investigate possible violations of the Act, id. 

§ 30109(a)(1)-(2). FECA requires the Commission to make decisions through majority votes 

and, for certain actions, including enforcement decisions, with the affirmative vote of at least 

four Commissioners. Id. § 30106(c). 

2. FECA’s Administrative Enforcement and Judicial-Review Provisions 

FECA permits any person to file an administrative complaint with the FEC alleging a 

violation of the Act. Id. § 30109(a)(1). After considering these allegations and any response, the 

FEC determines whether there is “reason to believe” that the respondent violated FECA. 

Id. § 30109(a)(2). If the Commission so finds, it then conducts an investigation to determine 

whether there is “probable cause to believe” that FECA was violated. Id. § 30109(a)(2), (4). If 

the Commission so finds, it must attempt conciliation before pursuing the matter in court. Id.

§ 30109(a)(4)(A)(i). If the Commission is unable to reach a conciliation agreement, the FEC 

may institute a de novo civil enforcement action in federal district court. Id. § 30109(a)(6)(A). 

At each stage, the affirmative vote of at least four Commissioners is required for the agency to 

proceed. Id. § 30109(a)(2), (4)(A), (6)(A). 

If the Commission dismisses the matter, the complainant may file suit to obtain judicial 

review to determine whether the agency’s dismissal decision was “contrary to law.” Id.

§ 30109(a)(8)(A), (C); but see CREW, 892 F.3d at 438 (holding that “federal administrative 

agencies in general and the Federal Election Commission in particular have unreviewable 

prosecutorial discretion to determine whether to bring an enforcement action”) (internal citations 

omitted). Reviewable dismissal decisions include instances in which the Commission dismisses 

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a complaint due to a lack of four votes to proceed. FEC v. Nat’l Republican Senatorial Comm., 

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

831 F.2d 1131, 1133 (D.C. Cir. 1987). In such split-vote cases, the “Commissioners who voted 

to dismiss must provide a statement of their reasons” in order “to make judicial review a 

meaningful exercise.” NRSC, 966 F.2d at 1476. “Since those Commissioners constitute a 

controlling group for purposes of the decision, their rationale necessarily states the agency’s 

reasons for acting as it did.” Id.; CREW, 892 F.3d at 437-38 (explaining that under Circuit 

precedent, “for purposes of judicial review, the statement or statements of those naysayers — the 

so-called ‘controlling Commissioners’ — will be treated as if they were expressing the 

Commission’s rationale for dismissal” (quoting Common Cause v. FEC, 842 F.2d 436, 449 (D.C. 

Cir. 1988))). 

Should the court find the Commission’s dismissal to be unlawful, FECA requires the 

court to “direct the Commission to conform” with the court’s ruling “within 30 days.” 52 U.S.C.

§ 30109(a)(8)(C). If, and only if, the Commission fails to conform within that time period, the 

complainant may bring “a civil action to remedy the violation involved in the original 

[administrative] complaint.” Id.

B. Regulation of “Political Committees” 

FECA imposes distinct disclosure requirements on organizations qualifying as a 

“political committee.” Such groups must, inter alia, register with the Commission, appoint a 

treasurer, file periodic reports identifying those who have contributed in excess of $200 to the 

organization, and meet other organizational, record-keeping, and public filing requirements. 

52 U.S.C. §§ 30102, 30103, 30104(a)-(b); AR 97-98. Once an organization becomes a political 

committee, its ability to terminate its status as a political committee is restricted. An 

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organization can only terminate by itself if it “will no longer receive any contributions or make 

any disbursements” and “has no outstanding debts or obligations,” 52 U.S.C. § 30103(d)(1), or 

with the permission of the Commission if it meets the criteria for “administrative termination,” 

which includes as factors receipt of no contributions in the previous year or minimal 

expenditures in a recent report, 11 C.F.R. § 102.4. To terminate under the self-executing 

procedure, a qualifying organization must file a notice with the Commission, as well as “a final 

report of receipts and disbursements, which report shall include a statement as to the purpose for 

which such residual funds will be used,” among other things. Id. § 102.3(a)(1). 

FECA defines a “political committee” as “any committee, club, association, or other 

group of persons which receives contributions aggregating in excess of $1,000 during a calendar 

year or which makes expenditures aggregating in excess of $1,000 during a calendar year.” 

52 U.S.C. § 30101(4)(A). “This broad definition, however, is less universally encompassing 

than at first it may seem, for [FECA’s] definitional subsections limit” the scope of “the key terms 

‘contribution’ and ‘expenditure.’” FEC v. Akins, 524 U.S. 11, 15 (1998). Those terms cover 

“only those contributions and expenditures that are made ‘for the purpose of influencing any 

election for Federal office.’” Id. (quoting statutory definitions recodified at 52 U.S.C. 

§ 30101(8)(A)(i), (9)(A)(i)). Concerned that the bare statutory definition might reach too far into 

protected First Amendment activity by covering “groups engaged purely in issue discussion,” the 

Supreme Court further limited the definition of political committee so that it would “only 

encompass organizations that are under the control of a candidate or the major purpose of which 

is the nomination or election of a candidate.” Buckley v. Valeo, 424 U.S. 1, 79 (1976) (per 

curiam). 

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Buckley, however, provided only limited guidance regarding the key question of how to 

determine an organization’s “major purpose.” See id.; Real Truth About Abortion, Inc. v. FEC, 

681 F.3d 544, 556 (4th Cir. 2012) (“RTAA”). To fill this gap, the Commission has adopted a 

policy of determining political committee status through case-by-case adjudication. See Rules & 

Regulations: Political Comm. Status, 72 Fed. Reg. 5595 (Feb. 7, 2007) (“Supplemental E&J”); 

RTAA, 681 F.3d at 551 (upholding the Commission’s case-by-case approach to the major 

purpose test). Under this approach, the Commission determines through a fact-specific analysis 

whether a group’s spending on “Federal campaign activity” is “sufficiently extensive,” including 

by comparison to its activities “unrelated to campaigns.” Supplemental E&J, 72 Fed. Reg. 

at 5601. In addition, the Commission analyzes the group’s “public statements,” which “can also 

be instructive in determining an organization’s major purpose,” and may examine internal 

statements of purpose as well. Id.

II. FACTUAL BACKGROUND 

A. The Administrative Complaint 

In an administrative complaint dated September 17, 2014, plaintiffs alleged that “New 

Models’ major purpose in 2012 was the nomination or election of federal candidates,” and that, 

consequently, New Models had violated FECA by failing to register and report as a “political 

committee.” (AR 7-8.) In its response dated November 5, 2014, New Models did not dispute 

that it made more than $1,000 in “contributions” in 2012; but denied that it then, or ever, had the 

“major purpose” of nominating or electing federal candidates. (AR 52.) On May 27, 2015, the 

FEC’s Office of General Counsel recommended that the Commission find reason to believe that 

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New Models violated FECA by failing to register and report as a political committee in 2012. 

(AR 59-60.) 

B. Dismissal of the Administrative Complaint 

On November 14, 2017, the Commission voted 2-2 on whether there was reason to 

believe that New Models violated FECA. (AR 87.) Then-Vice Chair Caroline C. Hunter and 

Commissioner Lee E. Goodman voted against finding reason to believe, while then-Chair Steven 

T. Walther and then-Commissioner Ellen L. Weintraub voted for finding reason to believe and to 

authorize an investigation. (Id.) Commissioner Matthew S. Petersen was recused and did not 

vote. (Id.) Lacking the required votes to open an investigation, the Commission then voted 4-0 

to close the file. (AR 88.) Vice Chair Hunter and Commissioner Goodman issued the 

controlling statement of reasons on December 20, 2017. (AR 91-122.) The next day, 

Commissioner Weintraub also issued a statement of reasons. (AR 123-25.) 

The controlling Commissioners found that, examining New Models’ “public statements, 

organizational documents, and overall spending history” and applying “agency expertise,” New 

Models was not a political committee. (AR 91-92.) Based on certain key facts set forth below, 

and which are not materially disputed, the controlling Commissioners analyzed the group’s 

central organizational purpose, public statements, and its federal campaign spending as 

compared to their other spending, and concluded that New Models had not “violated the Act by 

failing to register and report as a political committee.” (AR 121.) “For these reasons, and in 

exercise of our prosecutorial discretion,” these Commissioners voted to dismiss the matter. (Id.) 

1. New Models 

New Models is a tax-exempt social welfare organization established in 2000 under 

section 501(c)(4) of the Internal Revenue Code. (AR 94.) Its Form 990 tax returns from 2004 

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through 2015 consistently described New Models’ “primary purpose” as “studying and 

advocating policy issues of national importance.” (AR 94.) The year 2012 was no exception. 

Its 2012 Form 990 tax return stated that New Models’ mission was to “research[] national issues 

and support[] efforts to highlight or advocate for those issues,” including conducting issuerelated polling and “participat[ing] in issue advocacy when appropriate.” (Id. (quoting AR 93 

(some alterations in original)).) 

The description of the organization’s activities on reports filed with the Internal Revenue 

Service and the organization’s website provided some confirmation that New Models had 

pursued its stated mission by conducting and making available issue-related polling results, 

sponsoring and making available research papers, publishing information about public policy on 

its website, and making grants to other organizations. (AR 95.) In 2012, for example, New 

Models conducted issue-related focus groups and polling, as well as gave a grant for “[i]ssue 

advocacy on the economy and jobs.” (AR 12.) 

