UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

__________________________________________ 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, et al., ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Civil Action No. 16-00259 (BAH) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant, ) 

 ) 

CROSSROADS GRASSROOTS POLICY ) 

STRATEGIES, ) 

 ) 

Intervenor-Defendant. ) 

__________________________________________) 

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION 

TO DEFENDANT FEDERAL ELECTION COMMISSION’S AND INTERVENOR 

DEFENDANT CROSSROADS GRASSROOTS POLICY STRATEGIES’S CROSSMOTIONS FOR SUMMARY JUDGMENT AND IN SUPPORT OF PLAINTIFFS’ 

MOTION FOR SUMMARY JUDGMENT 

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i 

TABLE OF CONTENTS 

TABLE OF AUTHORITIES ....................................................................................................... ii 

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

ARGUMENT ................................................................................................................................. 2 

I. THE REGULATION EXCEEDS THE SCOPE OF THE FEC’S AUTHORITY AND 

MUST BE STRUCK ................................................................................................................ 2 

A. Standard of Review ....................................................................................................... 3

B. The Regulation is Unexplained and Inexplicable ......................................................... 5

C. The Regulation Conflicts with Subsection (c)(2)(C) .................................................... 9

1. The Regulation Fails Chevron Step One ......................................................... 9 

2. The Regulation Fails Chevron Step Two ....................................................... 16 

D. The Regulation is “Silent” as to Subsection (c)(1) Reporting, but if the Regulation 

Implements it, the Regulation Conflicts with the Statute ........................................... 24

E. CREW has Standing to Challenge the Regulation ...................................................... 31

1. The Regulation was “Applied” to CREW so CREW May Challenge It ........ 31 

2. CREW Presented its Challenge Below, Though it Need Not Have ............... 32 

3. The Court Can Remedy CREW’s Injury ........................................................ 34 

F. The Proper Remedy is to Strike the Invalid Regulation ............................................. 39

II. THE FEC’S DISMISSAL OF CREW’S COMPLAINT WAS CONTRARY TO LAW...................... 41 

A. Standard of Review ..................................................................................................... 41

B. The Dismissal of CREW’s Subsection (c)(2)(C) Claim was Contrary to Law .......... 44

C. The Dismissal of CREW’s Subsection (c)(1) Claim was Contrary to Law ................ 46

D. The Dismissal of CREW’s § 109.10(e)(1)(vi) Claim was Contrary to Law .............. 50

CONCLUSION ........................................................................................................................... 50

 

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ii 

TABLE OF AUTHORITIES 

Cases

Abbott GmbH & Co. KG v. Yeda Research and Dev. Co., Ltd., 

516 F. Supp. 2d 1 (D.D.C. 2007) .............................................................................................. 10 

Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052 (D.C. Cir. 2007) ................................................. 38 

AFL-CIO v. Chao, 496 F. Supp. 2d 76 (D.D.C. 2007) ................................................................. 36 

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996) (en banc) ......................................................... 41, 42 

Alexander v. Sandoval, 532 U.S. 275 (2001) ................................................................................ 23 

Allied-Signal, Inc. v. U.S. NRC, 988 F.2d 146 (D.C. Cir. 1993) ............................................ 39, 40 

Aragon v. Tillerson, 240 F. Supp. 3d 99 (D.D.C. 2017) ............................................................... 39 

Ashton v. Pierce, 716 F.2d 56 (D.C. Cir. 1983) ............................................................................ 22 

AT&T Co. v. FCC, 978 F.2d 727 (D.C. Cir. 1992) ................................................................. 33, 35 

Avocado Plus Inc. v. Veneman, 370 F.3d 1243 (D.C. Cir. 2004) ................................................. 33 

Baltimore & Ohio R. Co. v. Aberdeen & Rockfish R. Co., 393 U.S. 87 (1968) ............................. 4 

Barnett v. Weinberger, 818 F.2d 953 (D.C. Cir. 1987) ................................................................ 44 

Bhd. of R.R. Trainmen v. B. & O. R. Co., 331 U.S. 519 (1947) ............................................. 26, 27 

Bismullah v. Gates, 551 F.3d 1068 (D.C. Cir. 2009) .................................................................... 22 

Bluewater Network v. EPA, 370 F.3d 1 (D.C. Cir. 2004) ............................................................. 43 

Buckley v. Valeo, 424 U.S. 1 (1976) ................................................................................... 6, 16, 21 

Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 

511 U.S. 164 (1994) ............................................................................................................ 22, 23 

Citizens United, 558 U.S. 310 (2010) ........................................................................................... 16 

Coburn v. McHugh, 679 F.3d 924 (D.C. Cir. 2012) ............................................................... 33, 48 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) .............................................................. 42 

Council for Urological Interests v. Burwell, 790 F.3d 212 (D.C. Cir. 2015) ........................ passim 

Case 1:16-cv-00259-BAH Document 33 Filed 12/04/17 Page 3 of 59
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CREW v. FEC, 209 F. Supp. 3d 77 (D.D.C. 2016) ........................................................... 39, 41, 42 

Ctr. for Individual Freedom v. Van Hollen, 694 F.3d 108 (D.C. Cir. 2012) ................................ 13 

Darby v. Disneros, 509 U.S. 137 (1993) ...................................................................................... 33 

Dixon v. United States, 548 U.S. 1 (2006) .................................................................................... 37 

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

FEC v. Craig for U.S. Senate, 70 F. Supp. 3d 82 (D.D.C. 2014) ................................................. 37 

FEC v. Craig for U.S. Senate, 816 F.3d 829 (D.C. Cir. 2016) ..................................................... 37 

FEC v. Dem. Sen. Campaign Comm., 454 U.S. 27 (1981) ........................................................... 41 

FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987) ........................................................................... 25 

FEC v. Mass. Right to Life (“MCFL”), 479 U.S. 238 (1986) ................................................ passim 

FEC v. Nat’l Rep. Sen. Comm., 966 F.2d 1471 (D.C. Cir. 1992) ................................................. 41 

FEC v. O’Donnell, 209 F. Supp. 3d 727 (D. Del. 2016) .............................................................. 37 

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

769 F.3d 1127 (D.C. Cir. 2014) ................................................................................................ 42 

Foo v. Tillerson, 244 F. Supp. 3d 17 (D.D.C. 2017) .................................................................... 10 

Functional Music, Inc. v. FCC, 274 F.2d 543 (D.C. Cir. 1958) ................................................... 32 

GE v. EPA, 53 F.3d 1324 (D.C. Cir. 1995)................................................................................... 38 

George E. Warren Corp. v. EPA, 159 F.3d 616 (D.C. Cir. 1998) ................................................ 35 

Haselwander v. McHugh, 774 F.3d 990 (D.C. Cir. 2014) .............................................................. 4 

Hays v. Sebelius, 589 F.3d 1279 (D.C. Cir. 2009) ........................................................................ 26 

Honig v. Doe, 484 U.S. 305 (1988) .............................................................................................. 33 

Huerta v. Ducote, 792 F.3d 144 (D.C. Cir. 2015) ........................................................................ 50 

In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000) ........................................................................ 42 

Kennecott Utah Copper Corp. v. U.S. Dep’t of Interior, 88 F.3d 1191 (D.C Cir. 1996) ............. 36 

Lamont v. Postmaster General, 381 U.S. 301 (1965) ................................................................... 32 

Case 1:16-cv-00259-BAH Document 33 Filed 12/04/17 Page 4 of 59
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Larouche v. FEC, 28 F.3d 137 (D.C. Cir. 1994) .......................................................................... 38 

Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44 (2011) ......................... 42 

McConnell v. FEC, 540 U.S. 93 (2003) ........................................................................................ 16 

McFadden v. United States, 135 S. Ct. 2298 (2015) ................................................................ 9, 10 

McLane Co., Inc. v. EEOC, 137 S. Ct. 1159 (2017) ..................................................................... 43 

Mem. Op. (Mar. 22, 2017) ECF No. 22 ............................................................................ 31, 33, 34 

Milk Train, Inc. v. Veneman, 310 F.3d 747 (D.C. Cir. 2002) ....................................................... 39 

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

463 U.S. 29 (1983) ............................................................................................................ 4, 5, 49 

Multicultural Media, Telecomm. & Internet Council v. FCC, 

873 F.3d 932 (D.C. Cir. 2017) .................................................................................................... 3 

Murphy Expl. and Prod. Co. v. U.S. Dep’t of Interior, 252 F.3d 473 (D.C. Cir. 2001) ............... 31 

Murphy Expl. and Prod. Co. v. U.S. Dep’t of Interior, 270 F.3d 957 (D.C. Cir. 2001) ... 31, 32, 33 

Mylan Pharm., Inc. v. Shalala, 81 F. Supp. 2d 30 (D.D.C. 2000) .................................................. 9 

N. Air Cargo v. U.S. Postal Serv., 674 F.3d 852 (D.C. Cir. 2012) ....................................... 4, 6, 44 

Nader v. FEC, 823 F. Supp. 2d 53 (D.D.C. 2011) ........................................................................ 48 

Nat’l Ass’n of Mfrs v. Taylor, 549 F. Supp. 2d 33 (D.D.C. 2008) ................................................ 37 

Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399 (D.C. Cir. 1998) ................... 39 

NRDC v. NRC, 666 F.2d 595 (D.C. Cir. 1981) ............................................................................. 35 

Oceana, Inc. v. Locke, 674 F. Supp. 2d 39 (D.D.C. 2009) ........................................................... 18 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) ..................................................................... passim 

P&V Enter. v. U.S. Army Corps of Eng’rs, 466 F. Supp. 2d 134 (D.D.C. 2006) ......................... 35 

Pillsbury v. United Eng’g Co., 342 U.S. 197 (1952) .............................................................. 11, 30 

Prime Time Int’l Co. v. Vilsack, 930 F. Supp. 2d 240 (D.D.C. 2013) ............................................ 3 

Prof. Drivers Council v. Bureau of Motor Carrier Safety, 706 F.2d 1216 (D.C. Cir. 1983) ....... 32 

Case 1:16-cv-00259-BAH Document 33 Filed 12/04/17 Page 5 of 59
v 

Public Citizen, Inc. v. FAA, 988 F.2d 186 (D.C. Cir. 1993) ................................................... 5, 6, 8 

Rapanos v. United States., 547 U.S. 715 (2006) ........................................................................... 22 

Sanders v. Kerry, 180 F. Supp. 3d 35 (D.D.C. 2016) ................................................................... 18 

Seminole Tribe of Fl. v. Florida, 517 U.S. 44 (1996) ................................................................... 15 

Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004) ........................................................................ 20 

Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) ......................................................................... passim 

Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008) ....................................................................... passim 

Shearman v. Comm’r of Internal Revenue, 66 F.2d 256 (2d Cir. 1933) ....................................... 22 

Sims v. Apfel, 530 U.S. 103 (2000) ......................................................................................... 33, 46 

Stanley v. Georgia, 394 U.S. 557 (1969) ...................................................................................... 32 

Swift & Courtney & Beecher Co. v. United States, 105 U.S. 691 (1881) ..................................... 37 

Tiech v. FDA, 751 F. Supp. 243 (D.D.C. 1990)............................................................................ 38 

TRW Inc. v. Andrews, 534 U.S. 19 (2001) .................................................................................... 27 

United Mine Workers of Am., Int’l Union v. Dole, 870 F.2d 662 (D.C. Cir. 1989) ..................... 39 

United States v. Hagler, 700 F.3d 1091 (7th Cir. 2012) ............................................................... 10 

United States v. Mead Corp., 533 U.S. 218 (2001) ...................................................................... 42 

US Telecomm. Assoc. v. FCC, 825 F.3d 674 (D.C. Cir. 2016) ..................................................... 35 

Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976) ........... 8, 12 

Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016) ......................................................... 13, 14, 17 

Village of Barrington, III v. Surface Tranp. Bd., 636 F.3d 650 (D.C. Cir. 2011) ...................... 3, 4 

Vote Choice, Inc. v. Di Stefano, 814 F. Supp. 186 (D.R.I. 1992) ................................................. 16 

Weaver v. Fed. Motor Carrier Safety Admin., 744 F.3d 142 (D.C. Cir. 2014) ...................... 31, 35 

Statutes

2 U.S.C. § 434(b)(2) (1976) .......................................................................................................... 28 

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5 U.S.C. § 706 ............................................................................................................................... 34 

5 U.S.C. § 706(2) ............................................................................................................................ 3 

52 U.S.C. § 30101(8) .............................................................................................................. 17, 30 

52 U.S.C. § 30104(a) .................................................................................................................... 29 

52 U.S.C. § 30104(b) .................................................................................................................... 27 

52 U.S.C. § 30104(b)(3)(A) ................................................................................................... passim 

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

52 U.S.C. § 30104(c)(1) ......................................................................................................... passim 

52 U.S.C. § 30104(c)(2)(A) .......................................................................................................... 11 

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

52 U.S.C. § 30104(f)(2) .................................................................................................... 13, 14, 30 

52 U.S.C. § 30104(g)(2) ............................................................................................................... 11 

52 U.S.C. § 30106(c) .................................................................................................................... 40 

52 U.S.C. § 30109(a)(2) .......................................................................................................... 43, 49 

52 U.S.C. § 30109(a)(6) ................................................................................................................ 38 

52 U.S.C. § 30109(a)(8)(C) ................................................................................................ 2, 41, 43 

52 U.S.C. § 30111(e) .................................................................................................. 36, 38, 44, 49 

Regulations

11 C.F.R. § 104.20(c)(9) ......................................................................................................... 14, 30 

11 C.F.R. § 109.10 .............................................................................................................. 5, 23, 47 

11 C.F.R. § 109.10(b) ............................................................................................................. 11, 27 

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

26 C.F.R. § 1.6033-2(a)(2)(ii)(f) ................................................................................................... 40 

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Rules

FED. R. EVID. 201 .......................................................................................................................... 18 

Other Authorities

AO 2008-10, Votervoter.com (Oct. 24, 2008), http://bit.ly/2AITSaa .......................................... 20 

Certification, MUR 5303 (Perot Petition Committee) Aug. 25, 2002, http://bit.ly/2jyw3qM ..... 26 

CRP, Outside Spending by Disclosure, Excluding Party Committees, http://bit.ly/1AzZeKb ... 18, 

19 

Dep’t of Labor, Labor Org. Annual Financial Reports, 68 Fed. Reg. 58,374 (Oct. 9, 2003) ....... 19 

FEC, Statement of Policy Regarding Commission Action in Matters at the Initial Stage of 

Enforcement Process, 72 Fed. Reg. 12545, 12545 (Mar. 16, 2007) ............................. 45, 49, 50 

General Counsel’s Report, MUR 5303 (Perot Petition Committee), Aug. 4, 1992, 

http://bit.ly/2jyw3qM .......................................................................................................... 26, 49 

Legislative History of Federal Election Campaign Act Amendments of 1979 (1983)12, 13, 22, 29 

Steven T. Walther, Assessment of Commission Act on Enforcement Matters Waiting Reason-toBelieve Consideration (Nov. 15, 2017), http://bit.ly/2zT3NKg ............................................... 40 

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INTRODUCTION 

The Federal Election Commission (“FEC”) relied on an invalid regulation to dismiss 

Citizens for Responsibility and Ethics in Washington’s and Nicholas Mezlak’s (together, 

“CREW”) complaint against Crossroads Grassroots Policy Strategies (“Crossroads GPS”). The 

regulation only requires those making independent expenditures to report contributors who gave 

to further “the reported” expenditure, 11 C.F.R. § 109.10(e)(1)(vi), conflicting with the dual 

mandates of 52 U.S.C. § 30104(c)(1) and (c)(2)(C) requiring disclosure of all contributions given 

to further “an” independent expenditure and all contributions received that year. The regulation 

was also issued without any explanation, or even recognition, of that conflict. Nonetheless, the 

FEC relied on it to find no reason to believe Crossroads GPS needed to disclose its contributors, 

despite the undisputed evidence in the record that one contributor gave over $3 million 

specifically to support Crossroads GPS’s work, primarily consisting of airing independent 

expenditures, to elect Josh Mandel; the group took in another $1.3 million from others for the 

same work; and that it received more contributions based on “example” ads shown at a 

fundraiser. Both the regulation and the dismissal below, however, are unlawful and both should 

be stricken by the Court. 

