RECORD NO. 17-5049

THE LEX GROUPDC ♦ 1825 K Street, N.W. ♦ Suite 103 ♦ Washington, D.C. 20006

(202) 955-0001 ♦ (800) 856-4419 ♦ Fax: (202) 955-0022 ♦ www.thelexgroup.com

ORAL ARGUMENT HAS NOT YET BEEN SCHEDULED 

In The 

United States Court of Appeals For The District of Columbia Circuit 

CITIZENS FOR RESPONSIBILITY 

AND ETHICS IN WASHINGTON; MELANIE SLOAN,

 Plaintiffs – Appellants, 

v.

FEDERAL ELECTION COMMISSION,

 Defendant – Appellee. 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

 

BRIEF OF APPELLANTS 

 

= 

Stuart C. McPhail 

 Adam J. Rappaport 

 CITIZENS FOR RESPONSIBILITY AND 

 ETHICS IN WASHINGTON 

 455 Massachusetts Avenue, NW, Sixth Floor 

 Washington, DC 20001 

 (202) 408-5565 

 

Counsel for Appellants 

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to D.C. Circuit Rule 28(a)(1), Appellants Citizens for 

Responsibility and Ethics in Washington and Melanie Sloan hereby certify as 

follows:

A. Parties and Amici. Plaintiffs-Appellants are Citizens for 

Responsibility and Ethics in Washington, a non-profit corporation, and Melanie 

Sloan. Defendant-Appellee is the Federal Election Commission. There were no 

amici curiae in the district court.

B. Ruling Under Review. The ruling under review is the district court’s 

February 22, 2017 order and accompanying memorandum opinion, ECF Dkt. Nos. 

26, 27, in Citizens for Responsibility and Ethics in Washington v. FEC, No. 15-cv2038 (RC) (Hon. Rudolph Contreras). The district court’s opinion is available at 

2017 U.S. Dist. LEXIS 24253 and is reprinted in the Joint Appendix (“JA”) at 

861–88.

C. Related Cases. The case on review has not previously been before 

this Court or any other court. There are no related cases to the case on review. 

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CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1 and D.C. Circuit Rule 

26.1, plaintiff-appellant Citizens for Responsibility and Ethics in Washington 

(“CREW”) submits its corporate disclosure statement.

(a) CREW has no parent company, and no publicly-held company has a 

ten percent or greater ownership interest in CREW.

(b) CREW is a non-profit, non-partisan corporation organized under 

section 501(c)(3) of the Internal Revenue Code. Through a combined approach of 

research, advocacy, public education, and litigation, CREW seeks to protect the 

rights of citizens to be informed about the activities of government officials and to 

ensure the integrity of those officials. Among its principle activities, CREW files 

complaints with the Federal Election Commission to ensure enforcement of federal 

campaign finance laws and to ensure its and voters’ access to information about 

campaign financing, including financing of political committees, to which CREW 

and voters are legally entitled. CREW disseminates, through its website and other 

media, information it learns in the process of those complaints to the wider public.

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TABLE OF CONTENTS

Page

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ..............i

CORPORATE DISCLOSURE STATEMENT ........................................................ ii

TABLE OF AUTHORITIES .....................................................................................v

GLOSSARY............................................................................................................ xii

STATEMENT OF JURISDICTION..........................................................................1

STATEMENT OF ISSUES PRESENTED................................................................1

STATUTES AND REGULATIONS.........................................................................2

STATEMENT OF THE CASE..................................................................................3

I. Statutory and Regulatory Background ..................................................3

II. The Commission on Hope, Growth and Opportunity...........................5

SUMMARY OF THE ARGUMENT ......................................................................18

ARGUMENT...........................................................................................................20

I. STANDARD OF REVIEW ................................................................20

II. BY FINDING THE FEC’S PROSECUTORIAL DISCRETION 

RENDERED DISMISSAL NOT CONTRARY TO LAW, THE 

DISTRICT COURT NULLIFIED THE FECA’S CITIZEN 

SUIT PROVISION..............................................................................22

A. The District Court’s Holding Renders FECA Citizen 

Suits Impossible ........................................................................23

B. FECA Citizen Suits Are Appropriate Where an FEC 

Dismissal is Discretionary ........................................................28

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C. The District Court Misapplied Authority About the 

FEC’s Discretion and Misconceived the FEC’s Role 

Under the FECA........................................................................33

D. Federal Citizen Suit Provisions Allow Suits Where an 

Agency Refuses to Enforce for Prudential Reasons.................37

III. The FEC Can Partially Remedy the Violation Without 

Expending Its Resources.....................................................................39

IV. The FEC has Abdicated Enforcement of the Political 

Committee Laws..................................................................................41

V. There is No Other Basis to Uphold the FEC’s Dismissal...................44

A. The Controlling Commissioners’ Interpretation of the 

Statute of Limitations is Impermissible....................................44

B. Enforcement was Not Futile .....................................................47

C. There is No Genuine Dispute about CHGO’s Political 

Committee Status......................................................................48

CONCLUSION........................................................................................................52

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF FILING AND SERVICE

ADDENDUM

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TABLE OF AUTHORITIES

Page(s)

CASES

Adams v. Richardson, 

480 F.2d 1159 (D.C. Cir. 1973).....................................................................43

Akins v. FEC, 

101 F.3d 731 (D.C. Cir. 1996)...............................................22, 28, 32, 35, 36

Anderson v. Liberty Lobby, Inc., 

477 U.S. 242 (1986)................................................................................. 20-21

Buckley v. Valeo, 

424 U.S. 1 (1976).................................................................................3, 40, 41

Celotex Corp. v. Catrett, 

477 U.S. 317 (1986).......................................................................................21

Citizens to Preserve Overton Park, Inc. v. Volpe, 

401 U.S. 402 (1971).......................................................................................32

Citizens United v. FEC, 

558 U.S. 310 (2010)...................................................................................6, 14

Combat Veterans for Congress Political Action Comm. v. FEC, 

983 F. Supp. 2d 1 (D.D.C. 2013)...................................................................48

Cope v. Anderson, 

331 U.S. 461 (1947).......................................................................................45

CREW v. FEC, 

14-cv-1419 (CRC) (D.D.C. Apr. 6, 2017).....................................................25

CREW v. FEC, 

209 F. Supp. 3d 77 (D.D.C. 2016)...........................................................21, 50

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CREW v. FEC, 

475 F.3d 337 (D.C. Cir. 2007).......................................................................39

Crossroads GPS v. FEC, 

788 F.3d 312 (D.C. Cir. 2015).......................................................................47

Currier v. Radio Free Europe/Radio Liberty, Inc., 

159 F.3d 1363 (D.C. Cir. 1998).....................................................................46

Democratic Congressional Campaign Comm. v. FEC, 

831 F.2d 1131 (D.C. Cir. 1987).....................................................................31

Earle v. D.C., 

707 F.3d 299 (D.C. Cir. 2012).......................................................................45

FEC v. Akins,

524 U.S. 25 (1998).................................................................23, 28, 32, 35, 36

FEC v. Christian Coal., 

965 F. Supp. 66 (D.D.C. 1997)................................................................44, 45

FEC v. Democratic Senatorial Campaign Comm., 

454 U.S. 27 (1981).........................................................................................30

FEC v. Nat’l Republican Senatorial Comm., 

877 F. Supp. 15 (D.D.C. 1995)................................................................ 44-45

FEC v. Nat’l Republican Senatorial Comm., 

966 F.2d 1471 (D.C. Cir. 1992).....................................................................22

FEC v. Rose, 

806 F.2d 1081 (D.C. Cir. 1986).........................................................21, 34, 35

Firestone v. Firestone, 

76 F.3d 1205 (D.C. Cir. 1996).......................................................................46

Hagelin v. FEC, 

411 F.3d 237 (D.C. Cir. 2005)...........................................................20, 24, 26

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Heckler v. Chaney, 

470 U.S. 821 (1985).....................................................................17, 32, 36, 41

In re Vitamins Antitrust Litig., 

No. MISC 99-197 (TFH), 2000 WL 1475705 (D.D.C. May 9, 2000)..........46

Int’l Ladies’ Garment Workers’ Union v. Donovan, 

733 F.2d 920 (D.C. Cir. 1984).......................................................................25

Kokesh v. SEC, 

198 L. Ed. 2d 86 (2017).................................................................................45

McDonnell Douglas Corp. v. Green, 

411 U.S. 792 (1973).......................................................................................37

Orloski v. FEC, 

795 F.2d 156 (D.C. Cir. 1986)...........................................................21, 24, 30

Perot v. FEC, 

97 F.3d 553 (D.C. Cir. 1996).........................................................................24

Postow v. OBA Fed. Sav. & Loan Ass’n, 

627 F.2d 1370 (D.C. Cir. 1980).....................................................................46

Proffitt v. FDIC, 

200 F.3d 855 (D.C. Cir. 2000).......................................................................44

Sierra Club v. Whitman, 

268 F.3d 898 (9th Cir. 2001)...................................................................28, 37

Trustees of United Ass’n Full-Time Salaried Officers and 

Emp. of Local Unions v. Steamfitters Local Union 395, 

641 F. Supp. 444 (D.D.C. 1986)....................................................................46

TRW Inc. v. Andrews, 

534 U.S. 19 (2001)...................................................................................22, 27

United States v. Armstrong, 

517 U.S. 456 (1996).................................................................................26, 32

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United States v. Banks, 

115 F.3d 916 (11th Cir. 1997).......................................................................45

United States v. Phillip Morris USA, Inc., 

801 F.3d 250 (D.C. Cir. 2015).......................................................................45

United States v. Telluride Co., 

146 F.3d 1241 (10th Cir. 1998).....................................................................45

CONSTITUIONAL PROVISION

U.S. CONST. amend. I...........................................................................................6, 40

STATUTES

15 U.S.C. § 2619......................................................................................................38

16 U.S.C. § 1540(g)(1).............................................................................................38

18 U.S.C. § 1514A(b)(1)..........................................................................................38

26 U.S.C. § 501(c)(4)...........................................................................................7, 14

26 U.S.C. § 527..........................................................................................................7

26 U.S.C. § 527(j)(3)(B)............................................................................................7

28 U.S.C. § 1291........................................................................................................1

28 U.S.C. § 2412......................................................................................................34

28 U.S.C. § 2462................................................................................................44, 45

28 U.S.C. § 3304(b)(1)(A).......................................................................................47

28 U.S.C. § 3304(b)(1)(B).......................................................................................47

30 U.S.C. § 1270......................................................................................................38

31 U.S.C. § 3730......................................................................................................38

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33 U.S.C. § 1365......................................................................................................37

33 U.S.C. § 1910......................................................................................................38

42 U.S.C. § 300j-8 ...................................................................................................38

42 U.S.C. § 2000e-5(f)(1)........................................................................................37

42 U.S.C. § 4911......................................................................................................38

42 U.S.C. § 6972......................................................................................................38

42 U.S.C. § 7604......................................................................................................38

42 U.S.C. § 9659......................................................................................................38

42 U.S.C. § 11046....................................................................................................38

52 U.S.C. § 30101(4).................................................................................................3

52 U.S.C. § 30101(17)...............................................................................................3

52 U.S.C. § 30102(c) ...............................................................................................48

52 U.S.C. § 30102(d)...............................................................................................48

52 U.S.C. § 30103......................................................................................................2

52 U.S.C. § 30103(a) ...............................................................................................47

52 U.S.C. § 30103(d).........................................................................................46, 47

52 U.S.C. § 30104......................................................................................................2

52 U.S.C. § 30104(a)(1)...........................................................................................48

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

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

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

52 U.S.C. § 30106......................................................................................................4

52 U.S.C. § 30109......................................................................................................2

52 U.S.C. § 30109(a)(1).............................................................................................4

52 U.S.C. § 30109(a)(2).............................................................................................4

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

52 U.S.C. § 30109(a)(4)(A).......................................................................................5

52 U.S.C. § 30109(a)(8).....................................................................................17, 31

52 U.S.C. § 30109(a)(8)(C) .............................................. 1, 5, 19, 21, 22, 23, 24, 29

52 U.S.C. § 30109(a)(9).............................................................................................1

RULE

Fed. R. Civ. P. 56(c).................................................................................................21

REGULATIONS

11 C.F.R. § 100.5(a)...................................................................................................3

11 C.F.R. § 100.16 .....................................................................................................3

11 C.F.R. § 100.22 .................................................................................................3, 4

11 C.F.R. § 100.29 .....................................................................................................4

11 C.F.R. § 104.1 .......................................................................................................3

11 C.F.R. § 104.3(a)...................................................................................................3

11 C.F.R. § 104.20(b) ................................................................................................4

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

11 C.F.R. § 109.10(e)(1)(vi)......................................................................................4

11 C.F.R. § 104.20(a)(2)(i)......................................................................................51

11 C.F.R. § 104.20(a)(2)(ii).....................................................................................51

11 C.F.R. § 104.20(c)(9)............................................................................................4

26 C.F.R. § 1.501(c)(4)-1(a)(2)(ii).............................................................................7

OTHER AUTHORITIES

125 Cong. Rec. S. 36,754 (1979).............................................................................31

FEC, Political Committee Status, 

72 Fed. Reg. 5595 (Feb. 7, 2007) (“2007 E&J”).......................................................3

FEC, Terminating a Committee (last visited June 1, 2017), available at

https://www.fec.gov/help-candidates-and-committees/

terminating-a-committee/.........................................................................................46

Legislative History of Federal Election Campaign Act Amendments of 1979, 

available at https://transition.fec.gov/pdf/legislative_hist/

legislative_history_1979.pdf....................................................................................31

Legislative History of Federal Election Campaign Act Amendments of 1976, 

available at https://transition.fec.gov/pdf/legislative_hist/”

legislative_history_1976.pdf at 72...........................................................................31

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GLOSSARY

CHGO Commission on Hope, Growth and Opportunity

CREW Citizens for Responsibility and Ethics in Washington and 

Melanie Sloan

FEC Federal Election Commission

FECA Federal Election Campaign Act

JA Joint Appendix

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STATEMENT OF JURISDICTION

This Court has jurisdiction over this timely appeal from a final judgment in 

the United States District Court for the District of Columbia under 28 U.S.C. 