New Models did not make any independent expenditures in 2012 or any other year.1

 

(AR 93.) It did, however, make contributions to several independent-expenditure-only political 

committees, also known as super PACs, in 2012 — all of which were publicly disclosed. 

(AR 96.) Specifically, New Models gave $2,171,000 to Now or Never PAC, $627,000 to 

Government Integrity Fund Action Network, $292,000 to Citizens for a Working America PAC, 

and $5,000 to OPSEC PAC. (AR 92; AR 96 n.24.) The total, $3,095,000, constituted 68.7% of 

 

1

 An “independent expenditure” is a communication “expressly advocating the election or 

defeat of a clearly identified candidate” and that is made without coordinating with the candidate 

or a political party. 52 U.S.C. § 30101(17); 11 C.F.R. § 100.16. 

Case 1:18-cv-00076-RC Document 13-1 Filed 08/24/18 Page 15 of 49
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New Models’ spending for the year. (AR 96.) Other than a small donation in 2010,2

 New 

Models did not make any other contributions between 2000 and 2015. (AR 95-96.) Between 

2002 and 2015, New Models spent 19.5% of its total spending on contributions to super PACs. 

(AR 96.) Its financials for this period are summarized as follows: 

Year Total Revenue Total Expenses Contribution to 

Super PACs 

Relative 

Spending 

2002 $89,700 $89,700 $0 0% 

2003 $332,500 $332,500 $0 0% 

2004 $768,886.91 $754,802.21 $0 0% 

2005 $581,136.39 $564,908 $0 0% 

2006 $830,000 $702,025 $0 0% 

2007 $656,516.54 $745,323 $0 0% 

2008 $647,045.73 $599,638.59 $0 0% 

2009 $2,049,110.10 $2,088,372.59 $0 0% 

2010 $2,511,000 $2,326,991.10 $265,0003 11.4% 

2011 $1,388,291.50 $1,480,065.53 $0 0% 

2012 $4,523,850 $4,506,176.20 $3,095,000 68.7% 

2013 $922,500 $1,025,833.22 $0 0% 

2014 $885,000 $954,604.34 $0 0% 

2015 $1,035,000 $1,057,073.40 $0 0% 

Total $17,220,537.17 $17,228,016.27 $3,360,000 19.5% 

(AR 95-96.) 

2. The Controlling Commissioners’ Approach to Determining Political 

Committee Status 

The controlling Commissioners began by detailing FECA’s reporting requirements for 

political committees, which impose “significant burdens on First Amendment associational 

 

2

 New Models made a $265,000 donation to Citizens for a Working America PAC in 2010. 

There was conflicting evidence in the record regarding whether this 2010 payment was electionrelated or for issue advocacy. (AR 95 n.23.) Because its inclusion did not alter their conclusion, 

the controlling group included it as a contribution. (Id.) 

3

 See n.2, supra. 

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10

rights,” and explaining that FECA had accordingly been narrowly construed to avoid impinging 

upon issue-related advocacy. (AR 98-105.) 

The controlling Commissioners reviewed the major-purpose test’s origins and 

establishment in Buckley, (AR 99-103), and concluded that Buckley further limited FECA’s 

definition of “political committee” by construing the $1,000 statutory threshold for expenditures 

to “‘reach only funds used for communications that expressly advocate the election or defeat of a 

clearly identified candidate.’” (AR 102 (quoting Buckley, 424 U.S. at 80).) 

3. The Controlling Group’s Analysis of New Models 

“Upon thorough consideration of various facts indicative of political committee status: 

organizational documents, public statements of purpose, tax status, and independent spending,” 

the controlling Commissioners concluded that New Models was not a political committee for 

two independent reasons. (AR 108.) First, they concluded that New Models did not meet the 

statutory threshold requirement for a political committee of receiving $1,000 in contributions or 

making $1,000 in expenditures. (Id.) Second, the controlling Commissioners found that New 

Models did not have the major purpose of nominating or electing federal candidates. (Id.) The 

Commissioners noted that “[e]ach ground is independently sufficient to substantiate [their] 

conclusion.” (AR 111 n.95.) 

a. New Models and the Statutory Threshold 

The controlling Commissioners concluded that New Models did not receive 

“contributions” or make “expenditures” and thus did not satisfy the statutory threshold 

requirement for being a political committee. (AR 108-09.) While both terms are defined to 

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11

include a gift of money “made . . . for the purpose of influencing any election for Federal office,” 

they found that the Supreme Court had interpreted this phrase narrowly. 

The term “contribution,” they reasoned, was limited to (1) direct donations to candidates, 

parties, or campaign committees, (2) coordinated expenditures, and (3) donations to noncandidate or party groups but “‘earmarked for political purposes.’” (AR 109 (quoting Buckley, 

424 U.S. at 23, n.24, 78).) Because the Commissioners found that New Models did not make 

any expenditures, coordinated or otherwise, they concluded that “none of its funding seems 

earmarked for a political purpose” and thus would not constitute “contributions.” (AR 109.) 

The term “expenditure,” they reasoned, was limited even further to reach only express 

advocacy of a clearly identified candidate. (Id. (citing Buckley, 424 U.S. at 79-80).) There were 

no allegations that New Models itself made any independent expenditures, only that New Models 

donated money to political committees who themselves made independent expenditures. 

(AR 109-10.) The controlling Commissioners found that contributions to these super PACs 

would indicate New Models’ support for those groups, “but not necessarily any particular 

candidate.” (AR 110.) They reasoned that holding that these “contributions” were also 

“expenditures” would “ignor[e] how the Act differentiates between [these terms] throughout its 

provisions.” (Id.) Accordingly, they concluded that New Models did not “make expenditures” 

and thus did not satisfy the statutory threshold to be deemed a political committee. (Id.) 

b. New Models’ Major Purpose 

Even if New Models met the statutory threshold though, the controlling group concluded 

that New Models did not have the major purpose of nominating or electing federal candidates. 

(Id.) To reach this conclusion, they considered New Models’ central organizational purpose, 

public statements, and spending, as well as “the First Amendment implications” of classifying an 

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12

organization as a political committee “based solely on a handful of contributions in a brief 

snapshot in time.” (AR 111.) 

The controlling Commissioners found that New Models’ organizational documents 

weighed against finding they had the requisite major purpose. (AR 111-12.) The 

Commissioners noted that, although an organization’s tax status “is not dispositive,” it was 

relevant. (Id.) With no allegations or evidence to the contrary in the record, the Commissioners 

determined that they could reasonably assume that New Models’ organizational documents were 

consistent with the requirements for establishing and maintaining a 501(c)(4) organization with 

the Internal Revenue Service, i.e., their organizational purpose was social welfare activities and 

not primarily campaign-related. (Id.) 

The controlling Commissioners also found that New Models’ public statements weighed 

heavily against finding that they had the requisite major purpose. (AR 112-14.) The 

Commissioners explained that court decisions, as well as the Supplemental E&J, had held that a 

group’s major purpose could be determined by examining its public and official statements. 

(AR 113 (discussing FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004), and FEC v. GOPAC, 

Inc., 917 F. Supp. 851, 859 (D.D.C. 1996)).) These statements must be evaluated “‘in a factintensive inquiry giving due weight to the form and nature of the statements, as well as the 

speaker’s position within the organization.’” (AR 113 (quoting Supplemental E&J, 72 Fed. Reg. 

at 5601).) Here, the Commissioners noted that the administrative complaint did not “identify a 

single statement in over 15 years” by New Models indicating it had the requisite major purpose. 

(AR 113-14.) Further, in New Models’ response to the administrative complaint and 

accompanying sworn declaration from its President and Chief Operating Officer, New Models 

stated that it never “publicly advocated [for] the election or defeat of a federal candidate,” has 

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13

never stated that its purpose was campaign-related, never made any independent expenditures, 

and its fundraising materials did not “suggest to prospective donors that funds will be used to 

elect or defeat federal candidates.” (AR 113.) The controlling Commissioners concluded that 

the evidence indicated that New Models’ “major purpose was to conduct and sponsor research on 

public policy.” (AR 114.) These Commissioners based this finding on a review of archives of 

New Models’ website, including the research and reports the organization had made available 

there. Id. 

Finally, the Commissioners considered New Models’ history of campaign-related 

spending. They noted that a judge in this District recently found that considering “a particular 

organization’s full spending history as relevant” was not “per se unreasonable.” (AR 115 n.114 

(quoting CREW v. FEC, 209 F. Supp. 3d 77, 94 (D.D.C. 2016) (“CREW II”)).) The controlling 

group went on to explain why considering New Models’ 2012 spending within the broader 

context of the organization’s overall spending history was appropriate. “Having considered New 

Models’s history, and the contributions it made in 2012 in the context of that history and the 

long-term mission, as well as its activities in the years immediately preceding and following 

2012,” the Commissioners found that “the facts and circumstances do not provide reason to 

believe that New Models’ major purpose changed from public policy discussion to nominating or 

electing federal candidates.” (AR 115 n.114.) New Models continued pursuing its “traditional 

policy mission” in 2012, spending $1.5 million. (AR 117.) The Commissioners also found it 

significant that, during the three years following 2012, New Models made “zero contributions to 

federal political committees.” (Id.; see also AR 120 (“[I]f a group resumes its issue advocacy 

after the election date, such spending is also evidence of its true purpose.”).) Finally, they noted 

that if New Models was deemed a political committee in 2012, it could have been subjected to 

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14

the Commission’s regulatory and reporting burdens in perpetuity if it had not met the criteria for 

termination. (AR 120; see also p.5, supra.) 

