ORAL ARGUMENT NOT YET SCHEDULED 

No. 18-5261 

 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON 

AND NICHOLAS MEZLAK, 

Plaintiffs-Appellees, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

____________________________________________________________ 

CROSSROADS GRASSROOTS POLICY STRATEGIES, 

Intervenor Defendant-Appellant. 

–––––––––––– 

On Appeal from the United States District Court 

for the District of Columbia, No. 16-cv-259 

–––––––––––– 

BRIEF OF SENATORS SHELDON WHITEHOUSE, JON TESTER, 

AND RICHARD BLUMENTHAL AS AMICI CURIAE 

IN SUPPORT OF APPELLEES 

–––––––––––– 

Jennifer R. Cowan

 Counsel of Record 

Gary W. Kubek 

Laura J. Samuels 

Michael C. McGregor 

Nora Niedzielski-Eichner

DEBEVOISE & PLIMPTON LLP 

919 Third Avenue 

New York, New York 10022 

(212) 909-6000 

jrcowan@debevoise.com 

gwkubek@debevoise.com 

ljsamuels@debevoise.com 

mcmcgregor@debevoise.com 

nniedzielskieichner@debevoise.com

Jonathan M. DeMars

DEBEVOISE & PLIMPTON LLP 

801 Pennsylvania Avenue, NW 

Washington, D.C. 20004 

(202) 383-8000 

jmdemars@debevoise.com 

April 24, 2019

Counsel to Amici Curiae 

USCA Case #18-5261 Document #1784435 Filed: 04/24/2019 Page 1 of 40
ii 

CERTIFICATE AS TO PARTIES, 

RULINGS, AND RELATED CASES 

A. Parties and Amici

To counsel’s knowledge, the parties, intervenors, and amici appearing before 

this Court are listed in the brief for appellees Citizens for Responsibility and Ethics 

in Washington and Nicholas Mezlak. Counsel understands additional amici curiae

may appear in this matter. 

B. Rulings Under Review 

An accurate reference to the ruling at issue appears in the brief for appellees 

Citizens for Responsibility and Ethics in Washington and Nicholas Mezlak. 

C. Related Cases 

This case was previously before this Court, which denied Crossroads’ 

Emergency Motion for Stay. See CREW v. FEC, 904 F.3d 1014 (D.C. Cir. 2018) 

(per curiam). This case was also before the Supreme Court of the United States on 

Crossroads’ Emergency Motion for Stay Pending Appeal, which was denied. 

Crossroads v. CREW, 139 S. Ct. 50 (mem.) (Sept. 18, 2018). 

/s/ Jennifer R. Cowan 

Jennifer R. Cowan 

 

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TABLE OF CONTENTS 

Page 

STATEMENT OF INTEREST OF AMICI CURIAE .............................................. 1

SUMMARY OF ARGUMENT ............................................................................. 1

ARGUMENT......................................................................................................... 4

I. The Court Should Consider This Case in the Context of the 

Struggle Between Special Interests and the Public Interest. ......................... 4

A. Secrecy Strengthens the Power of the Influencer Class. ..................... 4

B. The FECA Balances the Special Interests of the Influencer 

Class and the Public Interest Through Public Disclosure. .................10

II. After Citizens United, a Disclosure Regulation That Reflects the 

FECA Is More Important Than Ever. ..........................................................14

A. The FEC’s Regulation Is Divorced from the Way Modern 

Campaigns Work. .............................................................................16

B. The FEC’s Regulation Undermines the FECA’s Ban on 

Foreign Spending. .............................................................................19

III. The FEC’s Ineffective Regulation Contributes to the Public’s 

Declining Faith in Our Democracy. ............................................................22

IV. Conclusion. .................................................................................................29

 

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iv 

TABLE OF AUTHORITIES 

CASES

Austin v. Mich. Chamber of Commerce, 

494 U.S. 652 (1990) ......................................................................................... 28 

Buckley v. Valeo, 

424 U.S. 1 (1976)....................................................................................... 10, 11 

Bluman v. FEC, 

800 F. Supp. 2d 281 (D.C. Cir. 2011) .............................................................. 19

Bluman v. FEC, 

565 U.S. 1104 (2012) ....................................................................................... 19 

Citizens United v. FEC, 

558 U.S. 310 (2010) ......................................................................... 3, 14, 15, 28

CREW v. FEC, 

316 F. Supp. 3d 349 (D.D.C. 2018).......................................................... 2, 4, 23 

John Doe No. 1 v. Reed, 

561 U.S. 186 (2010) ......................................................................................... 12 

Marshall v. Baltimore & Ohio Railroad, Co., 

57 U.S. 314 (1853) ........................................................................................... 27 

Trist v. Child, 

88 U.S. 441 (1874) ........................................................................................... 27 

STATUTES

2 U.S.C. § 441(b) (2000)....................................................................................... 14 

26 U.S.C. § 501(c)(4) .............................................................................................. 3 

52 U.S.C. § 30101. ......................................... 2, 4, 10, 12, 13, 19, 20, 22, 23, 26, 28 

52 U.S.C. § 30104(c) ........................................................................................ 4, 12 

52 U.S.C. § 30121 ................................................................................................. 19 

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v 

REGULATIONS

11 C.F.R. § 109.10 ............................................................................................ 4, 26 

LEGISLATIVE MATERIALS

Hearings Before the S. Comm. on Rules & Admin. To Amend the Federal 

Election Campaign Act of 1971, as Amended, & for Other Purposes, 

94th Cong. (Feb. 18, 1976) .............................................................................. 10 

S. Rep. No. 93-689 (1974) ................................................................................... 10

The Modus Operandi and Toolbox of Russia and Other Autocracies for 

Undermining Democracies Throughout the World: Hearing Before the 

Subcomm. On Crime and Terrorism of the S. Comm. on the Judiciary, 

115th Cong. (Mar. 15, 2017) ............................................................................ 21 

OTHER AUTHORITIES

75% in U.S. See Widespread Government Corruption, Gallup 

(Sept. 19, 2015) ............................................................................................... 24 

Americans for Prosperity, http://www.americansforprosperity.org ....................... 17 

Americans for Prosperity, Wayback Machine Internet Archive 

(Oct. 5, 2018) ................................................................................................... 17 

Americans’ Views on Money in Politics, N.Y. Times & CBS News 

(June 2, 2015) ............................................................................................ 22, 24 

Andrea Drusch & National Journal, AFP Launches TV Ads Against Ted 

Strickland. Are They the Start of Another Big Campaign?, The Atlantic 

(Aug. 18, 2015) ................................................................................................ 19 

Andrew Jackson, 1832 Veto Message Regarding the Bank of the 

United States (July 10, 1832) ............................................................................. 5 

Ann. M. Ravel, Dysfunction and Deadlock: The Enforcement Crisis at the 

Federal Election Commission Reveals the Unlikelihood of Draining the 

Swamp, Off. of Comm’r. Ann Ravel, FEC (Feb. 2017) .................................... 23 

Ann M. Ravel, Dysfunction and Deadlock at the Federal Election 

Commission, N.Y. Times (Feb. 20, 2017) ........................................................ 23

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Benjamin I. Page, Larry M. Bartels, & Jason Seawright, Democracy and the 

Policy Preferences of Wealthy Americans, 11 Pers. on Pol. (2013) .................... 6 

Charles de Secondat, Baron de Montesquieu, The Spirit of Laws (1748)................. 5 

Dark Money Basics, OpenSecrets.org ................................................................... 14 

David Hume, 3 The Philosophical Works of David Hume (1st ed. 1826) ................ 5 

David Petraeus & Sheldon Whitehouse, Putin and Other Authoritarians’ 

Corruption Is a Weapon – And a Weakness, Wash. Post (Mar. 8, 2019) .......... 20 

Donor Demographics, OpenSecrets.org ................................................................ 26 

EDF Action, http://www.edfaction.org ................................................................. 17 

Martin Gilens, Affluence and Influence: Economic Inequality and Political 

Power in America (2012) ................................................................................... 6 

Greg Gordon & Peter Stone, Russia Investigators 

Likely Got Access to NRA’s Tax Filings, Secret Donors, McClatchy 

(July 2, 2018) ................................................................................................... 20 

Heather A. Conley et al. The Kremlin Playbook 2: The Enablers, Ctr. 