§ 1291 and 52 U.S.C. § 30109(a)(9). The district court’s jurisdiction was based 

upon 52 U.S.C. § 30109(a)(8)(A). Appeal was timely taken on March 21, 2017, 

within sixty days of the district court’s February 22, 2017 decision under review. 

STATEMENT OF ISSUES PRESENTED

(1) The FECA, 52 U.S.C. § 30109(a)(8)(C), allows a complainant to the FEC 

whose complaint is dismissed to thereafter bring a suit “in the name of such 

complainant” against the alleged wrongdoer without the participation of the 

FEC or use of the agency’s resources, but only if a court finds the FEC’s 

dismissal was “contrary to law.” Below, the district court held that an FEC 

dismissal is not “contrary to law” when it is based solely on the FEC’s desire 

to preserve agency resources and avoid litigation risk, rather than on the 

merits of the complaint; a result which bars a complainant from bringing a 

meritorious suit in its own name even though such suit would neither expend 

agency resources nor pose any litigation risk to the agency, rendering 

§ 30109(a)(8)(C)’s citizen-suit provision a dead letter. Did the district court 

commit reversible error?

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(2) Did the district court commit reversible error when it found that a nonmajority of the FEC’s concerns about “litigation risk” rendered the dismissal 

of CREW’s administrative complaint not “contrary to law” within the

meaning of the FECA, despite the FEC’s ability to partially remedy the 

violation of the FECA by releasing information already in the FEC’s 

possession without incurring any such “litigation risk”?

(3) Whether the FEC has abdicated its statutory responsibilities in enforcing the 

FECA’s political committee registration and reporting provisions, 52 U.S.C.

§§ 30103, 30104, where three current commissioners of the FEC—a number 

sufficient to block FEC enforcement—have never found reason to believe a 

respondent has violated the FECA’s political committee provisions and 

sought sanctions where the respondent’s political nature was contested?

(4) Was the FEC’s dismissal of CREW’s administrative complaint otherwise 

“contrary to law” within the meaning of the FECA?

STATUTES AND REGULATIONS

This litigation involves application of the FECA, 52 U.S.C. § 30109, which 

will be reproduced in the Addendum to this brief. 

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STATEMENT OF THE CASE

I. Statutory and Regulatory Background

The FECA requires certain groups that engage in or intend to engage in 

extensive electioneering, called “political committees,” to register with the FEC 

and file periodic reports disclosing, among other things, contributions over $200 

per year. 52 U.S.C. § 30104(b)(3)(A); 11 C.F.R. §§ 104.1, 104.3(a). To qualify as 

a political committee, the group must spend at least $1,000 on expenditures or 

accept more than $1,000 in contributions in a year. 52 U.S.C. § 30101(4); 11 

C.F.R. § 100.5(a). A qualifying expenditure includes an “independent 

expenditure,” i.e., a communication expressly advocating for the election or defeat 

of a federal candidate, but not coordinated with any federal candidate. 52 U.S.C. 

§ 30101(17); 11 C.F.R. §§ 100.16, 100.22.

The Supreme Court has carved out from this statutory category those groups

that (1) are not under the control of a candidate and (2) lack a “major purpose” of 

nominating or electing federal candidates. Buckley v. Valeo, 424 U.S. 1, 79 

(1976). A group will lack the requisite major purpose if (1) it was not organized

for the purpose of nominating or electing federal candidates and (2) its electoral 

activity is “[in]sufficiently extensive.” FEC, Political Committee Status, 72 Fed. 

Reg. 5595, 5601, 5605 (Feb. 7, 2007) (“2007 E&J”).

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In addition, the FECA requires anyone, including those who do not qualify 

as political committees, to file a report with the FEC if they spend a sufficient sum

of money on one of two types of electoral communications: (1) independent 

expenditures (defined above) or (2) electioneering communications (ads airing 

within a short time window before an election, clearly identifying a federal 

candidate in that election, and targeted to that candidate’s electorate). 52 U.S.C. 

§§ 30104(c), (f); 11 C.F.R. §§ 100.22, 100.29, 104.20(b), 109.10. These reports 

must disclose, among other things, contributions above a specified amount that 

were made “for the purpose of furthering” the electoral communication. 11 C.F.R. 

§§ 104.20(c)(9), 109.10(e)(1)(vi). 

The FECA places preliminary responsibility for enforcing federal campaign 

finance laws, including the political committee registration and disclosure 

requirements, with the FEC. 52 U.S.C. § 30106. Third parties, however, may file 

a complaint with the FEC if they identify a violation of the statute. 52 U.S.C. 

§ 30109(a)(1). After a response from the alleged violators and a report from the 

FEC’s Office of General Counsel (“OGC”), the six commissioners of the FEC then 

vote on whether they find “reason to believe” the FECA has been violated. Id.

§ 30109(a)(2). If four commissioners find reason to believe, the OGC will 

investigate and then make a recommendation whether there is probable cause. Id.

§ 30109(a)(2), (3). If four commissioners find probable cause, the FEC must then 

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seek conciliation with the respondents; if the FEC is unable to reach a conciliation 

agreement, the FEC may pursue a civil action in court. Id. at § 30109(a)(4)(A), 

6(A). 

If the FEC does not pursue enforcement, the FECA empowers the

complainant to “bring, in the name of such complainant, a civil action to remedy 

the violation involved in the original complaint.” 52 U.S.C. § 30109(a)(8)(C). 

The complainant may only bring that action, however, if, after presenting its 

complaint to the FEC, the FEC fails to enforce, the complainant receives a judicial 

declaration that the failure to enforce was “contrary to law,” and then the FEC fails 

to “conform” with the declaration within thirty days. Id. 

II. The Commission on Hope, Growth and Opportunity

As the district court recognized below, “[t]he parties agree that the [FEC] 

had strong grounds to prosecute [CHGO] under the [FECA].” JA 862. That 

conclusion was based on CHGO’s complete failure to comply with its reporting 

obligations under the FECA with regard to its extensive political spending in the 

2010 elections and informed by CHGO’s reprehensible conduct.

CHGO was created in early 2010 by longtime political operative Scott Reed 

and Michael Mihalke, president of media relations and production company 

Meridian Strategies, LLC. JA 315, 324, 509. Although the two exercised control 

over CHGO, their association with the group was kept hidden from the public as 

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they were never named as officers, employees, or board members. JA 794, 809,

866. CHGO’s attorney, William Canfield, also was “quite active” in the group’s 

formation. JA 867. 

According to its internal documents, CHGO’s express goal was “[t]o make 

an impact using express advocacy” in targeted congressional races. JA 514. Its 

“[s]imple mission” was to “win Senate seats,” though it later switched its focus to 

House races. JA 519. The group intended to take advantage of the recent Citizens 

United v. FEC decision, 558 U.S. 310 (2010), to “[p]rovide[] corporations and 

individuals with an opportunity to participate directly in [the] election or defeat of 

candidates” while making sure that its “donor name[s] [were] never made available 

to the public.” JA 517–18.

Citizens United, however, contemplated that politically active organizations 

would be required to disclose the names of their donors so that voters would know 

who was financially backing (or attacking) candidates. 558 U.S. at 371 (“The First 

Amendment protects political speech; and disclosure permits citizens and 

shareholders to react to the speech of corporate entities in a proper way.”). To 

avoid the possibility that its donors would be made public while still achieving its 

goal of spending heavily on politics, CHGO engaged in deeply troubling conduct 

over the next several years: it lied about its mission, plans, and activities, broke the 

law, then tried to disappear to avoid being held accountable.

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CHGO started by lying to the IRS to help it obtain tax-exempt status while 

hiding its political plans. While an organization like CHGO that seeks to influence 

elections may operate under 26 U.S.C. § 527, those groups must disclose their 

donors, id. at § 527(j)(3)(B). Section 501(c)(4) organizations, on the other hand, 

are tax-exempt and may keep their donors secret. However, they must be operated 

“exclusively for the promotion of social welfare,” 26 U.S.C. § 501(c)(4)—a 

category that does not include groups whose “primary” purpose is to participate in 

political campaigns, 26 C.F.R. § 1.501(c)(4)-1(a)(2)(ii). In keeping with its goal of 

keeping its donors secret, CHGO did not register as a “527” group. Instead, 

Canfield filed an application for 501(c)(4) status in which he falsely represented 

under penalty of perjury to the IRS that CHGO did not intend to spend “any money 

attempting to influence” an election. JA 795. 

Shortly thereafter, CHGO began raising money and spending it on political 

advertisements. In September 2010, the group received a $4 million contribution 

that would provide more than 83% of the funds CHGO raised over its lifetime. JA 

573, 606. Most of the rest of CHGO’s money came in after a purportedly 

volunteer fundraiser, Wayne Berman, sent a private fundraising letter on its behalf. 

JA 578, 705. Reflecting CHGO’s true nature, Berman’s request stated the group 

“focuses on running independent expenditure campaigns in key districts to support 

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the election of Republican Candidates” and assured would-be donors that 

contributions are “not disclosed.” JA 578.

CHGO almost immediately sent the money it raised to its sole direct vendor, 

Mihalke’s Meridian Strategies, eventually paying it about $4.5 million. JA 537, 

714–15, 810. Contradicting Canfield’s representation to the IRS that CHGO 

would not attempt to influence federal elections, Meridian used CHGO’s money to 

produce and air electoral communications. JA 714. 

Beginning in September 2010, CHGO broadcast advertisements in at least 

fifteen congressional elections. JA 749–53. For example, one ad aired in 

November 2010 asked viewers to “pull the plug on” Rep. John Spratt (D-SC) and 

“join [Spratt opponent] Mick Mulvaney’s fight against big spenders in 

Washington.” JA 443 (describing identical Allen Boyd/Steve Southerland version 

of ad). Another ad attacked Rep. Spratt’s voting record in Congress, then told 

viewers “Mick Mulvaney has a better idea” and urged them to “[h]elp Mick 

Mulvaney.” JA 440 (describing identical Dan Maffei/Anne Marie Buerkle version 

of ad). CHGO ran variants of these two ads between September and November 

2010 against Democratic candidates in ten other races. JA 642–43, 749–53. 

Another CHGO ad accused Rep. John Salazar (D-CO) of “squander[ing] billions 

on a bogus stimulus,” and encouraged voters to “help [Salazar opponent] Scott 

Tipton make America work again.” JA 442; see also JA 436 (similar ad run 

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against Rep. Dan Maffei (D-NY)). Some ads did not mention a candidate’s 

opponent but were still election-related, such as one calling on voters to “stand 

with” Rep. Walt Minnick (D-ID), who had broken with Democratic leadership. JA 

441. The FEC would eventually find that CHGO spent approximately $4.05 

million on these electoral advertisements, comprising about 85% of CHGO’s 

spending in 2010. JA 736, see also JA 436–47, 642–43, 749–53.

Despite the FECA’s clear requirements, CHGO failed to file disclosure 

reports for any of these independent expenditures and electioneering 

communications, and it failed to register as a political committee and report its 

spending and contributors. JA 738, 740.

CREW filed a complaint in May 2011 with the FEC alleging CHGO failed 

to file the one-time reports, and later amended the complaint to allege CHGO 

failed to register as a political committee. JA 249–64, 392–424. In response, 

Canfield falsely represented CHGO’s purpose and activity to the FEC, stating the 

group “may not and does not engage in electoral politics.” JA 268–70. As proof 

of CHGO’s purportedly non-political “social welfare” mission, Canfield pointed to 

a “study” commissioned by the group—though he failed to reveal that CHGO 

purchased it only after the group learned of the FEC complaint and that it cost only 

$5,000, about 0.1% of CHGO’s expenditures. JA 268–70, 426, 572, 577, 737. 

Canfield also insisted Scott Reed was neither a founder, spokesman, nor official of 

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CHGO, JA 345, despite Reed being publicly identified as the “founder” of CHGO, 

Reed’s statement “that CHGO sought to raise $25 million to run ads in 20 House 

Districts and a few Senate contests in 2010,” JA 304, 320–21, and, as discussed 

infra, Reed’s extensive involvement with the organization.