In short, the controlling statement found that New Models’ “isolated contributions to 

three Super PACs” did not demonstrate a fundamental shift in the organization’s major purpose. 

(AR 117; see also AR 120.) Based upon the controlling Commissioners’ “review of New 

Models’ spending, nominating or defeating a federal candidate may have been a purpose of the 

organization in 2012, but was not the major purpose of the organization.” (Id.; see also AR 120 

(discussing example where an organization’s “foremost [policy] issue becomes highly visible in 

a federal election,” so the organization temporarily devotes its resources to campaign-related 

spending but then resumes its issue focus).) New Models, they concluded, “is an issue 

discussion organization that made sporadic contributions to independent expenditure-only 

committees,” and thus “is precisely the type of group [that] Buckley . . . sought to exclude from 

the definition of political committee through the major purpose limitation.” (AR 117.) 

Weighing New Models’ organizational documents, public statements, and spending 

history, the controlling group concluded that New Models did not have the requisite major 

purpose. (AR 121.) 

4. Dismissal on the Basis of Prosecutorial Discretion 

The controlling group also voted not to pursue the New Models matter further “in 

exercise of [their] prosecutorial discretion.” (AR 121 (citing Heckler v. Chaney, 470 U.S. 821 

(1985)).) They found that New Models had ceased operations in 2015 based upon its 2015 tax 

form, which represented that it had “liquidated, terminated, dissolved, or otherwise ceased 

operations.” (AR 97 & n.32.) Because “the organization appears no longer active,” as well as 

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15

“the age of the activity,” the controlling Commissioners concluded that “proceeding further 

would not be an appropriate use of Commission resources.” (AR 121 n.139.) 

ARGUMENT

This Court should deny plaintiffs’ motion for summary judgment and grant the 

Commission’s cross-motion because dismissal decisions based in whole or in part on 

prosecutorial discretion are presumptively unreviewable under recent D.C. Circuit law. Because 

the controlling Commissioners expressly invoked and exercised their prosecutorial discretion as 

an independent basis for their decision to dismiss CREW’s administrative complaint against New 

Models, CREW is unable to obtain judicial review of that decision. 

In the alternative, the dismissal of plaintiffs’ administrative complaint must be sustained 

because it was not contrary to law. The rationale of the Commissioners who voted not to find 

reason to believe that New Models violated FECA reflects their thorough review of the records 

before the Commission, including careful analyses of the organization’s documents, statements, 

and financial activities. It also accords with courts’ instructions that FECA be interpreted in a 

manner that is sensitive to the First Amendment activity regulated by the statute. Those 

Commissioners’ analysis was reasonable and concern an area in which the Commission’s inquiry 

is necessarily both flexible and accorded heightened deference. The agency’s dismissal of the 

matter therefore should be affirmed. 

I. THE DISMISSAL BASED ON PROSECUTORIAL DISCRETION IS NOT 

JUDICIALLY REVIEWABLE 

As the D.C. Circuit recently held, “federal administrative agencies in general and the 

Federal Election Commission in particular have unreviewable prosecutorial discretion to 

determine whether to bring an enforcement action.” CREW, 892 F.3d at 438 (citing Chaney, 470 

U.S. at 831, and Akins, 524 U.S. at 25). In that case, the D.C. Circuit likewise considered a splitCase 1:18-cv-00076-RC Document 13-1 Filed 08/24/18 Page 22 of 49
16

vote dismissal decision in which the controlling Commissioners voted against proceeding further 

on the basis of prosecutorial discretion. Id. at 437. Specifically, the controlling group had found 

that the “case did not warrant further use of Commission resources” because, inter alia, “the 

association named in CREW’s complaint no longer existed” and had “filed termination papers 

with the IRS four years earlier.” Id. at 438. 

The D.C. Circuit held that this dismissal was judicially unreviewable even if it was based 

in part on “a misinterpretation[] of ‘political committee’ as used in FECA.” Id. at 441. Because 

there is a “firmly-established principle” against “carving reviewable legal rulings out from the 

middle of non-reviewable actions,” an administrative complainant “is not entitled to have the 

court evaluate . . . the individual considerations the controlling Commissioners gave in support 

of their vote not to initiate enforcement proceedings.” Id. at 441-42. 

This recent D.C. Circuit decision is dispositive here. The controlling statement expressly 

invoked prosecutorial discretion as a basis for the dismissal. (AR 121 & n.139.) And like other 

agency decisions not to enforce, their decision “‘involve[d] a complicated balancing of a number 

of factors which are peculiarly within its expertise.’”4

 CREW, 892 F.3d at 439 n.7 (quoting 

Chaney, 470 U.S. at 831).) That part of the controlling group’s analysis was set forth in a 

footnote is of no moment. The fact that the point was made succinctly does not mean that it was 

undeveloped or not actually relied upon in the Commissioners’ decision. Rather, as the Supreme 

Court noted in Chaney, the controlling Commissioners considered whether “proceeding further 

 

4

 “[T]he agency must not only assess whether a violation has occurred, but whether agency 

resources are best spent on this violation or another, whether the agency is likely to succeed if it 

acts, whether the particular enforcement action requested best fits the agency's overall policies, 

and, indeed, whether the agency has enough resources to undertake the action at all.” Chaney, 

470 U.S. at 831. 

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17

would . . . be an appropriate use of Commission resources.” Compare AR 121 n.139, with

Chaney, 470 U.S. at 831 (enumerating discretionary factors, including “whether agency 

resources are best spent on this violation or another”). They found that proceeding here would 

not be the best use of the Commission’s resources due to “the age of the activity” and “the fact 

that the organization appears no longer active.” (AR 121 n.139) As the Commissioners pointed 

out, these are valid, rational reasons for exercising prosecutorial discretion. The Commissioners 

cited Nader v. FEC, 823 F. Supp. 2d 53 (D.D.C. 2011), which, they explained, found that the 

“Commission decision to dismiss allegations that several groups were political committees was 

not contrary to law, and ‘represents a reasonable exercise of the agency’s considerable 

prosecutorial discretion’ given the ‘staleness of evidence and the defunctness of several of the 

groups.’” AR 121 n.139 (quoting Nader, 823 F. Supp. 2d at 65-66); see also CREW v. FEC, 

236 F. Supp. 3d 378, 396 (D.D.C. 2017) (recognizing that the defunct nature of an organization 

is a rational and proper basis for the Commission’s exercise of prosecutorial discretion), aff’d, 

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

Further, “[e]ven though the Commission did not explicitly rely on . . . likelihood of 

success to support its decision, this decision still involved ‘a complicated balancing of a number 

of factors which are peculiarly within [the Commission’s] expertise,’ including ‘whether the 

particular enforcement action requested best fits the agency’s overall policies.’” Campaign 

Legal Center v. FEC, 312 F. Supp. 3d 153, 160-61 (D.D.C. 2018) (“CLC”) (quoting Chaney, 

470 U.S. at 831) (internal citation omitted). As the controlling group noted, they were “cautious 

to avoid compounding this chilling effect by imposing political committee status on issue groups 

that may occasionally make contributions to independent expenditure-only committees, but 

which make no such communications themselves.” (AR 99.) Moreover, the controlling 

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18

Commissioners’ analysis that New Models was not a political committee “implicitly raise[s] 

questions about the likelihood of success in a legal challenge” should the Commission have 

instead determined to proceed with investigating New Models. CLC, 312 F. Supp. 3d at 161.5 

While the controlling Commissioners spent the bulk of their statement discussing their 

interpretation of FECA’s requirements for political committees, there “can be no judicial review 

for abuse of discretion, or otherwise” unless “the agency’s action was based entirely on its 

interpretation of the statute.” CREW, 892 F.3d at 441 & n.11 (emphasis added); see also CREW 

v. FEC, -- F. Supp. 3d --, No. 16-259, 2018 WL 3719268, at *49 (D.D.C. Aug. 3, 2018) (“CREW 

III”) (noting potential reviewability where action based on interpretation of FECA). That is 

plainly not the case here where the controlling Commissioners expressly invoked prosecutorial 

discretion as one basis for their dismissal decision. (AR 121.) Because this Court cannot 

“carv[e] reviewable legal rulings out from the middle of non-reviewable actions,” the dismissal 

decision thus is not judicially reviewable. CREW, 892 F.3d at 442 (internal quotation marks 

omitted). 

 

 

5

 The Court of Appeals noted in its recent decision that “Chaney left open the possibility 

that an agency nonenforcement decision may be reviewed if “the agency has ‘consciously and 

expressly adopted a general policy’ that is so extreme as to amount to an abdication of its 

statutory responsibilities.” CREW, 892 F.3d at 440 n.9; see also CREW III, 2018 WL 3719268, 

at *49. The Court of Appeals also found that submissions by CREW demonstrated that “the 

Commission routinely enforces the election law violations alleged in CREW’s administrative 

complaint.” CREW, 892 F.3d at 440 n.9. Significantly, that case — like here — involved an 

administrative complaint alleging that a group violated FECA by failing to register and report as 

a political committee. Id. at 441. 