In an attempt to defend the indefensible, the FEC and Crossroads GPS make ipse dixit

appeals to the agency’s expertise, assuring the Court that the issues here are simply too 

complicated for it to understand. They wildly cast about for even the flimsiest of grounds to try 

to establish some ambiguity in the statute to support the regulation and the dismissal. When they 

have no argument on the merits, they challenge CREW’s standing. Finally, in a sign that it has 

no meritorious argument to advance, Crossroads GPS resorts to fabricating evidence. 

Their arguments are meritless. First, 11 C.F.R. § 109.10(e)(1)(vi) is unexplained, 

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conflicts with 52 U.S.C. § 30104(c)(2)(c), and either does not reflect 52 U.S.C. § 30104(c)(1) or 

conflicts with it. CREW has standing to challenge the regulation under the Administrative 

Procedure Act (“APA”) and the Court can remedy CREW’s injury by “vacating the challenged 

rule.” Shays v. FEC, 414 F.3d 76, 95 (D.C. Cir. 2005). 

Second, the dismissal of CREW’s complaint against Crossroads GPS was “contrary to 

law,” under the Federal Election Campaign Act (“FECA”). 52 U.S.C. § 30109(a)(8)(C). The 

dismissal was based on the invalid regulation, which necessarily means it rested on “an 

impermissible interpretation of [law].” Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). 

Further, while the controlling commissioners were right that the regulation is “silent” about the 

“additional” reporting obligations imposed by subsection (c)(1)—an obligation CREW pressed 

below—it was contrary to law to find no reason to believe Crossroads GPS violated subsection 

(c)(1) based on trumped up concerns that it lacked fair notice. AR 81. Finally, even assuming 

the regulation is valid—and it is not—the FEC’s failure to find reason to believe was still 

contrary to law because the FEC admits it imposed a higher standard of review than commanded 

by the statute. 

In sum, because the regulation is invalid, its infirmities are incurable, and its continued 

existence causes great prejudice to CREW and the public, CREW respectfully requests the Court 

strike it. Moreover, because the FEC also dismissed CREW’s complaint based on the regulation 

and other unlawful grounds, CREW respectfully requests the Court declare the dismissal was 

contrary to law. 

ARGUMENT 

I. The Regulation Exceeds the Scope of the FEC’s Authority and Must be Struck 

Crossroads GPS was allowed to conceal its contributors from CREW and from voters, 

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despite Congress’s unambiguous command to the contrary, because the FEC relied on an 

unexplained regulation which narrowed one reporting requirement under the FECA—limiting 

Congress’s command to report contributions given to further “an” independent expenditure to 

only those given to further “the reported” ad, compare 52 U.S.C. § 30104(c)(2)(C) with 11 

C.F.R. § 109.10(e)(1)(vi)—while remaining silent about another disclosure provision, 52 U.S.C. 

§ 30104(c)(1). The regulation is invalid, however. First, the FEC offered no contemporaneous 

“persuasive justification” for the regulation, Shays, 414 F.3d at 100, and, second, it fails under 

both prongs of the Chevron analysis. Accordingly, it cannot lawfully serve to block CREW’s 

access to the information to which it is rightfully entitled: the identities of Crossroads GPS’s 

contributors subject to disclosure under 52 U.S.C. § 30104(c). 

A. Standard of Review 

CREW’s challenge to the legality of 11 C.F.R. § 109.10(e)(1)(vi) is governed by the 

APA, 5 U.S.C. § 706(2). Despite the FEC’s representations otherwise, this review is “not 

toothless.” Multicultural Media, Telecomm. & Internet Council v. FCC, 873 F.3d 932, 937 

(D.C. Cir. 2017). Indeed, in determining whether § 109.10(e)(1)(vi) conflicts with the FECA 

and thus is “not in accordance with law” or “in excess of statutory jurisdiction,” 5 U.S.C. 

§ 706(2)(A), (C), the Court applies the familiar Chevron framework, Shays, 414 F.3d at 96. 

“[A]t Chevron step one [courts] alone are tasked with determining Congress’s unambiguous 

intent” and so courts address that inquiry “without showing the agency any special deference.” 

Village of Barrington, III v. Surface Tranp. Bd., 636 F.3d 650, 660 (D.C. Cir. 2011); Prime Time 

Int’l Co. v. Vilsack, 930 F. Supp. 2d 240, 250 (D.D.C. 2013) (courts review “Chevron step 1 

independently” and “do not defer to agency determinations of whether or not the statute is 

ambiguous”). “At Chevron step two [courts] defer to the agency’s permissible interpretation, but 

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only if the agency has offered a reasoned explanation for why it chose that interpretation.” 

Village of Barrington, 636 F.3d at 660 (emphasis added). Only contemporaneous explanations 

of the agency can satisfy the agency’s obligation at Chevron step two. Council for Urological 

Interests v. Burwell, 790 F.3d 212, 222 (D.C. Cir. 2015) (courts only “look to what the agency 

said at the time of the rulemaking—not to its lawyers’ post-hoc rationalizations”).1 

Similarly, the agency’s separate duty to “articulate a satisfactory explanation for its 

action” is not subject to the agency’s discretion. Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm 

Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). Post-hoc explanations of counsel are insufficient. N. 

Air Cargo v. U.S. Postal Serv., 674 F.3d 852, 860 (D.C. Cir. 2012). So too is a naked appeal to 

expertise, as that “would in effect be saying that the expertise of the Commission is so great” that 

when it asserts that expertise, “the controversy is at an end, even though the record does not 

reveal” how that expertise came to bear. Baltimore & Ohio R. Co. v. Aberdeen & Rockfish R. 

Co., 393 U.S. 87, 91–92 (1968). Rather, where the agency’s “explanation for its determination . 

. . lacks any coherence, the court owes no deference to [the FEC’s] purported expertise because 

[the court] cannot discern it.” Haselwander v. McHugh, 774 F.3d 990, 996 (D.C. Cir. 2014). 

Here, the agency’s sole contemporaneous justification for the regulation is that it 

“incorporates the changes” in then recently passed FECA amendments. AR 1503. Because that 

statement provides no coherent explanation for—or indeed even recognition of—the change in 

disclosure obligations from those required by Congress, it fails to provide a “coherent” 

 1

 The FEC argues that it may even adopt rules contravening the statute as long as they are 

“related to the purpose of the enabling legislation,” FEC Br. 32 (quoting Mourning v. Family 

Publ’n Serv., Inc., 411 U.S. 356, 369 (1973)). But the Court’s “decisions, Mourning included, 

do not authorize agencies to contravene Congress’ will in this manner.” Ragsdale v. Wolverine 

World Wide, Inc., 535 U.S. 81, 92 (2002). 

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explanation to which the Court could defer. Thus, in this challenge to 11 C.F.R. 

§ 109.10(e)(1)(vi) under the APA, the Court owes the FEC no deference. 

B. The Regulation is Unexplained and Inexplicable 

The agency’s whole explanation for the existence of 11 C.F.R. § 109.10 (then § 109.2) 

consists of twenty-nine words. AR 1503. It states that the regulation “incorporates the changes 

set forth at 2 U.S.C. 434(c)(1) and (2).” Id. (now codified at 52 U.S.C. § 30104(c)(1) and (2)). 

The regulation does not explain, however, why the agency altered subsection (c)(2)’s 

requirement to disclose contributions received for the purpose of furthering “an” independent 

expenditure, 52 U.S.C. § 30104(c)(2)(C), to one requiring only the disclosure of contributions 

received for the purpose of furthering “the reported” independent expenditure, 11 C.F.R. 

§ 109.10(e)(1)(vi). Indeed, the explanation does not even recognize this change. Nor does 

anything in the record explain that alteration—in fact, nothing in the record shows that the 

Commission was even aware of it. Moreover, there is not even an attempt to explain how the 

regulation incorporates changes in subsection (c)(1), which requires the disclosure of “all 

contributions” over $200 received in the prior year. 52 U.S.C. § 30104(b)(3)(A), (c)(1). The 

FEC’s utter lack of explanation for the regulation provides no “rational connection between the 

facts found and the choice made,” State Farm, 463 U.S. at 43, nor “persuasive justification for 

the provisions challenged,” Shays, 414 F.3d at 100. It is no explanation, never mind an 

“adequate[e]” one. Public Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993). 

Neither the FEC nor Crossroads GPS seriously dispute this. Nowhere in either party’s 

defense of this regulation do they rely on the agency’s actual contemporaneous explanation. The 

FEC cites it merely once in background, FEC Br. 7, and never mentions it again. Crossroads 

GPS’s reliance is similarly sparse. CGPS Br. 13, 50. Instead, they rely on “post hoc 

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explanations,” but those cannot satisfy the FEC’s duty to have provided a contemporaneous 

justification as a matter of law. N. Air Cargo, 674 F.3d at 860. The agency’s failure to provide 

an “adequat[e]” or “persuasive” justification at the time of the rule’s adoption renders it invalid. 

Public Citizen, 988 F.2d at 197; Shays, 414 F.3d at 100. 

Nor do the FEC’s and Crossroads GPS’s post-hoc explanations justify the regulation, 

even if they were properly before the Court. The statute is neither absurd as written nor raises 

serious or constitutionally cognizable risks of confusion. 

The FEC and Crossroads GPS primarily contend that it would have been absurd for 

Congress to have meant what it said when it required disclosure of contributions given for the 

purpose of furthering “an” independent expenditure. FEC Br. 36–37, CGPS Br. 40–41. Yet it is 

plainly not absurd for Congress to have required the creator of an independent expenditure to 

report all of their contributions used to fund any and all of its independent expenditures. By 

doing so, Congress would ensure that voters actually learned the identity of those funding the ads 

and thus were “fully informed,” Buckley v. Valeo, 424 U.S. 1, 76 (1976), whereas under the 

current regulation, voters are essentially denied any insight into “[t]he sources of a candidate’s 

financial support,” id. at 67. See CREW Br. 15–17; infra p. 19. 

That is particularly apparent when subsection (c)(2)(C) is read in connection with 

subsections (c)(1) and (b)(3)(A). Just as Congress now regulates two forms of electoral 

communications—one based on inferred purpose (i.e., independent expenditures) and another 

based on timing (i.e., electioneering communications)—Congress required disclosure of two sets 

of contributions when it amended § 30104(c): one group would be reported based on the 

purpose they gave (subsection (c)(2)(C)), and another would be reported based on when they 

gave (subsection (c)(1)). Further, just as Congress wanted voters to know the identities of all 

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7 

contributors to a political committee and not only those contributors who gave to fund the 

particular political communication that may relate to the particular election in which the voter 

participates, Congress similarly wanted viewers of independent expenditures to understand the 

full scope of the ad’s financial support (without subjecting the ads’ makers to full political 

committee burdens like continuous reporting). 

Nor can the FEC’s or Crossroads GPS’s concerns that a donor may be mistakenly 

associated with particular independent expenditures justify the limitation on disclosure. First, 

reducing the disclosure required under subsection (c)(2)(C) would not eliminate the purportedly 

confusing disclosure because the creator of an independent expenditure must report all 

contributions received within the year under subsection (c)(1), regardless of the particular race 

the contributor sought to influence. Second, the confusion defendants fear is also present with 

political committees, which must report all of their contributors, even if those contributors did 

not intend to impact the specific election in which a voter might interact with the political 

committee. 52 U.S.C. § 30104(b)(3)(A). Yet the law still requires it. Third, for groups that only 

“occasionally” engage in political activity and thus don’t register as political committees, FEC v. 

Mass. Right to Life (“MCFL”), 479 U.S. 238, 262 (1986), the risk of confusion is exceedingly 

slight. Such a group would run only a very small number of independent expenditures, all 

sharing an ideological view. While the risk of confusion may be greater for Crossroads GPS—

which “filed more than 100 different independent expenditure reports in the two-year 2012 

election cycle,” FEC Br. 37—similar groups will likely be required to report as political 

committees anyway. Cf. AR 199 (statement of two FEC commissioners that “[t]his Commission 

should acknowledge the obvious [and] deem Crossroads GPS a political committee”). Certainly, 

Congress could reasonably think voters have a legitimate interest in understanding the financial 

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8 

backing of organizations so “extensive[ly]” involved in elections. MCFL, 479 U.S. at 262. 

Fourth, it is unconstitutional for the FEC to limit disclosure based on its belief that the 

recipients of the information will reach—in the FEC’s view—incorrect or undesired conclusions. 

Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 769–70 (1976). 

The government may not limit recipients’ access to information by citing “the advantages of 

their being kept in ignorance.” Id. Rather, “information is not in itself harmful,” and “the best 

means” of addressing any confusion “is to open the channels of communication rather than to 

close them.” Id. If a contributor is concerned about being mistakenly associated with all of her 

beneficiary’s independent expenditures, the solution is for either to engage in more speech, not 

less. Either the contributor or Crossroads GPS can publicly declare that a reported contribution 

was intended to fund a different race or ad. But what neither Crossroads GPS nor the FEC may 

do is to deny CREW and others the information that Congress has entitled them out of the belief 

that they won’t reach the “right” conclusion. 

