NOT YET SCHEDULED FOR ORAL ARGUMENT 

No. 18-5261 

_________________________________________ 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_________________________________________ 

Crossroads Grassroots Policy Strategies, 

Defendant-Appellant, 

v. 

Citizens for Responsibility and Ethics in Washington and Nicholas Mezlak, 

Plaintiffs-Appellees, 

Federal Election Commission, 

Defendant-Appellee.

_________________________________________ 

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

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

_________________________________________ 

REPLY BRIEF OF DEFENDANT-APPELLANT 

 CROSSROADS GRASSROOTS POLICY STRATEGIES 

_________________________________________ 

Thomas J. Josefiak Michael E. Toner 

J. Michael Bayes Thomas W. Kirby 

HOLTZMAN VOGEL JOSEFIAK Andrew G. Woodson 

 TORCHINSKY PLLC WILEY REIN LLP 

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

Warrenton, VA 20186 Washington, D.C. 20006 

Phone: 540.341.8808 Phone: 202.719.7000 

 E-mail: tkirby@wileyrein.com

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TABLE OF CONTENTS

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

Table of Authorities ............................................................................................... ii

Glossary ................................................................................................................ ix

Summary of Argument .......................................................................................... 1

Argument ............................................................................................................... 3

I. CREW Mischaracterizes the Campaign Finance Landscape Prior to 

the 1979 FECA Amendments. .................................................................. 3

II. CREW Fails to Show That It Was Entitled to Pursue This Matter in 

Federal Court. ........................................................................................... 7

A. CREW Fails to Show How Omitting Key Theories from Its 

Administrative Complaint Is Consistent with Its Obligation to 

Exhaust Administrative Remedies. .................................................... 7

B. CREW Concedes That Its Judicial Complaint Failed to

Appropriately Challenge FECA (c)(1). .............................................12

C. CREW Fails to Establish That It Has Standing to Pursue the 

Claims Below for Other Reasons. .....................................................14

III. CREW’s Substantive Arguments Fail Along with Its Push to Keep 

Other, Highly Relevant Interpretive Authorities from this Court. ............17

A. CREW Fails to Show the Statute “Unambiguously Forecloses” 

the FEC’s Interpretations of FECA (c)(1) and FECA (c)(2). .............17

B. CREW Fails to Explain Why Other Criteria That Courts Have 

Routinely Relied Upon Are Irrelevant Here. .....................................24

IV. Crossroads Has Standing to Pursue This Appeal .....................................27

Conclusion ............................................................................................................28

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TABLE OF AUTHORITIES 

Cases Page(s) 

*Abourezk v. Reagan, 

785 F.2d 1043 (D.C. Cir. 1986), aff’d, 484 U.S. 1 (1987) ...................... 4, 22, 26 

Adirondack Medical Center v. Sebelius, 

740 F.3d 692 (D.C. Cir. 2014) ......................................................................... 20 

Advocates for Highway & Auto Safety v. Federal Motor Carrier 

Safety Admin., 

429 F.3d 1136 (D.C. Cir. 2005) ....................................................................... 11 

AFL-CIO v. FEC, 

333 F.3d 168 (D.C. Cir. 2003) ................................................................... 22, 25 

American Message Centers v. FCC, 

50 F.3d 35 (D.C. Cir. 1995) ............................................................................. 13 

Artis v. Bernanke, 

630 F.3d 1031 (D.C. Cir. 2011) ......................................................................... 8 

Association of American Physicians v. FDA, 

358 F. App’x 179 (D.C. Cir. 2009) .................................................................... 9 

AT&T Co. v. FCC, 

978 F.2d 727 (D.C. Cir. 1992) ......................................................................... 11 

Avocados Plus Inc. v. Veneman, 

370 F.3d 1243 (D.C. Cir. 2004) ......................................................................... 9 

Battle v. FAA, 

393 F.3d 1330 (D.C. Cir. 2005) ....................................................................... 19 

Boivin v. U.S. Airways, Inc., 

446 F.3d 148 (D.C. Cir. 2006) ......................................................................... 10 

Bowen v. Georgetown University Hospital, 

488 U.S. 204 (1988) ........................................................................................... 4 

Boykin v. Fenty, 

650 F. App’x 42 (D.C. Cir. 2016) (per curiam)................................................ 13 

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Broadrick v. Oklahoma, 

413 U.S. 601 (1973) ......................................................................................... 14 

Brooks v. District Hospital Partners, L.P., 

606 F.3d 800 (D.C. Cir. 2010) ........................................................................... 8 

*Buckley v. Valeo, 

424 U.S. 1 (1976)..................................................................................... 3, 5, 20 

Califano v. Yamasaki, 

442 U.S. 682 (1979) ................................................................................... 13, 14 

Campbell-Ewald Co. v. Gomez, 

136 S. Ct. 663 (2016) ....................................................................................... 27 

Cape Cod Hospital v. Sebelius, 

630 F.3d 203 (D.C. Cir. 2011) ......................................................................... 25 

Cellco Partnership v. FCC, 

357 F.3d 88 (D.C. Cir. 2004) ........................................................................... 23 

Center for Individual Freedom v. Van Hollen, 

694 F.3d 108 (D.C. Cir. 2012) ......................................................................... 26 

Clarke v. United States, 

915 F.2d 699 (D.C. Cir. 1990) (en banc) .......................................................... 27 

Communications Workers of America v. American Telephone & 

Telegraph Co., 

40 F.3d 426 (D.C. Cir. 1994) ............................................................................. 9 

CREW v. FEC, 

299 F. Supp. 3d 83 (D.D.C. 2018), appeal dismissed, No. 18-5136, 

2018 WL 5115542 (D.C. Cir. Sept. 19, 2018) .................................................. 23 

CREW v. FEC, 

892 F.3d 434 (D.C. Cir. 2018) ......................................................................... 16 

Darby v. Cisneros, 

509 U.S. 137 (1993) ......................................................................................... 11 

Edison Elec. Inst. v. I.C.C., 

969 F.2d 1221 (D.C. Cir. 1992) ....................................................................... 10 

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Esquivel-Quintana v. Sessions, 

137 S. Ct. 1562 (2017) ..................................................................................... 21 

FEC v. DSCC, 

454 U.S. 27 (1981) ........................................................................................... 25 

FEC v. Furgatch, 

807 F.2d 857, 858 (9th Cir. 1987) .................................................................. 4, 6 

FEC v. National Right to Work Committee, Inc., 

916 F. Supp. 10 (D.D.C. 1996) ........................................................................ 17 

FEC v. NRSC, 

966 F.2d 1471 (D.C. Cir. 1992) ....................................................................... 24 

FEC v. O’Donnell, 

209 F. Supp. 3d 727 (D. Del. 2016) ................................................................. 15 

FEC v. Ted Haley Congressional Committee, 

852 F.2d 1111 (9th Cir. 1988) .......................................................................... 25 

FEC v. Williams, 

104 F.3d 237 (9th Cir. 1996) ............................................................................ 16 

Halverson v. Slater, 

129 F.3d 180 .................................................................................................... 19 

Heckler v. Chaney, 

470 U.S. 821 (1985) ......................................................................................... 19 

Honeywell International, Inc. v. Nuclear Regulatory Commission, 

628 F.3d 568 (D.C. Cir. 2010) ......................................................................... 27 

Koch v. White, 

744 F.3d 162 (D.C. Cir. 2014) ........................................................................... 8 

LaRouche v. FEC, 

28 F.3d 137 (D.C. Cir. 1994) ........................................................................... 16 

M2Z Networks, Inc. v. FCC, 

558 F.3d 554 (D.C. Cir. 2009) ........................................................................... 9 

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Merit Management Group, LP v. FTI Consulting, Inc., 