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II. IN THE ALTERNATIVE, THE DISMISSAL WAS NOT CONTRARY TO LAW 

A. Standard of Review 

1. FECA’s Contrary to Law Standard of Review for Reviewable 

Decisions Is “Limited” and “Extremely Deferential” 

It has long been established that judicial review of Commission dismissal decisions under 

FECA is “limited.” Common Cause, 842 F.2d at 448; CREW v. FEC, 475 F.3d 337, 340 (D.C. 

Cir. 2007). A court may only set aside a reviewable dismissal decision if it is “contrary to law.” 

52 U.S.C. § 30109(a)(8)(C). This means that the Commission’s decision cannot be disturbed 

unless it was based on an “impermissible interpretation of” FECA or was otherwise “arbitrary or 

capricious, or an abuse of discretion.” Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). 

When the FEC interprets FECA in the context of a section 30109(a)(8) dismissal, the 

D.C. Circuit has held that courts must accord Chevron deference to that decision.6

 E.g., FEC v. 

Nat’l Rifle Ass’n of Am., 254 F.3d 173, 185 (D.C. Cir. 2001); In re Sealed Case, 223 F.3d 775, 

779-81 (D.C. Cir. 2000); Orloski, 795 F.2d at 161-62; NRSC, 966 F.2d at 1476 (“[I]f the 

meaning of the statute is not clear, a reviewing court should accord deference to the 

Commission’s rationale.”). The Commission’s decision need only be “sufficiently reasonable to 

be accepted.” FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 39 (1981) 

(“DSCC”) (internal quotation marks omitted). It does not need not be “the only reasonable one 

or even the” decision “the [C]ourt would have reached” on its own “if the question initially had 

arisen in a judicial proceeding.” Id. 

 

6

 The familiar two-step Chevron framework requires the Court to first to determine 

“whether Congress has directly spoken to the precise question at issue” and, if not, to defer to the 

agency’s interpretation as long as it is “based on a permissible construction of the statute.” 

Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). 

Case 1:18-cv-00076-RC Document 13-1 Filed 08/24/18 Page 26 of 49
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When determining whether an FEC decision was arbitrary, capricious, or otherwise an 

abuse of discretion, the Court must be “extremely deferential” to the agency’s decision, which 

“requires affirmance if a rational basis . . . is shown.” Orloski, 795 F.2d at 167 (internal 

quotation marks omitted). Courts must defer to the FEC unless the agency fails to meet the 

“minimal burden of showing a coherent and reasonable explanation [for] its exercise of 

discretion.” Carter/Mondale Presidential Comm., Inc. v. FEC, 775 F.2d 1182, 1185 (D.C. Cir. 

1985) (internal quotation marks omitted). 

2. Deference Applies Equally to Split-Vote Decisions 

The deferential standard of review is not altered by the nature of the dismissal, which 

resulted from a 2-2 split vote, rather than from a majority vote of 4 or more Commissioners. The 

D.C. Circuit has squarely held that it owes deference to an FEC decision not to proceed on an 

enforcement matter, even if it only occurs due to a lack of four votes to proceed.7

 Sealed Case, 

223 F.3d at 779; see also NRSC, 966 F.2d at 1476; CLC, 312 F. Supp. 3d at 160 (in a split-vote 

dismissal case, holding that “applicable case law requires” deference to the Commission’s 

decision because, inter alia, “the ‘contrary to law’ standard is itself deferential”). 

 

7

 That the particular dismissal here resulted from a 2-2 split vote instead of a 3-3 split vote 

is irrelevant. In either instance, “the Commission dismissed the complaint for lack of the 

requisite four votes in favor of pursuing the investigation.” Common Cause, 842 F.2d at 449. 

The statement of reasons of the two Commissioners voting against proceeding thus likewise 

“necessarily states the agency’s reasons for acting as it did.” NRSC, 966 F.2d at 1476. Indeed, 

while Common Cause ultimately involved a 3-3 split vote, the D.C. Circuit wanted a statement of 

reasons from one Commissioner because “[h]is unexplained shift” from voting to proceed in a 

4-2 vote to voting against proceeding “caused the 3–3 deadlock among the Commissioners that 

resulted in a dismissal.” 842 F.2d at 438; id. at 449 (“[S]ome statement from [that 

Commissioner], while not law, would have informed [the administrative complainant] of the 

evidence practically necessary to convince a majority of the Commission to proceed with an 

investigation of a committee”); id. at 450 (deciding not to remand the matter to the Commission 

to require a statement of reasons because the Commissioner at issue was no longer on the FEC). 

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21

Plaintiffs nonetheless argue that this court can ignore this binding precedent because it 

pre-dates United States v. Mead Corp., 533 U.S. 218 (2001), and Fogo De Chao (Holdings) Inc. 

v. U.S. Dep’t of Homeland Security, 769 F.3d 1127, 1137 (D.C. Cir. 2014). (Pls. Br. at 24-28.) 

As to Mead, the D.C. Circuit reaffirmed the validity of Sealed Case in a post-Mead decision. 

Nat’l Rifle Assoc. of Am., 254 F.3d at 184-86. Indeed, the Court of Appeals relied extensively 

upon Sealed Case as the basis for its holding in that post-Mead case. Id. Accordingly, Sealed 

Case remains good law. CREW II, 209 F. Supp. 3d at 85 n.5 (holding that Sealed Case remains 

binding precedent post-Mead). 

Plaintiffs’ argument as to Fogo De Chao likewise fails. As an initial matter, “[o]ne three 

judge panel . . . does not have the authority to overrule another three-judge panel of the court.” 

LaShawn A. v. Barry, 87 F.3d 1389, 1393, 1395 (D.C. Cir. 1996) (en banc). And because Sealed 

Case came first, it controls. Sierra Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011). But 

more importantly, Fogo De Chao is not inconsistent with Sealed Case. In contrast to the agency 

action in Fogo De Chao, which was “the product of informal adjudication,” 769 F.3d at 1136 

(emphasis added), the dismissal here deserves deference because it was “analogous to a formal 

adjudication.” Sealed Case, 223 F.3d at 780. In any event, the dismissal here has legal force, 

despite the split vote, because it resolved the underlying matter and precludes further 

enforcement proceedings. See Crossroads Grassroots Policy Strategies v. FEC, 788 F.3d 312, 

316, 319 (D.C. Cir. 2015). Plaintiffs’ force-of-law argument thus is incorrect.8

 Cf. Public 

Citizen, Inc. v. FERC, 839 F.3d 1165, 1171 (D.C. Cir. 2016) (distinguishing FECA from other 

organic statutes because Commission dismissals resulting from a split vote of Commissioners 

 

8

 Even if the Court could ignore D.C. Circuit precedent and not accord Chevron deference, 

the standard of review would not be de novo. E.g., Fogo De Chao, 769 F.3d at 1137 (applying 

deference under Skidmore v. Swift & Co., 323 U.S. 134 (1994)). 

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22

constitute “final agency action” due to the FEC’s unique “structural design and FECA’s legal 

requirement to dismiss complaints in deadlock situations”). 

3. The Controlling Commissioners’ Rationale Does Not Change the 

Deference Accorded Their Dismissal Decision 

As the Supreme Court explained decades ago, “the Commission is precisely the type of 

agency to which deference should presumptively be afforded.” DSCC, 454 U.S. at 37. That the 

controlling Commissioners’ rationale here touched upon constitutional concerns or otherwise 

implemented Buckley’s major purpose test does not alter that deference, as plaintiffs suggest. 

(See Pls.’ Mem. at 19-23 (advocating for de novo review).) 

Courts give deference to FEC decisions implementing Supreme Court decisions, as well 

as those interpreting FECA in light of constitutional considerations.9

 In Van Hollen v. FEC, for 

example, the D.C. Circuit considered regulations promulgated by the FEC to “‘implement the 

Supreme Court’s decision in [FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) 

(“WRTL”)].’” 811 F.3d 486, 491 (D.C. Cir. 2016) (quoting Electioneering Commc’ns., 72 Fed. 

Reg. 50261, 50262 (Aug. 31, 2007)). And the court applied Chevron deference — even though 

the FEC not only was implementing WRTL, but also took into consideration constitutional 

concerns when so doing. Id. at 499. Indeed, far from providing a reason to undercut the 

deference provided to the FEC, the D.C. Circuit held that, by tailoring the regulation to satisfy 

 

9

 Plaintiffs’ reliance on the D.C. Circuit’s opinion in Akins v. FEC, 101 F.3d 731 (D.C. Cir. 

1996) (en banc), vacated on other grounds, FEC v. Akins, 524 U.S. 11 (1998), is misplaced. 

(Pls. Mem. at 21-22.) That opinion not only was vacated, but also it otherwise has not withstood 

the test of time — as plaintiffs’ own brief recognizes. Compare Pls. Mem. at 4 (describing the 

major purpose requirement as applying to both contributions and expenditures), with Akins, 

101 F.3d at 742 (limiting the major purpose requirement to only independent expenditures). 

Further, Akins found that it would be inappropriate to examine the purpose of the organization 

itself as opposed to the purpose of the particular disbursements — yet plaintiffs plainly recognize 

that the key inquiry is the organization’s major purpose. Compare Akins, 101 F.3d at 743, with 

Pls. Mem. at 4-5. 