Strategic & Int’l Studies (2019) ....................................................................... 22 

High Percent of Presidential Ad Dollars of Top Four 501(c)(4)s Backed Ads 

Containing Deception, Annenberg Study Finds, Annenberg Pub. Pol’y 

Ctr. (June 20, 2012) ........................................................................................... 9 

Ian Vandewalker & Lawrence Norden, Getting Foreign Funds Out of 

America’s Elections, Brennan Ctr. for Just. (2018) .......................................... 21 

Independent Expenditures, FEC ............................................................................ 19 

Interview with Senator Mitch McConnell, N.P.R. 

Talk of the Nation (2003) ................................................................................. 11 

Issue One, https://www.issueone.org/about ............................................................. 7 

John Wagner & Scott Clement, ‘It’s Just Messed Up’: Most 

Think Political Divisions as Bad as Vietnam Era, New Poll Shows, 

Wash. Post (Oct. 28, 2017) .............................................................................. 25 

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Karl Evers-Hillstrom et al., A Look at the Impact of Citizens United on its 

9

th Anniversary, OpenSecrets.org, (Jan. 21, 2019) ............................................ 13 

Larry M. Bartels, Economic Inequality and Political Representation, 

Princeton Univ. Dep’t. of Pol. (2005) .......................................................... 6, 25

Lawrence Lessig, Republic, Lost: How Money Corrupts Congress – 

and a Plan to Stop It (2011) ............................................................................... 6 

Letter from Ellen L. Weintraub, Vice Chair, FEC to 

U.S. Senator Amy Klobuchar (Sept. 20, 2018) ................................................. 22 

Majority Forward, http://www.majorityforward.com ............................................ 17 

Majority Forward, Wayback Machine Internet Archive (Aug. 19, 2018).............. 17 

Memorandum from Vice Chair Ellen L. Weintraub to the FEC, Proposal to 

Launch Rulemaking To Ensure That U.S. Political Spending Is 

Free from Foreign Influence (Sept. 9, 2016) .................................................... 20 

Michael S. Kang, The End of Campaign Finance Law, 

98 Va. L. Rev. 1 (2012) ................................................................................... 13 

Niccolo Machiavelli, The Prince (1532) ................................................................. 5 

Outside Spending, OpenSecrets.org ...................................................................... 14 

Patriot Majority, http://www.patriotmajority.org................................................... 17

Patriot Majority, Wayback Machine Internet Archive (Apr. 30, 2017) ................. 17 

Plaintiff’s Motion for Summary Judgment, CREW v. FEC, 

316 F. Supp. 3d 349 (D.D.C. Sept. 11, 2017) (No. 16-00259) .......................... 15 

Political Nonprofits: Top Election Spenders, OpenSecrets.org ............................. 15 

Russ Choma, Koch Industries, Business Groups Lobby Against Donor 

Disclosure, OpenSecrets.org (Apr. 25, 2013) ..................................................... 7 

Sen. McConnell: Political Donations Are Free Speech, N.P.R. Morning 

Edition (June 18, 2012) .................................................................................... 11 

Steven Kull et al., Americans Evaluate Campaign Finance Reform: A Survey 

of Voters Nationwide, Univ. Md. Program for Pub. Consultation (2018) ......... 24 

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viii 

The Public, the Political System and American Democracy, 

Pew Research Ctr. (2018) ................................................................................ 24 

Theodore Roosevelt, New Nationalism Speech (1910) ............................................ 5 

Trevor Potter, Money, Politics, and the Crippling of the FEC: A Symposium 

on the Federal Election Commission’s Arguable Inability to Effectively 

Regulate Money in American Elections (Apr. 2017) ........................................ 23 

U.S. Chamber of Commerce, http://www.uschamber.com .................................... 17 

U.S. Chamber of Commerce, U.S. Chamber: DISCLOSE Act is Partisan 

Effort to Silence Critics and Gain Political Advantage (May 19, 2010) ............. 7 

U.S. Chamber of Commerce, Multi-industry Letter Opposing H.R. 5175 (the 

“DISCLOSE Act,” or “Schumer – Van Hollen”) (May 19, 2010)...................... 7 

U.S. Dep’t of Just., Mexican Businessman Jose Susumo Azano Matsura 

Sentenced for Trying to Buy Himself a Mayor (Oct. 27, 2017) ......................... 21 

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GLOSSARY OF ABBREVIATIONS 

CREW Citizens for Responsibility and Ethics in Washington 

Crossroads Crossroads Grassroots Policy Strategies 

FEC Federal Election Commission 

FECA Federal Election Campaign Act of 1971, as amended

STATUTES AND REGULATIONS 

The pertinent statutes and regulations are reproduced in an addendum to 

Appellees’ brief. 

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STATEMENT OF INTEREST OF AMICI CURIAE1

Amici curiae are United States Senators Sheldon Whitehouse of Rhode 

Island, Jon Tester of Montana, and Richard Blumenthal of Connecticut. As 

legislators and members of the United States Senate, amici have a front-row view 

of both the virtues of America’s constitutional democracy and the hazards of 

improper influence over its democratic institutions. Amici file this brief to provide 

practical, political, and historical context to the legal arguments in this case. 

SUMMARY OF ARGUMENT 

There is an elemental tension in government between two classes of citizens. 

An influencer class occupies itself with favor-seeking from government and 

desires rules of engagement that make government more susceptible to its 

influence. The general population, on the other hand, has an abiding interest in a 

transparent government with the capacity to resist those special-interest 

influencers. When influencers can wield their power in backrooms rather than the 

public square, the problem of influence is worsened, both by secrecy and lack of 

accountability. 

 

1

 All parties have consented to the filing of this brief. No counsel for a party 

authored this brief in whole or in part, and no counsel for a party, nor any 

person other than the amici curiae, or their counsel, contributed money that 

was intended to fund the preparation or submission of this brief. See Fed. R. 

App. P. 29(a)(4)(E). 

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Reconciling this tension in a just way is a basic task of governance. 

Congress addressed that tension through the Federal Election Campaign Act (the 

“FECA”).2 The FECA protects the public’s strong interest in a transparent 

campaign finance system that does not readily yield to secretive special-interest 

manipulation. As the district court in this case correctly found: “[c]ampaign 

finance law has long recognized the value of disclosure as a means of enabling the 

electorate to make informed decisions about candidates, to evaluate political 

messaging, to deter actual, or the appearance of, corruption, and to aid in 

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

influence on American politicians.”3 

In the FECA, Congress set up a reporting system for non-political 

committees (or “outside organizations”) that make independent expenditures. 