138 S. Ct. 883 (2018) ....................................................................................... 23 

Munsell v. Department of Agricultural, 

509 F.3d 572 (D.C. Cir. 2007) ........................................................................... 9 

Murphy Exploration & Production Co. v. United States Department of 

Interior, 

270 F.3d 957 (D.C. Cir. 2001) ........................................................................... 7 

Mylan Pharmaceuticals, Inc. v. Shalala, 

81 F. Supp. 2d 30 (D.D.C. 2000) ..................................................................... 22 

Natural Resources Defenses Council, Inc. v. U.S.E.P.A., 

859 F.2d 156 (D.C. Cir. 1988) ......................................................................... 27 

National Association of Manufacturers v. Department of Defense, 

138 S. Ct. 617 (2018) ....................................................................................... 19 

National Association of Manufacturers v. United States Department 

of Interior, 

134 F.3d 1095 (D.C. Cir. 1998) ....................................................................... 19 

*National Conservative Political Action Committee v. FEC, 

626 F.2d 953 (D.C. Cir. 1980) (per curiam) ................................................. 2, 15 

National Mining Assocation v. Department of Labor, 

292 F.3d 849 (D.C. Cir. 2002) ......................................................................... 11 

National Mining Association v. United States Army Corps of 

Engineers, 

145 F.3d 1399 (D.C. Cir. 1998) ....................................................................... 14 

National Wildlife Federation v. EPA, 

286 F.3d 554 (D.C. Cir. 2002) ......................................................................... 11 

National Wrestling Coaches Ass’n v. Department of Education, 

383 F.3d 1047 (D.C. Cir. 2004) (per curiam) (en banc) ................................... 27 

Pereira v. Sessions, 

138 S. Ct. 2105 (2018) ..................................................................................... 22 

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Perot v. FEC, 

97 F.3d 553 (D.C. Cir. 1996) ............................................................................. 9 

Pittsburgh & Lake Erie Railroad Co. v. Railway 

Labor Executives’ Ass’n, 

491 U.S. 490 (1989) ......................................................................................... 20 

Qwest Corp. v. F.C.C., 

482 F.3d 471 (D.C. Cir. 2007) ..................................................................... 9, 10 

Ratzlaf v. United States, 

510 U.S. 135 (1994) ......................................................................................... 22 

Republic of Sudan v. Harrison, 

139 S. Ct. 1048 (2019) ..................................................................................... 25 

Shays v. FEC, 

414 F.3d 76 (D.C. Cir. 2005) ........................................................................... 15 

Sturgeon v. Frost, 

139 S. Ct. 1066 (2019) ..................................................................................... 22 

Summers v. Earth Island Institute, 

555 U.S. 488 (2009) ......................................................................................... 28 

TRW Inc. v. Andrews, 

534 U.S. 19 (2001) ........................................................................................... 19 

United States v. Lauderdale Cty., Mississippi, 

914 F.3d 960 (5th Cir. 2019) ............................................................................ 23 

United States v. Marsh, 

829 F.3d 705 (D.C. Cir. 2016) ......................................................................... 19 

Van Ee v. E.P.A., 

202 F.3d 296 (D.C. Cir. 2000) ......................................................................... 19 

*Van Hollen, Jr. v. FEC, 

811 F.3d 486 (D.C. Cir. 2016) ..................................................................... 2, 24 

Van Hollen v. FEC, 

851 F. Supp. 2d 69 (D.D.C.), rev’d, 694 F.3d 108 (D.C. Cir. 2012) ................. 23 

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Weaver v. Federal Motor Safety Administration, 

744 F.3d 142 (D.C. Cir. 2014) ......................................................................... 15 

Yates v. United States, 

135 S.Ct. 1074 (2015) ...................................................................................... 23 

Zuber v. Allen, 

396 U.S. 168 (1969) ......................................................................................... 25 

Statutes 

2 U.S.C. § 434 (1977) ............................................................................................. 4 

52 U.S.C. § 30104 ................................................................................................. 19 

Regulations 

11 C.F.R. § 109.2 (1977) ........................................................................................ 5 

11 C.F.R. § 109.10 ............................................................................................ 1, 13 

Other Authorities 

CREW, Comments in Response to Advance Notice of Proposed 

Rulemaking on Earmarking, Affiliation, Joint Fundraising, 

Disclosure, and Other Issues (Jan. 15, 2015) at 3-4, available at 

http://sers.fec.gov/fosers/showpdf.htm?docid=312990 ..................................... 16 

Dave Levinthal, White House Nominates New FEC Commissioners

Ctr. For Public Integrity (June 21, 2013), at 

https://publicintegrity.org/2013/06/21/12881/white-housenominates-new-fec-commissioners .................................................................. 10 

FEC, FEC Index of Independent Expenditures by Persons (Groups 

and Political Committees), at 4 (Nov. 1978), at 

https://www.fec.gov/resources/cmscontent/documents/1978_FEC_Index_of_Independent_Expenditur

es_US_Senate_and_House_Campaigns.PDF ..................................................... 5

FEC, In the Matter of Draft Notice of Proposed Rulemaking for 

Independent Expenditure Reporting by Persons Other Than 

Political Committees, Agenda Document No. 11-74, at 

https://sers.fec.gov/fosers/showpdf.htm?docid=114906 ................................... 10

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General Counsel’s Report, Matter Under Review 352 (Sept. 9, 1977) 

at https://classic.fec.gov/disclosure_data/mur/352.pdf ....................................... 6 

General Counsel’s Report, Matter Under Review 689 (May 5, 1980), 

at https://www.fec.gov/files/legal/murs/689.pdf ................................................. 6

H.R. 2356, 107th Cong. (1st Sess. 2001)............................................................... 26 

Jesee Yomtov, Giants Co-owner Charles Johnson Tries to Step Back 

from Super PAC Behind Racially Charged Ad, USA Today (Oct. 

19, 2018) at 

https://www.usatoday.com/story/sports/mlb/2018/10/19/charlesjohnson-giants-racist-advertisement/1701611002/ ........................................... 26 

Legislative History of Federal Election Campaign Act Amendments 

of 1979, 

https://transition.fec.gov/pdf/legislative_hist/legislative_history_19

79.pdf ................................................................................................................ 6 

Letter from I. David Lerman to Carolyn Reed (Oct. 20, 1976), 

attaching FEC Form 5-Report of Independent Expenditures or 

Contributions by Persons, at 

https://www.fec.gov/files/legal/murs/229.pdf .................................................... 4 

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GLOSSARY 

APA Administration Procedure Act 

BCRA Bipartisan Campaign Reform Act of 2002 

CREW Citizens for Responsibility and Ethics in Washington 

Crossroads Crossroads Grassroots Policy Strategies 

FEC Federal Election Commission 

FECA Federal Election Campaign Act of 1971, as amended 

FECA (c)(1) 52 U.S.C. § 30104(c)(1) 

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

Form FEC Form 5 

JA Joint Appendix 

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

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SUMMARY OF ARGUMENT 

In a dizzying shift of position, Plaintiff/Appellee CREW now bases its 

argument almost entirely in this appeal on the supposed plain meaning of 

52 U.S.C. § 30104(c)(1) (“FECA (c)(1)”). In truth, FECA (c)(1) has far from the 

plain meaning CREW ascribes, and instead allows ample scope for the FEC’s 

Chevron discretion. More fundamentally, however, CREW simply is not entitled 

to attack the Regulation, 11 C.F.R. § 109.10(e)(1)(vi), based on either FECA (c)(1) 

or 52 U.S.C. § 30104(c)(2)(c) (“FECA (c)(2)”) in this proceeding. 