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23

constitutional interests, “the FEC fulfilled its unique mandate.” Id.; see also Common Cause, 

842 F.2d at 448 (according Chevron deference where FEC narrowly interpreted FECA due to 

constitutional concerns). 

More fundamentally, plaintiffs’ argument misconceives the relative domains of expertise 

of the FEC and the courts upon which deference is based. The Supreme Court did not “mandate 

a particular methodology for determining an organization’s major purpose.” RTAA, 681 F.3d. 

at 556. And courts do not possess special expertise regarding whether the nomination or election 

of a candidate is the major purpose of an organization. Rather, that determination is centrally 

within the ambit of the FEC’s expertise and regulatory authority. Courts thus have repeatedly 

found the FEC’s multi-factored, case-by-case method of determining an organization’s major 

purpose is a reasonable exercise of that authority: “[T]he Commission, in its policy, adopted a 

sensible approach,” and its “multi-factor major-purpose test is consistent with Supreme Court 

precedent.” Id. at 556, 558; see also Free Speech v. FEC, 720 F.3d 788, 798 (10th Cir. 2013) 

(same); CREW II, 209 F. Supp. 3d at 88 (finding that “the FEC’s choices regarding the 

timeframe and spending amounts relevant in applying the ‘major purpose’ test are 

implementation choices within the agency’s sphere of competence, and therefore warrant the 

Court’s deference”). 

4. The Court Reviews the Dismissal Based Solely on the Administrative 

Record 

Finally, plaintiffs rely on news stories and other extra-record material about purported 

campaign finance trends and other organizations that were not considered by the Commission in 

making the underlying dismissal decisions on review here. (Pls. Mem. at 13-16.) Such material, 

and plaintiffs’ arguments premised upon it, should thus be disregarded. Indeed, it is “black-letter 

administrative law that . . . a reviewing court should have before it neither more nor less 

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24

information than did the agency when it made its decision.” Hill Dermaceuticals, Inc. v. FDA, 

709 F.3d 44, 47 (D.C. Cir. 2013) (per curiam) (internal quotation marks omitted).10 

B. Under the Applicable Deferential Standard of Review, the Dismissal Was Not 

Contrary to Law 

 Even if, arguendo, judicial review is appropriate in this case, the dismissal of plaintiffs’ 

administrative complaint was not contrary to law and thus must be affirmed. In addition to 

prosecutorial discretion, the controlling Commissioners voted to dismiss on two independent 

grounds (AR 110 n.95) — each of which requires affirmance. To be deemed a “political 

committee” under FECA, an organization must (a) meet the $1,000 statutory threshold for 

receiving contributions or making expenditures, and (b) have the requisite major purpose. 

Buckley, 424 U.S. at 79. The controlling group concluded that New Models did not satisfy either 

prong of this test. While their conclusion was reasonable as to each, finding even one basis 

reasonable mandates that the Court affirm the closure of the administrative matter. 

1. The Controlling Commissioners’ Interpretation of FECA’s Statutory 

Threshold for Political Committees Was Reasonable 

Under FECA, an organization is a “political committee” only if it “receives 

contributions” or “makes expenditures” in excess of $1,000 in a calendar year.11 52 U.S.C. 

§ 30101(4)(A). The parties do not dispute that New Models made “contributions,” as that term is 

defined in FECA, to super PACS in 2012 in excess of $1,000. Rather, they dispute whether the 

 

10 This material contrasts with information about New Models available online which, 

though copies are not contained in official agency files, were relied on by Commissioners in 

reaching their decision. Plaintiffs accurately recite the Commission’s agreement that such 

materials may considered here. (See Pls. Mem. at 7 n.2, 9 n.4.) 

11 Plaintiffs do not contest (see Pls. Mem. at 29-36), and thus have waived the right to 

challenge, the controlling Commissioners’ conclusion that New Models did not “receive[] 

contributions” in excess of $1,000 (AR 108-09). Shands Jacksonville Med. Ctr. v. Burwell, 

139 F. Supp. 3d 240, 260-61 & n.7 (D.D.C. 2015) (holding that argument not raised in plaintiffs’ 

opening brief was waived). 

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25

controlling Commissioners reasonably determined that those “contributions” should not be 

treated as “expenditures” when deciding whether New Models crossed the statutory threshold for 

political committee status. (Compare AR 108-10, with Pls. Mem. at 29-36.) 

In short, plaintiffs argue that the controlling Commissioners’ interpretation violates the 

express language of the Act because the definitions of “contribution” and “expenditure,” which 

are set forth in 52 U.S.C. § 30101(8)(A)(i), (9)(A)(i), both include a gift of money made for the 

purpose of influencing a federal election, and thus any gift qualifying as a “contribution” must be 

treated as an “expenditure” for purposes of determining an organization’s political committee 

status. (Pls. Mem. at 29-30.) 

It has long been recognized, however, that FECA’s definitions of “contribution,” 

“expenditure,” and “political committee” are ambiguous in some respects. Buckley, 424 U.S. 

at 77. In Buckley, the Court considered a vagueness challenge to a provision imposing disclosure 

requirements on “‘(e)very person (other than a political committee or candidate) who makes 

contributions or expenditures’” in excess of $100 in a calendar year. Id. at 74-75 (quoting 

2 U.S.C. § 434(e) (amended and recodified at 52 U.S.C. § 30104(c)). While that disclosure 

provision did not apply to “political committees,” as defined in 2 U.S.C. § 431(d) (now in its 

current form at 52 U.S.C. § 30101(4)(A)), both shared the definition of “contribution” and 

“expenditure” set forth in 2 U.S.C. § 431(e) and (f) (now 52 U.S.C. § 30101(8)(A)(i) and 

(9)(A)(i)). Like the plaintiffs here, the Supreme Court noted that “‘[c]ontributions’ and 

‘expenditures’ are defined in parallel provisions in terms of the use of money or other valuable 

Case 1:18-cv-00076-RC Document 13-1 Filed 08/24/18 Page 32 of 49
26

assets ‘for the purpose of . . . influencing’ the nomination or election of candidates for federal 

office.” Buckley, 424 U.S. at 77. 

Where the Supreme Court and plaintiffs diverge, however, is that the Court found the 

phrase “for the purpose . . . of influencing” — and thus “contribution,” “expenditure,” and 

“political committee” — to be ambiguous: “It is the ambiguity of this phrase that poses 

constitutional problems.” Id. As to the meaning of “expenditure,” the Court found that, while 

the term was defined differently for disclosure purposes than for purposes of FECA’s 

contribution and expenditure limits, the phrase “‘for the purpose of . . . influencing’ an election . 

. . shares the same potential for encompassing both issue discussion and advocacy of a political 

result.” Id. at 79. To avert constitutional issues, the Court “construe[d] ‘expenditure’ for 

purposes of” the disclosure provision governing non-political committees “to reach only funds 

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

candidate.” Id. at 80. Recognizing that FECA’s disclosure requirements for “expenditures” 

made by “political committees” raised similar vagueness / “line-drawing problems” as another 

provision of FECA addressed earlier in the opinion by potentially “reach[ing] groups engaged 

purely in issue discussion,” the Court interpreted “political committee” to “only encompass 

organizations that are under the control of a candidate or the major purpose of which is the 

nomination or election of a candidate.” Id. at 79. Because the canon of constitutional avoidance 

can only be employed when a statutory provision is ambiguous, plaintiffs’ argument that merely 

the statutory definitions of “contribution,” “expenditure,” and “political committee” resolve the 

parties’ dispute fails. See Warger v. Shauers, 135 S. Ct. 521, 529 (2014) (holding that the canon 

of constitutional avoidance “is a tool for choosing between competing plausible interpretations of 

Case 1:18-cv-00076-RC Document 13-1 Filed 08/24/18 Page 33 of 49
27

a provision,” and “has no application in the absence of . . . ambiguity”) (alteration in the original; 

internal quotation marks omitted). 

Because the reach of the statute is not clear, the controlling Commissioners’ 

interpretation that a “contribution” to an independent-expenditure-only political committee 

should not be treated as an “expenditure” for purposes of the statutory threshold for “political 

committees” warrants deference. Orloski, 795 F.2d at 161-62. First, these Commissioners 

reasonably interpreted FECA’s $1,000 expenditure threshold for political committees to serve as 

a dividing line “to distinguish between ordinary contributors and political committees,” in 

addition to Buckley’s major purpose requirement. (AR 108.) This is in part a monetary 

threshold. If a group that is under the control of a candidate or has the requisite major purpose 

makes independent expenditures in excess of $250 (the current statutory threshold for disclosures 

by non-political committees), but no more than $1,000, it is not a “political committee.” 

52 U.S.C. §§ 30101(4)(A), 30104(c); AR 98; AR 105. If that same group makes independent 

expenditures in excess of $1,000, then it is a “political committee.” (AR 109-10.) This 

interpretation is consistent with Buckley, which explained: 

Some partisan committees groups within the control of the candidate or primarily 

organized for political activities will fall within [the disclosure provision 

governing non-political committees] because their contributions and expenditures 

fall in the $100-to-$1,000 range. Groups of this sort that do not have 

contributions and expenditures over $1,000 are not “political committees” within 

the definition in § 431(d) [(now § 30101(4)(A))] . . . . 