However, the regulation enacted by the Federal Election Commission (the “FEC”), 

which requires disclosure only where the contributor seeks to fund a specific 

expenditure, violates the language and purpose of the statute, and flatly fails to 

meet real-world tests of today’s political campaigns. The regulation’s deficiencies 

have become increasingly detrimental because of three developments. 

 

2

 52 U.S.C. § 30101 et seq. 

3

 CREW v. FEC, 316 F. Supp. 3d 349, 355 (D.D.C. 2018). 

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First, Citizens United v. Federal Election Commission,

4

dramatically (and 

wrongly, in amici’s view) upended the political balance in favor of the influencer 

class. Groups organized under Section 501(c)(4) of the Internal Revenue Code and 

other outside organizations have overwhelmed the American election system, into 

which they have sunk nearly $4 billion since 2010. It was bad enough that so 

much power was shifted to those with the means and motive to spend unlimited 

sums in politics, but the FEC’s inadequate regulation means that much of that $4 

billion was contributed anonymously. 

Second, the FEC’s regulation ignores the realities of modern political 

campaigns. Fanciful hypotheticals from Appellant about individual contributors 

notwithstanding, it is exceedingly rare for a contributor to tie a contribution to a 

specific expenditure. People contribute to candidates and intermediaries because 

they want outcomes, not because they want to see a particular advertisement aired. 

The real public interest here is in knowing who funds an organization’s spending to 

support or oppose a candidate or a policy, not in the (in our view) imaginary subset 

of contributors who want to see a particular advertisement aired on television. 

Third, the FEC’s regulation provides a gaping loophole through which 

foreign entities can anonymously influence our elections. This vulnerability has 

 

4

 558 U.S. 310 (2010). 

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received increasing attention from our national security community and Congress 

since the 2016 election. 

The FECA requires more robust disclosures about political spending than 

the FEC regulation provides. The district court found that the FEC’s 

implementation of the FECA “ignores the requirement in” 52 U.S.C. § 30104(c)(1) 

and “substantially narrows” 52 U.S.C. § 30104 (c)(2).5 The district court therefore 

declared invalid and vacated FEC regulation 11 C.F.R. § 109.10(e)(1)(vi).6 This 

ruling was not just correct but obvious, and it should be affirmed if the Court 

concludes that this appeal is within its jurisdiction. 

ARGUMENT 

I. The Court Should Consider This Case in the Context of the Struggle 

Between Special Interests and the Public Interest. 

A. Secrecy Strengthens the Power of the Influencer Class. 

This case should be viewed in the context of the age-old contest in 

government between powerful influencers who seek to bend government to their 

will and a general public that counts on government to protect itself, and them, 

from the influencers. As stated above, this contest pits one class of individuals, 

which seeks to influence and obtain favors from the government through 

anonymous spending rather than public persuasion and therefore wants rules that 

 

5

 CREW, 316 F. Supp. 3d at 394. 

6

 Id. at 411. 

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make government susceptible to hidden influence, against a second class consisting 

of the general population, which wants a government that can resist the influence 

of special interests.7 

The influencer class operating most powerfully in politics today includes 

corporations, corporate trade associations, corporate-funded “think tanks,” 

billionaires with vast fortunes garnered through corporate success, trusts of 

billionaire families, and an array of front groups designed to obscure the sources of 

their funding (and which also obscure whether the sources are domestic or 

 

7

 This is a centuries-old tension. See David Hume, 3 The Philosophical Works 

of David Hume 298-99 (1st ed. 1826) (“[w]here the riches are in few hands, 

these must enjoy all the power and will readily conspire to lay the whole 

burden on the poor, and oppress them still farther, to the discouragement of all 

industry.”); Andrew Jackson, 1832 Veto Message Regarding the Bank of the 

United States (July 10, 1832), http://avalon.law.yale.edu/19th_century/ 

ajveto01.asp (“It is to be regretted that the rich and powerful too often bend the 

acts of government to their selfish purposes . . . to make the richer and the 

potent more powerful, the humble members of society . . . who have neither the 

time nor the means of securing like favors to themselves, have a right to 

complain of the injustice of the Government.”); Niccolo Machiavelli, The 

Prince, ch. IX, 62 (1532) (“[O]ne cannot by fair dealing, and without injury to 

others, satisfy the nobles, but you can satisfy the people, for their object is 

more righteous than that of the nobles, the latter wishing to oppress, whilst the 

former only desire not to be oppressed.”); Charles de Secondat, Baron de 

Montesquieu, The Spirit of Laws, Book V, 63 (1748) (“To men of overgrown 

estates, everything which does not contribute to advance their power and 

honour is considered by them as an injury.”); Theodore Roosevelt, New 

Nationalism Speech (1910) (“[T]he United States must effectively control the 

mighty commercial forces which they have called into being . . . . The absence 

of effective State, and especially, national, restraint upon unfair money-getting 

has tended to create a small class of enormously wealthy and economically 

powerful men, whose chief object is to hold and increase their power.”). 

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foreign). The front groups themselves present a novel assortment of donor-assisted 

funds like Donors Trust, entities organized under section 501(c)(4) of the tax code, 

and shell corporations. 

This massive, multi-tentacled apparatus deploys its powers and pressures to 

advance the interests of the influencer class, which are no proxy for the interests of 

the broad public.8 The influencers harm the public not only because they have 

distinct interests and goals that diverge from those of the general population, but 

because the power the influence apparatus wields is destructive of our democratic 

institutions.9 

 

8

 See Benjamin I. Page, Larry M. Bartels, & Jason Seawright, Democracy and 

the Policy Preferences of Wealthy Americans, 11 Pers. on Pol. 1, 54, 61 (2013) 

(summarizing results of a study finding that wealthy Americans are much more 

concerned about budget deficits and much less concerned about health care, 

social welfare programs and financial regulation than other Americans). 

9

 See Martin Gilens, Affluence and Influence: Economic Inequality and Political 

Power in America, 70-123 (2012) (explaining that the country’s policymakers 

respond almost exclusively to the preferences of the economically advantaged); 

Lawrence Lessig, Republic, Lost: How Money Corrupts Congress – and a 

Plan to Stop It, 143-47 (2011) (noting that dependency on donors causes 

Congress to spend more time on issues that matter to their funders than to 

the general public); see also Larry M. Bartels, Economic Inequality and 

Political Representation, Princeton Univ. Dep’t. of Pol. 4 (2005), 

http://citeseerx.ist.psu.edu/viewdoc/download;jsessionid=33B7AA4E26A0F19

D5A08B7AF9069E25F?doi=10.1.1.172.7597&rep=rep1&type=pdf (“I find 

that senators in [the late 1980s and early 1990s] were vastly more responsive to 

the views of affluent constituents than to constituents of modest means.”). 

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While the general public wants a robust, functioning democracy that honors 

the wishes of the people, the influencers want political power for themselves — 

and that quest for power is enhanced by the ability to deploy the tools of influence 

outside of public view. 

As members of the Senate, we see this quest for power and secrecy in the 

unrelenting opposition of influencers and their front groups to transparency 

legislation.10 It is apt that a bipartisan group of former elected officials trying to 

stem the corrupting power of dark money in our democracy calls itself Issue One.11 

Corruption and abuse of power in elections — enabled and enhanced by secrecy — 

makes corruption and abuse of power possible across the whole spectrum of issues 

refereed by government. It is the evil that spawns other evils. 