CHGO then once again misrepresented its activities on its Form 990 tax 

return for 2010. JA 803–17. Despite having spent millions on electoral ads, 

Canfield represented, under penalty of perjury, that CHGO did not “engage in 

direct or indirect political campaign activities.” JA 805. CHGO repeated these 

false statements in its 2011 Form 990. JA 819–35.

On January 17, 2012, the FEC notified CHGO that the agency was still 

considering the allegations against CHGO, and that it expected to vote “in mid2012.” JA 389. Faced with the prospect of a full FEC investigation into its 

conduct, CHGO decided to try to go out of business. 

On March 27, 2012, CHGO’s treasurer, James Warring, emailed Mihalke—

who supposedly only ran CHGO’s single vendor and had no reported control of the 

group—listing the “few steps” CHGO would need to take to terminate. JA 634. 

Canfield was quickly included in the discussion. JA 633–34. On April 15, 2012, 

Canfield emailed Mihalke stating that it was “[r]eally important for us to get this 

terminated ASAP.” JA 636. The next morning, Mihalke replied to Warring and 

Canfield asking, “What do we need to do to get this closed most quickly[?]” Id. 

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Mihalke’s stated reason was that “[t]here is an outstanding matter at the [FEC] and 

my sense is that we ought to shut it down to make things less complicated moving 

forward.” Id. Warring wrote back, “[w]e will make this a priority.” JA 631. 

Weeks later, CHGO reported to the IRS on its 2011 Form 990 that it had 

terminated. JA 819.

Shortly after, on May 21, Canfield told the FEC that CHGO was “inactive” 

and that he “had no contact with” CHGO “since late December 2010,” JA 426, 

failing to mention his recent participation in the correspondence about terminating 

CHGO. Soon after his representation to the FEC, Canfield continued his 

communication with CHGO, emailing Warring to discuss the group’s tax returns. 

JA 629–30. 

On December 27, 2013, the OGC issued its First General Counsel’s report. 

JA 431–71. The report found that most of CHGO’s ads were independent 

expenditures and the remainder were electioneering communications, and 

recommended that the Commission find reason to believe CHGO failed to file the 

required one-time reports for them. JA 438–50 470. The OGC also recommended 

finding reason to believe that CHGO failed to register and report as a political 

committee. JA 453–69. The OGC found CHGO easily met the statutory 

benchmark for political committee status, JA 461, and concluded that CHGO’s 

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spending on its political ads was sufficiently extensive to find reason to believe 

CHGO’s major purpose was federal campaign activity, JA 462–69. 

On September 16, 2014, the Commission voted unanimously to approve the 

OGC’s recommendation to find CHGO failed to file required independent 

expenditure and electioneering communication reports. JA 473–77. The 

Commission split, however, on the OGC’s recommendation to find reason to 

believe CHGO failed to register and report as a political committee. Id. 

Nonetheless, the Commission authorized compulsory process, id., and OGC began 

investigating CHGO. 

The investigation eventually uncovered CHGO’s deceptive goals and 

operations, despite obstructions by the group and its associates. It was difficult for 

OGC to even learn who operated CHGO and was responsible for its activities. 

James “Steve” Powell—CHGO’s president according to its IRS filings—said he 

exercised no control over the operation and only wrote and produced television 

ads. JA 493–94, 546–52. Warring, CHGO’s treasurer, said his firm did 

accounting and tax work for CHGO, JA 496, but Canfield confirmed that Powell 

and Warring had only “compartmentalized knowledge” about the group’s 

activities, JA 500. For his part, Canfield said that he did not know who delegated 

CHGO’s work as he “just handled compliance issues relating to express 

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advocacy,” JA 500–01, and claimed he had no role in the review or preparation of 

any “funding, production or placement documents,” JA 555.

Mihalke, though, admitted Reed formed CHGO, led the group, and, along 

with Canfield, was responsible for approving ads. JA 509, 714, 717. Additional 

documents produced by Warring further identified Reed’s importance in the group. 

JA 572. Nevertheless, when the FEC finally reached Reed, he acknowledged he 

gave advice to CHGO about ad placement, but claimed he could not recall 

“anything to do with [CHGO’s] formation” because he was involved in “too many 

political committees since 2010 to have a clear recollection.” JA 638–39.

OGC’s investigation was further hindered by CHGO’s failure to preserve its 

records, despite the FEC repeatedly instructing it keep them. JA 246, 389, 428, 

479. Powell said that while he was named on CHGO’s tax returns as the group’s 

custodian of records, JA 808, he had none related to the ads, JA 494. Warring 

asserted any financial records received from CHGO were returned to the group, 

and that his CHGO file was “sketchy” and had “practically nothing” in it. JA 496–

98. And Canfield claimed CHGO’s records would have ended up in his office’s 

mail room, but that “at some time, the mail room staff ‘tossed’” them. JA 501.

In one notable example of the impediments CHGO and its agents created to 

the investigation, an FEC investigator attempted to serve a subpoena on Meridian’s 

offices after the previous attempt by mail failed. JA 505. Arriving at Meridian’s 

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purported office address, he found it empty, save for one individual who said “no 

company called Meridian occupied office space on the floor.” Id. When the 

investigator spoke to the building manager, she confirmed Meridian had no offices 

there, but added Reed used to have one, and that while he had accepted mail for 

Meridian, he had told her to reject acceptance of the FEC subpoena. Id.

Despite these obstacles, the OGC investigation uncovered revelatory details 

about CHGO’s true purpose and activities. In response to an FEC subpoena, 

Mihalke produced a PowerPoint presentation and a memorandum revealing 

CHGO’s political purposes. JA 514–25. Among other things, it revealed: 

• CHGO’s “goal” was “[t]o make an impact using express advocacy in 

targeted Senate races,” and the group would “utilize all options 

available to it for direct, express advocacy under the recent SCOTUS 

decision,” JA 514–15,

• CHGO “[s]upport[ed] pro-growth, free enterprise candidates in 

targeted Senate races,” JA 516,

• CHGO believed Citizens United created the opportunity for 

corporations and labor unions to “engage in direct, express advocacy 

for election or defeat of candidates,” which 501(c)(4) groups could do 

“with donor names never made available to the public under law,” JA 

517–18,

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• CHGO planned to “win Senate seats” and planned to target certain 

races with a media roll-out with dates that corresponded to the ads 

CHGO would eventually run, JA 519 523–24, and

• CHGO intended to “participat[e] in election[s]” and “make [a] 

measurable difference in key Senate races,” while assuring that 

“donors [are] never disclosed,” JA 525.

Despite Mihalke’s production, the FEC was unable to obtain from CHGO or 

its agents records detailing CHGO’s ad purchases due to CHGO’s failure to 

preserve documents. OGC therefore reached out to television stations that ran the 

ads to gather more information about CHGO’s spending. From those records, 

OGC also learned of a previously undisclosed vendor, New Day Media, JA 662–

67, and obtained from its owner bank records showing receipts for payments to the 

stations to run ads and learned that Meridian paid New Day about $3.2 million for 

them, JA 673–703. 

The investigation also uncovered a questionable and potentially illegal 

transaction. Mihalke confirmed that Meridian paid New Day $3.2 million to place 

CHGO’s ads, despite the fact that Meridian received $4.3 million from CHGO for 

that purpose. JA 714–16. Asked about the $1.1 million discrepancy, Mihalke said 

that 

[While] unused funds were to be given back to CHGO, 

. . . Reed told him that the remaining $1,100,000 would 

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be evenly divided among Reed, Mihalke and Wayne 

Berman . . . [to] cover costs of ‘fundraising’ and would 

be a ‘fundraising commission.’ 

JA 716–17. Reed, though, had no disclosed authority to order the distribution of 

CHGO’s excess funds. Berman, the author of a fundraising letter, testified that his 

services were “voluntary.” JA 705. Mihalke also admitted he had no fundraising 

role, JA 712, and CHGO’s tax filings revealed no funds spent on fundraising, JA 

803, 819. 

Armed with the additional information about CHGO’s purpose and 

spending, the OGC again recommended finding reason to believe that CHGO 

failed to file the required one-time reports and failed to register and file as a 

political committee. JA 738, 740. The OGC found the overwhelming evidence—

including internal documents revealing CHGO’s organizational purpose and 

records of CHGO’s extensive political advertising—demonstrated CHGO’s major 

purpose was to influence elections. JA 736–38. The OGC calculated that 85% of 

CHGO’s spending was on political ads, including 61% on express advocacy ads 

alone. Id. Nevertheless, on October 1, 2015, the Commission split three-to-three 

on all of the OGC’s recommendations. JA 757–58.

Three commissioners—Vice Chairman Matthew S. Petersen and 

Commissioners Caroline C. Hunter and Lee E. Goodman—voted against finding 

reason to believe CHGO committed any violation of the FECA. JA 758. In a 

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subsequent statement of reasons, these controlling commissioners justified their 

votes on the grounds that the “statute of limitations [had] effectively expired,” 

enforcement was “futile” because CHGO was now “defunct,” and that the OGC’s 

investigation “did not definitively resolve” CHGO’s political committee status. JA 

766–69. Finally, the three stated that they would close the file “consistent with the 

Commission’s exercise of its discretion,” citing Heckler v. Chaney, 470 U.S. 821 

(1985), in a footnote. JA 769.

FEC Chair Ann M. Ravel and Commissioner Ellen Weintraub issued their 

own statement excoriating the three commissioners for ignoring “overwhelming 

evidence” of CHGO’s purpose and for ignoring CHGO’s obstruction of the 

investigation. JA 760–64. Commissioner Steven T. Walther issued his own 

statement, noting the “overwhelming” evidence against CHGO, the “obstacles” it 

laid to investigation, and that multiple paths to investigation and enforcement 

remained. JA 772–860.

CREW filed suit against the FEC for its dismissal pursuant to 52 U.S.C. 

§ 30109(a)(8) on November 23, 2015. On February 22, 2017, Judge Rudolph 

Contreras granted the FEC’s motion for summary judgment and denied CREW’s 

motion for the same. JA 861. He began by recognizing that all the parties agreed 

the FEC “had strong grounds to prosecute [CHGO] under the [FECA].” JA 862. 

Despite the controlling commissioners premising their refusal to enforce on the 

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purported running of the statute of limitations and the impossibility of enforcement 

against a supposedly “defunct” group, the district court sidestepped these legal 

questions and did not rule on whether the three had permissibly interpreted the 

applicable statute of limitations or other relevant laws that they said barred FEC 

enforcement. JA 879. Rather than determine whether the controlling 

commissioners’ interpretations were permissible or not, the district court found that 

the mere existence of uncertainty in the law created “litigation risk” for FEC 

enforcement. Id. As the district court construed the FEC dismissal as a “decision 

on how to best allocate [the agency’s] resources,” it found that the “litigation risk”

provided a “rational basis” for the FEC to exercise “prosecutorial discretion.” JA

863, 877, 882, 884. The district held that was sufficient to cause the dismissal to 

not be “contrary to law” within the meaning of the FECA, see JA 876, thereby not 

only upholding the FEC dismissal, but also terminating any possibility that CREW 

might seek enforcement against CHGO itself. 

SUMMARY OF THE ARGUMENT

The FEC’s dismissal of CREW’s administrative complaint against CHGO 

was contrary to law. Even though there were “strong grounds to prosecute” 

CHGO, the FEC, preferring to preserve its resources in the face of “litigation risk,” 

dismissed the complaint in “an exercise of prosecutorial discretion.” The FECA 

provides a fail-safe in the event of such underenforcement: the complainant may 

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bring a citizen suit “to remedy the violation involved in the original complaint.” 

52 U.S.C. § 30109(a)(8)(C). By treating the dismissal premised on the FEC’s 

prosecutorial discretion as not “contrary to law” under the FECA, however, the 

district court effectively eliminated any possibility that a citizen suit authorized by 

the FECA could be brought, nullifying that provision of the statute. While the

FEC enjoys discretion about whether or not to pursue a case, the effect of 

exercising that discretion cannot invalidate a provision of the FECA. CREW is 

ready and willing to bring a citizen suit under the FECA that would have no 

impact on FEC resources or require the agency to incur any litigation risk. The 

dismissal based on the FEC’s prosecutorial discretion blocks that option and thus is 

contrary to law.

The FEC’s fear of litigation risk and desire to preserve resources is also 

irrelevant to enforcement here because, in this case, the FEC can partially remedy 

the violation without incurring any litigation or expending any resources. The FEC 

has in its possession the information that CHGO would be required to disclose if it 

were found to be a political committee that failed to file the requisite reports: the 

names of CHGOs’ contributors. The FEC simply could stop withholding that 

information from the public after finding that CHGO was a political committee 

subject to reporting. The FEC’s resources would remain untouched.

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The FEC’s dismissal in this case also should not be reviewed in a vacuum. 

A review of the other cases before the FEC involving political committee 

violations shows that the same three commissioners who blocked enforcement here 

block enforcement in all similarly contested cases. These controlling 

commissioners have abdicated their enforcement duties, denying voters essential 

information needed to exercise their franchise in an informed way.