A fundamental principle governing practice in the federal courts and 

administrative agencies is that you can’t get on appeal what you don’t ask for 

below. CREW’s judicial and administrative complaints fail this most basic of 

rules, forcing CREW to seek multiple exceptions from the judiciary to the statute 

of limitations for Administrative Procedure Act (“APA”) challenges and other 

legal requirements. After evading accountability for its drafting choices and 

convincing the district court to invalidate the Regulation because it supposedly 

deprives CREW of Crossroads’ 2010 donor data, CREW has abandoned any effort 

to obtain that data and now labels the entire administrative enforcement proceeding 

“irrelevant” to the current case. CREW Opposition (“Opp.”) at 51. In other 

words, CREW seeks exactly the type of broad review that the statute of limitations 

precludes and does so using grounds never presented to the FEC. But this Court’s 

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decision in Nat’l Conservative Political Action Comm. v. FEC, 626 F.2d 953, 957 

n.8 (D.C. Cir. 1980) (per curiam) (“NCPAC”), makes clear that playing games 

with FEC complaints precludes the courts from providing the relief CREW seeks 

here, as “the administrative remedy must be effectively pursued to finality before 

the courts will attempt a resolution of the dispute.” Nothing CREW has argued 

warrants a departure from this precedent. 

CREW’s arguments on the merits fare no better. Contrary to CREW’s 

version of history, the record is clear that the law prior to enactment of the current 

FECA (c)(1) and FECA (c)(2) did not require an entity making an independent 

expenditure to disclose its contributors. And in contrast to Crossroads’ view of the 

current statute, CREW’s interpretation renders FECA (c)(1) and FECA (c)(2)’s 

obligations “duplicative” and “overlapping” – the very scenario which this Court 

has warned against when interpreting congressional enactments. 

Just three years ago, this Court rejected arguments that Congress attempted 

to impose the same type of broad-based reporting that CREW seeks to impose 

here, see Van Hollen, Jr. v. FEC, 811 F.3d 486 (D.C. Cir. 2016), drawing support 

from the “approach already endorsed by Congress in a related context” for 

independent expenditures, id. at 493. That precedent remains binding here. 

Accordingly, this Court should reverse the judgment below. 

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ARGUMENT 

I. CREW Mischaracterizes the Campaign Finance Landscape Prior to the 

1979 FECA Amendments. 

CREW acknowledges (at 6) that the reporting obligations before and after 

the 1979 FECA Amendments “mirror” each other and were not intended to expand 

the scope of disclosable information. However, CREW uses a revisionist version 

of the pre-1979 history to claim that Congress has always required entities making 

independent expenditures to disclose all of their contributors. But that neither was 

nor is the law. 

As an initial matter, CREW’s Opposition repeatedly claims that FECA 

“subjects non-political committees making [independent expenditures] to the same 

contributor disclosure obligation that the FECA imposes on political committees.” 

Opp. at 4.1 This is incorrect; extending political committee-like burdens to nonpolitical committees violates clear judicial precedent describing the reporting 

obligations that may be imposed on these different types of speakers. See Buckley 

v. Valeo, 424 U.S. 1, 79 (1976). In addition, CREW’s assertion ignores that 

Congress created two distinct reporting regimes: one for political committees – 

including those making independent expenditures – and a separate, more limited 

regime for non-political committees that may occasionally make independent 

 

1

 See also Opp. at 21, 23, 29, 33-34, 35 n. 13, 43. 

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expenditures. See 2 U.S.C. § 434(b)(13), (e) (1977); see also id. § 434(e) (1977) 

(requiring independent contributors to non-political committees to report funds 

given for a particular independent expenditure). These latter, event-driven 

reporting requirements are the only reporting obligations at issue here. 

Take for example the famous case of Mr. Harvey Furgatch who paid to run 

the “Don’t let him do it” advertisement against Jimmy Carter in the New York 

Times on October 28, 1980. FEC v. Furgatch, 807 F.2d 857, 858 (9th Cir. 1987). 

Had Mr. Furgatch paid for his advertisement prior to the 1979 Amendments, the 

FEC’s extant reporting forms required that individuals like Mr. Furgatch and

(hypothetically) any contributors to his independent expenditure had to disclose, 

inter alia, the name “of the Federal Candidate advocated by the 

Expenditure/Contribution,” as well as the “Purpose of [the] 

Expenditure/Contribution.” Letter from I. David Lerman to Carolyn Reed 

(Oct. 20, 1976), attaching FEC Form 5 – Report of Independent Expenditures or 

Contributions by Persons, at https://www.fec.gov/files/legal/murs/229.pdf; see also 

Crossroads Br., Addendum A (also containing FEC Form 5).2 These are very 

specific reporting obligations tied to a particular communication. Contrary to 

 

2

 In deciding the meaning of the law at Chevron step one, courts may freely 

consult materials related to prior administrative practice. See, e.g., Bowen v. 

Georgetown Univ. Hosp., 488 U.S. 204, 214 (1988); Abourezk v. Reagan, 785 F.2d 

1043, 1053 (D.C. Cir. 1986), aff’d, 484 U.S. 1 (1987). 

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CREW’s sweeping claims, neither Congress nor the FEC sought disclosure of 

every person who had provided funds to the individual making the independent 

expenditure. See Buckley, 424 U.S. at 74-75 (explaining that FECA’s independent 

expenditure reporting regime was “[u]nlike the other disclosure provisions [in 

FECA because it] does not seek the contribution list of any association”). 

Following the 1979 Amendments, the information reported to the FEC was 

the same. The only thing that changed was that Mr. Furgatch would report both his 

independent expenditure and the persons who contributed to that independent 

expenditure. The persons who contributed no longer had a separate reporting 

obligation. 

To bolster its claim as to FECA (c)(1), CREW contends that the pre-1979 

landscape required the maker of an independent expenditure to report both its 

contributors and the expenditure. But to the contrary, the FEC’s pre-1979 

regulation only required the maker of the independent expenditure to report “the 

identification of the person to whom the expenditure was made” – not any 

contributor information. 11 C.F.R. § 109.2 (1977) (emphasis added); see also

FEC, FEC Index of Independent Expenditures by Persons (Groups and Political 

Committees), at 4 (Nov. 1978), at https://www.fec.gov/resources/cmscontent/documents/1978_FEC_Index_of_Independent_Expenditures_US_Senate_a

nd_House_Campaigns.PDF (echoing the point in contemporaneous guidance). 

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Similarly, when the Commission’s enforcement matters during this period 

discussed FECA’s independent expenditure reporting requirement, the violation 

identified was the speaker’s failure to report the costs of the communications as 

independent expenditures – not an alleged contributor reporting deficiency. See, 

e.g., Furgatch, 807 F.2d at 859 (alleging that Mr. Furgatch had “fail[ed] to report 

his expenditures”); General Counsel’s Report, Matter Under Review 352, at 2 

(Sept. 9, 1977), at https://classic.fec.gov/disclosure_data/mur/352.pdf; General 

Counsel’s Report, Matter Under Review 689, at 2 (May 5, 1980), at 

https://www.fec.gov/files/legal/murs/689.pdf. 

This result is hardly controversial. Congress recognized in 1979 that 

existing practice did not require the makers of independent expenditures to disclose 

their contributors. See, e.g., 1979 FECA Leg. History at 103, at 

https://transition.fec.gov/pdf/legislative_hist/legislative_history_1979.pdf (stating 

that the new law would “eliminate” the reporting requirement for independent 

contributors and require the speaker to report that information “instead”).3 So it is 

CREW’s interpretation that it is the outlier as to the pre-1979 requirements and 

disclosure practices. 

 

3

 See also 1979 FEC Leg. History at 24-25 (embodying same concept). 

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Indeed, CREW’s reading would lead to nonsense. If, as CREW contends, 

both the contributor and the maker of the independent expenditure were each 

already reporting the same contribution prior to 1979, why would Congress have 

used the 1979 FECA Amendments to mandate a “new” reporting requirement for 

the maker of the independent expenditure that was already one of its existing 

reporting obligations? See also infra at 18-20. 

II. CREW Fails to Show That It Was Entitled to Pursue This Matter in 

Federal Court. 