 

10

 See, e.g., Russ Choma, Koch Industries, Business Groups Lobby Against 

Donor Disclosure, OpenSecrets.org (Apr. 25, 2013), 

https://www.opensecrets.org/news/2013/04/koch-industries-and-businessgroups; see also U.S. Chamber of Commerce, U.S. Chamber: DISCLOSE Act 

is Partisan Effort to Silence Critics and Gain Political Advantage (May 19, 

2010), https://www.uschamber.com/press-release/us-chamber-disclose-actpartisan-effort-silence-critics-and-gain-political-advantage; U.S. Chamber of 

Commerce, Multi-industry Letter Opposing H.R. 5175 (the “DISCLOSE Act,” 

or “Schumer – Van Hollen”), (May 19, 2010), 

https://www.uschamber.com/letter/multi-industry-letter-opposing-hr-5175-

disclose-act-or-schumer-van-hollen. 

11

 Our Story, Issue One, https://www.issueone.org/about (last visited April 21, 

2019). 

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The harms of non-disclosure include alienation of a public that sees 

masquerade organizations dominating their political space. That is a grave enough 

concern, but at least the public sees the masquerade activity taking place, even if it 

may not know who is behind the mask. When front groups with saccharine names 

akin to “Americans for Peace and Puppies and Prosperity” flood the airwaves and 

internet with advertisements opposing a candidate, that election spending at least 

reveals itself. Opaque and disturbing as it may be, the advertisement is seen, and 

presents a target for researchers, journalists and regulators to investigate. 

More treacherously, the ability to engage in unlimited political spending — 

and especially unlimited anonymous political spending — necessarily confers the 

dreadful power on big influencers to achieve their goals through threats or 

promises of that spending. Private threats and promises will be unseen, 

exponentially expanding the danger of corruption. If the threats or promises are 

unsuccessful in achieving the desired effect, the masked influencers can pour 

money into an election anonymously, even funding harmful attacks entirely 

unrelated to their actual policy issue while hiding behind fake personas. If the 

threats or promises are successful, the masked influencers reap the bonus of not 

actually having to spend the money. Thus, secrecy moves the balance of power yet 

further toward big influencers, as well as abetting a very unhealthy political 

environment. 

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Secrecy in spending dramatically exacerbates the power to threaten and 

promise. A candidate could well conclude that he or she could withstand the 

attacks of an identified influencer, indeed perhaps even turning those attacks to 

advantage. A candidate could dare to call the bluff of an identified influencer, 

doubting that the influencer would in its own name actually make good on the 

threat. And a candidate could conclude that an identified influencer’s attacks 

would be moderated by some fear of blowback against false or vile advertisements 

launched in the influencer’s own name. 

Add secrecy, and all that changes. From the shelter of secrecy, hiding 

behind the mask of “Americans for Peace and Puppies and Prosperity,” the 

influencer can deliver his blow in a manner that is completely unrelated to the 

actual issue at stake and without reputational consequence. Secrecy weaponizes 

influencers. 

In particular, anonymity has turned political advertising deeply negative and 

frequently false, as the blowback from vile false accusations lands nowhere real.12 

 

12

 See, e.g., High Percent of Presidential Ad Dollars of Top Four 501(c)(4)s 

Backed Ads Containing Deception, Annenberg Study Finds, Annenberg Pub. 

Pol’y Ctr. (June 20, 2012), https://www.annenbergpublicpolicycenter.org/highpercent-of-presidential-ad-dollars-of-top-four-501c4s-backed-ads-containingdeception-annenberg-study-finds (“[F]rom December 1, 2011 through June 1, 

2012, 85% of the dollars spent on presidential ads by four top-spending thirdparty groups . . . were spent on ads containing at least one claim ruled 

deceptive by fact-checkers . . . .”). 

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Restoring public opprobrium to its role as a restraint on poisonous political 

advertising would alone be a good and sufficient reason to rid our polity of 

anonymous election spending. But the case against anonymity is far stronger than 

that, when the dangers of corruption or collapsed public confidence are considered. 

B. The FECA Balances the Special Interests of the Influencer Class 

and the Public Interest Through Public Disclosure. 

The FECA’s legislative history makes clear that the Act was predicated on 

the “principle of public disclosure” because voters are entitled to know who is 

spending money to elect candidates to federal office.

13 Similarly, in Buckley v. 

Valeo,

14 the Supreme Court recognized three substantial governmental interests 

that are vindicated by the FECA’s disclosure requirements: (1) to “provide[] the 

electorate with information ‘as to where political campaign money comes from and 

how it is spent by the candidate’ in order to aid the voters in evaluating those who 

seek federal office”; (2) to “deter actual corruption and avoid the appearance of 

 

13 S. Rep. No. 93-689, at 2 (1974) (“The Act of 1971 was predicated upon the 

principle of public disclosure, that timely and complete disclosure of receipts 

and expenditures would result in the exercise of prudence by candidates and 

their committees and that excessive expenditures would incur the displeasure 

of the electorate who would or could demonstrate indignation at the polls.”). 

See also Hearings Before the S. Comm. on Rules & Admin. To Amend the 

Federal Election Campaign Act of 1971, as Amended, & for Other Purposes, 

94th Cong. 1-2, at 77-78 (Feb. 18, 1976) (Statement of Sen. Edward Kennedy) 

(“I think we have every right to expect that, any time individuals are spending 

money, we are entitled to very clear notice as to who is spending, how much is 

being spent, and who receives the benefit.”). 

14 424 U.S. 1 (1976). 

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corruption by exposing large contributions and expenditures to the light of 

publicity”; and, (3) to provide “an essential means of gathering the data necessary 

to detect violations of contribution limitations . . . .”15 

The Supreme Court further noted in Buckley that although such disclosure 

may impose “not insignificant” burdens, “disclosure requirements certainly in most 

applications appear to be the least restrictive means of curbing the evils of 

campaign ignorance and corruption that Congress [has] found to exist.”16 Indeed, 

even Senator Mitch McConnell, who has submitted an amicus brief in support of 

Appellant, has supported public disclosure, once remarking, “[m]oney is essential 

in politics, and not something that we should feel squeamish about, provided the 

donations are limited and disclosed, everyone knows who’s supporting everyone 

else.”17 At bottom, the benefits of disclosure are clear and well-established. In the 

words of Justice Scalia: 

Requiring people to stand up in public for their political acts fosters 

civic courage, without which democracy is doomed. For my part, I do 

not look forward to a society which, thanks to the Supreme Court, 

campaigns anonymously . . . and even exercises the direct democracy 

of initiative and referendum hidden from public scrutiny and protected 

 

15

 Id. at 66-68. 

16

 Id. at 68. 

17 Interview with Senator Mitch McConnell, N.P.R. Talk of the Nation (2003), 

audio included in Sen. McConnell: Political Donations Are Free Speech, 

N.P.R. Morning Edition (June 18, 2012), https://www.npr.org/2012/06/ 

18/155263978/sen-mcconnell-political-donations-are-free-speech. 