While the FEC and Crossroads GPS may think Congress chose too much disclosure, their 

disagreements with the statute cannot justify departing from it. Shays v. FEC, 528 F.3d 914, 919 

(D.C. Cir. 2008) (agency may not frustrate policy adopted by Congress).2

 Their post-hoc 

attempts to justify the FEC’s narrowing of disclosure required under the FECA are neither 

“persuasive” nor “adequate[].” Public Citizen, 988 F.2d at 197; Shays, 414 F.3d at 100. Nor, 

indeed, are they even relevant, Council for Urological Interests, 790 F.3d at 222, and the FEC’s 

failure to offer a contemporaneous explanation renders 11 C.F.R. § 109.10(e)(1)(vi) invalid. 

 2

 While the FEC and Crossroads GPS argue that statute is too ambiguous and therefore the need 

for clarity explains the regulation, the statute is not ambiguous for the reasons addressed below. 

Case 1:16-cv-00259-BAH Document 33 Filed 12/04/17 Page 16 of 59
9 

C. The Regulation Conflicts with Subsection (c)(2)(C) 

While the FEC’s failure to offer a contemporaneous explanation is enough to render the 

rule invalid, its conflict with the statute is also an irreparable infirmity. The FEC contends that 

the regulation is a reasonable interpretation of 52 U.S.C. § 30104(c)(2)(C) and thus can be saved 

by a new explanation on remand. Nevertheless, despite the FEC’s and Crossroads GPS’s 

attempts, neither comes close to showing that the subsection is ambiguous, nor do either show 

that the regulation is reasonable. Accordingly, the regulation fails both Chevron steps. 

1. The Regulation Fails Chevron Step One 

In amending the FECA, Congress “spoke[] directly” about the scope of contributions that 

were to be reported under the second prong of the new reporting regime, Shays, 414 F.3d at 96: 

all contributions given for the purpose of furthering “an” independent expenditure, 52 U.S.C. 

§ 30104(c)(2)(C); MCFL, 479 U.S. at 262. Accordingly, there is no ambiguity for the FEC to 

address, and the FEC’s and Crossroads GPS’s attempts to manufacture one are meritless. 

With respect to subsection (c)(2)(C), the FEC asserts the use of “an” in the statute is 

inherently ambiguous, and that it was therefore acceptable for the agency to change Congress’s 

reporting scope from contributions supporting “an” independent expenditure to “the reported” 

independent expenditure. Yet Congress’s choice “to employ the indefinite article does not imply 

that ‘Congress has explicitly left a gap for the agency to fill.’” Mylan Pharm., Inc. v. Shalala, 81 

F. Supp. 2d 30, 37 (D.D.C. 2000). 

The FEC’s authority purporting to show the use of “an” is ambiguous actually 

demonstrates the contrary. In McFadden v. United States, the Court recognized that “[w]hen 

used as an indefinite article, ‘a’ means ‘some undermined and unspecified particular.’” 135 S. 

Ct. 2298, 2304 (2015) (quoting Webster’s New Int’l Dictionary). But it did not then find that 

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10 

that term was ambiguous—indeed it said the statute was “unambiguous.” Id. at 2307. It went on 

to find that, under the plain meaning of “a,” a statute barring a person from knowingly 

possessing “a controlled substance” barred that person from knowingly possessing any

controlled substance. Id. Crossroads GPS’s authority is even more explicit, treating a statute’s 

use of “any” and “a” as synonymous. N.H. Motor Transp. Ass’n v. Rowe, 448 F.3d 66, 72 (1st 

Cir. 2006) (treating statute’s reference to “any motor carrier” and “an air carrier” as synonymous, 

recognizing “‘[a]ny’ means ‘one . . . of whatever kind,’ and ‘an’ means ‘one’”). Notably, 

Crossroads GPS admits that CREW’s reading would be compelled if the statute required 

reporting contributions for “any independent expenditures.” CGPS Br. 40–41. The cited 

authority proves that that is exactly what the statute already requires. 

The other authority cited by the FEC and Crossroads GPS is similarly unhelpful to them. 

Crossroads GPS cites cases that merely show that the word modified by the indefinite article 

may be ambiguous, allowing an agency to interpret the scope of the category. See Foo v. 

Tillerson, 244 F. Supp. 3d 17, 23 (D.D.C. 2017) (“an individual” may or may not cover estates); 

Abbott GmbH & Co. KG v. Yeda Research and Dev. Co., Ltd., 516 F. Supp. 2d 1, 6 (D.D.C. 

2007) ( “a protein” may or may not cover “mutein”). There is no dispute here, however, that 

“independent expenditure” is unambiguous or that Crossroads GPS’s ads fall within it.3

 

 3

 Nor is United States v. Hagler instructive. 700 F.3d 1091 (7th Cir. 2012). There, the court 

interpreted a statute providing that, “[i]n a case in which DNA implicates an identified person,” a 

statute of limitations shall not preclude prosecution until a period after “the implication of the

person.” Id. at 1096–97 (emphasis added). The defendant attempted to argue that, because the 

first use of “person” was indefinite, the clock began to run whenever any person was identified, 

even if it was not the person being prosecuted. Id. at 1097. The court reasonably rejected that, 

noting that the subsequent use of “the” meant that a single specific individual must first be 

identified before the clock began running on that person’s prosecution. No similar provision is 

in the FECA. Notably, the court would have reached the exact same result had the statute 

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11 

Indeed, Congress’s intentional choice of language can be seen from the fact that Congress 

explicitly chose to use different articles in other sections of the same provision. In subsection 

(c)(2)(A), Congress required the reporting entity identify whether “the independent expenditure” 

supports or opposes the referenced candidate. Clearly then, the reporting entity must separately 

report for each independent expenditure whether that specific independent expenditure was 

either in support of or in opposition to the referenced candidate. Yet Congress explicitly chose 

not to use the definite article with respect to subsection (c)(2)(C). In that subsection, Congress 

chose the indefinite, and “Congress knew the difference between ‘[the]’ and ‘[an]’ and used the 

words advisedly.” Pillsbury v. United Eng’g Co., 342 U.S. 197, 199 (1952). 

The FEC nevertheless argues that ambiguity exists because it is “unclear where and when 

that information should be reported under plaintiffs’ interpretation” of § 30104(c)(2)(c). FEC 

Br. 37. Yet those questions are addressed in a separate section of the statue: 52 U.S.C. 

§ 30104(g)(2)(A), (B) (requiring reporting within 48 or 24 hours of an independent 

expenditure), and by FEC regulations, 11 C.F.R. § 109.10(b) (requiring quarterly reports). 

When reports are filed, 52 U.S.C. § 30104(c)(2)(C) specifies one type of information they must 

contain: the identity of all contributors who gave to further an independent expenditure. 

The FEC maintains that it would be absurd for each 24 or 48 hour report to list 

contributors who may not have given to fund that specific ad, or who gave some time ago. It 

argues that it would be absurd for Crossroads GPS’s contributors to be reported, even if 

Crossroads GPS had not run ads similar to the “examples” shown at the fundraiser but ran “ads 

for completely different races and took completely different positions.” FEC Br. 38. But those 

 

provided that “[i]n a case in which DNA implicates [any] person,” the statute of limitations shall 

not preclude prosecution until a period after “the implication of the person.” Id. at 1096. 

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12 

concerns have no basis in the text of the FECA; in fact, they are plainly irrelevant to the 

reporting regime imposed by Congress. The exact same situation could happen when someone 

donates to a political committee, yet there is no dispute that that person must be reported. 

Indeed, such a situation demonstrates the wisdom of Congress’s selection. Voters would know 

the sources of the funds used to pay for the independent expenditures, even if the maker 

switched the candidate or issue addressed. Any contributors concerned about being associated 

with an issue or candidate are free to publicly correct that perception, or they can limit their 

contributions to groups that focus on one election or issue. What the FEC may not do, however, 

is to reduce the information available to the public because it believes voters should not be 

allowed to reach their own conclusions. Va. State Bd. of Pharm., 425 U.S. at 769–70; cf. FEC 

Br. 44 (arguing voters are better off ignorant). 

Simply put, there no absurdity in interpreting Congress to have meant what it said. 

Congress could clearly have foreseen the likelihood that requiring specific earmarking in relation 

to a single ad would result in a dearth of reporting. Indeed, such a concern about explicit 

earmarking would be well placed: it is exactly what has happened. CREW Br. 15–17. 

For its part, Crossroads GPS resorts to misstating the historical record to imply that 

Congress simply misspoke and what it meant to do was to limit or eliminate contributor 

disclosure. Crossroads GPS’s citations to history, however, show no such thing. While one of 

the goals of the 1979 amendments indeed was reducing the “burden” of “reporting 

requirements,” Legislative History of Federal Election Campaign Act Amendments of 1979 at 

449 (1983), http://bit.ly/2BopE8F (“FECA 1979 History”), those reductions related to candidates 

and political committees, see id. (noting burden of reporting regulations and amendments’ aim to 

“reduce the number of candidate reports in a 2-year election cycle from a maximum of 24 to 8”); 

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13 

see also id. at 451 (summarizing changes in reporting obligations). The sole changes relating to 

independent expenditures were to shift the burden of reporting from contributors to those making 

the expenditures, to raise the expenditure reporting threshold from $100 to $250, and to raise the 

contribution reporting threshold from $100 to $200. Id. at 449, 451, 458. There is no evidence 

Congress sought to limit the type of contributions that would be reported to the public. Indeed, it 

is clear Congress sought to continue the reporting of the identities of those “persons who make 

contributions in excess of $200 to a person making independent expenditures,” without any 

qualification. Id. at 458. In sum, despite Crossroads GPS’s fabrications, the history shows that 

Congress did not intend to “affect[] meaningful disclosure” of contributions funding independent 

expenditures. Id. at 103. 

Without any authority to show that Congress did not mean “an” when it said so, the FEC 

and Crossroads GPS turn to authority discussing a different provision of the FECA that does not 

use the same language. In Van Hollen v. FEC, the D.C. Circuit addressed the ambiguity of 52 

U.S.C. § 30104(f)(2), which relates to reporting of electioneering communications. 811 F.3d 

486, 492 (D.C. Cir. 2016). The statute there did not define the scope of contributions that were 

required to be disclosed, providing only that “contributors who contributed” were to be reported. 

Id. (quoting § 30104(f)(2)). Without a scope of reporting specified, the D.C. Circuit found that 

the use of “contributor” and “contributed” were ambiguous, potentially referring to all 

contributions or perhaps referring only to contributions for electioneering communications. Id.

at 491 (citing Ctr. for Individual Freedom v. Van Hollen, 694 F.3d 108, 111 (D.C. Cir. 2012)). 

Thus it found the FEC had authority, under Chevron, to interpret the law to apply only to 

contributions earmarked for electioneering communications. Id. at 492. 

In contrast, Congress expressly stated the scope of contributor reporting required for 

Case 1:16-cv-00259-BAH Document 33 Filed 12/04/17 Page 21 of 59
14 

independent expenditures. It expressly stated that all contributions “given for the purpose of 

furthering an independent expenditure” must be reported (in addition to all contributions 

received that year, regardless of earmarking, under the other reporting provision). 52 U.S.C. 

§ 30104(c)(2)(C). Unlike in Van Hollen, in the statute before the Court here, there is no 

unspecified scope because Congress “spoke[] directly” about the issue. Shays, 414 F.3d at 96. 

Indeed, the regulation at issue in Van Hollen only supports the fact that Congress spoke 

clearly in § 30104(c)(2)(C). Confronted with an ambiguous statutory provision in § 30104(f), 

the FEC decided to clarify it by unambiguously commanding those making electioneering 

communications to report the identities of contributions “given for the purpose of furthering 

electioneering communications.” 11 C.F.R. § 104.20(c)(9). That rule was expressly modeled on 

the language contained in subsection (c)(2)(C). Van Hollen, 811 F.3d at 493.4

 Clearly, the FEC 

did not then believe subsection (c)(2)(C)’s formulation was hopelessly obtuse when it decided to 

use it as the model for its clarification of subsection (f)(2). Notably, the FEC understood “the 

purpose of furthering an independent expenditure” was equivalent in scope to “the purpose of 

furthering electioneering communications,” conflicting with the agency’s position here that the 

same language is not equivalent to “the purpose of furthering independent expenditures.” 

The FEC’s and Crossroads GPS’s strained protests aside, subsection (c)(2)(C) is 

unambiguous. That is why the Supreme Court had no trouble pinpointing what those making 

independent expenditures must report. They must, the Court said, disclose (among other things) 

“all persons making contributions over $200 who request that the money be used for independent 

expenditures.” MCFL, 479 U.S. at 262. The FEC and Crossroads GPS attempt to sideline 

 4

 While three commissioners interpreted that rule to be the equivalent of 11 C.F.R. 

§ 109.10(e)(1)(vi), CGPS Br. 11 n.3, that view has never been adopted by the FEC.

Case 1:16-cv-00259-BAH Document 33 Filed 12/04/17 Page 22 of 59
15 

MCFL, but end up simply misleading the Court. They argue that the relevant discussion was not 

in the majority opinion. They are wrong. While Justice Brennan (correctly) interpreted the 

reporting obligations in a section of the opinion only joined by three other Justices, see id. at 252, 

he restated those obligations again in a later section joined by four Justices, see id. at 262. Both 

sections recognize the dual reporting obligation imposed by the statute and the fact that 

subsection (c)(2)(C) requires reporting of contributions given to further independent 

expenditures, without any limitation to those earmarked to a single specific ad.5

 

Nor is MCFL’s construction dicta, as the FEC and Crossroads GPS urge. FEC Br. 27, 

CGPS Br. 50. Rather, it is part of the case’s holding. The question before the Court in MCFL

was whether the Constitution permitted prohibition of a nonprofit corporation’s independent 

expenditures due to its corporate form, even if it could still pay for the ads from a separate 

segregated fund. MCFL, 479 U.S. at 241. In analyzing the question, the Court applied strict 

scrutiny and thus decided whether other options were “less restrictive” than the ban and yet still 

fulfilled the government’s interests in combating corruption. Id. at 256, 262. In finding that 

there were, the Court expressly relied on the fact that, because of the reporting requirements for 

contributions for independent expenditures as it interpreted them, “[t]he state interest in 

disclosure . . . can be met in a manner less restrictive than” the ban and the requirement that the 

group form a separate segregated fund. Id. at 262. In other words, the Court’s consideration and 

 5

 Indeed, even if subsection (c)(2)(C) were ambiguous—and it is not—the Court’s construction 

of it in MCFL would remove any ambiguity within which the FEC might operate. Though an 

agency may diverge from a lower court’s interpretation of a statute, see Nat’l Cable & Telecom. 