Crossroads’ opening brief (at 22-34) laid out significant flaws in CREW’s 

administrative and judicial complaints – as well as other non-Chevron-related 

concerns with this litigation – that should have precluded CREW from obtaining 

relief in the district court. CREW’s Opposition fails to rebut these shortcomings. 

A. CREW Fails to Show How Omitting Key Theories from Its 

Administrative Complaint Is Consistent with Its Obligation to 

Exhaust Administrative Remedies. 

Crossroads’ opening brief (at 23-28) detailed CREW’s obligation to first 

present its arguments “forcefully” and with “clarity” to the FEC, underscoring the 

fundamental rule that “one may not present an argument on appeal without having 

first raised it below, i.e., in the proceedings from which the litigant appeals.” 

Murphy Exploration & Prod. Co. v. U.S. Dep’t of Interior, 270 F.3d 957, 958 

(D.C. Cir. 2001). CREW’s Opposition maintains (at 47) that its arguments can be 

inferred from a single footnote in the administrative complaint’s background 

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section that failed to mention FECA (c)(1) at all. Tellingly, not once in CREW’s 

recitation did CREW specifically cite FECA (c)(1) or FECA (c)(2) without 

resorting to brackets or including the citation just outside of the quotation marks. 

See Opp. at 9-12. 

CREW contends that several non-footnoted paragraphs foreshadowed 

CREW’s subsequent Chevron challenge. See JA __ (AR 109 ¶ 44, AR 110 ¶ 50, 

AR 113 ¶ 60). But they only parroted the Regulation’s test – i.e., that the FEC 

should require disclosure of those who gave “for the purpose of furthering 

[specific] independent expenditures” – which is not the same standard that CREW 

uses when describing contributors who should be disclosed pursuant to FECA 

(c)(1) or (c)(2). Id.; see also id. at __ [AR 115] (using the same formulation in the 

conclusion). 

CREW claims (at 48) that questions regarding exhaustion before the FEC 

are governed by an “abuse of discretion” standard. See id. (citing Avocados Plus 

Inc. v. Veneman, 370 F.3d 1243 (D.C. Cir. 2004)). But the “question whether a 

particular administrative pursuit satisfies the exhaustion requirement is a legal 

question which [courts] review de novo.” Koch v. White, 744 F.3d 162, 164 & n.3 

(D.C. Cir. 2014); see also Brooks v. Dist. Hosp. Partners, L.P., 606 F.3d 800, 807 

(D.C. Cir. 2010); Artis v. Bernanke, 630 F.3d 1031, 1034 (D.C. Cir. 2011). 

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Here, it is undisputed that FECA’s enforcement regime – the mechanism 

CREW used to sidestep the six-year statute of limitations period and obtain judicial 

review of the Regulation – contains “as specific [an exhaustion] mandate as one 

can imagine.” Perot v. FEC, 97 F.3d 553, 559 (D.C. Cir. 1996). And because this 

type of “jurisdictional exhaustion requirement never may be excused by a court,” 

Munsell v. Dep’t of Agric., 509 F.3d 572, 579 (D.C. Cir. 2007); see also Avocados 

Plus, 370 F.3d at 1247, CREW’s other arguments and authorities (at 48-49) are 

irrelevant; exhaustion is required. Cf. Ass’n of Am. Physicians v. FDA, 358 F. 

App’x 179, 180–81 (D.C. Cir. 2009) (explaining that, even when applying the 

APA, “exhaustion applies . . . ‘[when] required by statute or by agency rule as a 

prerequisite to judicial review’”) (quoting Darby v. Cisneros, 509 U.S. 137 

(1993)). 

CREW tries (at 49) to avoid settled law by recasting this case as an APAonly proceeding independent of the FECA. As an initial matter, CREW’s effort to 

do so is highly disingenuous as to FECA (c)(1), which the district court held was 

not an APA claim. See JA __ [Doc. 22 at 22]. But even if CREW could convert 

its remaining claims into an APA-only challenge, CREW would still have to 

demonstrate that its actions warranted excuse. See M2Z Networks, Inc. v. FCC, 

558 F.3d 554, 558 (D.C. Cir. 2009). But the sole “excuse” CREW claims – 

i.e., futility – applies “in only the most exceptional circumstances.” Commc’ns 

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10 

Workers of Am. v. Am. Tel. & Tel. Co., 40 F.3d 426, 432 (D.C. Cir. 1994). To 

qualify, the plaintiff must produce “a very convincing record” – using more than 

just “a single adverse decision by an agency,” Qwest Corp. v. F.C.C., 482 F.3d 

471, 477 (D.C. Cir. 2007) – that “it is certain that [its] claim will be denied,” 

Boivin v. U.S. Airways, Inc., 446 F.3d 148, 157 (D.C. Cir. 2006). 

CREW fails to meet its burden. For one, two FEC commissioners who 

voted on the 2011 rulemaking petition had left the agency and were replaced by 

two other commissioners around the time CREW filed the amended administrative 

complaint and may have viewed the statute differently in a non-enforcement 

setting. Compare FEC, In the Matter of Draft Notice of Proposed Rulemaking for 

Independent Expenditure Reporting by Persons Other Than Political Committees, 

Agenda Document No. 11-74, at 

https://sers.fec.gov/fosers/showpdf.htm?docid=114906 with Dave Levinthal, White 

House Nominates New FEC Commissioners, Ctr. For Public Integrity (June 21, 

2013), at https://publicintegrity.org/2013/06/21/12881/white-house-nominatesnew-fec-commissioners. Moreover, CREW and its amici purport to demonstrate 

that the Regulation is invalid based on data from recent election cycles. See Opp. 

at 8-9, 42; Br. of Senators Sheldon Whitehouse, Jon Tester, and Richard 

Blumenthal As Amicus Curiae in Support of Appellees at 14-15 (collecting recent 

spending data). While this recent data is not properly before this Court, CREW 

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should have presented this material to the FEC in a rulemaking petition. See, e.g., 

Edison Elec. Inst. v. I.C.C., 969 F.2d 1221, 1230 (D.C. Cir. 1992). 

CREW’s other authorities miss the mark for other reasons. Darby applies to 

the exhaustion of administrative remedies in the sense of requiring a prospective 

plaintiff to file for reconsideration before the agency. See 509 U.S. at 149. It is 

“wholly inapposite” as to the “waiver of claims,” which is what CREW did before 

the administrative agency here. Nat’l Wildlife Fed’n v. EPA, 286 F.3d 554, 562 

(D.C. Cir. 2002); see also Advocates for Highway & Auto Safety v. Fed. Motor 

Carrier Safety Admin., 429 F.3d 1136, 1149–50 (D.C. Cir. 2005); Nat’l Min. Ass’n 

v. Dep’t of Labor, 292 F.3d 849, 874 (D.C. Cir. 2002). 

CREW relies heavily on a truly unusual decision, AT&T Co. v. FCC, 978 

F.2d 727 (D.C. Cir. 1992), in which the agency had already lost on the underlying 

substantive issue and was employing bad-faith gamesmanship to force delay. See 

id. at 732, 735. Neither factor is present here. Moreover, the question of the 

regulation’s validity was presented explicitly to the agency in the administrative 

proceeding. See id. at 730 (“AT&T contended [in an administrative filing that] [i]f 

the Fourth Report were a substantive rule . . . it was invalid . . . because it exceeded 

the FCC’s statutory authority”). 

CREW asserts in a footnote (at 49 n.22) that a litigant has less obligation to 

articulate its legal theories outside the APA’s statute of limitations period than if 

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challenge is timely. This argument is baseless. The single authority CREW cites 

does not adopt a different standard, much less one that would incentivize litigants 

to postpone a challenge until after the six-year limitations period. 

B. CREW Concedes That Its Judicial Complaint Failed to

Appropriately Challenge FECA (c)(1). 

Crossroads’ opening brief (at 28-31) detailed how CREW’s judicial 

complaint did not ask the district court to invalidate the regulation as to 

FECA (c)(1). Instead, the only relief CREW sought vis-à-vis FECA (c)(1) was an 

order that the FEC acted contrary to law in dismissing a single, now-abandoned 

administrative complaint against Crossroads. 