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12 

from the accountability of criticism. This does not resemble the 

Home of the Brave.18

By contrast, the FEC’s disclosure regulation for outside groups stands on a 

nonsensical distinction, contradicts the FECA’s clear statutory requirements, 

undermines congressional intent, raises the risk of corruption, and contributes to 

the putrescence of today’s political campaigns. The FECA requires two types of 

contributor disclosures by non-political committee outside spenders: first, that 

outside organizations must disclose all contributors who contributed more than 

$200 in a year;19 and second, that they identify all contributors who contributed 

“for the purpose of furthering an independent expenditure.”20 The FEC regulation 

fails to implement this standard. 

The FEC’s regulation has never followed the text of the FECA, nor has it 

appropriately met the public purpose of the law. That failure is more flagrant now, 

following Citizens United, when independent expenditures have risen to 

unprecedented levels, anonymous money floods our politics, and secret threats and 

promises are perversely enabled. In this new political environment of unlimited 

money, the regulation has become not just illegal but poisonous; and because 

 

18

 John Doe No. 1 v. Reed, 561 U.S. 186, 228 (2010) (Scalia, J., concurring). 

19 52 U.S.C. § 30104(c)(1). 

20

 Id. § 30104(c)(2)(C). 

USCA Case #18-5261 Document #1784435 Filed: 04/24/2019 Page 21 of 40
13 

specific contributions are almost never tied to a particular independent 

expenditure,21 it is also nonsensical. 

Fixing the problem of anonymous unlimited election spending will reduce 

the imbalance of influence, the corrosion of our democracy, and the prospect of 

fraud and corruption. The FECA’s disclosure requirements balance fairly the 

interests of the influencer class and the general public, and regulations that 

properly enforce those requirements will help repair public confidence in our 

democracy. 

 

21 Michael S. Kang, The End of Campaign Finance Law, 98 Va. L. Rev. 1, 40-41 

(2012) (“What has happened since Citizens United . . . is not new regulation – 

it is the rollback of existing regulation. Instead of a hydraulics of campaign 

finance regulation, we are seeing a reverse hydraulics of campaign finance 

deregulation . . . . First, independent expenditures exploded upward in 2010 by 

more than 300 percent compared to the previous midterm elections in 2006. 

They increased from less than $75 million total in 2006 to roughly $300 

million in 2010. Second, independent expenditures by outside groups in 

particular increased dramatically.”); Karl Evers-Hillstrom et al., A Look at the 

Impact of Citizens United on its 9th Anniversary, OpenSecrets.org, (Jan. 21, 

2019) https://www.opensecrets.org/news/2019/01/citizens-united (“In the 

election cycles following Citizens United, the balance of power has shifted 

more and more toward outside spending groups such as super PACs and ‘dark 

money’ political nonprofits, unleashing unprecedented amounts of money 

toward political advertisements meant to influence voters. The immediate 

result of the ruling was a massive uptick in spending from outside groups in the 

2010 midterms. But it didn’t end there . . . . Unburdened by contribution 

limits, it didn’t take long for super PACs to surpass national party committees 

as the top outside spending groups.”). 

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14 

II. After Citizens United, a Disclosure Regulation That Reflects the FECA 

Is More Important Than Ever. 

Citizens United revolutionized outside groups’ role in, and influence on, 

American elections. Before Citizens United, corporations, unions, and other 

organized associations were prohibited from spending general treasury funds on 

independent expenditures.22

 Citizens United permitted unlimited political spending 

by these entities, dramatically tilting America’s political balance in favor of the 

influencers. The effect of this tilt was made worse, further shifting power to the 

influencers, by the immediate emergence of dark money channels to anonymize 

the unlimited spending. 

After Citizens United, spending exploded. From 2010 to the present, 

501(c)(4) organizations have spent over $730 million on political expenditures, 

compared to $103 million the previous decade.23 Political expenditures from 

undisclosed sources in the 2012 general election alone topped $312 million,24 and 

Appellant Crossroads GPS itself spent nearly $100 million from 2012 to 2014 

 

22

 Citizens United, 558 U.S. at 320; see also 2 U.S.C. § 441(b) (2000). 

23

 Outside Spending, OpenSecrets.org, https://www.opensecrets.org/ 

outsidespending/index.php?type=A&filter=N (last visited Apr. 21, 2019). 

24

 Dark Money Basics, OpenSecrets.org, https://www.opensecrets.org/darkmoney/basics (last visited Apr. 21, 2019). 

USCA Case #18-5261 Document #1784435 Filed: 04/24/2019 Page 23 of 40
15 

without disclosing a single contributor.25 While the amount of spending is 

immense, the number of outside groups doing the bulk of the spending is not. In 

2016 alone, just ninety-five 501(c)(4) and 501(c)(6) trade associations made 

independent expenditures of $50,000 or more, totaling more than $185 million.26

 

The 10 largest of those spenders were responsible for 77% of this total, and the top 

three spenders were responsible for nearly half.27 Our most powerful forces now 

hide from open debate by virtue of having interposed a one-way mirror between 

themselves and the public square. 

Citizens United presumed that a regime of “effective disclosure” would 

“provide shareholders and citizens with the information needed to hold 

corporations and elected officials accountable for their positions and supporters.”28

 

That presumption of “effective disclosure” irreconcilably conflicts with the 

spending secrecy fomented by the FEC’s failure to require adequate outside 

spending disclosures. Among the collateral harms of unlimited spending, 

worsened by unlimited secret spending, are the justifiable perception that 

 

25 Plaintiff’s Motion for Summary Judgment at 17, CREW v. FEC, 316 F. Supp. 

3d 349 (D.D.C. Sept. 11, 2017) (No. 16-00259). 

26

 Political Nonprofits: Top Election Spenders, OpenSecrets.org, 

https://www.opensecrets.org/outsidespending/nonprof_elec.php?cycle=2016 

(last visited Apr. 21, 2019). 

27

 Id.

28

 Citizens United, 558 U.S. at 370. 

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16 

politicians are beholden to the donor class rather than to their constituents, and the 

problem of private threats and promises. Unlimited secret election spending 

creates added potential for actual corruption and denies the voting public a true 

understanding of who and what is at work in their democracy. To address these 

concerns, meaningful and thoroughgoing political spending disclosure must 

actually be required, or American democracy will continue sliding into a bog of 

anonymity-fueled corruption. 

A. The FEC’s Regulation Is Divorced from the Way Modern 

Campaigns Work. 

As elected officials, we are intimately familiar with the realities of 

campaigns and fundraising. Collectively, we have run in eight federal campaigns, 

and raised and spent tens of millions of dollars. We can report from experience 

that campaigns can be fast-moving and dynamic, and unforeseen events often 

change the themes and messages at a moment’s notice. Our campaigns, just like 

political committees, political parties, and outside organizations, do not tie 

fundraising to any specific expenditure.29 Instead, organizations fundraise, and 

contributors donate, to support the broad, overarching electoral mission of the 

organization or the campaign; for example, helping elect candidates who support 

 

29

 Amici are aware of no dollar pledged to us that was intended to support a 

particular advertisement or expenditure. 

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17 

or oppose abortion rights, or helping to support or defeat a specific candidate.30 In 

modern campaigns, it is neither practical nor useful to fundraise for specific 

electioneering expenditures. Money is fungible; no such link is real or 

enforceable; and it is not practical to tie up funding that way. Nor would most 

contributors care one whit. It is nonsense. 