Ass’n v. Brand X, 545 U.S. 967, 982 (2005), it may not do so when the Supreme Court interprets 

a statute, id. at 1003 (Stevens, J., concurring). Accordingly, the FEC is required to apply 

subsection (c)(2)(C) as Congress wrote it. 

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16 

reliance on the sufficiency of reporting under § 30104(c) as it understood it was “necessary to 

[the opinion’s] result” striking the ban. Seminole Tribe of Fl. v. Florida, 517 U.S. 44, 67 (1996). 

Accordingly, that construction of § 30104(c) is squarely within the holding of MCFL.

6

 

In sum, the statute is unambiguous. Congress “spoke[] directly” about the scope of 

contributor reporting required under subsection (c)(2)(C). Shays, 414 F.3d at 96. Since there is 

no gap left for the FEC to fill, and 11 C.F.R. § 109.10(e)(1)(vi) requires less disclosure than the 

statute, as the FEC concedes, FEC Br. 37, the regulation is invalid. 

2. The Regulation Fails Chevron Step Two 

Even if the statute was ambiguous—and it is not—11 C.F.R. § 109.10(e)(1)(vi) would 

still be invalid because it does not represent a “reasonable” interpretation of subsection (c)(2)(C). 

Shays, 528 F.3d at 919. As noted above, the FEC provided no contemporaneous justification for 

its departure from the express language of the statute and only its contemporaneous explanation 

can satisfy its obligation at Chevron step two. Council for Urological Interests, 790 F.3d at 222. 

That alone renders the regulation invalid. But the regulation is invalid under step two for two 

additional reasons: it frustrates the purposes of the FECA and creates redundancies with other 

provisions of the law. The FEC’s and Crossroads GPS’s post-hoc attempts to save the regulation 

do not eliminate these problems, even if they could be considered by this Court. 

 6

 The two authorities cited by Crossroads GPS also do not show that MCFL’s construction of 

§ 30104(c) is dicta. CGPS Br. 50. Justice Rehnquist’s dissent does not call the Court’s 

construction of § 434(c) (now § 30104(c)) “dicta”—as Crossroads GPS represents—but rather he 

calls the “three-part test” contained at pages 630–31 dicta. MCFL, 497 U.S. at 271. The test to 

which Justice Rehnquist referred was the one crafted to identify qualified nonprofit 

organizations: corporations that, even before Citizens United, 558 U.S. 310 (2010), could engage 

in independent expenditures. See MCFL, 479 U.S. at 264, 107 S. Ct. 616, at 630–31 (setting 

forth three characteristics to qualify for exemption). Vote Choice, Inc. v. Di Stefano, is similarly 

inapposite. 814 F. Supp. 186, 191 & n.12 (D.R.I. 1992) (similarly calling three-part test “dicta”). 

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a. The Regulation Frustrates Congress’s Purpose in Disclosure 

In providing for disclosure under the FECA, Congress sought to “provide[] the electorate 

with information as to where political campaign money comes from,” Buckley, 424 U.S. at 67, 

“inform[] the public about various candidates’ supporters,” McConnell v. FEC, 540 U.S. 93, 201 

(2003), and let “citizens . . . see whether elected officials are ‘in the pocket’ of so-called 

moneyed interests,” Citizens United, 558 U.S. at 370, among other things. To do that, the public 

needs to know where money used to fund independent expenditures is coming from, even if that 

money is not earmarked for a specific ad. Yet the FEC regulation “frustrate[s] the policy that 

Congress sought to implement,” letting contributors “evade—almost completely”—disclosure. 

Shays, 528 F.3d at 919. Accordingly, the regulation fails Chevron step two. 

The FEC and Crossroads GPS contend the regulation is a reasonable construction of the 

statute. They both first note that “no legislation pursues its purposes at all costs,” FEC Br. 41, 

CGPS Br. 46, relying on Van Hollen and its recognition that legislation necessarily reflects a 

“balance [of] competing values.” 811 F.3d at 501. But as CREW demonstrates in its opening 

brief, the FEC has allowed contributors to almost completely evade disclosure, CREW Br. 15–

17, and there is no “balance” where the agency’s construction of the statute gives little-to-no 

weight to the value of disclosure and decimates the law’s purpose. Nor is the competing interest 

Van Hollen identified even impacted by enforcing the law as Congress wrote it. In that case, the 

D.C. Circuit found a countervailing interest in preventing disclosure of all those “who contribute 

to a union or corporation’s general treasury” but who do not support the organization’s electoral 

work. 811 F.3d at 497. But a person who donates money to a corporation or union without “the 

purpose of influencing any election for Federal office” has not made a “contribution” under the 

FECA, 52 U.S.C. § 30101(8), never mind one given for the purpose of furthering an independent 

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18 

expenditure. Thus, one who “donates $5,000 to the American Cancer Society (ACS), eager to 

fund the ongoing search for a cure” is not a contributor to ACS’s independent expenditures (if it 

were to run one) under any reading of § 30101(c)(2)(C) (or (c)(1) for that matter) and thus would 

not be disclosed. Cf. Van Hollen, 811 F.3d at 497. Moreover, Congress already balanced these 

interests and expressly tailored the scope of disclosure to include all those who gave to further 

“an” independent expenditure (as well as all giving more than $200 annually, under subsection 

(c)(1)). The FEC may disagree with that tailoring, but it may not change it. 

With regard to the statute’s disclosure purpose, the FEC does not dispute CREW’s 

representations that its rule has totally frustrated the law. Rather, it argues that the relevant data 

is not properly before the Court. See FEC Br. 47–48. The FEC is wrong, however, because the 

data comes from public records that inform the Court about the proper meaning of subsection 

(c)(2)(C), and the Court is “unrestricted” in what it may consider to “determin[e] the content or 

applicability of a rule of domestic law.” FED. R. EVID. 201 (cmmt); see also Sanders v. Kerry, 

180 F. Supp. 3d 35, 41(D.D.C. 2016) (court may take judicial notice of public records).7

 The 

FEC’s attempt to close the Court’s eyes to the results of its regulation is understandable—the 

regulation has utterly decimated independent expenditure contributor reporting. 

Crossroads GPS argues that reporting under the regulation is actually significant, citing 

the Center for Responsive Politics (“CRP”) statistic that between 7.2% and 29.7% of 

contributions for reported non-political committee spending (i.e., sums spent on independent 

 7

 Additionally, the data shows how the regulation is frustrating the purpose of the statute, which 

requires looking to the (either likely or actual) consequences of a regulation, which necessarily 

requires considering information beyond the record. See Shays, 528 F.3d at 925 (considering 

evidence offered at oral argument to decide whether regulation frustrates statute). The evidence 

also shows the FEC “failed to examine all relevant factors” in its rulemaking, and thus may be 

considered by the Court. Oceana, Inc. v. Locke, 674 F. Supp. 2d 39, 45 (D.D.C. 2009). 

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expenditures and electioneering communications) are reported. CGPS Br. 46 (citing CRP, 

Outside Spending by Disclosure, Excluding Party Committees, http://bit.ly/1AzZeKb). That is 

wrong and Crossroads GPS is misleadingly citing CRP’s data. The 7.2% and 29.7% of spending 

that CPR labels “some disclosure” refers to the total spending by organizations that either report 

$5,000 in contributions or contributions equal to 5% of their total expenditures, as well as 

political committees that receive at least $5,000 in contributions, or contributions equal to 5% of 

their spending, from dark money groups. See CRP, Outside Spending. In other words, if 

Crossroads GPS reported only 5% of its contributors, the entirety of its more than $70 million in 

independent expenditures would be treated as “some disclosure.” Because of this, and because 

CRP’s “some disclosure” category also includes spending by political committees that receive 

some money from dark money groups, there is no connection between the cited statistics and the 

amount of contributions reported under 11 C.F.R. § 109.10(e)(1)(vi). 

Indeed, based on CRP’s data, tax exempt 501(c) groups like Crossroads GPS spent about 

$300.9 million in 2012 on independent expenditures. CRP, 2012 Outside Spending, by Group, 

http://bit.ly/2nm87vU. Of those groups, reported contributions used to fund independent 

expenditures amounted to only about $8 million, or about 2.7%. Id. That hardly demonstrates 

the robust disclosure of contributions. Cf. CGPS Br. 46 & n.28. And even that figure is 

significantly over inclusive as CRP’s 501c groups include unions that must disclose political 

activity under laws other than 11 C.F.R. § 109.10(e)(1)(vi). See id. (AFSCME reported $4.6 

million in fully disclosed independent expenditures); Dep’t of Labor, Labor Org. Annual 

Financial Reports, 68 Fed. Reg. 58,374, 58,397 (Oct. 9, 2003) (creating schedule 16). 

In sum, there is effectively no disclosure of contributions to fund independent 

expenditures by non-political committee organizations like Crossroads GPS under the FEC’s 

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20 

current regulatory regime. Because the regulation allows regulated parties to “evade—almost 

completely”—disclosure mandated by subsection (c)(2)(C), it “frustrate[s] the policy that 

Congress sought to implement” and must be struck. Shays, 528 F.3d at 919. 

b. The Regulation Creates Redundancy 

As CREW noted in its opening brief, the FEC’s requirement of a direct link between the 

contribution and the independent expenditure, coupled with its finding that the undisputed facts 

below do not establish that link, effectively means that the FEC requires an individual to “make” 

an independent expenditure before they could qualify as a contributor under 11 C.F.R. 

§ 109.10(e)(1)(vi). That makes the regulation redundant to other reporting requirements, and it 

thus fails Chevron step two. Shays v. FEC, 337 F. Supp. 2d 28, 77 (D.D.C. 2004). Neither the 

FEC nor Crossroads GPS adequately refute this redundancy. 

The FEC maintains there is no redundancy because one who responds to a solicitation for 

a “particular independent expenditure” would be reported under the regulation, though they 

would not make the independent expenditure. FEC Br. 46. Here, however, the FEC found that 

individuals were solicited after viewing “example” ads, but that they still did not qualify under 

the rule. AR 77–78. Nor was it enough that their contributions were used to create ads parroting 

the example ads, see CREW Br. 19–21 & nn. 12–14, because the funds raised didn’t “further[] 

those [example] communications,” AR 187. Clearly, then, what the FEC means by a solicitation 

to fund a “particular independent expenditure” is a solicitation to fund an ad in its exact final 

form, with no alterations between the solicitation and airing. Only then, under the FEC’s 

reading, would the contributor be subject to disclosure under 11 C.F.R. § 109.10(e)(1)(vi). 

But under that reading, the contributor would be “making” the independent expenditure, 

as the FEC has already found. The FEC addressed this situation in an advisory opinion request 

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21 

by Votervoter, a company that allowed individuals to fund already existing ads. FEC, AO 2008-

10 (Oct. 24, 2008), http://bit.ly/2AITSaa. The FEC found that, in that situation, the company 

would not be the one who makes the independent expenditure; rather, it would be the person 

providing the funds who did so. Accordingly, one who funds a specific independent expenditure 

in fact makes the ad and thus has to report it. Limiting contributor disclosure to the same 

situation, as the FEC does in the regulation, renders contributor reporting redundant. 

For its part, Crossroads GPS happily embraces this redundancy, arguing that only 

contributions that are the equivalent of expenditures are of any interest to voters. But its 

authority does not support this narrow understanding of the value of contributor reporting. 

While Buckley noted the importance of reporting “earmarked” contributions, the earmarking it 

spoke of was “earmark[ing] for political purposes”—i.e., intending to influence elections—not

earmarking for a single specific use. Buckley, 424 U.S. at 80. Moreover, it is clear that the 

FECA is not concerned solely with contributions earmarked to particular uses: there is no 

dispute that political committee contributions need not be earmarked to their final use in order to 

be reported (and that, by referencing this requirement, subsection (c)(1) imposes a similar 

unconstrained reporting requirement on those making independent expenditures).8 

c. Neither the FEC’s Participation in Drafting the Statute, nor Congress’s 

Inaction on the Regulation, Satisfy the FEC’s Chevron Burden 

Unable to show any reasoned basis for the regulation, Crossroads GPS argues that none 

need be shown because the FEC made legislative recommendations that eventually turned into 

 8

 Nor is the MUR identified by Crossroads GPS instructive. CGPS Br. 48. That MUR—at least 

in the unredacted portion—only addressed whether a corporation could make an expenditure as a 

separate entity from its owner, see General Counsel’s Report 34, MUR 4313 (Lugar for 

President), http://bit.ly/2Bpmvpn, an issue not relevant here. 

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22 

the 1979 FECA amendments and because Congress did not veto 11 C.F.R. § 109.10(e)(1)(vi) 

when it was sent for review. CGPS Br. 42–45. But neither fact satisfies the FEC’s burden here. 

First, with respect to the FEC’s legislative recommendations, there is no evidence that the 

FEC recommended limiting reporting to only those contributions given to further “the reported” 

independent expenditure, or that it understood the language eventually adopted by subsection 

(c)(2)(C) to be limited to that reporting. Rather, the FEC only suggested that the threshold for 

reporting be raised from $100 to $250 and that contributors not be required to report themselves. 

FECA 1979 History 24–25. Indeed, rather than seeking to greatly limit the reporting of 

contributions, the FEC recommended reporting continue to disclose “a contribution to a person . 

. . who makes an independent expenditure” without limitation. Id. Nothing in the FEC 

recommendations or other legislative history supports a reading of subsection (c)(2)(C) that is 

limited to contributions given to further only the reported expenditure.9

 

With regard to congressional inaction after the regulation was submitted to it for review, 

the Supreme Court has “oft-expressed skepticism toward reading the tea leaves of congressional 

inaction.” Rapanos v. United States., 547 U.S. 715, 749 (2006). “It is impossible to assert with 

any degree of assurance that congressional failure to act represents affirmative congressional 

approval of the [agency’s] statutory interpretation.” Central Bank of Denver, N.A. v. First 

Interstate Bank of Denver, N.A., 511 U.S. 164, 186 (1994). “Congressional inaction cannot 

amend a duly enacted statute.” Id.; accord Ashton v. Pierce, 716 F.2d 56, 63 (D.C. Cir. 1983) 

 9

 Nor can 11 C.F.R. § 109.10(e)(1)(vi)’s existence be bootstrapped into its own justification 

merely by pointing out that it was adopted soon after the amendment was passed. “[W]hen a 

statute speaks in language which leaves no doubt of the intent of Congress, contemporaneous 

administrative construction, if contrary to the terms of the statute, is merely erroneous, and has 

no effect except to call for correction. It cannot be relied upon as an accepted interpretation of 

the law.” Shearman v. Comm’r of Internal Revenue, 66 F.2d 256, 257 (2d Cir. 1933). 