Finally, none of the other grounds identified by the controlling 

commissioners justify dismissal. The statute of limitations presents no bar to FEC 

enforcement. CHGO’s purported termination similarly does not render 

enforcement impossible. Nor are the supposedly novel legal issues raised in 

consideration of CHGO’s status of a political committee relevant, and therefore

there is no genuine dispute that CHGO is a political committee regardless of how 

those legal issues are resolved. 

ARGUMENT

I. STANDARD OF REVIEW

This Court reviews district court grants of summary judgment de novo. 

Hagelin v. FEC, 411 F.3d 237, 242 (D.C. Cir. 2005). Summary judgment is 

appropriate only where the moving party meets its burden of demonstrating the 

absence of a genuine dispute of material fact and that “‘the moving party is entitled 

to a judgment as a matter of law.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

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247 (1986) (quoting Fed. R. Civ. P. 56(c)); Celotex Corp. v. Catrett, 477 U.S. 317, 

323 (1986).

The standard for judicial review under the FECA is whether the dismissal 

was “contrary to law.” 52 U.S.C. § 30109(a)(8)(C). The term “contrary to law” is 

a technical one under the FECA. It does not mean the dismissal was unlawful or 

irrational. See FEC v. Rose, 806 F.2d 1081, 1087 (D.C. Cir. 1986) (holding a 

“contrary to law” action by the FEC was nonetheless rational and “substantially 

justified”). Rather, the examination looks at whether the FEC will permit the 

respondent’s behavior, contrary to the law which proscribes it. Accordingly, a 

court first determines if the agency has “[]permissibl[y] interpret[ed]” the law to 

conclude the respondent’s behavior has not violated it. Orloski v. FEC, 795 F.2d 

156, 161 (D.C. Cir. 1986). Second, the court reviews the agency’s determination 

of the behavior itself to see if it was “arbitrary or capricious, or an abuse of 

discretion.” Id., see also CREW v. FEC, 209 F. Supp. 3d 77, 93 (D.D.C. 2016) 

(finding that dismissal was contrary to law where organization’s electioneering 

communications may have subjected it to political committee reporting, but where 

FEC dismissal nonetheless allowed it to avoid disclosure). 

In reviewing a dismissal by the FEC to determine whether it was “contrary 

to law” within the meaning of the FECA, the court’s determination is based on the 

statement of reasons provided by those commissioners who voted against 

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enforcement, even where those commissioners do not constitute a majority of the 

Commission. FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471, 1476 

(D.C. Cir. 1992) (“Since those Commissioners constitute a controlling group for 

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

acting as it did.”). 

II. BY FINDING THE FEC’S PROSECUTORIAL DISCRETION 

RENDERED DISMISSAL NOT CONTRARY TO LAW, THE 

DISTRICT COURT NULLIFIED THE FECA’S CITIZEN SUIT 

PROVISION

The district court below found that the controlling commissioners’ dismissal 

of CREW’s complaint was not “contrary to law” because, even though there were 

“strong grounds to prosecute” CHGO, “the FEC rationally dismissed Plaintiffs’ 

complaint as an exercise of prosecutorial discretion.” JA 862–63. The district 

court erred, however, because a dismissal premised on the FEC’s prosecutorial 

discretion is “contrary to law” within the meaning of the FECA. Concluding 

otherwise impermissibly renders the FECA’s citizen-suit provision “superfluous, 

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

quotation marks omitted); see 52 U.S.C. § 30109(a)(8)(C) (providing complainant 

“may bring, in the name of such complainant, a civil action to remedy the violation 

involved in the original complaint”). While the FEC has “discretion about whether 

or not to take a particular action,” FEC v. Akins, 524 U.S. 11, 25 (1998), the effect 

of exercising that discretion cannot serve to block a citizen suit under the FECA, 

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and thus cannot block a precondition to a citizen suit: that the dismissal be found 

contrary to law.

A. The District Court’s Holding Renders FECA Citizen Suits 

Impossible

The FECA permits a complainant to bring “a civil action [in their own 

name] to remedy the violation involved in the original complaint” if certain 

preconditions are met. 52 U.S.C. § 30109(a)(8)(C). First, a court must determine 

that a dismissal was “contrary to law.” Id. Second, the FEC must then fail to

conform with that judicial declaration within thirty days. Id. The district court 

here ruled that, because the dismissal was a “rational” exercise of the FEC’s 

“prosecutorial discretion” in light of the perceived “litigation risk” involved in 

prosecuting CHGO, the FEC’s dismissal was not contrary to law under the FECA. 

JA 863, 879. By treating discretionary dismissals as not “contrary to law,” the 

district court effectively prohibits a complainant from ever satisfying the 

preconditions for a citizen suit. The result is to ensure the FEC’s “decision on how 

to best allocate its resources” leaves entities like CHGO free to break the law, 

contravening Congress’s design.

Putting the erroneous decision below aside, the conditions required to bring 

citizen suits under the FECA are extremely difficult to satisfy. In situations where 

the FEC has ruled on the substance of an enforcement action (i.e., not those 

involving the FEC’s prosecutorial discretion), a dismissal is contrary to law if it 

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was based on (1) “impermissible interpretations” of law, or (2) if based on 

permissible interpretations, was nonetheless “arbitrary or capricious, or an abuse of 

discretion.” Orloski, 795 F.2d at 161. Though it does not require a showing of

irrationality, this nonetheless is a demanding standard to meet. On the first 

question, the FEC’s interpretation of law will often be afforded Chevron deference. 

Id. (applying Chevron framework to FEC interpretation of law). Review under the 

second question is “extremely deferential,” id. at 167, and “permits reversal only if 

the agency’s decision is not supported by substantial evidence, or the agency has 

made a clear error in judgment,” Hagelin, 411 F.3d at 242 (internal quotation 

marks omitted).

If a complainant manages to show that the dismissal was based on 

impermissible interpretations of law, unsupported by substantial evidence, or 

involved a clear error in judgment, the relief awarded is a judicial declaration that 

the dismissal was contrary to law and an order directing “the Commission to 

conform with such declaration within 30 days.” 52 U.S.C. § 30109(a)(8)(C). The 

court may not order any more: it may not direct the FEC to reach any particular 

conclusion on the complaint nor may it order the agency to prioritize consideration

of the remanded enforcement action. See Perot v. FEC, 97 F.3d 553, 559 (D.C. 

Cir. 1996) (“When the FEC’s failure to act is contrary to law, we have interpreted 

§ [30109](a)(8)(C) to allow nothing more than an order requiring FEC action.”). 

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Further, while the district court may “direct the Commission to conform,” 

the actual actions required by the FEC to conform are exceedingly minimal. The 

court’s direction is satisfied so long as the FEC reopens the matter below and then 

avoids the explicit error identified in the district court’s declaration. See Mem. Op. 

and Order 5–6, CREW v. FEC, 14-cv-1419 (CRC) (D.D.C. Apr. 6, 2017) (attached 

in addendum) (holding FEC conformed with court order where it reopened 

investigation and did not commit exact same legal error as before, even if it 

committed new legal error). In other words, the FEC would only fail to conform if 

it either (i) refused to reopen the matter, or (ii) reopened it and then dismissed 

while adhering to the exact same legal error, unsupported conclusion, or clear error 

in analysis that earned it a reversal in the first place. Such a brazen failure to take

even the most minimal corrective action is exceedingly implausible. It also would 

constitute contempt of court, making it even less likely. Id. at 4 (citing Int’l 

Ladies’ Garment Workers’ Union v. Donovan, 733 F.2d 920, 922 (D.C. Cir. 

1984)). 

Thus, with regard to a dismissal after a determination on the merits, a 

complainant must survive a gauntlet that virtually assures that it never satisfies the 

preconditions for a citizen suit under the FECA. A complainant must show error 

sufficient to secure a rare “contrary to law” determination, and then hope that the 

FEC would subject itself to contempt by refusing even the smallest of efforts to 

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conform—efforts that need not consist of actual enforcement. Not surprisingly, 

this situation has never arisen in the forty-plus years of the FECA’s existence, to 

CREW’s knowledge. Indeed, if a complainant ever found itself in this impossible 

situation, it most likely would not bother pursuing a suit in its own name and using 

its own resources. After all, the complainant could simply seek an order holding 

the FEC in contempt and force the FEC to enforce the law, making the citizen suit 

entirely redundant.

Of course, it is not unreasonable to interpret the FECA to effectively bar 

citizen suits where the FEC reaches the merits of a case. The district court, 

however, in effect barred a citizen suit in every case by expanding this obstacle 

course to situations in which its application is absurd: where the FEC does not 

reach the merits but dismisses based on its prosecutorial discretion. 

By treating a dismissal for prosecutorial discretion like any other type of 

dismissal, the district court requires a plaintiff to show the FEC abused its 

discretion in its “decision on how to best allocate its resources.” JA 877. A

proper showing on that issue would require intrusive discovery into the FEC 

operations, despite the fact that a plaintiff must litigate based solely on the 

agency’s self-selected administrative record. Hagelin, 411 F.3d at 243 (reviewing 

agency decision in light of “record before it”); see also United States v. Armstrong, 

517 U.S. 456, 464 (1996) (authorizing discovery to determine if prosecution 

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abused discretion). Nonetheless, if the complainant could somehow meet their 

burden, the FEC could simply reopen the matter, once again exercise its discretion 

not to move forward based on a renewed look at its resources, and the agency 

would have carried out its duty to conform with the judgment. A complainant 

would never satisfy the preconditions for a citizen suit.

It is difficult to conceive of a situation in which a complainant could ever

utilize section 30109’s citizen suit under the district court’s understanding of the 

law. If the FEC’s dismissal based solely on its “decision on how to best allocate its 

resources” can prevent a citizen suit—especially in the face of such flagrant and 

“obvious” violations as those committed by CHGO, JA 881—one must conclude 

that there is no situation in which a citizen suit may be brought.

Yet “[i]t is a cardinal principle of statutory construction, that a statute ought, 

upon the whole, to be so construed that, if it can be prevented, no clause, sentence, 

or word shall be superfluous, void, or insignificant.” TRW Inc., 534 U.S. at 31

(internal quotation marks omitted). The district court’s analysis, however, leaves 

the FECA’s citizen suit provision “superfluous, void, [and] insignificant.” Id. 

Nevertheless, this result can be prevented by interpreting the FECA’s contrary to 

law standard in a way that recognizes that the FECs’ prosecutorial discretion 

cannot block a citizen suit. In fact, recognizing the FEC’s exercise of prosecutorial 

discretion is contrary to law within the meaning of the FECA accords with the 

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logic and structure of the statute, addresses the legislative concern that motivated 

the provision, recognizes the purpose of citizen suits in federal law generally, and 

concords with judicial precedent on the FEC’s “discretion about whether or not to 

take a particular action,” Akins, 524 U.S. at 25.

B. FECA Citizen Suits Are Appropriate Where an FEC Dismissal is 

Discretionary

In providing for a citizen suit under the FECA, Congress created an 

important enforcement backstop. Where the FEC pursues enforcement, or where 

the complainant raises an unmeritorious claim, there would be no need for a citizen 

suit. Where there is no dispute, however, that a complainant raises serious and 

substantiated allegations of unlawful activity, yet the FEC only declines to enforce 

based on its prudential judgment to “husband resources, . . . a citizen suit against 

the violator can still enforce compliance without federal expense.” Sierra Club v. 

Whitman, 268 F.3d 898, 905 (9th Cir. 2001).

That is precisely the case here. There is no dispute that CREW made serious 

and substantiated allegations against CHGO—allegations that the FEC confirmed 

and buttressed through its investigation—showing CHGO “obvious[ly]” violated 

the FECA. JA 881. There also is no dispute that CHGO and its agents went to 

extreme lengths to hide their violations from government agencies, and there is 

evidence CHGO’s roadmap has been used by similar groups to evade campaign 

disclosure. JA 150–68, 866–72. Yet simply because of the FEC’s desire to 

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preserve its own resources, these violations of federal law will go unremedied, and 

voters will remain ignorant of CHGO’s contributors. Congress contemplated this 

situation, however, and provided a citizen suit so that a complainant like CREW 

could remedy these violations at no expense to the FEC. 

The structure of the FECA bolsters this reading of the statute. First, it 

simply defies reason to conclude that the FEC’s desire to preserve its resources 

should have the effect of cutting off a citizen suit which would not require the FEC 

to expend any resources. A complainant must bring the suit in their own name and 

at their own expense. 52 U.S.C. § 30109(a)(8)(C). The FEC’s resources would go 

untouched. It would be nonsensical therefore for Congress to condition a citizen

suit on a factor that is entirely unimpacted by it. Rather, finding an FEC dismissal 

based on its prosecutorial discretion is contrary to law, and then finding that the 

FEC’s continued adherence to that discussion is a failure to conform, would leave 

the agency entirely in control of its own resources. The sole result is to allow a 

complainant to bring their own suit. 