Contributors give to candidates and outside spending organizations because 

they want outcomes, not to see a specific advertisement. It is virtually impossible 

for contributors to know which specific advertisement their donation funds. In 

fact, none of the five highest spending political nonprofits even gives contributors 

the option to earmark a donation to a specific advertisement on their public 

websites.31

 

30 On rare occasions a candidate may ask contributors to help get an 

advertisement on the air, but there is no practical, legal, or accounting link 

between that solicitation and the expenditure; it is just a marketing device to 

cut through the clutter of election noise and raise money. 

31

 See Majority Forward, http://www.majorityforward.com; U.S. Chamber of 

Commerce, http://www.uschamber.com; Americans for Prosperity, 

http://www.americansforprosperity.org; Patriot Majority, 

http://www.patriotmajority.org; EDF Action, http://www.edfaction.org (all last 

visited Apr. 21, 2019). Options to earmark were similarly absent from 

available records leading up to the 2018 midterm elections. Majority Forward, 

Wayback Machine Internet Archive (Aug. 19, 2018), https://web.archive.org/ 

web/20180819001458/http:/www.majorityforward.com; Americans for 

Prosperity, Wayback Machine Internet Archive (Oct. 5, 2018), 

https://web.archive.org/web/20180305005456/https://secure.americansforprosp

erity.org/donate; Patriot Majority, Wayback Machine Internet Archive (Apr. 

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18 

Moreover, no public interest is served by limiting disclosure to who funds a 

particular advertisement. The real public interest is in knowing who is behind the 

massive independent expenditures supporting or opposing candidates and driving 

election outcomes — in knowing who the players on the political stage are, so their 

motives and interests can be identified and evaluated. 

Under the current regulatory regime, high-dollar independent expenditures 

without identifiable sources are having real electoral effects in ways that 

undermine rather than promote open debate. Consider a candidate who is privately 

threatened with millions of dollars of anonymously funded independent 

expenditures against him should he take a particular policy position. If the 

candidate then makes a policy decision as a result of that threat, he has been 

compromised and becomes a walking failure of open public debate because his 

position has been changed behind the scenes without any public discussion or 

change in actual public opinion.

Outside groups funded by anonymous sources can bombard opposition 

candidates with false negative advertisements — unrelated to any actual policy 

issue — before serious public debate really begins (the political equivalent of 

 

30, 2017), https://web.archive.org/web/20170430185935/ 

http://www.patriotmajority.org/donate. 

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19 

strafing an enemy’s air fleet while it is still on the ground).32 Or similar massive 

attacks on candidates just before Election Day can leave no time for a response.33

 

Barrages of anonymous false election artillery do not contribute to informed 

elections. 

The fundamental purposes of disclosure are to guard against corruption and 

to help voters make informed choices. By allowing millions of dollars to be spent 

anonymously to influence elections and candidates, the FEC’s improperly narrow 

regulation fails at both goals. 

B. The FEC’s Regulation Undermines the FECA’s Ban on Foreign 

Spending. 

While the FECA clearly prohibits foreign nationals from engaging in 

election spending,34 the FEC regulation makes it virtually impossible to prevent, or 

 

32

 See, e.g., Andrea Drusch & National Journal, AFP Launches TV Ads Against 

Ted Strickland. Are They the Start of Another Big Campaign?, The Atlantic 

(Aug. 18, 2015), https://www.theatlantic.com/politics/archive/2015/08/afplaunches-tv-ads-against-ted-strickland-are-they-the-start-of-another-bigcampaign/435378. 

33

 See, e.g., Independent Expenditures, FEC, https://www.fec.gov/data/ 

independent-expenditures/?data_type=processed&is_notice=true&committee_ 

id=C90016098 (showing the 199 independent expenditures made by Majority 

Forward between October 30, 2018 and November 6, 2018). 

34 52 U.S.C. § 30121; Bluman v. FEC, 800 F. Supp. 2d 281, 288 (D.C. Cir. 2011) 

(“[T]he United States has a compelling interest for purposes of First 

Amendment analysis in limiting the participation of foreign citizens in 

activities of American democratic self-government, and in thereby preventing 

foreign influence over the U.S. political process.”), aff’d 565 U.S. 1104 (2012) 

(mem.).

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20 

even detect, foreign money flowing through non-disclosing outside organizations 

into our political system.35 The FECA’s prohibition of foreign participation in 

elections requires at a minimum an effective disclosure regime. 

The 2016 election demonstrates that foreign influence through undisclosed 

political donations is not an abstract fear, but a real danger.36 The same dark 

money channels that are available to the influencers are also available to foreign 

nationals.37 

 

35 Memorandum from Vice Chair Ellen L. Weintraub to the FEC, Proposal to 

Launch Rulemaking To Ensure That U.S. Political Spending Is Free from 

Foreign Influence 4 (Sept. 9, 2016), https://www.fec.gov/resources/cmscontent/documents/2018-

05_ELW_Rulemaking_Proposal_to_Combat_Foreign_Election_Influence.pdf 

(“The proliferation of dark money groups in the wake of Citizens United has 

made it impossible to know the sources of all the funds flooding into our 

political system.”).

36

 See David Petraeus & Sheldon Whitehouse, Putin and Other Authoritarians’ 

Corruption Is a Weapon – And a Weakness, Wash. Post (Mar. 8, 2019), 

https://www.washingtonpost.com/opinions/2019/03/08/putin-otherauthoritarians-corruption-is-weapon-weakness (“In particular, the United States 

should make it more difficult for kleptocrats, and their agents, to secretly move 

money through the rule-of-law world, whether by opening bank accounts, 

transferring funds or hiding assets behind shell corporations. Failure to close 

loopholes in these areas is an invitation to foreign interference in America’s 

democracy and a threat to national sovereignty. Congress should tighten 

campaign-finance laws to improve transparency given that U.S. elections are 

clearly being targeted for manipulation by great-power competitors.”). 

37 Although the FEC’s deficient regulation enables most such contributions to be 

hidden, tax and criminal investigations have illuminated some examples of 

foreign nationals engaging in electoral spending: (1) Russian nationals 

provided contributions to one of the largest and most active 501(c)(4) 

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21 

The Senate has probed foreign influence on a bipartisan basis,38 and experts 

have testified that “[i]t is critical that we effectively enforce the campaign finance 

laws,”39 and that “strengthening financial transparency requirements” is key to 

protecting U.S. interests.40 With an interconnected global financial system, “illicit 

 

organizations, see Greg Gordon & Peter Stone, Russia Investigators 

Likely Got Access to NRA’s Tax Filings, Secret Donors, McClatchy (July 2, 

2018), https://www.mcclatchydc.com/news/politics-government/ 

article214075459.html; and, (2) a Mexican businessman made illegal political 

contributions to candidates in a mayoral campaign in an effort to buy influence, 

see U.S. Dep’t of Just., Mexican Businessman Jose Susumo Azano Matsura 

Sentenced for Trying to Buy Himself a Mayor (Oct. 27, 2017), 

https://www.justice.gov/usao-sdca/pr/mexican-businessman-jose-susumoazano-matsura-sentenced-trying-buy-himself-mayor. Indeed, some of the most 

politically active trade associations openly admit to taking foreign money and 

ask the public to “trust us” that they properly segregate that money. Ian 

Vandewalker & Lawrence Norden, Getting Foreign Funds Out of America’s 

Elections, Brennan Ctr. for Just. 14 (2018), https://www.brennancenter.org/ 

sites/default/files/publications/Getting%20Foreign%20Funds%20Out%20of%2

0America%27s%20Elections.%20Final_April9.pdf. 