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23 

(“Congress cannot by its silence ratify an administrative interpretation that is contrary to the 

plain meaning of the Act.”). Accordingly, without “overwhelming evidence that Congress 

considered and failed to act upon the precise issue before the court,” congressional inaction “is 

not probative.” Bismullah v. Gates, 551 F.3d 1068, 1074 (D.C. Cir. 2009). Here, there is no 

such evidence and Congress’s inaction lacks probative value, particularly where 11 C.F.R. 

§ 109.10 was one of over a hundred regulations spanning thirty pages sent to Congress to review. 

Nor does Crossroads GPS’s citation to later amendments or failed bills demonstrate 

congressional ratification. CGPS Br. 44 & n.26. 10 In none of the various pieces of legislation 

Crossroads GPS cites did Congress reconsider the wording of § 30104(c) in light of the FEC’s 

regulation. While Crossroads GPS would make much of Congress’s decision not to revisit the 

contributor reporting requirements, “a court cannot assert with any degree of assurance that 

congressional failure to act represents affirmative congressional approval of the [administrative] 

statutory interpretation.” Alexander v. Sandoval, 532 U.S. 275, 292 (2001). The DISCLOSE 

Act is similarly uninstructive, as “failed legislative proposals are a particularly dangerous ground 

on which to rest an interpretation of a prior statute.” Central Bank, 511 U.S. at 187. 

* * * 

In sum, the FEC failed to provide any contemporaneous justification for 11 C.F.R. 

§ 109.10(e)(1)(vi) that could explain its divergence from the clear congressional command 

contained in subsection (c)(2)(C) that contributions given for the purpose of furthering an 

independent expenditure be reported. Neither the FEC’s nor Crossroads GPS’s untimely and 

 10 Indeed, Crossroads GPS relies on irrelevant legislative action such as the FECA’s 

renumbering, Pub. L. 107-155, § 103(a), § 201(a), 212, 304(b), 306, 308(b), 501, 503 (Mar. 27, 

2002), and the adoption of electronic filing, Pub. L. 106-346, § 101(a) (Sept. 29, 1999). The 

other legislation it cites is similarly irrelevant. 

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inadmissible explanations cure this problem. Accordingly, the regulation fails Chevron step two 

and is thus invalid. 

D. The Regulation is “Silent” as to Subsection (c)(1) Reporting, but if the 

Regulation Implements it, the Regulation Conflicts with the Statute 

While 11 C.F.R. § 109.10(e)(1)(vi) was purportedly intended to “incorporate” the 

changes in 52 U.S.C. § 30104(c)(1), AR 1503, the commissioners below understood the 

regulation is in fact “silent” about the disclosure required by subsection (c)(1). The 

commissioners are correct: the regulation does not incorporate subsection (c)(1)’s reporting 

obligations and therefore groups like Crossroads GPS cannot comply with the law merely by 

complying with the regulation.11 While Crossroads GPS asserts that CREW and others have 

taken the position that the regulation “implements” subsection (c)(1), Crossroads GPS merely 

fabricates evidence and engages in highly misleading quotations. Of course, if the regulation 

attempts to implement subsection (c)(1), as was the FEC’s position at adoption, AR 1503, then it 

conflicts with the clear language of the statute and is invalid. And while both defendants attempt 

to argue subsection (c)(1) is sufficiently ambiguous that the regulation could implement it, their 

attempts to manufacture ambiguity are meritless. 

First, Crossroads GPS asserts that CREW has previously taken the position that the 

regulation accurately incorporates all of the reporting provisions under § 30104(c), asserting 

CREW stated the regulation implemented “both contributor disclosure provisions of the statute.” 

CGPS Br. 28–29. But what CREW actually said was that the regulation “directly conflicts with 

both contributor disclosure provisions of the statute,” CREW, Comments in Response to 

 11 Notably, the FEC does dispute the commissioners’ conclusion that the regulation cannot be 

understood to be a reasonable interpretation of subsection (c)(1). See FEC Br. 34–45 (arguing 

regulation is reasonable interpretation of subsection (c)(2)(C), but silent as to subsection (c)(1)). 

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Advance Notice of Proposed Rulemaking on Earmarking, Affiliation, Joint Fundraising, 

Disclosure, and Other Issues 3–4 (Jan. 15, 2015), http://bit.ly/2iqo42t (emphasis added). CREW 

recognized the statute provides two separate reporting obligations, the first of which is “to 

identify each person who made contributions of more than $200 in the calendar year, the date of 

the contribution, and the amount.” Id. at 3. That is in addition to the disclosure mandated by 

subsection (c)(2)(C). Id.12 Despite Crossroads GPS’s misleading representation, CREW was 

neither confused by subsection (c)(1) nor believed the regulation faithfully implemented it. 

Second, both the FEC and Crossroads GPS attempt to generate some ambiguity in 

subsection (c)(1) to at least create the possibility that the regulation might be a reasonable 

interpretation of it. But their attempts fail. Their cited case law is inapposite and does not 

overcome MCFL. Their textual arguments are meritless, and they fail to show the statute is 

absurd as written. Simply put, there is no ambiguity about what subsection (c)(1) requires and, 

given that, there is no way to conclude that 11 C.F.R. § 109.10(e)(1)(vi) is consistent with it. 

Defendants rely on a footnote in a Ninth Circuit opinion to argue that courts have held 

that subsection (c)(1) only says who is to file reports and that it does not impose any content 

requirement on what those reports must include. FEC Br. 27, CGPS Br. 7–8, 50. But their sole 

support for that is footnote in the background section of a case that does not even say that 

subsection (c)(1) does not also contain a content requirement. See FEC v. Furgatch, 807 F.2d 

857, 859 n.2 (9th Cir. 1987). Indeed, 52 U.S.C. § 30104(c)’s disclosure requirements were 

 12 Congressman Van Hollen, Democracy 21, and the Campaign Legal Center similarly 

understood the FECA to impose two separate contributor reporting obligations on those making 

independent expenditures, and understood that 11 C.F.R. § 109.10(e)(1)(vi) did not accord with 

them. See Van Hollen, Pet. for Rulemaking ¶¶ 4, 6, 7 (Apr. 21, 2011), http://bit.ly/2AmPsTo 

(noting FECA imposes “two overlapping contribution disclosure requirements” and the 

regulation is “manifestly inconsistent with the statute[’s]” subsections (c)(1) and (c)(2)). 

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entirely irrelevant to the question before the court: whether the ads in question amounted to 

express advocacy. Id. at 860. MCFL, on the other hand, was not only a Supreme Court decision 

rather than an out-of-circuit case, but also held that subsection (c)(1) imposed its own obligation 

to disclose “all contributors who annually provide in the aggregate $200 in funds intended to 

influence elections.” MCFL, 479 U.S. at 262. That language is no dicta in a minority opinion—

it is part of the holding of the Court. See supra p. 15. MCFL is the binding authority here and 

shows subsection (c)(1) unambiguously requires reporting all those who contribute more than 

$200 annually, apart from subsection (c)(2)(C)’s additional disclosure requirement. 

Indeed, the FEC’s own precedent regarding subsection (c)(1) confirm it agrees with 

MCFL. The agency has previously enforced subsection (c)(1) as a standalone reporting 

obligation. General Counsel’s Report 2, 5, MUR 5303 (Perot Petition Committee), Aug. 4, 

1992, http://bit.ly/2jyw3qM (noting subsection (c)(1) “requires that every person . . . who makes 

independent expenditures in excess of $250 during a calendar year shall file a statement 

containing the information required under § 434(b)(3)(A) for all contributions received by such 

person”; recommending reason to believe respondent violated subsection (c)(1)); see also id. at 

Certification, Aug. 25, 2002 (voting 5-1 in favor of finding reason to believe respondent violated 

subsection (c)(1)). That prior judgement is correct. 

Next, both the FEC and Crossroads GPS make a number of exceedingly weak textual 

arguments in an attempt to manufacture some ambiguity in the text, but each fails. The FEC 

argues that the three subsections of 52 U.S.C. § 30104(c) should be read to correspond with the 

three title subheadings: “filing; contents; indices of expenditures,” FEC Br. 25; see also CGPS 

Br. 49 (relying on other sections’ titles), but “the title of a statute and the heading of a section 

cannot limit the plain meaning of the text.” Bhd. of R.R. Trainmen v. B. & O. R. Co., 331 U.S. 

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519, 528-29 (1947); accord Hays v. Sebelius, 589 F.3d 1279, 1282 (D.C. Cir. 2009). Subsection 

(c)(1) plainly requires the filing “contain[]” certain information, 52 U.S.C. § 30104(c)(1), and the 

heading “cannot undo or limit that which the text makes plain.” Bhd., 311 U.S. at 528–29.13 For 

the same reason, subsection (c)(1) cannot be read to simply state who must report, but say 

nothing about what they must report, as the FEC suggest. FEC Br. 25. Nor is subsection (c)(1)’s 

reference to “a statement” (singular) confusing, as the FEC contends. FEC Br. 26. The FEC 

recognizes the clause’s requirement to file “a statement” requires filing at least one statement and 

perhaps more. FEC Br. 35 (describing 24 and 48 hour reports, and quarterly reports). 

Subsection (c)(2) confirms that reading, noting subsection (c)(1) may require the filing of 

“Statements,” plural. 52 U.S.C. § 30104(c)(2) (emphasis added). After a qualifying expenditure, 

subsection (c)(1) requires a statement to be filed and that it include the information in subsection 

(b)(3)(a), together with the information required in subsection (c)(2)(C).14 Any other reading 

ignores statutory text, which a court may not do. TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) 

(court may not interpret statute in way that treats text as “superfluous, void, or insignificant”). 

The FEC next argues that subsection (b)(3)(A)’s terminology is confusing because it 

incorporates terms specific to political committees. FEC Br. 26 (noting subsection refers to 

“reporting committee” and “report”). That is of course because subsection (b)(3)(A) is contained 

 13 Nor does their interpretation even work under their theory. Under their reading, subsection 

(c)(2) would provide only the “contents” of the statement (the second title subheading, 

purportedly corresponding to the scope of the second subsection), but subsection (c)(2) also 

provides the manner of filing such statements. 52 U.S.C. § 30104(c)(2)(A) (providing 

statements “shall be filed in accordance with subsection (a)(2)”). 

14 Notably, 11 C.F.R. § 109.10(b) uses the same “a . . . statement” language, showing the FEC 

did not find it confusing. Further, even if there were some ambiguity about how many 

statements must identify the annual contributions, that would not justify a construction which 

requires the filing of no statements containing the information in subsection (b)(3)(A). 

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in a section relating to political committee reporting. 52 U.S.C. § 30104(b). By explicitly 

incorporating those same reporting requirements for non-political committees, the statute clearly 

mandates those making independent expenditures to disclose the “information. . . for all 

contributions” that political committees are to report under subsection (b)(3)(A): i.e., their 

identities, with the date and amount of the contributions. 15 And while Crossroads GPS 

gerrymanders this cross-reference to only incorporate subsection (b)(3)(A)’s requirement to 

report the date and amount of contributions, CGPS Br. 49, subsection (b)(3)(A) is not limited to 

reporting date and amount information for contributions; it also requires disclosing the identities 

of those giving more than $200 annually. 52 U.S.C. § 30104(b)(3)(A), MCFL, 479 U.S. at 262. 

Reading subsection (c)(1) to require the reporting of all the information about 

contributors required by subsection (b)(3)(a)—their identities, together with the date and amount 

of their contributions—also accords with the history of FECA before the 1979 amendments. 

Previously, the law required those making independent expenditures “to file . . . a statement 

containing the information required of a person who makes a contribution in excess of $100 to a 

candidate or political committee and the information required of a candidate or political 

committee receiving such contribution.” See 2 U.S.C. § 434(e) (1976). That information was 

“the full name and mailing address (occupation and the principal place of business, if any) of 

each person who has made one or more contributions . . . within the calendar year in aggregate 

amount or value in excess of $100, together with the amount and date of such contributions.” Id.

 15 Moreover, the FEC’s adamancy that “statements” and “reports” are fundamentally distinct, 

FEC Br. 26, is belied by its own regulation, which requires disclosure of contributions for the 

“reported” independent expenditure. 11 C.F.R. § 109.10(e)(1)(vi). Under the argument 

advanced here, no contribution to a non-political committee could qualify because no such 

independent expenditure would ever be “reported.” Rather, it would be filed in a “statement.” 

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§ 434(b)(2).16 The old 2 U.S.C. § 434(e) became the new § 434(c) (and later § 30104(c)) in the 

1979 amendments. FECA 1979 History 397. There is no indication Congress sought to alter this 

reporting requirement; rather, Congress intended the amendments to not “affect[] meaningful 

disclosure.” Id. at 103. While the reference to political committee reporting was replaced with a 

reference to a subsection, the mandate remained the same: those making independent 

expenditures must report the same information about their contributors that political committees 

report (while their reporting, unlike political committees, would not be continuous). 

Finally, the defendants argue that reading subsection (c)(1) to mean what it says would 

lead to absurdities and would be redundant to disclosure under subsection (c)(2)(C). FEC Br. 25, 

27–28. The sections are not redundant. Rather, they target two complimentary sets of 

contributors, one based on the purpose of the contribution (52 U.S.C. § 30104(c)(2)(c)), and one 

based on when the contribution was made (id. § 30104(c)(1)). That pairing is similar to the 

paired reporting mechanism Congress eventually adopted to capture political ads: one set of ads 

would be defined by their purpose (independent expenditures), and another defined by time 

(electioneering communications). And like the paired reporting for political ads, the paired 

contributor reporting requirement would ensure contributor reporting is not underinclusive and 

voters know the full scope of the financial backing behind a campaign ad.17

 16 There were no other contributor reporting requirements, see FECA 1979 History 230, so 

reading this reference as Crossroads GPS does to incorporate only the “date and amount” 

disclosure requirement would mean that the identities of contributors were never disclosed. That 

is clearly absurd as the point of disclosure is to know who is contributing. Buckley, 424 U.S. at 

67 (disclosure to inform voters “where” money originates); accord McConnell, 540 U.S. at 201. 

17 The FEC wonders why Congress would require dual reporting for those making independent 

expenditures but not for political committees. FEC Br. 27–28. Dual reporting is unnecessary for 

political committees because they must already report all contributions they receive between 

their formation and their termination. See 52 U.S.C. § 30104(a). 