CREW could not have been clearer in explaining its goal to the district 

court: “[b]y means of this suit, Plaintiffs seek not only an order reversing the 

FEC’s unlawful dismissal of Plaintiffs’ complaint—a remedy all parties agree is 

available under the FECA—but also seeks an order enjoining enforcement of 

11 C.F.R. § 109.10(e)(1)(vi) as unlawful and contradictory to the FECA, and 

ordering the FEC to enforce 52 U.S.C. § 30104(c)(2) in all pending and future 

cases brought before it raising similar questions about the disclosure of 

contributors to independent expenditures.” Pl. Memo. in Opp’n to Def. FEC’s and 

Crossroads GPS’s Mtn. to Dismiss, CREW v. FEC, Civ. A. No. 1:16-cv-259, Dkt. 

No. 18 at 12 (filed June 13, 2016) (emphasis added). Tellingly absent from 

CREW’s request is any mention of prospective, injunctive relief as to FECA (c)(1). 

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And the reason that remedy is not requested is that CREW had not previously 

pressed a theory of FECA (c)(1) invalidity. 

CREW responds (at 44-46) to Crossroads’ discussion of the pleadings in 

four ways: 

• An out-of-the-gate admission that FECA (c)(1) “was 

not a focus of CREW’s complaint” before the district 

court, Opp. at 45; 

• A claim that, “by necessity,” CREW’s FECA(c)(1) 

argument must somehow have been included in its 

briefing below – but again, not in the complaint, id.; 

• An effort to blame Crossroads for “finely slic[ing]” 

CREW’s own judicial complaint, id., even though 

CREW made the decision to divide the complaint into

three separate claims that requested different relief as 

to FECA (c)(1) and FECA (c)(2); 

• As a last resort, seeking refuge in the district court’s 

“‘broad discretion’ . . . to craft equitable relief,” id.

at 46 – even if CREW never requested it as to a 

specific statutory provision. 

A volume of precedent says this entire line of reasoning is flawed. See, e.g., 

Boykin v. Fenty, 650 F. App’x 42, 44 (D.C. Cir. 2016) (per curiam) (affirming 

dismissal of complaint that “fails to contain allegations making out [a legal] 

theory”); Am. Message Ctrs. v. FCC, 50 F.3d 35, 41 (D.C. Cir. 1995) (stating 

same). 

CREW’s citation to Califano v. Yamasaki, 442 U.S. 682, 701–02 (1979), 

does not advance its cause, as a decision to certify a nationwide class action is both 

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literally and figuratively far removed from this case. Id. at 702 (discussing 

injunctive relief vis-à-vis concerns over “the geographical extent of the plaintiff 

class”). Similarly, the question whether a district court has “broad discretion” to 

issue a nationwide injunction, Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 

145 F.3d 1399, 1408 (D.C. Cir. 1998), says nothing about whether a district court 

can issue relief as to provision other than those requested by the parties. CREW’s 

arguments fundamentally ignore the fact that “courts are not roving commissions 

assigned to pass judgment on the validity of the Nation’s laws.” Broadrick v. 

Oklahoma, 413 U.S. 601, 610–11 (1973). 

C. CREW Fails to Establish That It Has Standing to Pursue the 

Claims Below for Other Reasons. 

Crossroads (at 31-34) articulated five reasons why this Court must not allow 

CREW to hijack a dead-on-arrival appeal of a FECA enforcement decision and to 

convert that case into a vehicle for attacking the Regulation outside the APA’s sixyear statute of limitations. As to most of these five points, CREW has little to say. 

See Opp. at 50 (offering only one-sentences responses). And what little CREW 

does offer is easily refuted. 

First, CREW claims that its decision to abandon pursuit of its FECA 

administrative enforcement complaint should have no bearing on its APA 

challenge. Not so. In a case CREW never even attempts to distinguish, NCPAC, 

this Court held that complainants’ “failure to prosecute their administrative action 

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completely undercuts their argument that they have exhausted their administrative 

remedies.” 626 F.2d at 955, 957 n.8. In such a situation, where a party is making 

“less than a good-faith effort to [prosecute its complaint], courts will [not] attempt 

a resolution of the dispute.” Id. And this make sense. The running of the statute 

of limitations does not allow an agency to inflict a substantively unlawful injury, 

and a party may assert invalidity to remedy such an injury. But where the 

supposed injury cannot be corrected – e.g., where the Crossroads 2010 donor data 

cannot be obtained – the APA’s limitations period does not vanish and permit the 

full equivalent of timely judicial review. See Weaver v. Fed. Motor Carrier Safety 

Admin., 744 F.3d 142, 145 (D.C. Cir. 2014). 

Second, CREW claims that its enforcement case was not doomed ab initio

because FECA’s good-faith reliance provision requires answers to factual 

questions about Crossroads’ reliance on the Regulation. But that is not how the 

statute works. 52 U.S.C. § 30111(e) is unequivocal that a party “may undertake 

any conduct permitted by the challenged regulations without fear of penalty, even 

if that conduct violates campaign statutes.” Shays v. FEC, 414 F.3d 76, 84 (D.C. 

Cir. 2005). Put simply, no factual inquiry of the sort CREW envisions here is 

required. Indeed, the factual questions raised in the two cases CREW cites were: 

whether a party can rely upon staff guidance rather than a rule, FEC v. O’Donnell, 

209 F. Supp. 3d 727, 743 n.12 (D. Del. 2016), and whether the respondent 

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correctly interpreted the underlying regulation, LaRouche v. FEC, 28 F.3d 137, 

142 (D.C. Cir. 1994). Neither question exists here. Indeed, prior to this litigation 

CREW held the same view of the independent expenditure reporting regime as 

Crossroads does. See CREW, Comments in Response to Advance Notice of 

Proposed Rulemaking on Earmarking, Affiliation, Joint Fundraising, Disclosure, 

and Other Issues at 3-4 (Jan. 15, 2015), at 

http://sers.fec.gov/fosers/showpdf.htm?docid=312990. 

Third, without providing any explanation, CREW claims (at 50) that the 

FEC’s decision to adopt an “invalid regulation” allows it to avoid this Court’s 

recent decision that FEC dismissals based on prosecutorial discretion are generally 

unreviewable. See CREW v. FEC, 892 F.3d 434 (D.C. Cir. 2018). But this 

categorical assertion finds no basis in CREW itself, and in any event, the dismissal 

here was based in part on fair notice concerns, which renders the decision 

unreviewable. See Crossroads Br. at 33; CREW, 892 F.3d at 442 (explaining that 

the “law of this circuit rejects the notion of carving reviewable legal rulings out 

from the middle of non-reviewable actions”) (internal quotation omitted). 

Moreover, CREW admits that its failure to challenge the FEC’s remand dismissal 

moots any claim to Crossroads’ 2010 donor data. 

Fourth, FECA’s five-year statute of limitations applies to both monetary and 

equitable remedies. See FEC v. Williams, 104 F.3d 237, 240 (9th Cir. 1996); FEC 

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v. Nat’l Right to Work Comm., Inc., 916 F. Supp. 10, 14 (D.D.C. 1996). Thus, the 

statute of limitations would have barred CREW and the FEC from seeking 

injunctive relief against Crossroads. 

Fifth, CREW does not and cannot dispute that it failed to participate in the 

2011 FEC rulemaking. Instead, CREW concludes the relevant discussion by 

stating (at 51) that “the viability of CREW’s FECA claim was and is irrelevant to 

its APA claim.” (Emphasis added.) But a baseless (and now abandoned) FECA 

challenge cannot eliminate the statute of limitations and allow sweeping APA 

review. That sentiment is precisely why this Court must reject this lawsuit in its 

entirety. To do otherwise would effectively read the statute of limitations out of 

the APA altogether. 