38

 See, e.g., The Modus Operandi and Toolbox of Russia and Other Autocracies 

for Undermining Democracies Throughout the World: Hearing Before the 

Subcomm. On Crime and Terrorism of the S. Comm. on the Judiciary, 115th 

Cong. (Mar. 15, 2017), https://www.judiciary.senate.gov/meetings/the-modusoperandi-and-toolbox-of-russia-and-other-autocracies-for-underminingdemocracies-throughout-the-world. 

39

 Id. at 6 (statement of Kenneth L. Wainstein, Partner, Cadwalader, Wickersham 

& Taft LLP). 

40

 Id. at 5 (statement of Heather C. Conley, Sr. Vice President for Europe, 

Eurasia and the Arctic, Ctr. for Strategic and Int’l Studies). 

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22 

finance operate[s] in a financial gray zone that is a clear and present danger to U.S. 

national security.”41

 

Disclosure would help alleviate these concerns about illicit foreign 

participation in election funding, but the FEC “has not taken any steps to increase 

its ability to identify or detect political spending by foreign sources[; . . . it has] 

passed no rules, issued no policy statements, nor set any significant enforcement 

precedent since 2016 that would allow [it] to better identify or detect political 

spending by foreign sources.”42 Affirming the district court’s decision below 

would help prevent the secret flow of foreign money into our political system. 

III. The FEC’s Ineffective Regulation Contributes to the Public’s Declining 

Faith in Our Democracy. 

The FEC’s failure to adopt appropriate regulations to require the disclosures 

required by the FECA, despite the obvious need and broad public support,43

 

41 Heather A. Conley et al. The Kremlin Playbook 2: The Enablers, Ctr. Strategic 

& Int’l Studies 6 (2019), https://csis-prod.s3.amazonaws.com/s3fspublic/publication/190326_KP2.pdf. 

42 Letter from Ellen L. Weintraub, Vice Chair, FEC to U.S. Senator Amy 

Klobuchar (Sept. 20, 2018), https://www.fec.gov/resources/cmscontent/documents/2018-09-20_ELW_Reply_to_Klobuchar_Letter.pdf. 

43

 Americans’ Views on Money in Politics, N.Y. Times & CBS News (June 2, 

2015), https://www.nytimes.com/interactive/2015/06/02/us/politics/money-inpolitics-poll.html (reporting that 75% of Americans believe that outside groups 

should be required to publicly disclose contributors). 

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23 

exemplifies its ineffectiveness in carrying out the clear mandate of Congress in 

enacting the FECA. Although the FEC was established as an independent 

regulatory agency made up of six Commissioners to enforce and administer federal 

campaign finance laws, it has suffered in recent years from repeated deadlocks that 

have blocked any action.44 That this issue has ended up in this Court is 

symptomatic of the deadlock at the FEC. When CREW first brought its complaint 

to the FEC, the FEC’s own Office of General Counsel raised a concern that its 

regulations were not fully implementing 52 U.S.C. § 30104(c)(1) and 52 U.S.C. 

§ 30104(c)(2)(C).45 Yet the FEC could not bring itself to act. The dysfunction of 

the agency over the last decade has resulted in a dramatic decrease in enforcement 

actions and virtually no agency action to address the unresolved consequences of 

Citizens United.

46

 

 

44 Ann. M. Ravel, Dysfunction and Deadlock: The Enforcement Crisis at the 

Federal Election Commission Reveals the Unlikelihood of Draining the 

Swamp, Off. of Comm’r. Ann Ravel, FEC (Feb. 2017), 

https://classic.fec.gov/members/ravel/ravelreport_feb2017.pdf. 

45

 CREW v. FEC, 316 F. Supp. 3d at 361-63. 

46

 See, e.g., Ann Ravel, Dysfunction and Deadlock at the Federal Election 

Commission, N.Y. Times (Feb. 20, 2017), https://nyti.ms/2lZMIal; Trevor 

Potter, Money, Politics, and the Crippling of the FEC: A Symposium on the 

Federal Election Commission’s Arguable Inability to Effectively Regulate 

Money in American Elections 2 (Apr. 2017), http://campaignlegal.org/sites/ 

default/files/Trevor%20Potter%20ALR%20Symposium%20FEC%20speech%

20Apr.%203%202017.pdf.

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24 

We believe the deadlock is deliberate: a regulatory capture egged on by the 

very forces of influence that benefit from the deadlock. But it is not necessary to 

agree with our assessment of the cause in order to appreciate the need for a 

solution. 

As elected officials, we consistently hear concerns about money in politics 

from constituents, and survey data shows that Americans see the increase in secret 

money in elections as an indicator that our government is corrupted and 

unrepresentative of ordinary citizens. 88% of Americans think it is important to 

reduce the influence of big donors on the federal government.47 84% of Americans 

think money has too much influence in politics.48 75% of U.S. adults perceived 

corruption as “widespread” in the country’s government.49 72% think that this is a 

country where people who give a lot of money to elected officials have more 

influence than others.50 65% of Americans named money in politics as having “a 

 

47 Steven Kull et al., Americans Evaluate Campaign Finance Reform: A Survey of 

Voters Nationwide, Univ. Md. Program for Pub. Consultation 4 (2018),

http://www.publicconsultation.org/wp-content/uploads/2018/05/ 

Campaign_Finance_Report.pdf. 

48

 Americans’ Views on Money in Politics, supra note 43. 

49

 75% in U.S. See Widespread Government Corruption, Gallup (Sept. 19, 2015), 

https://news.gallup.com/poll/185759/widespread-government-corruption.aspx. 

50

 The Public, the Political System and American Democracy, Pew Research Ctr., 

26 (2018), https://www.people-press.org/wp-content/uploads/sites/ 

4/2018/04/4-26-2018-Democracy-release-1.pdf. 

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25 

lot” of blame for the dysfunction of our political system; in fact, this was the most 

common response when asked what is “causing dysfunction in the U.S. political 

system.”51 The second most frequent answer, at 56%, was “wealthy political 

donors.”52

Studies show that this belief is well founded: statistically there is no 

correlation between what the public wants and what the public gets; instead, the 

correlation is with what wealthy interests want. One Princeton University study 

found that, “senators are more responsive to the opinions of affluent constituents 

than of middle-class constituents — and totally unresponsive to the opinions of 

poor constituents.”53 More specifically, the study found, “the views of constituents 

in the upper third of the income distribution received about 50% more weight than 

those in the middle third (with even larger disparities on specific salient roll call 

votes), while the views of constituents in the bottom third of the income 

distribution received no weight at all in the voting decisions of their senators.”54 In 

 

51 John Wagner & Scott Clement, ‘It’s Just Messed Up’: Most Think Political 

Divisions as Bad as Vietnam Era, New Poll Shows, Wash. Post (Oct. 28, 2017), 

https://www.washingtonpost.com/graphics/2017/national/democracypoll/?utm_term=.4cd32a4f6bcc. 

52

 Id. 

53 Larry Bartels, supra note 9, at 20. 

54

 Id. at 4. 

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26 

our assessment, the forces of unlimited anonymous spending are the pinnacle of 

this dysfunctional correlation. 

The FEC regulation at issue, 11 C.F.R. § 109.10, has contributed to our 

elections becoming awash in secret, influencer money. It has allowed a network of 

powerful organizations to spend tens, or even hundreds, of millions of dollars to 

influence elections while hiding their contributors from the public. This has 

contributed to the public’s disintegrating faith in American democracy, contrary to 

the highest purposes of the FECA. When the American public sees the spectacle 

of ever-increasing campaign spending from anonymous “independent” groups, it 

feels the untoward changes in our democracy. 