424 U.S. at 79 n.107. 

The Supreme Court interpreted “expenditure” for purposes of the disclosure provision for 

non-political committees to only reach independent expenditures. Id. at 80. Given that rationale, 

“expenditure” for purposes of the statutory definition of “political committee” reasonably could 

be interpreted in the same way, i.e., to apply only to independent expenditures. Here, New 

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28

Models undisputedly made no independent expenditures itself. (AR 109 (“There is no claim that 

New Models made any independent expenditures of its own expressly advocating the election or 

defeat of a clearly identified candidate.”).) 

Second, the Commissioners also reasoned that treating a “contribution” to a super PAC as 

an “expenditure” for purposes of the statutory threshold would “ignor[e] how the Act 

differentiates between ‘contributions’ and ‘expenditures’ throughout its provisions.” (AR 110.) 

In Buckley, for example, the Court held that “the Act operates to treat all expenditures placed in 

cooperation with or with the consent of a candidate, his agents, or an authorized committee of the 

candidate as contributions” for purposes of FECA’s contribution and expenditure limits. 

424 U.S. at 46 n.53. Such coordinated expenditures “are to be treated as expenditures of the 

candidate and contributions by the person or group making the expenditure.” Id. As the 

Commissioners here noted, the Court interpreted “contribution” for disclosure purposes in the 

same way. (AR 109 (citing Buckley, 424 U.S. at 78).) 

Indeed, plaintiffs admit that “certain expenditures are explicitly treated as contributions if 

they are coordinated with a candidate.” (Pls. Mem. at 32 (citing 52 U.S.C. § 30116(a)(7)(C)(ii) 

and 11 C.F.R. § 109.20).) What they seem to miss, however, is the significance of their 

statement — a payment that would, at first blush, appear to be an “expenditure” by the person 

paying for the coordinated expenditure is in fact “treated as a contribution” by the payor under 

the Act, not as an expenditure. Instead, the payment is treated as an expenditure by the 

candidate. E.g., 52 U.S.C. § 30116(a)(7)(C)(ii); 11 C.F.R. § 109.20(b). 

Plaintiffs’ contention that Advisory Opinion 1996-18 (In’tl Ass’n of Fire Firefighters) 

(July 14, 1996) can only be read to support their position is similarly misplaced. (Pls. Mem. 

at 30.) That matter involved a separate segregated fund of a union, which is a “political 

Case 1:18-cv-00076-RC Document 13-1 Filed 08/24/18 Page 35 of 49
29

committee.” 52 U.S.C. § 30101(4)(B). The Commission considered whether a contribution to 

the union’s separate segregated fund from an account established by its state affiliate under state 

law as a conduit for supporting candidates “would be a contribution from the individual only” or 

“from the conduit account acting as a political committee.” Adv. Op. 1996-18 at 2, 3. The 

Commission found significant that the “[union] and [its separate segregated fund] do not control 

the funds received and do not determine when or to whom such funds are disbursed.” Id. at 2.12 

The conduit was determined not to be “accepting or making contributions for the purposes of the 

Act” and thus not a “political committee,” but that was in part because the conduit was “simply 

an accounting process by which funds donated by individual [union] members are set aside, 

awaiting their future direction for disbursement as contributions.” Id. at 2-3. The Commission 

provided no detailed analysis in that advisory opinion regarding the specific issue here, whether 

contributions should be considered as expenditures for purposes of the statutory threshold. The 

opinion does not constitute an example of the Commission actually deeming an entity to be a 

political committee on the basis of expenditures it has made. Indeed, like here, it provides an 

example of an entity reasonably not deemed to be a political committee after a holistic evaluation 

of the circumstances presented even where a statutory definition arguably applies. 

In any event, to the extent prior Commission precedent is inconsistent with the 

controlling Commissioners’ approach, the Commission remains free to revisit its policies. 

 

12 If they had exercised control, then the contribution would be considered a contribution by 

both the individual union member and the conduit, which would be acting as an affiliated 

committee rather than a collecting agent. Adv. Op. 1996-18 at 3-4; 11 C.F.R. §§ 102.6, 

110.6(d)(2); Amendments to FECA of 1971, 45 Fed. Reg. 15080, 15084 (Mar. 7, 1980); 

Adv. Op. 1984-31 (First Bank & Trust Co.) (Aug. 22, 1984); Adv. Op. 1983-3 (Philadelphia 

Elec. Co.) (Feb. 24, 1983). “Although the Act and Commission regulations specifically address 

contributions earmarked only to the authorized committees of candidates [and candidates], the 

Commission has concluded that contributions may also be earmarked to nonconnected 

committees.” Adv. Op. 2014-13 (ActBlue) (Sept. 12, 2014). 

Case 1:18-cv-00076-RC Document 13-1 Filed 08/24/18 Page 36 of 49
30

FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). The Commissioners 

acknowledged “contrary precedents,” but nonetheless found that intervening case law and 

preserving the distinction between contributions and expenditures recognized in previous 

authorities and the Act warranted the approach taken here. (AR 110 nn. 92 & 93.) Indeed, as 

plaintiffs recognize, New Models’ contributions were only possible in the wake of Citizens 

United v. FEC, 558 U.S. 310 (2010), which “ushered in a sea change in campaign finance law.” 

(Pls. Mem. at 8.) “Constitutional decisions of this magnitude unquestionably justify an agency 

in updating its existing [regulatory approach] to appropriately compensate for changed 

circumstances.” Van Hollen, 811 F.3d at 496. 

Prior to Citizens United, the Supreme Court had left open the possibility that independent 

expenditures could give rise to corruption or the appearance of corruption. SpeechNow.org v. 

FEC, 599 F.3d 686, 693-94 (D.C. Cir. 2010). Citizens United held, however, that “independent 

expenditures . . . do not give rise to corruption or the appearance of corruption.” 558 U.S. at 357. 

Plaintiffs’ arguments about possible corruption from New Models’ contributions to independentexpenditure-only groups (Pls. Mem. at 35) thus fail. SpeechNow.org, 599 F.3d at 696 

(“[B]ecause Citizens United holds that independent expenditures do not corrupt or give the 

appearance of corruption as a matter of law, then the government can have no anti-corruption 

interest in limiting contributions to independent expenditure-only organizations.”). 

And while true that Citizens United recognized the public’s interest in “knowing who is 

speaking about a candidate” (Pls. Mem. at 35 (quoting Citizens United, 558 U.S. at 369)), as the 

controlling Commissioners point out, New Models did not itself speak about any candidates. 

(AR 92.) Rather, New Models contributed to super PACs that, in turn, expressly advocated the 

election or defeat of a federal candidate — which contributions were publicly disclosed. 

Case 1:18-cv-00076-RC Document 13-1 Filed 08/24/18 Page 37 of 49
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(AR 96-97.) While it is permissible to require disclosure of such contributions to super PACs, 

SpeechNow.org, 599 F.3d at 696-97, the controlling group reasonably determined that there was 

a reduced risk of corruption because New Models merely made contributions that were “general 

expressions of support” for the super PACs, and not necessarily a “clearly identified federal 

candidate.” (AR 110 n.92.) If New Models did “receive contributions” in excess of $1,000, then 

it would satisfy the threshold for political committee status and its contributors would need to be 

disclosed. But Plaintiffs did not allege below any contributions that were made to New Models, 

nor did they challenge the controlling group’s determination that New Models did not receive 

contributions. (AR 108-09.) 

In addition, contrary to plaintiffs’ argument (Pls. Mem. at 34), the controlling 

Commissioners did not purport to limit “expenditures” to “independent expenditures” for all 

purposes under FECA, only the provision at issue. Plaintiffs’ argument that the Commissioners’ 

interpretation renders certain statutory provision superfluous thus is a red herring. Moreover, 

FECA’s current provisions regarding “independent expenditures” were enacted after Buckley to 

narrow the information required to be disclosed by groups that were not political committees, 

and are thus less relevant to the present inquiry of how to interpret the statutory threshold for 

political committee status than the applicable discussion in Buckley itself. See FECA 

Amendments of 1976, Pub. L. 94-283, § 104(e), 90 Stat. 475, 481 (1976). Further, while 

deemed a “disbursement” that political committees must disclose and total, “contributions made 

to other political committees” are not characterized in one part of the Act as “expenditures.” 

52 U.S.C. § 30104(b)(4)(H)(i), (b)(6)(B)(i). 

Accordingly, the controlling Commissioners’ determination that New Models’ 

contributions did not also constitute expenditures for purposes of determining political 

Case 1:18-cv-00076-RC Document 13-1 Filed 08/24/18 Page 38 of 49
32

committee status, and thus that New Models did not satisfy the statutory threshold required to be 

deemed a “political committee,” was reasonable and not contrary to law. 

2. The Controlling Commissioners’ Fact-Based Application of Its Major 

Purpose Test Was Reasonable and Not Contrary to Law 

The controlling Commissioners’ application of its multi-factor, case-by-case major 

purpose test — one that has been uniformly upheld by numerous courts — was reasonable given 

the particular facts in the New Models matter. Therefore, regardless of whether New Models 

satisfied FECA’s statutory threshold, the dismissal of the matter must be affirmed. 