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In addition, far from it being absurd to require those making event-driven disclosures to 

report contributions based on a time period, Congress modeled its reporting requirement for 

electioneering communications on that same annual structure. See 52 U.S.C. § 30104(f)(2)(E), 

(F) (mandating disclosure of contributors who gave over $1,000 between “the first day of the 

preceding calendar year” and the date of the communication).18 Congress saw nothing absurd in 

event-driven disclosure triggering disclosure of contributions received that year.19

Simply put, no honest attempt can be made to reconcile the regulation with what is 

required by Congress under subsection (c)(1). That is why the FEC does not even attempt to do 

so here, instead merely arguing that the subsection (c)(1) is ambiguous without arguing 11 

C.F.R. § 109.10(e)(1)(vi) reasonably interprets it. The regulation plainly fails to incorporate the 

reporting obligations under subsection (c)(1). Either the regulation must be understood not to 

speak to it at all—the FEC’s position below—or to be in conflict with it. It thus must be struck. 

 18 While the FEC chose to limit this disclosure for corporate and union funded electioneering 

communications, see 11 C.F.R. § 104.20(c)(9), Congress chose a broad disclosure regime, one 

that remains in effect for those making these ads who are neither corporations nor unions. 

19 The Van Hollen decision found that this section of the FECA was ambiguous and allowed the 

FEC to narrow its application. Nonetheless, while the statute’s reference to “contributions” was 

ambiguous in subsection (f), it is not ambiguous in subsection (c)(1), and no party suggests Van 

Hollen is relevant to the Court’s analysis of subsection (c)(1). There are a number of distinctions 

that make clear Congress intended “contribution” in subsection (c)(1) to the fullest breadth under 

the FECA. 52 U.S.C. § 30101(8) (any transfer “for the purpose of influencing any election”). 

First, Congress included no earmarking limitation in either subsections (c)(1) or (b)(3)(A), while 

it expressly included such a limitation in subsection (c)(2)(C) in the same legislation. Congress’s 

choice to limit the scope of contributions covered by subsection (c)(2)(C) while refraining from 

doing that with respect to subsection (c)(1) reporting in the exact same bill demonstrates 

“Congress knew the difference” between the limited and unlimited terms and “used the words 

advisedly.” Pillsbury, 342 U.S. at 199. Second, Congress made this unbounded contributor 

disclosure requirement under subsection (c)(1) clear by explicitly incorporating the reporting 

obligations imposed on political committees, which (indisputably) must report all of their 

contributions without regard to earmarking. 

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E. CREW has Standing to Challenge the Regulation 

With no legitimate defense of 11 C.F.R. § 109.10(e)(1)(vi) on the merits, defendants 

argue that this Court should not even hear CREW’s challenge, despite this Court’s decision 

earlier this year finding CREW’s challenge was properly before the Court. The Court should 

again reject their arguments because CREW has standing to challenge the regulation. 

1. The Regulation was “Applied” to CREW so CREW May Challenge It 

The Court already dispensed with one argument: that CREW may not challenge the 

regulation here because the challenge stems from a decision in an enforcement proceeding to 

dismiss CREW’s complaint. “[T]he plaintiffs are plainly ‘affected’ by the FEC’s reliance on 11 

C.F.R. § 109.10(e)(1)(vi) in dismissing the plaintiffs’ administrative complaint—regardless of 

the plaintiffs’ degree of involvement in the administrative process—because, the plaintiffs 

allege, they were denied access to information to which they were lawfully entitled about who 

funded certain of Crossroads GPS’s independent expenditures.” Mem. Op. 16 (Mar. 22, 2017) 

ECF No. 22 (quoting Weaver v. Fed. Motor Carrier Safety Admin., 744 F.3d 142, 145 (D.C. Cir. 

2014)). Accordingly, CREW has standing to challenge the regulation here. 

Nevertheless, both the FEC and Crossroads GPS argue that CREW’s sole relief is to 

petition the FEC for rulemaking. FEC Br. 48, CGPS Br. 48. That is plainly not the case, as the 

Court recognized in its decision on the defendants’ motions to dismiss. Mem. Op. 17 n.6 (noting 

rulemaking is a second avenue to challenge rule, but that plaintiffs are not limited to it). 

“[N]othing . . . prevents [CREW] from pursuing its claim in a second forum, i.e., apart from the 

original rulemaking.” Murphy Expl. and Prod. Co. v. U.S. Dep’t of Interior, 270 F.3d 957, 958–

59 (D.C. Cir. 2001), on reh’g from 252 F.3d 473, 478 (D.C. Cir. 2001) (plaintiff could object to 

rule applied to it even if did not participate in rulemaking). “[A] forum is available to a party 

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when a rule is brought before this court for review of . . . [agency] action applying it.” Murphy 

Expl., 270 F.3d at 958. That result is the only sensible one: “because ‘administrative rules and 

regulations are capable of continuing application,’ were [courts] to limit review to the adoption 

of the rule without further judicial relief at the time of its application, [courts] ‘would effectively 

deny many parties ultimately affected by a rule an opportunity to question its validity.’” Id. at 

958–59 (quoting Functional Music, Inc. v. FCC, 274 F.2d 543, 546 (D.C. Cir. 1958)).20 

CREW has suffered and continues to suffer injury the application of 11 C.F.R. 

§ 109.10(e)(1)(vi). CREW is denied information to which Congress has entitled it, causing 

injury, FEC v. Akins, 524 U.S. 11, 21 (1998), and CREW’s constitutional right to receive 

information is violated by the FEC when it censors CREW’s receipt of speech constitutionally 

compelled by Congress, see Stanley v. Georgia, 394 U.S. 557, 564 (1969) (“It is now well 

established that the Constitution protects the right to receive information and ideas. This 

freedom (of speech and press) . . . necessarily protects the right to receive.”); Lamont v. 

Postmaster General, 381 U.S. 301, 306–07 (1965) (“[j]ust as the licensing or taxing authorities 

in the Lovell, Thomas, and Murdock cases sought to control the flow of ideas to the public, so 

here federal agencies regulate the flow of [information]”; holding such regulation violated 

plaintiff’s First Amendment rights to receive speech). CREW may protect its rights here. 

2. CREW Presented its Challenge Below, Though it Need Not Have 

Crossroads GPS also argues that CREW may not challenge the regulation here because it 

 20 Nor would a petition for rulemaking be an adequate forum for CREW to protect its rights. The 

FEC in its discretion can refuse to engage in rulemaking, subject to only the most deferential 

review by a court. Prof. Drivers Council v. Bureau of Motor Carrier Safety, 706 F.2d 1216, 

1220-21, 1223 (D.C. Cir. 1983) (court will overturn agency’s refusal to engage in rulemaking 

“only in the rarest and most compelling of circumstances”). 

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purportedly “did not clearly raise—indeed, it abandoned—these issues in its administrative 

complaint.” CGPS Br. 32. Once again, Crossroads GPS misstates the facts. 

CREW’s administrative complaint plainly stated that the “FEC’s interpretation of [52 

U.S.C. § 30104(c)(1) and (c)(2)(C) by means of 11 C.F.R. § 109.10(e)(1)(vi)] fails to give full 

effect to these provisions.” AR 4, 102. Indeed, Crossroads GPS responded to that claim. AR 

83–84 (“One should not simply accept CREW’s argument that the statute and corresponding 

regulation are inconsistent.”). CREW presented the FEC with the “opportunity to consider the 

matter, make its ruling, and state the reasons for its action,” and CREW thus may bring its claim 

here. Coburn v. McHugh, 679 F.3d 924, 931 (D.C. Cir. 2012). 

Moreover, CREW did not have to present its challenge to the validity of the regulation to 

the FEC. “It is well established that a rule may be reviewed when it is applied in an 

adjudication—an agency need not explicitly reassess the validity of a rule to subject the rule to 

challenge on review.” AT&T Co. v. FCC, 978 F.2d 727, 734 (D.C. Cir. 1992) (rejecting 

agency’s argument that failure to question validity of regulation below deprived court of 

jurisdiction to consider it); accord Murphy Expl., 270 F.3d at 134–35 (holding plaintiff could 

challenge legality of rule even if it did not challenge rule before agency); see also Darby v. 

Disneros, 509 U.S. 137, 154 (1993) (holding “[c]ourts are not free to impose an exhaustion 

requirement as a rule of judicial administration” under the APA). CREW’s challenge to the 

regulation is properly before the Court.21 

 21 Issue-exhaustion also does not apply where the appealing party was not involved in a trial-like 

proceeding below. Sims v. Apfel, 530 U.S. 103, 110 (2000) (where “administrative proceeding is 

not adversarial, . . . the reasons for a court to require issue exhaustion are much weaker”); Mem. 

Op. at 15 (quoting FEC’s submission that plaintiff is “technically ‘not a party to the 

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3. The Court Can Remedy CREW’s Injury 

Crossroads GPS further argues that CREW’s challenge is improper because the Court can 

provide no remedy to CREW’s injury. In essence, Crossroads GPS argues that (a) it has an 

absolute defense to enforcement, precluding any chance of remedy to CREW’s FECA claim on 

remand, and (b) without the ability to remedy that injury on remand, CREW may not challenge 

the regulation here. Both of Crossroads GPS’s contentions are meritless. 

a. The Court’s Remedy of CREW’s APA Injury is Distinct from its Remedy for 

CREW’s FECA Injury 

Taking the second contention first, Crossroads GPS fundamentally mistakes the nature of 

review for CREW’s challenge to the regulation. CREW’s challenge sounds in the APA, not the 

FECA. See Comp. ¶ 124. CREW therefore need not show that the FEC’s decision on CREW’s 

administrative complaint was contrary to law to prevail. Rather, CREW need merely to show 

that it suffers an injury caused by the regulation remediable by the court and that the regulation is 

in excess of the agency’s authority or otherwise unlawful. 5 U.S.C. § 706. CREW has done that. 

As the Court previously found, CREW was injured by the regulation when it was applied 

to its administrative complaint below. Mem. Op. 16. Because of the existence of an invalid 

regulation, CREW is being denied information to which Congress entitled it. Notably, the injury 

is all the more pronounced if Crossroads GPS’s argument that it is absolutely immune from 

enforcement on remand is right. CREW would be absolutely barred from receiving information 

to which it has a right by reason of this invalid and unlawful regulation. And the regulation’s 

 

proceeding’”); see also Avocado Plus Inc. v. Veneman, 370 F.3d 1243, 1248–51 (D.C. Cir. 2004) 

(“exhaustion is non-jurisdictional” unless statute specifies otherwise and is “intensely practical”). 

Further “[Plaintiffs] may bypass the administrative process where exhaustion would be futile or 

inadequate,” Honig v. Doe, 484 U.S. 305, 327 (1988), such as here where the Commission 

already rejected a request to fix the regulation, Certification, Dec. 15, 2011, http://bit.ly/2kcjSDI. 

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35 

existence also injures CREW by censoring CREW’s access to information about other creators 

of independent expenditures in violation of its First Amendment rights. 

Nevertheless, Crossroads GPS argues that these injuries are not remediable because 

CREW is limited to bringing an as-applied challenge stemming from the administrative review 

below. CGPS Br. 35. Crossroads GPS is again mistaken. The D.C. Circuit has made clear that 

where a plaintiff brings an as-applied challenge, it may also bring a facial challenge to a 

regulation. See AT&T, 978 F.2d at 240 (facially vacating agency rule); see also P&V Enter. v. 

U.S. Army Corps of Eng’rs, 466 F. Supp. 2d 134, 142 (D.D.C. 2006) (noting “a facial challenge 

to a regulation can be brought outside § 2401(a)’s limitations period when it is accompanied by 

an as-applied challenge”), aff’d 516 F.3d 1021 (D.C. Cir. 2008). 

Crossroads GPS’s argument relies on the statement in Weaver that, outside of the original 

six-year time period, a “facial challenges to the rule or the procedures by which it was 

promulgated are barred.” CGPS Br. 36 (quoting 744 F.3d at 145). But Weaver cites NRDC v. 

NRC for that proposition, and that case dealt with a plaintiff’s attempt to facially challenge a rule 

outside of the six-year time limit without alleging any application of the rule to it. See Weaver, 

744 F.3d at 364 (citing NRDC v. NRC, 666 F.2d 595, 601–02 (D.C. Cir. 1981)). In contrast, 

Weaver noted that, where a rule had been applied to a plaintiff, the plaintiff could challenge the 

rule on the grounds that it “conflicts with the statute from which its authority derives”: i.e., a 

facial challenge. 744 F.3d at 145. That is precisely the situation here. 

Finally, Crossroads GPS argues that, at least with respect to the FEC’s failure to 

adequately explain 11 C.F.R. § 109.10(e)(1)(vi), any such challenge is a procedural challenge 

that is barred by the statute of limitations. CGPS Br. 37. But such a challenge is not a challenge 

to procedure, rather, it is a challenge to the legality of the rule itself. See, e.g., US Telecomm. 

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36 

Assoc. v. FCC, 825 F.3d 674, 701 (D.C. Cir. 2016) (challenge to agency’s “fail[ure] to 

adequately explain why it reclassified” is “substantive challenge[]”); George E. Warren Corp. v. 

EPA, 159 F.3d 616, 620 (D.C. Cir. 1998) (describing challenge asserting regulation is arbitrary 

and capricious as substantive challenge, distinct from procedural challenge related to 

consideration of late-filed comments); AFL-CIO v. Chao, 496 F. Supp. 2d 76, 78 (D.D.C. 2007) 

(“[T]he 2006 rule is substantively infirm because the Secretary failed to provide a reasoned 

explanation.”). Indeed, because only the agency’s contemporaneous justifications can satisfy its 

burdens on Chevron step two, Council for Urological Interests, 790 F.3d at 222, the FEC’s 

failure to explain bears directly on the regulation’s substantially inconsistency with the statute.22 

Simply put, “[w]here an agency rule causes the injury, as here, the redressability 

requirement may be satisfied by vacating the challenged rule.” Shays, 414 F.3d at 95. CREW 

need not show enforcement on remand is available. Nonetheless, despite Crossroads GPS’s 

contentions, enforcement on remand is available. 

b. Relief is Available Against Crossroads GPS on Remand 

Crossroads GPS also is wrong that the FEC may not pursue enforcement against it on 

remand. Even if “FEC might reach the same result” and dismiss CREW’s complaint against 

Crossroads FEC on remand, CREW’s injury is fairly traceable to the invalidity of the regulation 

and the court may “redress [CREW’s] injury in fact.” Akins, 524 U.S. at 25. 

Crossroads GPS nonetheless argues that redress is not possible because the FEC must 

dismiss on remand. But none of Crossroads GPS’s purported defenses absolutely preclude 

 22 In contrast, procedural challenges are those that challenge the agency’s failure to follow some 

procedure required by the APA or other statute. See, e.g., Kennecott Utah Copper Corp. v. U.S. 

Dep’t of Interior, 88 F.3d 1191, 1207–08 (D.C Cir. 1996) (describing procedures required by 

APA that give rise to a procedural challenge, e.g., failure to issue a notice, publish, etc.). 