Proponents of the regulation spin hypotheticals of average citizens giving to 

an outside group for a specific expenditure and becoming ensnared in disclosure 

reports and publicly shamed for advertisements they never intended to support. 

This is, respectfully, a red herring. It is the influencers spending millions of dollars 

to have their way in politics, not regular citizens giving small donations, who are 

of concern to the general public.55 And it is no small concern, as those big 

anonymous spenders are warping American political debate and exerting improper 

influence over political outcomes. Americans deserve to know is who is donating 

 

55

 Donor Demographics, OpenSecrets.org, https://www.opensecrets.org/ 

overview/donordemographics.php (reporting that only 0.48% of the public 

donates more than $200 to a political campaign). 

USCA Case #18-5261 Document #1784435 Filed: 04/24/2019 Page 35 of 40
27 

these large sums of money to influence our government, and what the favor or 

disfavor of these organizations says about the candidates. The remote and 

unrealistic prospect of deterring a $201 contributor is a mask obscuring the proper 

focus: massive, immediate, anonymous, corrupting, special-interest funding that is 

facilitated by the current regulation.56 

Americans are very clear about what is ailing our democracy. 

Unconstrained campaign spending has given a small set of influencers a 

disproportionate voice in American politics, distorting political outcomes and 

causing millions of ordinary Americans to lose faith in their government. This 

widespread lack of confidence in our country’s governing institutions should be a 

matter of concern to the courts. 57

 

56 Further, the hypotheticals run afoul of their own premise. If these hypothetical 

individuals were donating $201 only to support a particular independent 

expenditure of interest, then their donations should have been reported anyway 

under the current regulation. If they did not earmark their contribution to a 

particular advertisement, but expected their funds would be used for any of the 

organization’s election spending, then they are at no risk of a disclosure that 

somehow falsely misrepresents their beliefs. The true issue in front of this 

Court is whether the FECA allows undisclosed influencers to spend millions 

without filing any report of their contributions, as this regulation currently 

permits. 

57 In the past, it has been. See, e.g., Trist v. Child, 88 U.S. 441, 451 (1874) (“If 

any of the great corporations of the country were to hire adventurers who make 

market of themselves in this way, to procure the passage of a general law with 

a view to the promotion of their private interests, the moral sense of every 

right-minded man would instinctively denounce the employer and employed as 

steeped in corruption, and the employment as infamous.”); Marshall v. 

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28 

The FECA, as enacted by Congress, protects against real and consequential 

harms. But the FEC’s regulation does not reflect the plain language of the law, nor 

does it serve its purposes. The FEC, in its initial deficient regulation and in its 

unwillingness to revisit the regulation after Citizens United, has done a tremendous 

disservice to the American public, eroding our citizens’ ability to trust in the 

fairness of their elections and elected leaders. Indeed, the FEC’s failure may be 

both symptom and cause. 

Accordingly, this Court should uphold the lower court’s order and thereby 

urge the FEC to draft a new regulation that requires the disclosures Congress 

originally directed. 

 

Baltimore & Ohio Railroad, Co., 57 U.S. 314 335 (1853) (“Any attempts to 

deceive persons entrusted with the high functions of legislation, by secret 

combinations, or to create or bring into operation undue influences of any kind, 

have all the injurious effects of a direct fraud on the public.”); see also Austin 

v. Mich. Chamber of Commerce, 494 U.S. 652, 660 (1990) (“[c]orporate 

wealth can unfairly influence elections”).

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29 

IV. Conclusion. 

For the foregoing reasons, if the Court finds that Crossroads has standing to 

bring the instant appeal, the decision of the District Court should be affirmed. 

Respectfully submitted, 

/s/ Jennifer R. Cowan 

Jennifer R. Cowan 

 Counsel of Record 

Gary W. Kubek 

Laura J. Samuels 

Michael C. McGregor 

Nora Niedzielski-Eichner

DEBEVOISE & PLIMPTON LLP 

919 Third Avenue 

New York, New York 10022 

(212) 909-6000 

jrcowan@debevoise.com 

gwkubek@debevoise.com 

ljsamuels@debevoise.com 

mcmcgregor@debevoise.com 

nniedzielskieichner@debevoise.com 

Jonathan M. DeMars* 

DEBEVOISE & PLIMPTON LLP 

801 Pennsylvania Avenue, NW 

Washington, D.C. 20004 

(202) 383-8000 

jmdemars@debevoise.com 

*Admitted in New York. Practice in 

Washington, D.C. supervised by members of 

the firm. 

April 24, 2019 Counsel to Amici Curiae

 

USCA Case #18-5261 Document #1784435 Filed: 04/24/2019 Page 38 of 40
30 

CERTIFICATE OF COMPLIANCE 

In accordance with Fed. R. App. P. 29(a)(5) and 32(a)(7), the undersigned 

certifies that this brief has been prepared in a proportionally spaced typeface, 

Times New Roman, in 14-point font. According to the word processing system 

used to prepare the brief, Microsoft Word 2010, it contains 6,494 words, excluding 

the parts of the brief exempted by Fed. R. App. P. 32(f). 

 /s/ Jennifer R. Cowan 

Jennifer R. Cowan 

 Counsel of Record 

Gary W. Kubek 

Laura J. Samuels 

Michael C. McGregor 

Nora Niedzielski-Eichner

DEBEVOISE & PLIMPTON LLP 

919 Third Avenue 

New York, New York 10022 

(212) 909-6000 

jrcowan@debevoise.com 

gwkubek@debevoise.com 

ljsamuels@debevoise.com 

mcmcgregor@debevoise.com 

nniedzielskieichner@debevoise.com 

Jonathan M. DeMars 

DEBEVOISE & PLIMPTON LLP 

801 Pennsylvania Avenue, NW 

Washington, D.C. 20004 

(202) 383-8000 

jmdemars@debevoise.com 

April 24, 2019 Counsel to Amici Curiae 

USCA Case #18-5261 Document #1784435 Filed: 04/24/2019 Page 39 of 40
31 

CERTIFICATE OF SERVICE

I hereby certify that, on April 24, 2019, a true and correct copy of the 

foregoing document was filed with the Clerk of the United States Court of Appeals 

for the District of Columbia via the Court’s CM/ECF system. Counsel for all 

parties will be served electronically by the Court’s CM/ECF system. 

 /s/ Jennifer R. Cowan 

Jennifer R. Cowan 

 Counsel of Record 

Gary W. Kubek 

Laura J. Samuels 

Michael C. McGregor 

Nora Niedzielski-Eichner

DEBEVOISE & PLIMPTON LLP 

919 Third Avenue 

New York, New York 10022 

(212) 909-6000 

jrcowan@debevoise.com 

gwkubek@debevoise.com 

ljsamuels@debevoise.com 

mcmcgregor@debevoise.com 

nniedzielskieichner@debevoise.com 

Jonathan M. DeMars 

DEBEVOISE & PLIMPTON LLP 

801 Pennsylvania Avenue, NW 

Washington, D.C. 20004 

(202) 383-8000 

jmdemars@debevoise.com 

April 24, 2019 Counsel to Amici Curiae 

USCA Case #18-5261 Document #1784435 Filed: 04/24/2019 Page 40 of 40