Plaintiffs’ arguments to the contrary rest heavily upon a mischaracterization of both a 

recent decision by a court in this District and the Commissioners’ rationale. (See Pls. Mem. 

at 36-40.) Further, by advocating for a bright-line spending rule (Pls. Mem. at 40-45), plaintiffs 

wrongfully disregard the numerous cases upholding the Commission’s case-by-case approach, as 

well as the well-recognized discretion the Commission has in this area. 

 First, the controlling Commissioners’ rationale has not “already been declared contrary to 

law” because the Commissioners considered New Models’ spending beyond solely 2012. (Pls. 

Mem. at 36 (citing CREW II).) To the contrary, the CREW II court expressly held that “the 

FEC’s choice of relevant timespan for assessing an organization’s spending activity” falls 

squarely within the Commission’s discretion, and that “it is not per se unreasonable that the 

Commissioners would consider a particular organization’s full spending history as relevant to its 

analysis.” 209 F. Supp. 3d at 87, 94 (emphasis added). 

That court merely took issue with “[t]he Commissioners’ refusal to give any weight 

whatsoever to an organizations’ relative spending in the most recent calendar year.” Id. at 94 

(emphasis added). The court expressed concern that, under a lifetime-only approach, a very old 

organization “could commence spending handsomely on election-related ads and continue such 

Case 1:18-cv-00076-RC Document 13-1 Filed 08/24/18 Page 39 of 49
33

expenditures for decades before its new ‘major purpose’ would be detected by the controlling 

Commissioners’ lifetime-only approach.” Id. The court thus held that “[l]ooking only at relative 

spending over an organization’s lifetime” improperly failed to consider the possibility of the 

organization’s major purpose changing, and was “inconsistent with the FEC’s stated factintensive approach to the ‘major purpose’ inquiry.” Id. And it concluded that employing a 

“rigid, one-size-fits-all” lifetime-only approach was an abuse of discretion “at least as to AJS,” 

which “spent no money on election-related spending until 2008, but then shifted its expenditures 

towards electioneering communications and express advocacy over the following several 

years.” Id.

Second, contrary to plaintiffs’ arguments based on CREW II, in the instant matter, the 

controlling Commissioners simply did not apply a rigid lifetime-only approach to determining 

New Models’ major purpose, nor did they fail to consider whether the organization’s major 

purpose had changed. Rather, and in accordance with the Commission’s judicially approved 

case-by-case approach, these Commissioners carefully and thoroughly considered New Models’ 

organizational documents and tax status (AR 111-12), public statements (AR 112-14), as well as 

its spending in both 2012 and in other years (AR 114-21). See Supplemental E&J, 72 Fed. Reg. 

at 5601. And their conclusion ultimately rested upon all these factors. (AR 121 (“New Models’s 

organizational purpose, tax exempt status, public statements, and overall spending evidence an 

issue discussion organization, not a political committee having the major purpose of nominating 

or electing candidates.” (emphasis added)); AR 108 (“Upon thorough considerations of various 

facts indicative of political committee status: organizational documents, public statements of 

purpose, tax status, and independent spending, we do not have reason to believe . . . that New 

Models had the major purpose of nominating or electing federal candidates.” (emphasis added)).) 

Case 1:18-cv-00076-RC Document 13-1 Filed 08/24/18 Page 40 of 49
34

Plaintiffs do not contest that the Commissioners reasonably found that New Models’ 

organizational documents, tax status, and public statements weighed against finding New Models 

had the requisite major purpose. (E.g., AR 113-14 (“The Complaint does not identify a single 

statement in over 15 years where a representative of New Models indicated the major purpose of 

the organization was to nominate or elect federal candidates.”).) Nor could they, as those 

findings were well-grounded in the record. (AR 93-97; AR 111-14.) 

While the controlling Commissioners discussed New Models’ relative lifetime spending 

as a consideration, they nowhere indicated that it was their only, or even the dispositive, 

consideration in determining New Models’ major purpose. For example, the Commissioners 

“place[d] much weight” on their finding that none of New Models’ public statements indicated it 

was a “political committee.” (AR 114; see also AR 113 (stating that an organization’s public 

statements “must be given significant weight”).) Even isolating their spending analysis, the 

controlling Commissioners did not focus exclusively on New Models’ lifetime spending. They 

examined the nature of New Models’ spending, finding significant that the organization “never 

made any independent expenditures nor has it ever funded any electioneering communications.” 

(AR 97; see also AR 92; AR 113; AR 117.) Instead, “New Models’s federal electoral activity 

was limited to making isolated contributions to three Super PACs.” (AR 117.) The controlling 

group also considered New Models’ non-election-related spending in 2012: “Even in 2012, New 

Models spent $1.5 million on its traditional policy mission.” (Id.) And they examined New 

Models’ post-Citizens United spending, finding that, “[f]rom 2010 through 2015, the amount 

allocated to [super PACs] totaled just 29.6% of New Models’ overall spending,” and that, from 

2013 through 2015, it made “zero contributions to federal political committees.” (Id.) 

Nor did the controlling Commissioners “refus[e] to give any weight whatsoever” to New 

Case 1:18-cv-00076-RC Document 13-1 Filed 08/24/18 Page 41 of 49
35

Models’ 2012 spending. Compare CREW II, 209 F. Supp. 3d at 94, with AR 111 & AR 114-21. 

They merely found that, when viewed “in the context of the organization’s history[] before and 

after” 2012, New Models’ 2012 spending alone did not demonstrate that it had the requisite 

major purpose. (AR 121; see also AR 111 (“[W]e compare New Models’s isolated contributions 

[in 2012] with other activities both in 2012 and during its lifetime.”).) Unlike in CREW II, the 

controlling group expressly considered whether New Models’ extensive 2012 election-related 

spending indicated that the group’s major purpose had changed. Compare CREW II, 209 F. 

Supp. 3d at 94, with AR 115 n.114 & AR 117 n.123. Rather than signaling a fundamental shift 

in the group’s major purpose, however, they concluded that 2012 was an outlier. (AR 117 n.123 

(“[T]he 2012 contributions deviate from New Models’ usual spending practices both before and 

after 2012.”); see also AR 115 n.114.) This conclusion is well-supported by the record, as the 

following graphical representation of New Models’ relative spending illustrates13: 

(AR 97; see also AR 115 n.114 (citing chart).) Their conclusion was also supported by New 

Models’ “affirm[ation] under penalty of perjury” that its primary mission continued to be social 

 

13 The record is unclear whether New Models’ 2010 donation was a “contribution.” See 

p. 9 n.2, supra. 

$0

$500,000

$1,000,000

$1,500,000

$2,000,000

$2,500,000

$3,000,000

$3,500,000

$4,000,000

$4,500,000

$5,000,000

2002 2003 2004 2005 2006 2007 2008 2009 2010* 2011 2012 2013 2014 2015

Total Spent Contributions

Case 1:18-cv-00076-RC Document 13-1 Filed 08/24/18 Page 42 of 49
36

welfare in 2012 and thereafter. (AR 117 n.123; see also AR 95 (“The evidence indicates that 

New Models pursued [its issue-based] mission consistently throughout its lifetime, including 

before and after 2012.”).) And their conclusion is yet further supported through an analysis of 

New Models’ public statements. (AR 95; AR 113-14.) The controlling group reasonably 

expected that, if New Models was changing its primary focus from issue-based advocacy and 

research to nominating or electing federal candidates, there would be at least some statement 

indicating that this was the case. Yet plaintiffs did not identify a single statement so indicating; 

neither New Models’ website nor its research reports available thereon so indicate; its 

fundraising materials reportedly did not so indicate; and New Models’ President swore that it had 

never “publicly advocated the election or defeat of a federal candidate” or “stated that its purpose 

was the election or defeat of a federal candidate.” (AR 113-14.) Accordingly, the controlling 

Commissioners’ conclusion that New Models’ major purpose did not change in 2012 was not an 

abuse of discretion. 

Finally, nothing in CREW II indicates that it was improper for the controlling group to 

consider New Models’ spending before 2010 or after 2012. (See Pls. Mem. at 38-40.) Plaintiffs 

first argue that considering New Models’ pre-2010 spending when trying to determine its major 

purpose is improper because, prior to 2010, it was illegal for the organization to contribute to 

“political groups.” (Pls. Mem. at 39.) But, in CREW II, the court considered an organization’s 

pre-2010 spending as relevant to its major-purpose analysis. 209 F. Supp. 3d at 94 (finding 

significant that “[the group] spent no money on election-related spending until 2008, but then 

shifted its expenditures towards electioneering communications and express advocacy over the 

following several years”). While New Models may not have been able to contribute to super 

PACs prior to 2010, there were other activities available to it that have been considered to 

Case 1:18-cv-00076-RC Document 13-1 Filed 08/24/18 Page 43 of 49
37

indicate that an organization was pursuing “the nomination or election of a candidate,” but 

plaintiffs present little if any of such evidence. Buckley, 424 U.S. at 79. 

Plaintiffs’ arguments as to why it was improper for the controlling group to consider New 

Models’ post-2012 spending likewise fail. (Pls. Mem. at 39-40.) The CREW II court did not 

address whether the Commission could consider an organization’s later spending. (Pls. Mem. 

at 40; see also generally CREW II, 209 F. Supp. 3d at 82-84.) Here, New Models’ response to 

plaintiffs’ administrative complaint included certain information regarding the years following 

2012, which the controlling group subsequently confirmed using New Models’ tax forms. 