Second, the FECA already expressly contemplates that a discretionary 

decision by the FEC not to pursue an enforcement action authorizes to a citizen 

suit. The second statutory condition for a citizen suit is that the agency fails to 

conform with a court’s declaration. 52 U.S.C. § 30109(a)(8)(C). Under that

provision, if the FEC simply chose not to take up a matter again, there would be a 

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failure to conform and a citizen suit could proceed. In other words, the FEC’s 

discretionary decision not to pursue a case would permit a citizen suit. It would be 

exceedingly odd, then, for Congress to treat a discretionary choice to decline 

enforcement made after a judicial determination as the trigger for a citizen suit, but 

to treat the same agency choice made before a judicial determination as a bar to 

that same suit. 

Third, treating the FEC’s exercise of prosecutorial discretion as triggering a 

citizen suit accords with the FEC’s gatekeeping role to “determine in the first 

instance whether or not a civil violation of the Act has occurred.” FEC v. 

Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981). A complainant 

must still bring their complaint to the FEC for consideration. If the FEC chooses 

to pursue enforcement, then a citizen suit may not follow. Even if the FEC makes 

the legal determination that there is no reason to believe a violation has occurred, a 

citizen suit may only follow if the complainant can show that that the decision is 

based on “impermissible interpretations” of law or an arbitrary or capricious 

analysis. Orloski, 795 F.2d at 161.1

 1 The Commission routinely votes not only against finding reason to believe a 

violation occurred, but also to affirmatively find no reason to believe a violation 

occurred. See, e.g., Certification, MUR 7124 (McGinty for Senate) (Apr. 28, 

2014), available at http://eqs.fec.gov/eqsdocsMUR/17044414319.pdf. 

 In that way, the FEC would continue to 

consider complaints in the first instance and protect respondents from 

unmeritorious suits. Where the FEC, however, does not find a complaint lacks 

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merit, and dismisses based solely on a choice to preserve its resources, the FECA 

provides that a complainant may then bring a suit in its own name to ensure 

compliance and protect against underenforcement. 

Fourth, treating FEC dismissals based on prosecutorial discretion as 

“contrary to law” within the meaning of the FECA recognizes the legislative 

concern that apparently motivated section 30109(a)(8)’s inclusion in the statute: 

ensuring the FEC “does not shirk its responsibility.” Democratic Congressional 

Campaign Comm. v. FEC, 831 F.2d 1131, 1134 (D.C. Cir. 1987) (quoting 125 

Cong. Rec. S. 36,754 (1979)). Congress was acutely aware that underenforcement 

by the FEC was of concern and therefore reasonably provided for an alternative 

manner of enforcement where the FEC proved impotent.2

 2 See Legislative History of Federal Election Campaign Act Amendments of 1979 

at 35, available at https://transition.fec.gov/pdf/legislative_hist/

legislative_history_1979.pdf (noting questions about FEC performance “in the 

enforcement area”); Legislative History of Federal Election Campaign Act 

Amendments of 1976, available at https://transition.fec.gov/pdf/legislative_hist/

legislative_history_1976.pdf at 72 (noting “past election statutes were scrupulously 

ignored for years”); id. at 75 (noting importance that FEC is “active watchdog . . . 

not a toothless lapdog”); id. at 92 (“Given the history of weak enforcement of 

campaign finance laws . . . it is no wonder that the public watches with some 

skepticism our efforts to reconstitute this Commission.”). 

 Not only was the agency

working with limited resources, like all federal agencies, but the structure of the 

Commission—evenly divided between three Republicans and three Democrats (or 

independents) but requiring four votes to act—created serious risks of gridlock. 

Where the Commission could split three-to-three and prevent agency enforcement 

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solely based on the desire of a potentially partisan-based faction of the 

Commission, a citizen-suit backstop allows for meaningful enforcement. But it 

can only do that if the Commissioners’ unwillingness to enforce is “contrary to 

law” within the meaning of the FECA. 

Finally, treating the FEC’s exercise of prosecutorial discretion as contrary to 

law actually provides greater deference to the FEC’s “discretion about whether or 

not to take a particular action,” Akins, 524 U.S. at 25, than does subjecting that 

discretion to an abuse of discretion analysis. Under the district court’s 

interpretation of the FECA, the FEC’s prosecutorial discretion is subject to judicial 

probing. JA 877. A thorough review would require analysis of the subjective

decision making of the commissioners and thus discovery into the commissioners’ 

discussions and decision-making processes. See Armstrong, 517 U.S. at 464; 

Heckler, 470 U.S. at 831 (noting assessment of prosecutorial discretion requires 

subjective determinations about agency priorities and “fit[]”); Citizens to Preserve 

Overton Park, Inc. v. Volpe, 401 U.S. 402, 825 (1971) (discussing “inquiry into the 

mental processes of administrative decisionmakers”). Further, the court must 

review the agency’s assessment of priorities, and its allocation of its budgetary 

resources to those priorities, to determine whether they are truly rational. Heckler, 

470 U.S. at 831.

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Treating discretionary decisions not to pursue enforcement as contrary to 

law, however, would require none of this. Here, according to the district court, the 

three controlling commissioners chose to decline enforcement based solely on their

prudential decision that prosecution was not an efficient use of resources. Rather 

than that decision working to immunize blatant law breaking, the court would 

recognize the FEC’s dismissal is contrary to law within the meaning of the FECA, 

and no probing of FEC decision making would be required. The controlling 

commissioners’ prudential decision would be taken at face value. The three 

commissioners would be put on notice that their adherence to this prudential 

choice would allow CREW to pursue litigation to enforce the FECA. If they 

continued in their assessment, no impact to FEC resources would result: CREW 

would simply be authorized to sue. If, however, they decided a different course 

was appropriate, they would be free to alter their judgment. 

In sum, in contrast to the district court’s interpretation which nullifies part of 

the FECA, treating FEC discretionary decisions not to pursue enforcement as 

contrary to law would give meaning to the citizen suit provision while according 

with the logic and structure of the FECA. 

C. The District Court Misapplied Authority About the FEC’s 

Discretion and Misconceived the FEC’s Role Under the FECA

In interpreting the FECA’s judicial review standard, the district court 

misapplied authority regarding the FEC’s control over its own agency resources. 

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While that authority recognizes the FEC’s prosecutorial discretion in enforcement, 

it does not show that the discretion blocks CREW’s citizen suit. 

The district court cites FEC v. Rose, where the D.C. Circuit stated that “[w]e 

are not here to run the agencies” to support its conclusion that prudential dismissal 

is not contrary to law. JA 877 (citing 806 F.2d at 1091). In Rose, however, this 

Court did not address the contrary to law standard under the FECA. 

In Rose, a plaintiff won a “contrary to law” judgment from the district court 

due to the FEC’s failure to act on the plaintiff’s complaint in a reasonable manner. 

806 F.2d at 1084–85. The plaintiff then sought attorneys fees under the Equal 

Access to Justice Act, 28 U.S.C. § 2412. Id. at 1085. Under that statute, the 

plaintiff had to show that the FEC’s position was not “substantially justified.” Id. 

It was in the context of deciding whether the agency lacked substantial justification 

and whether to order it to pay a financial penalty for its inaction that this Court 

stated it would not “run” the agency. Id. at 1091. The question of the proper 

application of the FECA’s “contrary to law” judicial review standard was not 

before the Court, and thus the Court could not and did not address that question. 

Id. at 1085. Nor would a decision on the propriety of a financial penalty against 

the agency have any relevancy to the propriety of a remedy—a citizen suit—which

purposely avoids any impact on agency resources. 

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As discussed above, finding the FEC’s dismissal was contrary to law does 

not require the Commission to expend any additional resources. It would not 

convert the court into the “a board of superintendence” over of the FEC. Cf. Rose, 

806 F.2d at 1091. The FEC would still be free to refuse to conform with the court 

declaration, and the only result would be the authorization of CREW’s suit against 

CHGO for CHGO’s violations of the FECA. The FEC would remain free to run 

itself as it saw fit.

Other judicial recognitions of the FEC’s authority over its own resources 

similarly do not speak to the question of whether that discretionary decision is 

“contrary to law” under the FECA. In FEC v. Akins, for example, the Supreme 

Court noted that agencies like the FEC “often have discretion about whether or not 

to take a particular action.” 524 U.S. at 25. Nonetheless, it did so only to note that 

discretion did not cause plaintiffs’ injury stemming from the dismissal to be 

irremediable. Id. The Court expressed no view on how to evaluate that discretion 

within the FECA’s contrary to law standard. 

There is no dispute that the FEC has discretion about whether to bring a 

particular action. CREW disputes, however, that that discretion can be used to 

block its right to a citizen suit under the FECA. Where the FEC can disregard a 

judicial declaration by simply failing to conform, finding a prudential dismissal 

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was “contrary to law” still leaves the FEC with discretion about whether or not to 

pursue enforcement. 

For the same reason, the district court’s citation to Heckler is misplaced. JA 

877. Heckler held that agency failures to enforce were nonreviewable, unless 

Congress explicitly provided otherwise. 470 U.S. at 832 (noting APA did not 

commit agency decision not to take enforcement action to judicial review). 

Congress did exactly that in the FECA. See Akins v. FEC, 101 F.3d 731, 734 (D.C. 

Cir. 1996) (en banc) (noting FECA provides for “unusual” review of agency’s 

failure to enforce), vacated on other grounds, 524 U.S. 11. Moreover, as noted 

above, finding the FEC’s dismissal was contrary to law does not impact decisions 

about “whether agency resources are best spent on this violation or another, 

whether the agency is likely to succeed if it acts, whether the particular 

enforcement action requested best fits the agency’s overall policies, and, indeed, 

whether the agency has enough resources to undertake the action at all.” Heckler, 

470 U.S. at 831. 

In short, no authority from the Supreme Court or this Circuit provides that 

the FEC’s discretion over enforcement affects the FECA’s judicial review 

standard. The district court below misapplied those precedents to find that it could 

not conclude the FEC’s failure to enforce was contrary to law because it wrongly 

thought that such a finding would result in the judicial conscription of agency 

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resources. Because the FEC may simply choose to not conform with a judgment

finding its discretionary dismissal is contrary to law, however, the district court’s 

conclusion was erroneous. 

D. Federal Citizen Suit Provisions Allow Suits Where an Agency 

Refuses to Enforce for Prudential Reasons

The FECA’s citizen-suit provision, like all citizen suit provisions, serves the 

useful goal of “enforc[ing] compliance without federal expense” where the 

violation would go unpunished solely because of the agency’s desire to “husband 

federal resources.” Sierra Club, 268 F.3d at 905. The FECA’s citizen suit 

provision should be read to accord with other such provisions in federal law. 

For example, under federal employment nondiscrimination law, a potential 

plaintiff must first present their complaint to a federal agency, the EEOC, for 

agency consideration. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798 

(1973). If the EEOC exercises its prosecutorial discretion to abstain from pursuing 

enforcement, that does not block the plaintiff’s suit. Rather, the EEOC issues a 

right-to-sue letter that permits the plaintiff to bring their own civil suit. 42 U.S.C. 

§ 2000e-5(f)(1). 

Similarly, a citizen suit is available under federal environmental law, but the 

citizen must first provide the EPA with sixty days notice of its intent to sue. See 

33 U.S.C. § 1365. If the EPA exercises its prosecutorial discretion not to sue, that 

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similarly does not block enforcement. It merely permits the citizen to continue

with their own litigation to enforce federal law.3

Like these other citizen suit provisions, the FECA’s citizen suit provision 

should be understood to provide a mechanism for compliance where the FEC 

foregoes its role as primary enforcer. Of course, the FECA provides for an even 

greater gatekeeping role for the FEC than Congress provided for these other 

agencies. The FEC also may prevent a suit by rendering a lawful decision finding 

a complaint lacks merit. Nonetheless, the FECA’s citizen-suit provision, like other 

citizen-suit provisions in federal law, provides an important mechanism to ensure 

compliance where the agency will not. The FECA’s “contrary to law” standard 

should therefore be interpreted in a way to permit such suits. 

 3 See also 15 U.S.C. § 2619 (conditioning suit on notice to EPA Administrator and 

alleged violator, but allowing suit to proceed if no prosecution); 16 U.S.C. 

§ 1540(g)(1) (conditioning suit on notice to Secretary and alleged violator, but 

allowing suit to proceed if no government prosecution); 18 U.S.C. § 1514A(b)(1) 

(whistleblower must file complaint with Secretary of Labor; if no decision within 

180 days, private suit may proceed); 30 U.S.C. § 1270 (notice required to 

Secretary, State in which violation occurred, and alleged violator); 31 U.S.C. 

§ 3730 (qui tam action sealed for sixty days to allow government to intervene and 

prosecute; if government declines, citizen suit may proceed); 33 U.S.C. § 1910 

(notice to Secretary, alleged violator, EPA Administrator, and Attorney General, 

but allowing suit to proceed if no government prosecution); 33 U.S.C. § 1910 

(same); 42 U.S.C. § 300j-8 (notice required to Administrator, alleged violator, and 

State in which violation occurred); 42 U.S.C. § 4911 (notice to EPA Administrator 

and Federal Aviation Administrator); 42 U.S.C. § 6972 (notice to EPA 

Administrator, State in which violation occurred, and alleged violator); 42 U.S.C. 