III. CREW’s Substantive Arguments Fail Along with Its Push to Keep 

Other, Highly Relevant Interpretive Authorities from this Court. 

A. CREW Fails to Show the Statute “Unambiguously Forecloses” the 

FEC’s Interpretations of FECA (c)(1) and FECA (c)(2). 

Crossroads’ opening brief detailed (at 35-53) why the Regulation comports 

with FECA (c)(1) and (c)(2) under both Chevron step one and two. CREW offers 

a different reading of the statutory language that is inconsistent with the precedent 

of this and other courts, the lack of congressional disapproval of the Regulation 

despite a clear mechanism for doing so, and nearly four decades of consistent 

application of the Regulation by the FEC. But even were the Court to find some 

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validity in CREW’s reading of the statute – and it should not – this Court should 

hold the statutory language unclear and defer to the agency’s reasonable 

interpretation at step two. 

As Crossroads and its supporting amici have explained, FECA (c)(1) must 

be read with an eye toward the entirety of subsection (c). The requirement that a 

person “who makes an independent expenditure [exceeding $250] shall file a 

statement containing the information required under subsection (b)(3)(A) of this 

section for all contributions received by such person” defines who must file, at 

what threshold, and what types of information (e.g., date and amount) must be 

included about each of the contributions required to be disclosed in FECA (c)(2). 

CREW’s alternative interpretation of FECA (c)(1) has serious flaws. 

Compare, for example, CREW’s construction of FECA (c)(1) – taken straight from 

its Opposition brief – with the language of FECA (c)(2): 

CREW’s FECA (c)(1):

The identity of each person who makes a contribution 

whose contribution or contributions have an aggregate 

amount in excess of $200 within the calendar year, 

together with the date and amount of any such 

contribution.4

FECA (c)(2)(C):

The identification of each person who made a 

contribution in excess of $200 to the person filing such 

 

4

 For simplicity, this excerpt removes CREW’s ellipses and parenthetical, and 

also corrects a typographical error to the word “within.” 

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statement which was made for the purpose of furthering 

an independent expenditure. 

Opp. at 21-22; 52 U.S.C. § 30104(c)(2)(C). As the district court observed, 

CREW’s gloss on the two provisions rendered the two sections entirely 

“duplicative” of each other by creating “overlapping” obligations. JA __ [Doc. 43 

at 71]; see also id. __ [at 72] (explaining that FECA (c)(2) requiring reporting a 

“subset of those donors” already disclosed under FECA (c)(1)). 

The district court should have seen duplicativeness as a red flag rather than a 

green light. This Court has “repeatedly counseled [that] an interpretation[] which 

essentially deprives one provision of its meaning and effect so that another 

provision can be read as broadly as its language will permit[] is inconsistent with 

the Congress’s intent as well as our Chevron analysis.” Nat’l Ass’n of Mfrs. v. U.S. 

Dep’t of Interior, 134 F.3d 1095, 1107 (D.C. Cir. 1998). Indeed, it is “a cardinal 

principle of statutory construction that a statute ought, upon the whole, to be so 

construed that, if it can be prevented, no clause, sentence, or word shall be 

superfluous, void, or insignificant.” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) 

(internal quotation marks omitted).5

 Where, as here, “two statutes are capable of 

co-existence, it is the duty of the courts, absent a clearly expressed congressional 

 

5

 See also Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 632 (2018); 

TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001); Heckler v. Chaney, 470 U.S. 821, 

829 (1985); United States v. Marsh, 829 F.3d 705, 710 (D.C. Cir. 2016); Battle v. 

FAA, 393 F.3d 1330, 1335 (D.C. Cir. 2005); Van Ee v. E.P.A., 202 F.3d 296, 302 

(D.C. Cir. 2000); Halverson v. Slater, 129 F.3d 180, 185 (D.C. Cir. 1997. 

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intention to the contrary, to regard each as effective.” Pittsburgh & Lake Erie R. 

Co. v. Ry. Labor Executives’ Ass’n, 491 U.S. 490, 510 (1989). At minimum, an 

“overlapping [set of provisions] militates against finding unambiguous 

congressional intent” under step one. Adirondack Med. Ctr. v. Sebelius, 740 F.3d 

692, 698 (D.C. Cir. 2014). 

Moreover, even if FECA (c)(1) imposed a reporting obligation as CREW 

contends, the plain meaning of the law would not be as broad as CREW asserts. 

To the contrary, FECA (c)(1) would require reporting only of contributions 

earmarked for express advocacy. This is so because, focusing on the situation as it 

existed when FECA (c)(1) was adopted and the Regulation was promulgated: 

• FECA (c)(1) is expressly limited to entities “other

than a political committee;” 

• The provision only is triggered by “contributions 

received” by such a non-political entity; 

• A donation is a FECA-regulated “contribution” only if 

it is made for the purpose of influencing an election. 

• All activities of a political committee are 

presumptively political, so all donations to a political 

committee are regulated contributions. See generally 

Buckley, 424 U.S. at 20-21, 60-68. 

• However, a group that is not a political committee 

acts for the purposes of influencing an election only if 

it spends for express advocacy. Id. at 80. 

Thus, under Buckley’s clear requirements, FECA (c)(1) applies only to 

donations that are earmarked for express advocacy spending. See id. at 76-81. 

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When read through the prism of Buckley, any reporting obligation imposed by 

FECA (c)(1) would be fully consistent with the Regulation. Such a reading also 

would be fully consistent with FECA (c)(2), as that provision likewise specifies 

that earmarking must be for particular express advocacy – i.e. “for the purpose of 

furthering an independent expenditure” – to trigger disclosure. 

CREW’s arguments as to FECA (c)(2) fare no better. Crossroads already 

explained (at 40) that the normal meaning of “an” is one. Surprisingly, CREW 

agrees (at 30) that it is “not disputed” that “‘an’ means ‘one,’” meaning that 

FECA (c)(2) should be read as requiring disclosure of a person who contributes 

“for the purpose of furthering [one] independent expenditure.” That is clearly not 

the same as giving for furthering independent expenditures generally (i.e., a person 

who gives to support two or more independent expenditures need not be disclosed 

under CREW’s agreed-upon definition). This concession should end the debate in 

Crossroads’ favor. 

Even if it did not, CREW’s authorities fail to show that Congress employed 

the term “an” with such unmistakable clarity that it “unambiguously forecloses” 

the FEC’s interpretation. Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1572 

(2017). Indeed, the best authority CREW musters says that use of the indefinite 

article “generally implies the possibility of a larger number than just one.” Opp. at 

31 (citing United States v, Hagler, 700 F.3d 1091, 1096-97 (7th Cir. 2012)) 

USCA Case #18-5261 Document #1786989 Filed: 05/08/2019 Page 31 of 45
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(emphasis added). In other words, not only does CREW concede that there are 

some instances where “an” clearly means just one, but even where it can mean 

more than one, the underlying statute may routinely have more than one possible 

meaning. 

CREW also musters a series of other attacks to Crossroads’ Chevron

analysis, with a particular focus (at 23) on keeping this Court from looking at 

materials courts routinely utilize when reviewing a statute at step one. To be sure, 

the focus on the inquiry at this phase is on the statutory text. But even at step one, 

courts “consider the provisions at issue in context, using traditional tools of 

statutory construction and legislative history,” AFL-CIO v. FEC, 333 F.3d 168, 

172–73 (D.C. Cir. 2003) (emphasis added), and reviewing “past administrative 

practice for any light these sources may shed on congressional intent,” Abourezk, 

785 F.2d at 1053; see also Sturgeon v. Frost, 139 S. Ct. 1066, 1084 (2019) 

(approving use of context at Chevron step one).6

 

6

 In its request to narrow this Court’s review, CREW oddly relies upon cases 

that support Crossroads’ position. See, e.g., Pereira v. Sessions, 138 S. Ct. 2105, 

2110 (2018) (observing that “[t]he plain text, the statutory context, and common 

sense” are all relevant at Chevron step one); Ratzlaf v. United States, 510 U.S. 135, 

141 (1994) (explaining that because “willful” is “a word of many meanings, . . . its 

construction [is] often . . . influenced by its context”) (internal quotation marks 

omitted). See also Mylan Pharm., Inc. v. Shalala, 81 F. Supp. 2d 30, 37 (D.D.C. 