(AR 57-58; AR 95-96.) That an organization’s later spending was deemed relevant in one matter 

and not in another underscores, not undercuts, the need for a flexible, case-by-case approach 

rather than a “rigid, one-size-fits-all rule.” Indeed, the CREW II decision was motivated by the 

court’s concern that an organization “could commence spending handsomely on election-related 

ads and continue such expenditures for decades before its new ‘major purpose’ would be 

detected.” 209 F. Supp. 3d at 94. By considering New Models’ spending in the years after the 

year it spent “handsomely” on groups who ran election-related ads, i.e., 2012, the controlling 

Commissioners were able to address that concern. In contrast to the hypothetical in CREW II, 

New Models made “zero contributions to federal political committees” in the several years 

following 2012. (AR 117.) 

Considering New Models’ post-2012 activity is also consistent with GOPAC, Inc., 

917 F. Supp. 851, in which the court considered an organization’s activity after the date the 

administrative complaint was filed when determining its major purpose. In that case, the 

administrative complaint was filed in September 1990, alleging that an organization was a 

political committee in 1989 and 1990 because it had the major purpose of electing federal 

Case 1:18-cv-00076-RC Document 13-1 Filed 08/24/18 Page 44 of 49
38

candidates. Id. at 852. Rather than disregarding the group’s post-1990 activity, the court made 

several findings of “material facts” regarding that activity, which in that case involved the 

group’s decision to ultimately register as a political committee. Id. at 853-54, 857-58. 

Nor is there any evidence to support plaintiffs’ assertion that New Models changed its 

behavior in the years following 2012 due to the plaintiffs’ filing of their administrative complaint 

on September 18, 2014. (Pls. Mem. at 39, 40; AR 1.) New Models received notice of the 

administrative complaint less than a month before the 2014 election, yet had not spent any 

money on campaign-related activity up until that point. (AR 48; AR 96.) Further, in New 

Models’ President and Chief Operating Officer’s declaration dated November 5, 2014, he 

averred: “New Models did not and does not intend to make any contributions nor expenditures 

for or to any federal candidate or political committee in the 2013/2014 election cycle.” (AR 57.) 

Plaintiffs’ remaining points merely recycle the argument that the Commission can only 

consider New Models’ 2012 spending (Pls. Mem. at 39-45) — an argument that the CREW II

court flatly rejected. 209 F. Supp. 3d at 94 (holding that considering “a particular organization’s 

full spending history as relevant” was not “per se unreasonable”). Plaintiffs nonetheless contend 

that a rigid, one-size-fits-all calendar-year approach is preferable to the approach the controlling 

group used here, which considered New Models’ spending in 2012 as a factor, but not the only 

factor in determining the group’s major purpose. Whatever the merits of their argument, 

plaintiffs cannot demonstrate that the controlling Commissioners’ more flexible approach was 

contrary to law. Plaintiffs do not identify any authority mandating a bright-line rule like the 

calendar-year test they advocate. While it is true that FECA’s political committee definition 

refers to a “calendar year” for purposes of the statutory threshold, the major-purpose test is an 

“‘additional hurdle to establishing political committee status’” that the Supreme Court 

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established in Buckley. Free Speech, 720 F.3d at 797 (quoting Supplemental E&J, 72 Fed. Reg. 

at 5601). And Buckley did not specify a timeframe for determining an organization’s major 

purpose. 424 U.S. at 79. 

Given this room for refinement, “the FEC’s choices regarding the timeframe and 

spending amounts relevant in applying the ‘major purpose’ test are implementation choices 

within the agency’s sphere of competence, and therefore warrant the Court’s deference.” 

CREW II, 209 F. Supp. 3d at 88. The controlling group’s decision to eschew a bright-line 

calendar-year-only approach is consistent with the fact-intensive, case-by-case approach adopted 

by the Commission for determining an organization’s major purpose, which has been upheld by 

multiple courts. Supplemental E&J, 72 Fed. Reg. at 5601 (“Applying the major purpose doctrine 

. . . requires the flexibility of a case-by-case analysis of an organization’s conduct that is 

incompatible with a one-size-fits-all rule.”); Free Speech, 720 F.3d at 798; RTAA, 681 F.3d 

at 558; Shays v. FEC, 511 F. Supp. 2d 19, 31 (D.D.C. 2007). Plaintiffs rely heavily on cases 

where the court or the Commission purportedly examined “a group’s activities in a single year to 

determine its major purpose.”14 (Pls. Mem. at 41-42.) But determining that it is possible or 

appropriate in a particular case to determine an organization’s major purpose based solely on its 

spending in a single calendar year “do[es] not foreclose the Commission from using a more 

 

14 Contrary to plaintiffs’ representation, the court in Malenick, 310 F. Supp. 2d 230, did not 

find the organization’s “activities in a single calendar year established its major purpose,” (Pls. 

Mem. at 41). When determining whether the organization satisfied the statutory threshold for 

1995 and 1996, the court limited its analysis to a single calendar year, as FECA requires, 

concluding that the organization had crossed the threshold in 1996, but not in 1995. Malenick, 

310 F. Supp. 2d at 236 & n.8. The court, however, did not limit its inquiry to only the 

organization’s activities in 1996 when determining whether the organization satisfied Buckley’s 

major purpose test. Id. at 235 & n.6 (citing materials from 1995 and 1996 indicating the 

organization’s goals, a 1995 letter, and a stipulated fact regarding checks received and forwarded 

in 1995 and 1996). 

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comprehensive methodology.” RTAA, 681 F.3d at 557. It is eminently reasonable and consistent 

with the Commission’s overall case-by-case approach to examine an organization’s relevant 

electoral spending in the context of its greater operations, including in other years, if that 

information is available. 

Plaintiffs’ arguments that the controlling Commissioners’ approach “does not go far 

enough” to vindicate voters’ interest in disclosure “provides no basis for this Court to expand 

it.”15 Akins v. FEC, 736 F. Supp. 2d 9, 19 (D.D.C. 2010). Whether the FEC’s decision was 

contrary to law is the only question before the Court and the answer to that question is what 

determines whether plaintiffs or the public were potentially deprived of information to which 

they were entitled, not the other way around. See Van Hollen, 811 F.3d at 494 (“Just because 

one of [the statute]’s purposes (even chief purposes) was broader disclosure does not mean that 

anything less than maximal disclosure is subversive.”). Plaintiffs’ backwards, results-oriented 

approach places the cart before the horse, and must be rejected. 

As the controlling group discussed, “[p]olitical committee status and its attendant 

disclosure requirements impose significant burdens on the exercise of constitutionally protected 

political activities.” AR 98-99; see also Citizens United, 558 U.S. at 337; CLC, 312 F. Supp. 3d 

at 165 n.7. Plaintiffs dismiss these burdens, contending that an organization like New Models, 

which is dedicated to issue-advocacy but which spends significantly on campaign-related 

expenditures in only a single calendar year, can simply terminate its political committee status 

the following year. (Pls. Mem. at 39, 43.) As the Commissioners noted, however, only 

committees which will no longer make any disbursements that would otherwise qualify it as a 

political committee may by itself terminate, AR 121 (citing 11 C.F.R. § 102.3(a)); see also 

 

15 New Models’ contributions were publicly disclosed. (AR 96.) 

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52 U.S.C. § 30103(d)(1), and the criteria for Commission approval of other committee 

terminations are also limited, 11 C.F.R. § 102.4. The Commission has a “unique prerogative to 

safeguard the First Amendment when implementing its congressional directives.” Van Hollen, 

811 F.3d at 501. Balancing all the various interests, the controlling group thus reasonably 

concluded that it was not appropriate to apply a calendar-year only approach when determining 

New Models’ major purpose. See id. at 499 (“By tailoring the disclosure requirements to satisfy 

constitutional interests in privacy, the FEC fulfilled its unique mandate.”); FEC v. Machinists 

Non-Partisan Political League, 655 F.2d 380, 394 (D.C. Cir. 1981) (holding that, because 

evaluating political-committee status arises in the “delicate” First Amendment area, “there is no 

imperative” to stretch the statute). 

In sum, the controlling Commissioners’ analysis of New Models’ major purpose was not 

arbitrary or capricious. Plaintiffs have not met their burden of showing that the Commissioners 

“entirely failed to consider an important aspect of the problem, offered an explanation for its 

decision that runs counter to the evidence before the agency, or is so implausible that it could not 

be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. 

Ass’n of U.S., Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983). In 

accordance with the FEC’s fact-intensive, case-by-case approach for determining a group’s 

major purpose, the Commissioners carefully scrutinized New Models’ organizational documents, 

public statements, and spending history and drew reasonable conclusions that were wellgrounded in the record, thus showing the requisite “rational basis for the agency’s decision.” 

Orloski, 795 F.2d at 167. 

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CONCLUSION 

For the foregoing reasons, the Court should grant the Commission’s motion for summary 

judgment and deny plaintiffs’ motion for summary judgment. 

 Respectfully submitted, 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

/s/ Haven G. Ward 

Haven G. Ward (D.C. Bar No. 976090) 

Attorney 

hward@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Charles Kitcher (D.C. Bar No. 986226) 

Acting Assistant General Counsel 

ckitcher@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, D.C. 20463 

(202) 694-1650 

August 24, 2018 

Case 1:18-cv-00076-RC Document 13-1 Filed 08/24/18 Page 49 of 49