§ 7604 (same); 42 U.S.C. § 11046 (same); 42 U.S.C. § 9659 (conditioning suit on 

notice to President, but allowing suit if government chooses not to prosecute). 

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III. The FEC Can Partially Remedy the Violation Without Expending Its

Resources

Even assuming a rational exercise of the FEC’s prosecutorial discretion is 

not “contrary to law,” the FEC’s use of it here is not rational because the identified 

concerns—that the FEC’s desire to husband resources and avoid “litigation risk”—

do not justify a failure to pursue enforcement where the FEC may partially remedy 

CHGO’s violation of the FECA without expending any additional agency 

resources. The FEC could simply release the names of CHGO’s donors that it 

already possesses.

In the course of the OGC’s investigation, the FEC collected financial 

documents revealing the identifies of at least some, but perhaps all, of CHGO’s 

contributors. See JA 572, 73–76, 578, 599–601, 619 (contributor identities

redacted). The FEC could simply find that CHGO was a political committee and

that the contributor names should therefore have been reported, and thus decide to 

no longer withhold those names from public view. Notably, the FEC has released 

such information in the past. See CREW v. FEC, 475 F.3d 337, 339–40 (D.C. Cir. 

2007) (discussing materials published by FEC after investigation revealing details 

of wrongfully concealed transaction).

The district court below recognized this possibility, but said only that “the 

FEC would expose itself to serious legal challenges if it were to release donor 

information prior to a finding that CHGO was a political committee.” JA 886. But 

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that misses the fact that CREW seeks by this litigation, among other things, “a 

finding that CHGO was a political committee.” Id. As discussed further below, 

there is no genuine dispute that CHGO meets the FECA and judicial conditions for 

political committee status. Moreover, at least some contributors received clear 

notice that their contributions would be used for the purpose of “running 

independent expenditures in key districts to support the election of Republican 

Candidates.” JA 578. Contributors to political committees have no valid First 

Amendment right against disclosure of their identities. Buckley, 424 U.S. at 68, 84

(holding First Amendment does not bar FECA’s mandate to disclose of contributor 

identities). Accordingly, the names of CHGO’s contributors can be made public.4

Yet the district court found that the FEC need not reconsider whether CHGO 

was a political committee because, if it did and found reason to believe CHGO was 

one, it could face litigation risk in enforcement. Looking to that litigation risk, 

however, grounds the district court’s judgment in circular reasoning. According to 

the district court, the agency could avoid enforcement because it had not reached a 

decision on the merits, but the agency could avoid a decision on the merits because 

 4 The controlling commissioners and the district court placed significant weight on 

the fact that releasing these names might possibly incur litigation, even if meritless 

litigation. Yet neither considered the fact that not releasing the names invited 

certain litigation: CREW was certain to sue to enforce its rights, and the FEC has 

incurred expense defending itself. Moreover, the district court invited FOIA 

litigation over access to those names. JA 886. A fear of litigation risk is irrational 

where that risk looks only at one type of potential litigation, but ignores certain 

litigation. 

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it wished to avoid enforcement. That sophistry does not meet the FECA’s demand 

for a well-reasoned analysis. 

As the FEC could, without expending resources, remedy the injuries created 

by CHGO’s evasion of the FECA’s disclosure obligations—disclosure obligations 

that serve vital roles in our democracy, Buckley, 42 U.S. at 66–67—the FEC’s 

desire to husband resources cannot justify its failure to move forward on the merits 

of CREW’s complaint. Accordingly, the district court erred in finding such desire 

rendered the dismissal not “contrary to law.”

IV. The FEC has Abdicated Enforcement of the Political Committee Laws

Given the nature of CHGO’s violations and the undisputed “strong grounds 

to prosecute” the group, JA 862, it might be seen as surprising that the FEC 

declined enforcement. The FEC’s dismissal is less unexpected, however, in light 

of the fact that the three FEC Commissioners who blocked enforcement against 

CHGO have also blocked enforcement of the FECA’s political committee rules in 

every contested case. An agency may not “abdicat[e] its statutory responsibilities,”

however, under the guise of prosecutorial discretion. Heckler, 470 U.S. at 833 n.4. 

There have been fifteen cases before the FEC in which at least one of the 

three controlling commissioners who blocked enforcement against CHGO have 

voted on the OGC’s recommendation to find reason to believe a respondent 

violated the FECA’s political committee rules. JA 244. In eleven of those cases,

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the three relevant commissioners refused to find reason to believe, blocking 

enforcement, despite their counterparts finding reason to believe a violation 

occurred. Id. In the other four cases, the FEC unanimously voted to find reason to 

believe a violation of the FECA’s political committee rules occurred. Id. In each 

of those four cases, however, the political nature of the organization was not 

contested,

5 and in two of those four, the relevant commissioners still voted to take 

no action against the respondent.6

In sum, the three commissioners who voted to block enforcement against 

CHGO have voted to block enforcement of the FECA political committee rules in 

every contested case, typically by refusing to find reason to believe (as they did 

 

 5 See First General Counsel’s Report 1–2, MUR 6315 (Greene) (Dec. 22, 2010), 

available at http://eqs.fec.gov/eqsdocsMUR/12044322956.pdf (finding candidate’s 

principal campaign committee failed to timely register, noting candidate admitted 

fault); Conciliation Agreement ¶¶ 10–11, MUR 6106 (MN Corn Growers) (Feb. 

11, 2009), available at http://eqs.fec.gov/eqsdocsMUR/29044224651.pdf (finding 

state PAC’s focus was federal because a majority of its contributions went to 

federal candidates); Response 1–2, 4, MUR 6317 (Utah Defenders) (July 30, 

2010), available at http://eqs.fec.gov/eqsdocsMUR/12044312632.pdf (contesting

whether mailer group was admittedly founded to produce was express advocacy, 

but not that it was designed to defeat the referenced candidate); First General 

Counsel’s Report 2, 4, MUR 5831 (Feb. 6, 2008) available at http://eqs.fec.gov/

eqsdocsMUR/10044282395.pdf (discussing dispute of whether 527 group’s 

expenditures contained express advocacy; noting group activities directed “almost 

exclusively toward supporting Rick Santorum’s 2006 Senate re-election

campaign”). 6 Certification, MUR 6315 (Greene) (Nov. 29, 2012), available at

http://eqs.fec.gov/eqsdocsMUR/12044322988.pdf; Certification, MUR 5831 

(Softer Voices) (Oct. 20, 2010), available at http://eqs.fec.gov/eqsdocsMUR/

10044282476.pdf.

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with CHGO), or by voting to take no action even after such finding. All the while, 

the wanton violation of the FECA’s political committee rules by dark money 

organizations has exploded. See JA 72–149, 168–217. That is per se abdication. 

See Adams v. Richardson, 480 F.2d 1159, 1163, 1166 (D.C. Cir. 1973) (en banc) 

(finding “[a] consistent failure to [enforce] is a dereliction of duty reviewable in 

the courts”; enjoining agency against continued underenforcement); see also JA 

762 (“Three of our colleagues have gone to great lengths to avoid enforcing the 

law against dark money groups like CHGO.”). 

Moreover, these same controlling commissioners have attempted to cover up 

their abdication by a now rote citation to the FEC’s prosecutorial discretion. JA 

244. In all but one of commissioners’ statement of reasons, they included a 

boilerplate reference to prosecutorial discretion as a tag-on justification for their 

refusal to pursue enforcement. They included that same boilerplate in their 

statement of reasons for dismissing the CHGO matter and it (so far) has allowed 

them to once against sidestep enforcing the FECA’s political committee rules. The 

commissioners, however, do not have the authority to repeal statutes passed by 

Congress and upheld by the courts. They should not be allowed to take that 

authority for themselves through overly deferential review under the FECA. 

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V. There is No Other Basis to Uphold the FEC’s Dismissal

The district court below refused to adopt the reasoning of the controlling 

commissioners which contended that enforcement was blocked by the statute of 

limitations and that enforcement against a “defunct” entity was impossible. JA 

882, 887. The court was correct to avoid those conclusions—they rely on 

impermissible interpretations of law and arbitrary and capricious analyses. The 

court’s conclusion that “novel legal issues” about vendor commissions could 

justify dismissal, however, was mistaken. JA 884.

A. The Controlling Commissioners’ Interpretation of the Statute of 

Limitations is Impermissible

First, with regard to the statute of limitations, the district court was right to 

refuse to adopt the commissioners’ rationale. As a preliminary matter, the 

commissioners’ interpretation of the applicable statute of limitations warrants no 

deference. Proffitt v. FDIC, 200 F.3d 855, 860 (D.C. Cir. 2000) (Chevron

deference is unavailable for agency interpretations of 28 U.S.C. § 2462). On the 

substance, the statute of limitations is irrelevant because the FEC retains equitable 

authority to enforce, including by ordering corrected disclosure, even after 

expiration of the statute of limitations. FEC v. Christian Coal., 965 F. Supp. 66, 

71 (D.D.C. 1997) (holding section 2462 “provides no . . . shield from declaratory 

or injunctive relief” sought by the FEC); accord FEC v. Nat’l Republican 

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Senatorial Comm., 877 F. Supp. 15, 20–21 (D.D.C. 1995).

7

Further, even if relevant, the statute has not begun to run on CHGO’s 

continuing violations, including its violation of its continuous obligation to file 

political committee reports. Earle v. D.C., 707 F.3d 299, 307 (D.C. Cir. 2012)

 The FEC need not 

show risk of future harm to justify equitable relief. United States v. Phillip Morris 

USA, Inc., 801 F.3d 250, 262 (D.C. Cir. 2015) (holding injunctive relief mandating 

“correcting . . . misinformation . . . focuse[s] on remedying the effects of past 

conduct”). Even if such harm were required, it exists where beneficiaries of 

CHGO’s spending remain in office and CHGO’s contributors may continue to 

exact benefits for their support, JA 48–71, 436, 749–53; and where those 

associated with CHGO continue to copy CHGO’s roadmap to flagrantly evade 

disclosure, JA 150–67 (showing Canfield’s continued violations of campaign 

finance laws using CHGO model). 

 7 The district court below recognized a “split of authority” on this question. JA 

880. That split should be resolved in favor of finding that equitable remedies 

survive. First, the FEC below did not even argue that the opposite authority was 

correct, and thus waived that argument. See JA 233. Moreover, the opposing 

authority has been widely criticized for resting on a mistaken reading of Cope v. 

Anderson, 331 U.S. 461 (1947). See United States v. Telluride Co., 146 F.3d 1241, 

1248 n.13 (10th Cir. 1998); United States v. Banks, 115 F.3d 916, 919 n.6 (11th 

Cir. 1997); Christian Coal., 965 F. Supp. at 71–72. Finally, while the Supreme 

Court recently limited an agency’s ability to order disgorgement after the 

expiration of the statute of limitations, see Kokesh v. SEC, 198 L. Ed. 2d 86 (2017), 

it did so for reasons related to disgorgement that have no application to injunctive 

relief to correct a failure to disclose, see id. at 90 (“Disgorgement in the securitiesenforcement context is a ‘penalty’ within the meaning of § 2462.”). 

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(continuing violation exists where “text of the pertinent law imposes a continuing 

obligation to act or refrain from acting”); Postow v. OBA Fed. Sav. & Loan Ass’n, 

627 F.2d 1370, 1380 (D.C. Cir. 1980) (a failure to disclose is a continuing 

violation); 52 U.S.C. § 30103(d) (political committees must continually file reports 

until they terminate).

8 The FEC below did not dispute that CHGO’s political 

committee violation was continuing in nature. JA 229 (contesting only the 

assertion that CHGO’s other violations, but not its political committee violations, 

are continuing violations). Finally, CHGO’s fraudulent concealment—in the form 

of false statements under oath, JA 792–93, 803–17, destruction of documents they 

were on notice to preserve, JA 246, 389, 428, 501, obstruction of the service of a 

subpoena, JA 505, and false or misleading statements to FEC investigators, JA 

270–72, 344–87, 426—tolled the statute of limitations.9

 8 See also FEC, Terminating a Committee (last visited June 1, 2017), available at

https://www.fec.gov/help-candidates-and-committees/terminating-a-committee/

(“Committees must file regularly scheduled reports until the Commission notifies 

them in writing that it has granted their request to terminate.”). 9 Currier v. Radio Free Europe/Radio Liberty, Inc., 159 F.3d 1363, 1368 (D.C. Cir. 

1998) (holding “affirmatively misleading statements” toll the statute of 

limitations); Firestone v. Firestone, 76 F.3d 1205, 1210 (D.C. Cir. 1996) (finding 

defendants’ affirmative misrepresentations to conceal wrongdoing toll

statute of limitations); Trustees of United Ass’n Full-Time Salaried Officers and 

Emp. of Local Unions v. Steamfitters Local Union 395, 641 F. Supp. 444, 447 

(D.D.C. 1986) (the submission of a single false report constituted fraudulent 

concealment); In re Vitamins Antitrust Litig., No. MISC 99-197 (TFH), 2000 WL 

1475705, at *3 (D.D.C. May 9, 2000) (holding “providing false

information to law enforcement authorities” is an affirmative act of concealment).