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enforcement on remand. Crossroads GPS claims that 52 U.S.C. § 30111(e) provides a defense to 

enforcement if a respondent relies in “good faith” on a regulation, but that defense is not likely to 

be available here. First, as a defense, the burden to prove it will fall on Crossroads GPS. Dixon 

v. United States, 548 U.S. 1, 9 (2006). Second, “good faith” is a factual question, and there are 

significant reasons to believe Crossroads GPS’s reliance is not in good faith. FEC v. O’Donnell, 

209 F. Supp. 3d 727, 742 (D. Del. 2016) (candidate’s “good faith” was question of fact); see also 

FEC v. Craig for U.S. Senate, 816 F.3d 829, 849 (D.C. Cir. 2016) (failure to request AO on 

regulatory question demonstrated lack of good faith reliance), aff’g 70 F. Supp. 3d 82, 98-99 

(D.D.C. 2014) (evidence defendant knew activities “might not comport” with law shows lack of 

good faith reliance). Here, Crossroads GPS had actual notice that the regulation did not capture 

the reporting obligations required under the FECA. The FEC sent Crossroads GPS notices that it 

was failing to comply with its reporting obligations, AR 42, and Crossroads GPS affirmatively 

stated that it “is fully aware of its FEC reporting and disclosure obligations . . . [and] has never 

failed to report contributions required to be reported under the Act and FEC regulations.” AR 81 

(emphasis added). MCFL further gave notice to Crossroads GPS that its reporting obligations 

were more than what it understood 11 C.F.R. § 109.10(e)(1)(vi) required. 479 U.S. at 262. The 

petition for rulemaking filed in 2011—only one year before its expenditures at issue here—

noting the conflict between the regulation and the statute also gave Crossroads GPS notice of the 

invalidity of the regulation. See Van Hollen, Pet. for Rulemaking. Finally, one of Crossroads 

GPS’s lawyers could have simply read the statute, which would have shown it could not rely on 

the regulation. Swift & Courtney & Beecher Co. v. United States, 105 U.S. 691, 695 (1881) 

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(parties could not rely on agency rule contravening statute). 23 At the very least, no reasonable 

person could think 11 C.F.R. § 109.10(e)(1)(vi) incorporates § 30104(c)(1)’s requirements to 

report all contributions over $200 receive in the year. 

Moreover, even if Crossroads GPS could prove good faith reliance, that would not bar all 

relief against the organization. See Larouche v. FEC, 28 F.3d 137, 142 (D.C. Cir. 1994) (holding 

bar on “sanctions” does not bar equitable remedy of disgorging improperly received funds). The 

FECA provides the FEC authority to pursue a number of remedies and is not limited to the 

“sanctions” from which 52 U.S.C. § 30111(e) provides protection. See 52 U.S.C. 

§ 30109(a)(6)(A), (B). Notably, the FEC does not agree that § 30111(e) provides an absolute 

bar; rather, it argues only that the commissioners “can reasonably decline to proceed” in light of 

that possible “understanding” of the safe harbor. FEC Br. 21. 

Crossroads GPS’s appeal to due process is even less of a barrier to enforcement. A lack 

of fair notice bars only criminal or criminal-like sanctions: it does not bar equitable enforcement 

requiring an organization to come into compliance with the law. GE v. EPA, 53 F.3d 1324, 

1329–30 (D.C. Cir. 1995) (lack of “fair notice” is no defense in “non-penal context”). Moreover, 

for the same reasons Crossroads GPS had notice sufficient to render its reliance on 11 C.F.R. 

§ 109.10(e)(1)(vi) not in good faith, it had notice that satisfied any due process concerns. Abhe 

& Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059–62 (D.C. Cir. 2007) (finding statute provided fair 

notice, even if agency did not provide notice of requirements itself); see also Tiech v. FDA, 751 

 23 Crossroads GPS oddly argues that only the plain language of regulations can give fair notice. 

CGPS Br. 30. Clearly, however, the plain language of a statute can also give fair notice. Nat’l 

Ass’n of Mfrs v. Taylor, 549 F. Supp. 2d 33, 67 (D.D.C. 2008) (finding statute provides “fair 

notice of the type of activities encompassed by the section’s disclosure threshold”). 

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F. Supp. 243, 249 (D.D.C. 1990) (“While . . . one is entitled to assume a government agency’s 

regulations are valid , . . . one must also realize that it might have to suffer the consequences if a 

court determines that the regulation is invalid.”).24 

In sum, “[Crossroads GPS] cites no ‘authoritative policy or rule of the FEC that would 

bar equitable enforcement’ of [CREW’s] claim. Nor has the FEC admitted to such a practice or 

addressed this issue in its briefing . . . . That is fatal to [Crossroads GPS’s] standing argument.” 

CREW v. FEC, 209 F. Supp. 3d 77, 85 n.3 (D.D.C. 2016). 

F. The Proper Remedy is to Strike the Invalid Regulation 

Finally, the FEC argues that, if 11 C.F.R. § 109.10(e)(1)(vi) is invalid, the Court should 

remand the issue to the FEC to decide what to do about it. “[W]hen a reviewing court 

determines that agency regulations are unlawful,” however, “the ordinary result is that the rules 

are vacated.” Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 

1998); Shays, 528 F.3d at 921, 932 (striking regulations where “Commission has provided no 

persuasive justification for” the provisions challenged); Shays, 414 F.3d at 100–02 (same); 

Aragon v. Tillerson, 240 F. Supp. 3d 99, 109 (D.D.C. 2017) (Howell, J.) (“[W]hen an agency 

fails to provide a reasoned explanation, or where the record belies the agency’s conclusion, the 

court must undo its action.”). 

Here, as discussed above, the regulation conflicts with the unambiguous terms of the 

FECA and has frustrated its purpose. No additional explanation or other action by the FEC can 

remedy that conflict. There is no “serious possibility that the [agency] on remand could explain 

 24 Tiech noted an exception to this rule: where a “new principle of law. . . overrule[s] clear past 

precedent” or was not “foreshadowed.” 751 F. Supp.at 249. Neither is true here: no clear past 

precedent is overruled, and 11 C.F.R. § 109.10(e)(1)(vi)’s infirmities were foreshadowed by the 

petition for rulemaking, judicial precedent, and the clear text of the statute itself. 

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[its regulation] in a manner that is consistent with the statute,” and thus there is no need to 

remand. Milk Train, Inc. v. Veneman, 310 F.3d 747, 756 (D.C. Cir. 2002); see also AlliedSignal, Inc. v. U.S. NRC, 988 F.2d 146, 150 (D.C. Cir. 1993) (remand unnecessary where 

regulation suffers “serious[] . . . deficiencies”); United Mine Workers of Am., Int’l Union v. 

Dole, 870 F.2d 662, 673 (D.C. Cir. 1989) (“This is not a case in which the court is easily able to 

find a lawful basis for the regulations but unable to uphold the regulations because the agency 

itself has rested on other, unreasonable, grounds.”). 

Nor is there a serious risk of “disruptive consequences” if the Court vacates the rule. 

Allied-Signal, 988 F.2d at 150. Organizations like Crossroads GPS are already obliged to 

follow the FECA’s disclosure requirements. At the very least, their contributors must be 

reported under subsection (c)(1) with or without the regulation (since the regulation does not 

implement it). Further, these organizations already reported much of this information to the 

IRS, so gathering it is no great burden. 26 C.F.R. § 1.6033-2(a)(2)(ii)(f). In contrast, the 

continued existence of the rule is “quite disruptive” to CREW’s, and the American people’s, 

interests. The 2018 election is quickly approaching and there have already been significant 

independent expenditures this year. If the regulation stays on the books, the FEC will continue 

to fail to enforce the law as enacted and voters will continue to be denied access to vital 

information needed to exercise their franchise. The rule should be struck. 

If, however, the Court remands this regulation to the FEC, CREW requests the Court 

enter an explicit timetable for a new explanation and clarify that only a rationale adopted by at 

least four commissioners will suffice. Under the FECA, four commissioners are needed to 

enact a rule. 52 U.S.C. § 30106(c). Accordingly, only four commissioners can provide a 

binding statement of the agency explaining the rule. Council for Urological Interests, 790 F.3d 

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at 222 (court may only “look to what the agency said” to justify a regulation (emphasis added)). 

Further, the FEC has suffered from significant lethargy in accomplishing even the most minor 

of tasks. See Steven T. Walther, Assessment of Commission Act on Enforcement Matters 

Waiting Reason-to-Believe Consideration (Nov. 15, 2017), http://bit.ly/2zT3NKg. The Court 

should set a clear and expeditious deadline, such as two weeks, for the FEC to return.25 

II. The FEC’s Dismissal of CREW’s Complaint Was Contrary to Law 

The second matter before this Court is the propriety of the FEC’s dismissal of CREW’s 

complaint against Crossroads GPS. Because the FEC’s dismissal rests on impermissible 

constructions of law and arbitrary and capricious analyses of facts, the dismissal of each and 

every claim raised in CREW’s complaint is contrary to law and warrants reversal. 

A. Standard of Review 

Under the FECA, the Court may reverse the FEC’s dismissal if it finds the agency’s 

failure to find reason to believe, the basis for its dismissal, was “contrary to law.” 52 U.S.C. 

§ 30109(a)(8)(C); see Akins v. FEC, 101 F.3d 731, 740 (D.C. Cir. 1996) (en banc) (finding 

dismissal contrary to law where FEC’s reason to believe analysis was flawed), vacated on other 

grounds 524 U.S. 11; CREW, 209 F. Supp. 3d at 93 (same). To determine that, the court asks 

whether “(1) the FEC dismissed the complaint as a result of an impermissible interpretation of 

the [law], or (2) if the FEC’s dismissal of the complaint, under a permissible interpretation of the 

[law], was arbitrary or capricious, or an abuse of discretion.” Orloski, 795 F.2d at 161. Where 

there is a three-three split preventing the agency from finding reason to believe, the court reviews 

the reasoning of the commissioners who refused to find reason to believe. FEC v. Nat’l Rep. 

 25 Remand should also be limited only to explaining those portions of the rule that the Court 

finds could conform with the clear terms of the statute: i.e., the Court should declare that 

subsection (c)(1) imposes additional reporting obligations beyond 11 C.F.R. § 109.10(e)(1)(vi). 

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Sen. Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992). If they relied on the recommendation of the 

FEC’s Office of General Counsel (“OGC”), as they did here, the Court reviews the General 

Counsel’s reasoning. FEC v. Dem. Sen. Campaign Comm., 454 U.S. 27, 45 n.19 (1981). 

While acknowledging this standard, both the FEC and Crossroads GPS misrepresent the 

task here as one that reduces the Court to a mere rubber stamp. Far from being “highly 

deferential,” cf. FEC Br. 14, CGPS Br. 22, a court reviewing the FEC’s failure to enforce may, at 

times, give no deference to the agency’s rationale. See Akins, 101 F.3d at 740 (court would not 

defer to FEC’s legal interpretation upon which dismissal was based); CREW, 209 F. Supp. 3d at 

87 (on review of nonenforcement action, “the Court will not afford deference”). 

The first question the Court asks is whether the dismissal was based on “an impermissible 

interpretation of [law].” Orloski, 795 F.2d at 161. While the court may defer to the agency’s 

interpretation where deference is warranted under Chevron, id. at 161, here, for the reasons 

discussed above, supra pp. 9–30, Chevron deference is unavailable. Indeed, Chevron deference 

is not available at all on this FECA claim because the court is only reviewing the statement of 

three commissioners, not the statement of the FEC. “A statement of reasons [of three 

commissioners] [is] not be binding legal precedent or authority for future cases.” Common 

Cause v. FEC, 842 F.2d 436, 449 n.32 (D.C. Cir. 1988); see also 52 U.S.C. § 30106(c) (four 

commissioners needed to exercise agency powers). But only agency statements with “force of 

law” warrant Chevron deference. United States v. Mead Corp., 533 U.S. 218, 221–23, 233–34 

(2001) (agency decision has force of law when it binds third parties). Because the OGC’s 

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statement, adopted by only three commissioners, lacks force of law, review is de novo.

26 

The second question is whether the agency’s analysis, even if it contains no legal error, is 

nonetheless arbitrary or capricious. While that review is deferential, Orloski, 795 F.2d at 167, 

the agency must still provide a “reasonable explanation of the specific analysis and evidence 

upon which the Agency relied.” Bluewater Network v. EPA, 370 F.3d 1, 21 (D.C. Cir. 2004). 

Finally, the agency’s citation to its prosecutorial discretion does not alter this review. If 

the agency makes a legal error in the course of exercising its prosecutorial discretion, then the 

dismissal is still contrary to law. McLane Co., Inc. v. EEOC, 137 S. Ct. 1159, 1168 n.3 (2017) 

(finding an “abuse its discretion” where ruling is based “on an erroneous view of the law”); 

Akins, 524 U.S. at 25 (“[T]hose adversely affected by a discretionary agency decision generally 

have standing to complain that the agency based its decision upon an improper legal ground.”). 

In addition, as the FECA provides that the FEC “shall make an investigation” of any complaint 

for which there is reason to believe, 52 U.S.C. § 30109(a)(2), it is “contrary to law” for the FEC 

not to investigate unless it lawfully finds no reason to believe a violation occurred. See Akins, 

524 U.S. at 26 (finding agency’s discretion in nonenforcement action was irrelevant to Court’s 

analysis as statute specifically provided for review of nonenforcement). Accordingly, if the 

Court finds the FEC’s decision on the merits was contrary to law, then the FEC’s dismissal is 

 26 See also Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 57 (2011) 

(Chevron deference only justified where agency decision has “force of law” with “binding” 

effect); Fogo De Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec., 769 F.3d 1127, 1137 

(D.C. Cir. 2014) (“non-precedential nature of” agency action “conclusively confirms” action did 

not carry “the force of law”; holding action must be “binding [as to] . . . third parties” and not 

merely “conclusive” as to parties; denying Chevron deference).While the D.C. Circuit held that 

deference to a three-vote decision not to enforce was appropriate, In re Sealed Case, 223 F.3d 

775, 780 (D.C. Cir. 2000), that case predates Mead’s clarification that Chevron deference is 

available only for agency statements with force of law. 

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contrary to law even if it exercised its prosecutorial discretion.27 

B. The Dismissal of CREW’s Subsection (c)(2)(C) Claim was Contrary to Law 

In dismissing CREW’s allegation that Crossroads GPS violated 52 U.S.C. 