2000) (reviewing, in another case cited by CREW, the “design of the statute as a 

whole” at Chevron step one). 

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To that end, CREW (at 27-28) asks this Court to discount FECA’s statutory 

subheadings, but these “‘supply clues’ as to what Congress intended,” Merit Mgmt. 

Grp., LP v. FTI Consulting, Inc., 138 S. Ct. 883, 893 (2018) (citing Yates v. United 

States, 135 S. Ct. 1074, 1083 (2015) (plurality), and can “tug[] strongly in favor of 

a narrower reading” than the plain text might otherwise suggest, Yates, 135 S. Ct. 

at 1083 – even at Chevron step one.7

 And as Crossroads’ opening brief explained 

(at 38 & n.11), the headers here track the contents of subsections 52 U.S.C. 

§ 30104(c)(1), (2), and (3). 

Finally, CREW pushes this Court (at 28-29) to disregard its own post-MCFL

precedent, Van Hollen, because that decision “did not discuss [FECA] (c)(1).” But 

this omission only underscores Crossroads’ main point. In that case, thenRepresentative Chris Van Hollen argued that the FEC’s electioneering 

communications regulation should require corporations to “identify ‘all’ 

contributors who contributed over $1,000 during the reporting period[ without 

limiting disclosure to] those who transmitted funds accompanied by an express 

statement that the contribution was intended for the purpose of funding 

electioneering contributions.” Van Hollen v. FEC, 851 F. Supp. 2d 69, 80 

 

7

 See also United States v. Lauderdale Cty., Miss., 914 F.3d 960, 965–66 (5th 

Cir. 2019); CREW v. FEC, 299 F. Supp. 3d 83, 96–97 (D.D.C. 2018), appeal 

dismissed, No. 18-5136, 2018 WL 5115542 (D.C. Cir. Sept. 19, 2018); Cellco 

P’ship v. FCC, 357 F.3d 88, 100 (D.C. Cir. 2004). 

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(D.D.C.), rev’d, 694 F.3d 108 (D.C. Cir. 2012). In other words, thenRepresentative Van Hollen sought to impose the same type of broad-based 

reporting that CREW argues FECA (c)(1) requires. 

In response, this Court unequivocally held that FECA regulates the reporting 

requirements for non-political committees that make independent expenditures in 

“precisely the same way” FECA regulates electioneering communications, 811 

F.3d at 493, and in fact that “Congress codified the very [same] approach” for 

each.8

 Thus, when this Court identified the full panoply of reporting requirements 

potentially at issue in Van Hollen, citing to FECA (c)(2) but not to FECA (c)(1), it 

made clear that this latter provision was inoperative and did not in any way require 

disclosure of an organization’s contributors. This Court should not reverse itself 

on this point now. 

B. CREW Fails to Explain Why Other Criteria That Courts Have 

Routinely Relied Upon Are Irrelevant Here. 

Crossroads also articulated (at 43-53) numerous other arguments why the 

FEC correctly interpreted the statutory language. CREW responds with a 

hodgepodge of errant assertions. 

 

8

 As CREW recognizes (at 29 n.9), a group of three commissioners previously 

explained that reporting is required for electioneering communications only where 

funds are provided for a specific reported communication. This statement by a 

controlling group of commissioners represents the views of the Commission. See 

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

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Much of what CREW has to say is addressed via a proper understanding of 

the pre-1979 FECA legislative history. See supra at 3-7. Citing Zuber v. Allen, 

396 U.S. 168, 193 (1969), CREW (at 37) argues that courts may discount an 

agency’s role in the legislative drafting process in some instances. But Zuber was 

based on different circumstances; here, there was actually a “comprehensive 

review” of the independent expenditure reporting requirements that involved FEC 

personnel’s views. 396 U.S. at 193. Indeed, in direct contrast to CREW’s naysaying, the Supreme Court recently reaffirmed that courts should pay “special 

attention” to a governmental entity’s views when it helped draft the statutory 

language. Republic of Sudan v. Harrison, 139 S. Ct. 1048, 1060 (2019). 

CREW also seeks (at 39) to discount the doctrine of congressional 

acquiescence, claiming it “has little probative use.” But the Supreme Court and 

other appellate courts have relied on this principle, particularly in FECA cases, as 

an interpretive tool to give “considerable deference,” AFL-CIO v. FEC, 333 F.3d 

168, 175 (D.C. Cir. 2003), since acquiescence “strongly implies that the 

regulation[] accurately reflect[s] congressional intent,” FEC v. Ted Haley Cong. 

Comm., 852 F.2d 1111, 1114 (9th Cir. 1988); see also FEC v. DSCC, 454 U.S. 27, 

34 (1981). Acquiescence also is particularly appropriate where there is 

“congressional familiarity with the administrative interpretation at issue,” Cape 

Cod Hosp. v. Sebelius, 630 F.3d 203, 214 (D.C. Cir. 2011), such as exists when 

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Congress reenacts one of the very provisions at issue, see H.R. 2356, 107th Cong. 

(1st Sess. 2001), or is legislating in an area that Members of Congress have 

personal experience with every election cycle. And CREW’s claim that the 

Regulation’s near-four-decade existence is irrelevant conflicts with Abourezk, 785 

F.2d at 1054–55 (labelling a 34-year-old administrative construction as “a 

significant indicator of the legislature’s will”), and even CREW notes (at 39) that 

Congress considered “disclosure by 501(c)(4) groups” – the very issue here – 

during this period.9

Finally, CREW tries to downplay the constitutional and related concerns 

caused by the over-disclosure resulting from its erroneous interpretation of FECA. 

But the concerns here are real. In 2018, for example, a co-owner of the San 

Francisco Giants was publicly attacked because – unbeknownst to him – an 

organization he contributed to made a racially charged independent expenditure in 

Arkansas. See Jesse Yomtov, Giants Co-owner Charles Johnson Tries to Step 

Back from Super PAC Behind Racially Charged Ad, USA Today, Oct. 19, 2018, at 

https://www.usatoday.com/story/sports/mlb/2018/10/19/charles-johnson-giantsracist-advertisement/1701611002/. By tailoring the independent expenditure-

 

9

 The Campaign Legal Center, as amicus, argues generally that the 

independent expenditure reporting requirements were not a source of congressional 

interest prior to cases like Citizens United. But if that is true, this Court has 

already held in similar circumstances that Congress could not have spoken at 

Chevron step one and should proceed to analyze the matter under step two. See 

Van Hollen, 694 F.3d at 110. 

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related reporting obligations to contributors who gave to fund specific 

advertisements, Congress avoided these problems as to non-political committee 

entities that only occasionally participate in the political process. 

IV. Crossroads Has Standing to Pursue This Appeal 

In its opening brief, Crossroads (at 9-10, 19) detailed why it has standing to 

pursue this appeal. CREW responds (at 52-53) by claiming that Crossroads faces 

“‘no material risk of enforcement’ from the FEC.” This claim really is one of 

mootness rather than standing, an issue upon which CREW carries a “heavy 

burden” of proof. Honeywell Int’l., Inc. v. Nuclear Regulatory Comm’n, 628 F.3d 

568, 576 (D.C. Cir. 2010). To that end, a case is not moot if a court’s decision 

merely will – as here – “have a more-than-speculative chance of affecting [the nonmoving party] in the future.” Clarke v. U.S., 915 F.2d 699, 701 (D.C. Cir. 1990) 

(en banc); see also Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016). 