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The district court, however, found that the statute of limitations presented 

“litigation risk” and thus the FEC had a rational basis to fail to enforce. Yet an 

agency, “by definition, abuses its discretion when it makes an error of law.” 

Crossroads GPS v. FEC, 788 F.3d 312, 321 (D.C. Cir. 2015). Accordingly, as the 

FEC’s incorrect interpretation of law informed its discretionary decision, that 

decision is necessarily arbitrary and capricious. 

B. Enforcement was Not Futile

Similarly, the commissioners’ argument that enforcement was futile because 

CHGO was purportedly “defunct” does not justify the FEC’s dismissal. CHGO 

never terminated with the FEC, so it continues to exist as a political committee and 

thus is subject to FEC jurisdiction. 52 U.S.C. § 30103(d) (political committees 

may only terminate upon filing notice with the FEC).10

 10 Even though CHGO never registered as a political committee, it is one under law 

and thus cannot cease to exist until the FEC authorizes its termination. See 52 

U.S.C. § 30103(a) (imposing duty on groups already qualified as “committees” to 

file a “statement of organization”); see also Certification, MUR 5754 

(MoveOn.org) (July 19, 2006), available at

http://eqs.fec.gov/eqsdocsMUR/000058A6.pdf (finding group that had not 

registered as political committee in violation of FECA also failed to file reports 

required of political committees).

While the controlling 

commissioners cited CHGO’s supposed lack of money to pay a fine, that ignores 

the fact that three individuals fraudulently conveyed CHGO’s remaining assets to 

avoid enforcement and that the FEC may therefore garnish those funds, JA 716–

17, see also 28 U.S.C. § 3304(b)(1)(A), (B), and ignores the fact that the FEC can 

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48

seek nonmonetary remedies such as requiring corrected disclosures, as it has done 

in the past with defunct groups, JA 224–26. Further, even if the FEC could not 

seek enforcement directly against CHGO, the FEC is aware of CHGO’s agents, 

many of whom may be liable in their own right, and can order them to correct 

CHGO’s disclosures. Combat Veterans for Congress Political Action Comm. v. 

FEC, 983 F. Supp. 2d 1, 12 (D.D.C. 2013) (holding treasurer liable for failure to 

file reports required by the FECA), 52 U.S.C. §§ 30102(c), (d), 30104(a)(1).

Indeed, even if CHGO were truly defunct with no agents subject to FEC authority, 

the FEC could still remedy the violation by releasing the information it already 

has: the identities of CHGO’s contributors. Accordingly, CHGO’s defunct status 

cannot justify dismissal.

C. There is No Genuine Dispute about CHGO’s Political Committee 

Status

Lastly, the purported “novel legal issues” cited by the controlling 

commissioners to excuse themselves from deciding CHGO’s political committee 

status are irrelevant. The purported novel issues relate to the treatment of certain 

commissions paid to CHGO’s vendors: New Day and Mihalke. JA 883. The 

FEC, however, should have easily determined that CHGO was a political 

committee without even addressing the question of how to treat those 

commissions. CHGO declared that it was organized for political purposes, which 

alone is sufficient. Moreover, only by excluding the entirety of the sums paid to 

USCA Case #17-5049 Document #1681549 Filed: 06/27/2017 Page 61 of 84
49

these vendors, plus all the money paid to air CHGO’s electioneering 

communications, and the $1.1 million that Mihalke, Reed, and Berman accepted as 

a seemingly unjustified “fundraising commission,” does CHGO’s spending on 

unquestionably political activity fall below 50% of its total expenditures, the 

putative threshold before a group is no longer “extensive[ly]” engaged in 

campaigns. JA 754–55.

An organization has the “major purpose” of electing candidates even without 

engaging in extensive campaign activities if its organizational purpose is to engage 

in such campaigning. 2007 E&J at 5601, 5605 (the FEC will consider “internal 

documents about an organization’s mission” to determine major purpose). Here, 

CHGO’s internal documents admit that it was organized for the purpose of 

“win[ning] Senate seats.” JA 519. Ipso facto, CHGO is a political committee 

subject to the FECA’s reporting requirements. Neither the controlling 

commissioners nor the district court, however, addressed the evidence of CHGO’s 

organizational purpose. 

Moreover, even looking at CHGO’s activity, it was contrary to law to 

dismiss regardless of how the novel legal issues were resolved. Only by ignoring 

all of CHGO’s spending other than that used for express advocacy were the 

controlling commissioners able to claim the group’s spending on politics was less 

than 50%. JA 754–55. As a district court in this circuit recently found, however, 

USCA Case #17-5049 Document #1681549 Filed: 06/27/2017 Page 62 of 84
50

the FEC may not look solely to a group’s express advocacy communications in 

assessing its major purpose. CREW v. FEC, 209 F. Supp. 3d 77, 93 (D.D.C. 2016). 

At a minimum, some of CHGO’s advertisements were electioneering 

communications, and even a cursory glance at them demonstrates their purpose to 

influence elections. See JA 441, 444–47. Nevertheless, the controlling 

commissioners refused to count them because they impermissibly assumed those 

ads were not relevant to determining CHGO’s major purpose, just as they did in 

the prior CREW action. Only by doing so could they conclude that the “novel legal 

issues” had any determinate value.

The district court below failed to require the FEC to consider each ad 

individually because the CREW decision recognizing the legal error in excluding 

all non-express advocacy was issued after the FEC dismissed the CHGO 

complaint. JA 884. That timing, however, is irrelevant. The question is not 

whether the FEC comported with the CREW decision in 2016. It is whether the 

FEC permissibly interpreted judicial precedent to exclude CHGO’s non-express 

advocacy in determining its major purpose. The CREW decision shows that it was 

impermissible, both then and now. Accordingly, because the “novel legal issues” 

of the vendor commissions only are relevant if the FEC is already making the legal 

error of excluding CHGO’s electioneering communications, those commissions 

cannot justify dismissal here.

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51

Further, the supposedly “novel” legal issues are not novel at all. The FEC 

has previously considered how to apply commissions paid to create political ads 

and (reasonably) decided they count towards the cost of the reportable political 

activity. See, e.g., 11 C.F.R. §§ 104.20(a)(2)(i), (ii) (costs charged by “vendor” 

and “charges for broker” are attributable to the cost of communication). That is the 

only coherent solution—the controlling commissioners’ supposition that a 

commission paid to a vendor to create and place a political advertisement is not 

money spent on the advertisement is absurd. New Day received $250,050.72 in 

commissioners for its work on CHGO’s independent expenditures alone. JA 754. 

Adding just that amount to CHGO’s undisputed political spending puts CHGO 

over the purported 50% threshold, even without counting any money CHGO spent 

on electioneering communications. 

In sum, the district court was correct to refuse to adopt the commissioners’ 

statute of limitations and futility arguments, but wrong to find the purported “novel 

legal issues” were at all relevant to the substance of the question before the 

commissioners. The controlling commissioners’ interpretations of law were 

impermissible, and their analysis resting on them was arbitrary and capricious. 

While the FEC may not be bothered to seek enforcement here, CREW stands ready 

to vindicate its rights and the rights of millions of voters to know who has used 

CHGO to improperly shield their identities as they dumped millions into federal 

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52

elections. All that is needed is for the Court to find that the FEC’s dismissal below 

was contrary to law. 

CONCLUSION

The judgment of the district court should be reversed. CREW respectfully 

requests this Court declare that an FEC dismissal based on its prosecutorial 

discretion is “contrary to law” within the meaning of the FECA. Accordingly, 

CREW respectfully requests this Court find the dismissal below was contrary to 

law and order remand to the FEC for its consideration about whether it wishes to 

continue to refrain from pursing enforcement, or to conform with the Court’s 

judgment.

Respectfully submitted,

STUART C. McPHAIL

/s/ 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

Counsel for Citizens for Responsibility and 

Ethics in Washington and Melanie Sloan

USCA Case #17-5049 Document #1681549 Filed: 06/27/2017 Page 65 of 84
CERTIFICATE OF COMPLIANCE

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

P. 32(a)(7)(B)) because, excluding the parts of the document 

exempted by Fed. R. App. P. 32(f) and Circuit Rule 32(e)(1):

[ X ] this document contains [12,319] words, or

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

of] lines of text.

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

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

32(a)(6) because:

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

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

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

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

characters per inch and name of type style].

Dated: June 27, 2017 /s/ Stuart C. McPhail

Counsel for Appellants

USCA Case #17-5049 Document #1681549 Filed: 06/27/2017 Page 66 of 84
CERTIFICATE OF FILING AND SERVICE

I hereby certify that on this 27th day of June, 2017, I caused this Brief of 

Appellants and Joint Appendix to be filed electronically with the Clerk of the 

Court using the CM/ECF System, which will send notice of such filing to the 

following registered CM/ECF users:

Jacob Siler

Kevin Andrew Deeley

Greg J. Mueller

Harry Jacobs Summers

FEDERAL ELECTION COMMISSION

999 E street, N.W.

Washington, D.C. 20463

(202) 694-1650

Counsel for Appellee

I further certify that on this 27th day of June, 2017, I caused the required 

copies of the Brief of Appellants and Joint Appendix to be hand filed with the 

Clerk of the Court.

/s/ Stuart C. McPhail

Counsel for Appellant

USCA Case #17-5049 Document #1681549 Filed: 06/27/2017 Page 67 of 84
ADDENDUM

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Add. i

TABLE OF CONTENTS

Addendum Page

52 U.S.C. § 30109.............................................................................................Add. 1

CREW v. FEC, 

14-cv-1419 (CRC) (D.C Cir. Apr. 6, 2017) (unpublished)..................Add. 10

USCA Case #17-5049 Document #1681549 Filed: 06/27/2017 Page 69 of 84
Add. 1

52 U.C.S. § 30109

TITLE 52. VOTING AND ELECTIONS

SUBTITLE III. FEDERAL CAMPAIGN FINANCE

CHAPTER 301. FEDERAL ELECTION CAMPAIGNS

DISCLOSURE OF FEDERAL CAMPAIGN FUNDS

§ 30109. Enforcement 

(a) Administrative and judicial practice and procedure.

(1) Any person who believes a violation of this Act or of chapter 95 or 

chapter 96 of the Internal Revenue Code of 1954 [1986] [26 USCS §§ 

9001 et seq. or 9031 et seq.] has occurred, may file a complaint with the 

Commission. Such complaint shall be in writing, signed and sworn to by 

the person filing such complaint, shall be notarized, and shall be made 

under penalty of perjury and subject to the provisions of section 1001 of 

title 18, United States Code. Within 5 days after receipt of a complaint, 

the Commission shall notify, in writing, any person alleged in the 

complaint to have committed such a violation. Before the Commission 

conducts any vote on the complaint, other than a vote to dismiss, any 

person so notified shall have the opportunity to demonstrate, in writing, 

to the Commission within 15 days after notification that no action should 

be taken against such person on the basis of the complaint. The 

Commission may not conduct any investigation or take any other action 

under this section solely on the basis of a complaint of a person whose 

identity is not disclosed to the Commission.

(2) If the Commission, upon receiving a complaint under paragraph (1) or on 

the basis of information ascertained in the normal course of carrying out 

its supervisory responsibilities, determines, by an affirmative vote of 4 of 

its members, that it has reason to believe that a person has committed, or 

is about to commit, a violation of this Act or chapter 95 or chapter 96 of 

the Internal Revenue Code of 1954 [1986] [26 USCS §§ 9001 et seq. or 

9031 et seq.], the Commission shall, through its chairman or vice 

chairman, notify the person of the alleged violation. Such notification 

shall set forth the factual basis for such alleged violation. The 

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Add. 2

Commission shall make an investigation of such alleged violation, which 

may include a field investigation or audit, in accordance with the 

provisions of this section.

(3) The general counsel of the Commission shall notify the respondent of 

any recommendation to the Commission by the general counsel to 

proceed to a vote on probable cause pursuant to paragraph (4)(A)(i). 

With such notification, the general counsel shall include a brief stating 

the position of the general counsel on the legal and factual issues of the 

case. Within 15 days of receipt of such brief, respondent may submit a 

brief stating the position of such respondent on the legal and factual 

issues of the case, and replying to the brief of general counsel. Such 

briefs shall be filed with the Secretary of the Commission and shall be 

considered by the Commission before proceeding under paragraph (4).

(4)

(A)

(i) Except as provided in clauses [clause] (ii) and subparagraph 

(C), if the Commission determines, by an affirmative vote of 4 

of its members, that there is probable cause to believe that any 

person has committed, or is about to commit, a violation of this 

Act or of chapter 95 or chapter 96 of the Internal Revenue Code 

of 1954 [1986] [26 USCS §§ 9001 et seq. or 9031 et seq.], the 

Commission shall attempt, for a period of at least 30 days, to 

correct or prevent such violation by informal methods of 

conference, conciliation, and persuasion, and to enter into a 

conciliation agreement with any person involved. Such attempt 

by the Commission to correct or prevent such violation may 

continue for a period of not more than 90 days. The 

Commission may not enter into a conciliation agreement under 

this clause except pursuant to an affirmative vote of 4 of its 

members. A conciliation agreement, unless violated, is a 

complete bar to any further action by the Commission, 

including the bringing of a civil proceeding under paragraph 

(6)(A).