§ 30104(c)(2)(C) by not disclosing contributors who gave to further an independent expenditure, 

the OGC relied exclusively on 11 C.F.R. § 109.10(e)(1)(vi). AR 187. For the reasons stated 

above, however, 11 C.F.R. § 109.10(e)(1)(vi) conflicts with the requirements imposed by 

subsection (c)(2)(C) and is invalid. Thus, the FEC’s dismissal of CREW’s subsection (c)(2)(C) 

claim rests on an “impermissible interpretation” of law, Orloski, 795 F.2d at 161: that subsection 

(c)(2)(C) just requires the disclosure of contributions given to further “the reported” expenditure. 

The dismissal was thus contrary to law. Id.; see also Barnett v. Weinberger, 818 F.2d 953, 954 

(D.C. Cir. 1987) (agency decision “rest[ing] wholly upon . . . regulations which as interpreted are 

fatally at odds with the statutory directive they purport to implement” was arbitrary). 

The FEC argues nonetheless that its dismissal might not have been contrary to law 

because the FEC might dismiss on remand due to Crossroads GPS’s possible appeal to the safe 

harbor provision in 52 U.S.C. § 30111(e). FEC Br. 20. But the Court does not review possible 

rationales the agency might give for dismissal on remand; it reviews the reasons actually given. 

N. Air Cargo, 674 F.3d at 860. Furthermore, neither the safe harbor nor the FEC’s other post-

 27 This is not to say that the agency has no prosecutorial discretion. Rather, if the Court finds the 

dismissal is contrary to law, the agency retains discretion. If the agency does not proceed, 

CREW will have the authority to bring its own suit to protect its own rights. 52 U.S.C. 

§ 30109(a)(8)(C) (providing that if the FEC fails to conform with court order, then a 

“complainant may bring, in the name of such complainant, a civil action to remedy the violation 

involved in the original complaint”). The agency retains its discretion to control its resources 

and priorities; that discretion simply has no bearing on the question on review here. 

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hoc concern about the sufficiency of the evidence would justify dismissal below.28 

The FEC’s concerns about the sufficiency of the evidence, FEC Br. 22–23—even if that 

issue were before the Court—rests on an impermissible interpretation of the FECA’s “reason to 

believe” standard. That standard is quite low, satisfied so long as there are “credibl[e] 

allegat[ions]” that a violation “may have occurred.” FEC, Statement of Policy Regarding 

Commission Action in Matters at the Initial Stage of Enforcement Process, 72 Fed. Reg. 12,545, 

125,45 (Mar. 16, 2007). Here, the evidence is more than sufficient to meet this standard. There 

is no dispute Crossroads GPS accepted contributions to support its work to elect Josh Mandel, 

AR 174, and that that work consisted primarily, if not exclusively, of running independent 

expenditures, AR 80. Indeed, the group’s work in the previous election cycle consistently 

focused on the dissemination of independent expenditures. See FEC, 2010 Committee 

Information, Crossroads GPS, http://bit.ly/2kclxcq ($15.4 million in independent expenditures in 

2010); Crossroads GPS, 2010 Form 990, http://bit.ly/2AlyCnO ($15 million given to other 

organizations to run independent expenditures in 2010). Accordingly, anyone contributing to 

Crossroads GPS’s work would expect their funds to further an independent expenditure. 29 Also, 

contributors at the fundraiser were shown “example” ads and then solicited to help pay for the 

rising costs of airing such ads. AR 78, 124. These facts clearly give rise to the possibility that 

contributors “may” have given to Crossroads GPS to further an independent expenditure and that 

 28 While the FEC implies that it raised equitable concerns with respect to subsection (c)(2)(C), 

FEC Br. 20–21, the record shows it did not, and that the concern was raised in support of its 

decision not “to impose liability under Section 434(c)(1)” alone. AR 176 (emphasis added). 

29 Crossroads GPS’s assertion to the FEC that it’s spending on independent expenditures for 

Mandel consisted of only “a bit over half” of its total spending on the race, AR 80, appears false 

or at least highly misleading. It points to its electioneering communications in Ohio, but those 

ads targeted President Obama, not Mandel or his opponent. See, e.g., Crossroads GPS, Form 9 

(Feb. 23, 2012), http://bit.ly/2kd8nMg. 

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Crossroads GPS violated the law by not reporting them. 

For its part, Crossroads GPS argues that the Court should not even address the FEC’s 

dismissal of CREW’s subsection (c)(2)(C) claim because there is no remedy for the wrongful 

dismissal due to Crossroads GPS’s reliance on the regulation. For the reasons stated above, 

Crossroads GPS’s reliance on 11 C.F.R. § 109.10(e)(1)(vi) does not preclude a remedy of its 

violation of subsection (c)(2)(C). See supra p. 38. Nor does the possibility of dismissal on 

remand due to such reliance stop the Court from adjudicating whether the reasons actually given 

by the agency below for failing to find reason to believe were contrary to law. Akins, 524 U.S. at 

25 (reviewing agency’s reason to believe finding despite likelihood of dismissal on remand). 

C. The Dismissal of CREW’s Subsection (c)(1) Claim was Contrary to Law 

As shown in CREW’s opening brief, 52 U.S.C. § 30104(c)(1) imposes an “additional” 

reporting disclosure obligation separate from subsection (c)(2)(C). As the OGC recognized in a 

statement adopted by the controlling commissioners, 11 C.F.R. § 109.10(e)(1)(vi) is “silent” as 

to subsection (c)(1). AR 188. Thus, the FEC’s position on review here is that the regulation 

does not incorporate subsection (c)(1)’s reporting obligations. 30 The question before the Court is 

therefore whether it was contrary to law for the agency to find no reason to believe Crossroads 

GPS violated subsection (c)(1) in light of that concession. It was and the agency’s equitable 

concerns in pursuing enforcement does not alter that conclusion. 

Before turning to the merits, both Crossroads GPS and the FEC challenge CREW’s 

standing to advance its subsection (c)(1) argument. Their challenge is meritless, however. First, 

 30 Notably, while Crossroads GPS’s argues that 11 C.F.R. § 109.10(e)(1)(vi) reflects the 

agency’s interpretation of subsection (c)(1), the FEC does not adopt that position here. See FEC 

Br. 28 (noting only “to the extent the Commission’s regulation at 11 C.F.R. § 109.10(e)(1)(vi) 

was an implementation of both statutory provisions” it might deserve deference). 

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while they argue that CREW failed to exhaust this argument below, FEC Br. 24 n.7, CGPS Br. 

34, exhaustion does not apply to judicial review of an administrative action where CREW’s role 

is limited to submitting a complaint. See Sims, 530 U.S. at 110 (holding exhaustion is 

inappropriate if no trial-like procedure below). Second, far from failing to press its interpretation 

of subsection (c)(1) below, CREW plainly alleged that “[t]he FECA requires” those making 

independent expenditures “to file reports with the FEC identifying each person . . . who makes 

contributions totaling more than $200 in a calendar year to the person making the independent 

expenditure. 2 U.S.C. § 434(c)(1) (referencing 2 U.S.C. § 434(b)(3)(A)).” AR 4, 101. CREW 

also alleged that 52 U.S.C. § 30104(c)(2)(C) was a second and “further” requirement, 

independent of subsection (c)(1). AR 4, 101. And CREW noted that the regulation “fails to give 

full effect to these [statutory] provisions.” AR 5, 102. 

Nonetheless Crossroads GPS argues that, because CREW alleged Crossroads GPS 

received contributions that were given to further the reported independent expenditures, CREW 

somehow did not allege violations of both statutory provisions. CGPS Br. 32–33 & n.17. But 

that is absurd. Any contribution Crossroads GPS received to further the reported independent 

expenditure would have to be reported under the regulation and both statutory provisions. In 

other words, Crossroads GPS violated each statutory provision and the regulation by failing to 

report. And that is exactly what CREW alleged below: that by failing to report the individual 

contributing to support Josh Mandel, by failing to report the matching contributions, and by 

failing to report the contributions received at the fundraiser, “Crossroads GPS violated 2 U.S.C. 

§ 434 and 11 C.F.R. § 109.10(b)–(e).” AR 11, 12, 15, 109, 110, 113 (emphasis added). Both 

Crossroads GPS and the FEC understood CREW’s allegations because both specifically 

addressed CREW’s claims under the regulation and under both statutory provisions. AR 83 

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(Crossroads GPS’s response that, because the regulation incorporates both “2 U.S.C. 434 (c)(1) 

and (2),” its violation of the statute was irrelevant); AR 164 (recognizing alleged violations “of 2 

U.S.C. § 434 and 11 C.F.R. § 109.10(b)–(e)”); AR 167 (same); AR 168 (same); AR 175 

(addressing subsection (c)(2) claim); AR 175–76 (addressing subsection (c)(1) claim); AR 176 

(providing recommendations on 11 C.F.R. § 109.10(e)(1)(vi), 2 U.S.C. § 434(c)(2), and 2 U.S.C. 

§ 434(c)(1) claims). Clearly, CREW pressed its allegations below sufficiently to insure “the 

[agency had] an opportunity to consider the matter, make its ruling, and state the reasons for its 

action.” Coburn, 679 F.3d at 931. CREW may present the issues here. 

On the merits, the reason OGC gave to dismiss CREW’s subsection (c)(1) claim was not 

that Crossroads GPS complied with its disclosure obligations. Any such conclusion would 

clearly be absurd—it is indisputable Crossroads GPS received contributions within the year of its 

independent expenditures and that it failed to report those contributions in violation of 52 U.S.C. 

§ 30104(c)(1). See, e.g., AR 95. Rather, the basis for the agency’s refusal to find reason to 

believe was only that Crossroads GPS “could raise equitable concerns about whether [it] ha[d] 

fair notice of the requisite level of disclosure required by law.” AR 176. The agency therefore 

exercised its “prosecutorial discretion” to dismiss the complaint. Id. But that does not render the 

FEC’s failure to find reason to believe a violation occurred not “contrary to law.” 

A lawful exercise of prosecutorial discretion must be based on “reasonable ground[s].” 

Nader v. FEC, 823 F. Supp. 2d 53, 65 (D.D.C. 2011). The justification given here was 

“equitable concerns” about a lack of “fair notice.” AR 176. The purported lack of notice cannot 

provide a reasonable ground to dismiss, however, because Crossroads GPS had fair notice and, 

even if it did not, enforcement against Crossroads GPS would still be available. 

For the same reasons Crossroads GPS had notice that 11 C.F.R. § 109.10(e)(1)(vi) was 

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invalid, the group also had both actual and constructive notice of its disclosure obligation under 

the plain text of 52 U.S.C. § 30104(c)(1). See supra p. 37. MCFL declared the group must 

“identify all contributors who annually provide in the aggregate $200 in funds intended to 

influence elections.” 479 U.S. at 262; see also id. at 252 (Brennan J., Op.) (explicitly citing 

§ 30104(c)(1) for this rule). The FEC had previously enforced subsection (c)(1) as a stand-alone 

disclosure obligation. See General Counsel’s Report 2, 5, MUR 5303. In addition, Congressman 

Van Hollen’s petition for rulemaking filed shortly before Crossroads GPS solicited funds and ran 

ads gave further notice. See Pet. for Rulemaking ¶¶ 4, 6, 7. With such extensive notice, any 

attempt by Crossroads GPS to argue lack of fair notice would be frivolous. 

Moreover, even if Crossroads GPS somehow could convince a court it lacked fair notice, 

that would not preclude enforcement. A lack of fair notice does not preclude all remedies under 

either the Due Process clause or 52 U.S.C. § 30111(e). See supra p. 38. Crossroads GPS could 

at least be ordered to bring itself into compliance with the law and disclose its contributors. 

Finally, even if the agency provided a reasonable ground for its prosecutorial discretion, 

that would not render the dismissal not “contrary to law.” That is because the FECA requires the 

FEC to investigate every complaint unless it fails to find reason to believe a violation occurred. 

52 U.S.C. § 30109(a)(2). The FEC’s equitable concerns have no rational connection to its 

decision to find no reason to believe a violation occurred. That decision is concerned solely with 

the merits of the underlying complaint. See Akins, 524 U.S. at 26. Accordingly, because there is 

no “rational connection” between the agency’s prudential decision and its decision on the merits 

of the complaint, it is arbitrary and capricious for the agency to rely on that discretion in an 

attempt to justify its failure to find reason to believe here. State Farm, 463 U.S. at 43. 

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D. The Dismissal of CREW’s § 109.10(e)(1)(vi) Claim was Contrary to Law 

Finally, even assuming 11 C.F.R. § 109.10(e)(1)(vi) is a valid regulation, it was still 

contrary to law for the agency to find no reason to believe Crossroads GPS violated it. That is 

because the reason to believe standard is a low one that only asks whether there are “credibl[e] 

alleg[ations]” that a violation “may” have occurred, 72 Fed. Reg. at 12545 and there clearly are 

allegations sufficient here to pass this low bar. CREW Br. 44–45, supra p. 45 

In response, the FEC argues that CREW failed to “establish” that the contributors had the 

specific intent to further a single reported independent expenditure. FEC Br. 17. But that is not 

the standard the FEC imposes for review before an investigation is made. 72 Fed. Reg. at 12,545 

(stating reason to believe exists where “the available evidence in the matter is at least sufficient 

to warrant conducting an investigation”). The FEC’s argument merely proves that it used the 

wrong standard below and thus dismissed based on “impermissible interpretations of [law].” 

Orloski, 795 F.2d at 161; see also Huerta v. Ducote, 792 F.3d 144, 153 (D.C. Cir. 2015) (“[A] 

heightened pleading standard that depart[s] so severely from regulatory text and precedent . . . 

[must] be vacated as arbitrary and capricious.”). 

Here, for the reasons there is enough evidence to find reason to believe Crossroads GPS 

violated subsection (c)(2)(C), see supra p. 45, there is enough evidence to a “reason to believe” a 

violation of 11 C.F.R. § 109.10(e)(1)(vi) “may” have occurred. Thus, it was contrary to law for 

the FEC to dismiss CREW’s allegations Crossroads GPS violated 11 C.F.R. § 109.10(e)(1)(vi). 

CONCLUSION 

For the reasons stated above, CREW respectfully requests this Court grant it summary 

judgment, declare the dismissal below was contrary to law, and declare invalid and vacate 11 

C.F.R. § 109.10(e)(1)(vi). 

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Dated: December 4, 2017. 

Respectfully submitted, 

/s/ Stuart C. McPhail 

Stuart C. McPhail 

smcphail@citizensforethics.org

(D.C. Bar No. 1032529) 

Adam J. Rappaport 

arappaport@citizensforethics.org

(D.C. Bar No. 479866) 

Citizens for Responsibility and Ethics 

in Washington 

455 Massachusetts Ave., N.W., Sixth Floor 

Washington, D.C. 20001 

Telephone: (202) 408-5565 

Fax: (202) 588-5020 

Attorneys for Citizens for Responsibility and 

Ethics in Washington and Nicholas 

Mezlak 

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