Moreover, as to CREW’s specific arguments, “enforcement policy 

interpretations” – like the press release the FEC issued following the district 

court’s decision – “are not binding regulations” that necessarily prevent 

enforcement, Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 383 F.3d 1047, 

1048 (D.C. Cir. 2004) (per curiam) (en banc), and in any event, this would not 

prevent a third-party group from ultimately filing its own lawsuit in federal court – 

something CREW has already done. See CREW v. Am. Action Network, Civ. No. 

USCA Case #18-5261 Document #1786989 Filed: 05/08/2019 Page 37 of 45
28 

1:18-cv-945 (D.D.C.); see also Nat. Res. Def. Council, Inc. v. U.S.E.P.A., 859 F.2d 

156, 210 n.131 (D.C. Cir. 1988) (finding that agency’s non-prosecutorial promise 

was irrelevant in face of potential for private enforcement action). And if CREW’s 

arguments (at 50) are to be believed – and they should not be – then there is no 

statute of limitations on these third-party litigation efforts. 

CREW also contends that Crossroads’ injury is speculative, but CREW’s 

aggression in pursuing this lawsuit and its administrative enforcement action 

underscore that the threat to Crossroads’ First Amendment rights is real. 

Crossroads also has a documented history of spending on independent 

expenditures and has stated its “intention to resume making independent 

expenditures” if it prevails on appeal. Dkt. No. 1757141, ¶10 (Oct. 25, 2018). 

That is sufficient to establish standing. CREW’s authorities, like Summers v. Earth 

Island Inst., 555 U.S. 488, 496 (2009), generally relate to whether the parties had 

standing at the outset of the litigation in district court and are therefore irrelevant 

here. 

CONCLUSION 

For the foregoing reasons, the Court should reverse the judgment of the 

district court below. 

USCA Case #18-5261 Document #1786989 Filed: 05/08/2019 Page 38 of 45
 29 

Dated: May 8, 2019 

Thomas J. Josefiak 

 E-mail: tjosefiak@holtzmanlaw.net

J. Michael Bayes (Bar No. 501845) 

 E-mail: mbayes@holtzmanlaw.net

HOLTZMAN VOGEL JOSEFIAK 

TORCHINSKY PLLC 

45 North Hill Drive, Suite 100 

Warrenton, VA 20186 

 

540.341.8808 

Respectfully submitted, 

/s/ Thomas W. Kirby 

Michael E. Toner (Bar No. 439707) 

 E-mail: mtoner@wileyrein.com

Thomas W. Kirby (Bar No. 915231) 

 E-mail: tkirby@wileyrein.com

Andrew G. Woodson (Bar No. 494062) 

 E-mail: awoodson@wileyrein.com

WILEY REIN LLP 

1776 K St., NW 

Washington, D.C. 20006 

202.719.7000 

Counsel for Defendant-Appellant

USCA Case #18-5261 Document #1786989 Filed: 05/08/2019 Page 39 of 45
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME 

LIMIT, TYPEFACE REQUIREMENTS, AND TYPE-STYLE 

REQUIREMENTS 

I hereby certify, on this 8th day of May, 2019, that: 

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

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

App. 32(f), this document contains 6,496 words. 

2. This document complies with the typeface requirements of Fed. R. App. 

P. 32(a)(5) and the type-style requirements of Fed. R. App. 32(a)(6) because this 

document was prepared in a proportionally spaced typeface using Microsoft Word 

2016 in a 14-point Times New Roman font. 

 

 /s/ Thomas W. Kirby 

 Thomas W. Kirby 

USCA Case #18-5261 Document #1786989 Filed: 05/08/2019 Page 40 of 45
CERTIFICATE OF SERVICE 

I certify that on May 8, 2019, one copy of the Defendant/Appellant’s Reply 

Brief was filed and served electronically upon the following counsel of record: 

Kevin Deeley (kdeeley@fec.gov) 

Harry Jacob Summers (hsummers@fec.gov) 

Seth E. Nesin (snesin@fec.gov) 

Federal Election Commission 

Office of General Counsel 

1050 First Street, NE 

Washington, DC 20463 

Stuart C. McPhail (smcphail@citizensforethics.org) 

Adam J. Rappaport (arappaport@citizensforethics.org) 

Nikhel S. Sus (nsus@citizensforethics.org) 

Citizens for Responsibility and Ethics in Washington 

455 Massachusetts Avenue, N.W. 

6th Floor 

Washington, DC 20001 

 /s/ Thomas W. Kirby 

 Thomas W. Kirby 

USCA Case #18-5261 Document #1786989 Filed: 05/08/2019 Page 41 of 45
Addendum

 

USCA Case #18-5261 Document #1786989 Filed: 05/08/2019 Page 42 of 45
TABLE OF CONTENTS 

Federal Statutes Page(s) 

2 U.S.C. § 434(b)(13) (1977) ................................................................................ 1a 

Federal Regulations 

11 C.F.R. § 109.2 (1977) ...................................................................................... 1a 

USCA Case #18-5261 Document #1786989 Filed: 05/08/2019 Page 43 of 45
1a 

2 U.S.C. § 434(b)(13) (1977) 

* * * 

(b) Contents of reports. Each report under this section shall disclose . . . 

(9) the identification of each person to whom expenditures have been made by 

such committee or on behalf of such committee or candidate within the calendar 

year in an aggregate amount or value in excess of $100, the amount, date and 

purpose of each such expenditure and the name and address of, and office sought 

by, each candidate on whose behalf such expenditure was made . . . 

(13) in the case of an independent expenditure in excess of $100 by a political 

committee, other than an authorized committee of a candidate, expressly 

advocating the election or defeat of a clearly identified candidate, through a 

separate schedule (a) any information required by paragraph (9) stated in a manner 

which indicates whether the independent expenditure involved is in support of, or 

in opposition to, a candidate; and (b) under penalty of perjury, a certification 

whether such independent expenditure is made in cooperation, consultation, or 

concert with, or at the request or suggestion of, any candidate or any authorized 

committee or agent of such candidate. . . . 

* * * 

11 C.F.R § 109.2 (1977) 

* * * 

Reporting of independent expenditures. 

(a) Every political committee making an independent expenditure shall report on 

Schedule E each such expenditure or contribution to the Commission, Clerk, or 

Secretary, as appropriate. 

(1) The report shall contain, for each expenditure in excess of $100, the 

identification of the person to whom it was made, the amount and date of the 

expenditure, the name of the candidate with respect to whom the expenditure was 

USCA Case #18-5261 Document #1786989 Filed: 05/08/2019 Page 44 of 45
2a 

made and the office the candidate seeks, and whether the expenditure was in 

support, of or in opposition to that candidate 

(2) This information shall be filed on Schedule E as part of a report (monthly, 

quarterly, pre-election, post-election, or annual) covering any period in which any 

independent expenditure exceeding $100 is made. Schedule E shall also include 

the total of all expenditures of $100 or less. 

(3) Political committees not required to report under § 104.1(c) shall nonetheless 

report each independent expenditure in excess of $100 on Schedule E at the time 

the report for that period would have been filed. 

(b) Every other person who makes independent expenditures aggregating in excess 

of $100 during a calendar year shall file a report with the Commission on FEC 

Form 5. 

(1) The report shall contain the reporting person’s identification, occupation, and 

principal place of business, if any, the identification of the person to whom the 

expenditure was made, the amount and date of the expenditure, the candidate’s 

name and the office the candidate seeks, and whether the expenditure was in 

support of or in opposition to that candidate. 

(2) The report shall be filed at the end of the reporting period (quarterly, preelection, post-election, annual) during which the expenditure is made and in any 

reporting period thereafter in which additional independent expenditures are made. 

(c) Independent expenditures by any person or any political committee of $1,000 

or more made after the fifteenth day, but more than 24 hours, before any election 

shall be reported within 24 hours of such independent expenditures pursuant to 

§ 104.4(e). 

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