(ii) If any determination of the Commission under clause (i) occurs 

during the 45-day period immediately preceding any election, 

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Add. 3

then the Commission shall attempt, for a period of at least 15 

days, to correct or prevent the violation involved by the 

methods specified in clause (i).

(B)

(i) No action by the Commission or any person, and no 

information derived, in connection with any conciliation 

attempt by the Commission under subparagraph (A) may be 

made public by the Commission without the written consent of 

the respondent and the Commission.

(ii) If a conciliation agreement is agreed upon by the Commission 

and the respondent, the Commission shall make public any 

conciliation agreement signed by both the Commission and the 

respondent. If the Commission makes a determination that a 

person has not violated this Act or chapter 95 or chapter 96 of 

the Internal Revenue Code of 1954 [1986] [26 USCS §§ 9001 

et seq. or 9031 et seq.], the Commission shall make public such 

determination.

(C)

(i) Notwithstanding subparagraph (A), in the case of a violation of 

a qualified disclosure requirement, the Commission may—

(I) find that a person committed such a violation on the basis 

of information obtained pursuant to the procedures 

described in paragraphs (1) and (2); and

(II) based on such finding, require the person to pay a civil 

money penalty in an amount determined, for violations of 

each qualified disclosure requirement, under a schedule 

of penalties which is established and published by the 

Commission and which takes into account the amount of 

the violation involved, the existence of previous 

violations by the person, and such other factors as the 

Commission considers appropriate.

(ii) The Commission may not make any determination adverse to a 

person under clause (i) until the person has been given written 

notice and an opportunity to be heard before the Commission.

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Add. 4

(iii) Any person against whom an adverse determination is made 

under this subparagraph may obtain a review of such 

determination in the district court of the United States for the 

district in which the person resides, or transacts business, by 

filing in such court (prior to the expiration of the 30-day period 

which begins on the date the person receives notification of the 

determination) a written petition requesting that the 

determination be modified or set aside.

(iv) In this subparagraph, the term "qualified disclosure 

requirement" means any requirement of—

(I) subsections (a), (c), (e), (f), (g), or (i) of section 304 [52 

USCS § 30104]; or

(II) section 305 [52 USCS § 30105].

(v) This subparagraph shall apply with respect to violations that 

relate to reporting periods that begin on or after January 1, 

2000, and that end on or before December 31, 2018.

(5)

(A) If the Commission believes that a violation of this Act or of chapter 

95 or chapter 96 of the Internal Revenue Code of 1954 [1986] [26 

USCS §§ 9001 et seq. or 9031 et seq.] has been committed, a 

conciliation agreement entered into by the Commission under 

paragraphs (4)(A) may include a requirement that the person 

involved in such conciliation agreement shall pay a civil penalty 

which does not exceed the greater of $ 5,000 or an amount equal to 

any contribution or expenditure involved in such violation.

(B) If the Commission believes that a knowing and willful violation of 

this Act or of chapter 95 or chapter 96 of the Internal Revenue Code 

of 1954 [1986] [26 USCS §§ 9001 et seq. or 9031 et seq.] has been 

committed, a conciliation agreement entered into by the 

Commission under paragraph (4)(A) may require that the person 

involved in such conciliation agreement shall pay a civil penalty 

which does not exceed the greater of $ 10,000 or an amount equal to 

200 percent of any contribution or expenditure involved in such 

violation (or, in the case of a violation of section 320 [52 USCS § 

30122], which is not less than 300 percent of the amount involved in 

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Add. 5

the violation and is not more than the greater of $ 50,000 or 1,000 

percent of the amount involved in the violation).

(C) If the Commission by an affirmative vote of 4 of its members, 

determines that there is probable cause to believe that a knowing 

and willful violation of this Act which is subject to subsection (d), 

or a knowing and willful violation of chapter 95 or chapter 96 of the 

Internal Revenue Code of 1954 [1986] [26 USCS §§ 9001 et seq. or 

9031 et seq.], has occurred or is about to occur, it may refer such 

apparent violation to the Attorney General of the United States 

without regard to any limitations set forth in paragraph (4)(A).

(D) In any case in which a person has entered into a conciliation 

agreement with the Commission under paragraph (4)(A), the 

Commission may institute a civil action for relief under paragraph 

(6)(A) if it believes that the person has violated any provision of 

such conciliation agreement. For the Commission to obtain relief in 

any civil action, the Commission need only establish that the person 

has violated, in whole or in part, any requirement of such 

conciliation agreement.

(6)

(A) If the Commission is unable to correct or prevent any violation of 

this Act or of chapter 95 or chapter 96 of the Internal Revenue Code 

of 1954 [1986] [26 USCS §§ 9001 et seq. or 9031 et seq.], by the 

methods specified in paragraph (4), the Commission may, upon an 

affirmative vote of 4 of its members, institute a civil action for 

relief, including a permanent or temporary injunction, restraining 

order, or any other appropriate order (including an order for a civil 

penalty which does not exceed the greater of $ 5,000 or an amount 

equal to any contribution or expenditure involved in such violation) 

in the district court of the United States for the district in which the 

person against whom such action is brought is found, resides, or 

transacts business.

(B) In any civil action instituted by the Commission under subparagraph 

(A), the court may grant a permanent or temporary injunction, 

restraining order, or other order, including a civil penalty which 

does not exceed the greater of $ 5,000 or an amount equal to any 

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Add. 6

contribution or expenditure involved in such violation, upon a 

proper showing that the person involved has committed, or is about 

to commit (if the relief sought is a permanent or temporary 

injunction or a restraining order), a violation of this Act or chapter 

95 or chapter 96 of the Internal Revenue Code of 1954 [1986] [26 

USCS §§ 9001 et seq. or 9031 et seq.].

(C) In any civil action for relief instituted by the Commission under

subparagraph (A), if the court determines that the Commission has 

established that the person involved in such civil action has 

committed a knowing a willful violation of this Act or of chapter 95 

or chapter 96 of the Internal Revenue Code of 1954 [1986] [26 

USCS §§ 9001 et seq. or 9031 et seq.], the court may impose a civil 

penalty which does not exceed the greater of $ 10,000 or an amount 

equal to 200 percent of any contribution or expenditure involved in 

such violation (or, in the case of a violation of section 320 [52 

USCS § 30122], which is not less than 300 percent of the amount 

involved in the violation and is not more than the greater of $ 

50,000 or 1,000 percent of the amount involved in the violation).

(7) In any action brought under paragraph (5) or (6), subpenas for witnesses 

who are required to attend a United States district court may run into any 

other district.

(8)

(A) Any party aggrieved by an order of the Commission dismissing a 

complaint filed by such party under paragraph (1), or by a failure of 

the Commission to act on such complaint during the 120-day period 

beginning on the date the complaint is filed, may file a petition with 

the United States District Court for the District of Columbia.

(B) Any petition under subparagraph (A) shall be filed, in the case of a 

dismissal of a complaint by the Commission, within 60 days after the 

date of the dismissal.

(C) In any proceeding under this paragraph the court may declare that 

the dismissal of the complaint or the failure to act is contrary to law, 

and may direct the Commission to conform with such declaration 

within 30 days, failing which the complainant may bring, in the 

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Add. 7

name of such complainant, a civil action to remedy the violation 

involved in the original complaint.

(9) Any judgment of a district court under this subsection may be appealed 

to the court of appeals, and the judgment of the court of appeals 

affirming or setting aside, in whole or in part, any such order of the 

district court shall be final, subject to review by the Supreme Court of 

the United States upon certiorari or certification as provided in section 

1254 of title 28, United States Code.

(10) [Repealed]

(11) If the Commission determines after an investigation that any person 

has violated an order of the court entered in a proceeding brought under 

paragraph (6), it may petition the court for an order to hold such person 

in civil contempt, but if it believes the violation to be knowing and 

willful it may petition the court for an order to hold such person in 

criminal contempt.

(12)

(A) Any notification or investigation made under this section shall not be 

made public by the Commission or by any person without the written 

consent of the person receiving such notification or the person with 

respect to whom such investigation is made.

(B) Any member or employee of the Commission, or any other person, 

who violates the provisions of subparagraph (A) shall be fined not 

more than $ 2,000. Any such member, employee, or other person 

who knowingly and willfully violates the provisions of subparagraph 

(A) shall be fined not more than $ 5,000.

(b)Notice to persons not filing required reports prior to institutions of 

enforcement action; publication of identity of persons and unfiled reports. 

Before taking any action under subsection (a) against any person who has 

failed to file a report required under section 304(a)(2)(A)(iii) [52 USCS § 

30104(a)(2)(A)(iii)] for the calendar quarter immediately preceding the 

election involved, or in accordance with section 304(a)(2)(A)(i) [52 USCS § 

30104(a)(2)(A)(i)], the Commission shall notify the person of such failure to 

file the required reports. If a satisfactory response is not received within 4 

business days after the date of notification, the Commission shall, pursuant 

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Add. 8

to section 311(a)(7) [52 USCS § 30111(a)(7)], publish before the election 

the name of the person and the report or reports such person has failed to 

file.

(c) Reports by the Attorney General of apparent violations. Whenever the 

Commission refers an apparent violation to the Attorney General, the 

Attorney General shall report to the Commission any action taken by the 

Attorney General regarding the apparent violation. Each report shall be 

transmitted within 60 days after the date the Commission refers an apparent 

violation, and every 30 days thereafter until the final disposition of the 

apparent violation.

(d)Penalties; defenses; mitigation of offenses.

(1)

(A) Any person who knowingly and willfully commits a violation of any 

provision of this Act which involves the making, receiving, or 

reporting of any contribution, donation, or expenditure—

(i) aggregating $ 25,000 or more during a calendar year shall be 

fined under title 18, United States Code, or imprisoned for not 

more than 5 years, or both; or

(ii) aggregating $ 2,000 or more (but less than $ 25,000) during a 

calendar year shall be fined under such title, or imprisoned for 

not more than 1 year, or both.

(B) In the case of a knowing and willful violation of section 316(b)(3) 

[52 USCS § 30118(b)(3)], the penalties set forth in this subsection 

shall apply to a violation involving an amount aggregating $ 250 or 

more during a calendar year. Such violation of section 316(b)(3) [52 

USCS § 30118(b)(3)] may incorporate a violation of section 317(b), 

320, or 321 [52 USCS § 30119(b), 30122, or 30123].

(C) In the case of a knowing and willful violation of section 322 [52

USCS § 30124], the penalties set forth in this subsection shall apply 

without regard to whether the making, receiving, or reporting of a 

contribution or expenditure of $ 1,000 or more is involved.

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Add. 9

(D) Any person who knowingly and willfully commits a violation of 

section 320 [52 USCS § 30122] involving an amount aggregating 

more than $ 10,000 during a calendar year shall be—

(i) imprisoned for not more than 2 years if the amount is less than 

$ 25,000 (and subject to imprisonment under subparagraph (A) 

if the amount is $ 25,000 or more);

(ii) fined not less than 300 percent of the amount involved in the 

violation and not more than the greater of—

(I) $ 50,000; or

(II) 1,000 percent of the amount involved in the violation; or

(iii) both imprisoned under clause (i) and fined under clause (ii).

(2) In any criminal action brought for a violation of any provision of this Act 

or of chapter 95 or chapter 96 of the Internal Revenue Code of 1954 

[1986] [26 USCS §§ 9001 et seq. or 9031 et seq.], any defendant may 

evidence their lack of knowledge or intent to commit the alleged 

violation by introducing as evidence a conciliation agreement entered 

into between the defendant and the Commission under subsection 

(a)(4)(A) which specifically deals with the act or failure to act 

constituting such violation and which is still in effect.

(3) In any criminal action brought for a violation of any provision of this Act 

or of chapter 95 or chapter 96 of the Internal Revenue Code of 1954 

[1986] [26 USCS §§ 9001 et seq. or 9031 et seq.], the court before which 

such action is brought shall take into account, in weighing the 

seriousness of the violation and in considering the appropriateness of the 

penalty to be imposed if the defendant is found guilty, whether—

(A) the specific act or failure to act which constitutes the violation for 

which the action was brought is the subject of a conciliation 

agreement entered into between the defendant and the Commission 

under subparagraph (a)(4)(A);

(B) the conciliation agreement is in effect; and

(C) the defendant is, with respect to the violation involved, in 

compliance with the conciliation agreement.

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Case 1:14-cv-01419-CRC Document 74 Filed 04/06/17 Page 1 of 6

Add. 10

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CITIZENS FOR RESPONSIBILITY AND 

ETHICS IN WASHINGTON, et al., 

Plaintiffs, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant. 

Case No. I: 14-cv-0 1419 (CRC) 

MEMORANDUM OPINION AND ORDER 

Plaintiffs have moved this Court to order the Federal Election Commission ("FEC") to 

show cause why it should not be held to have violated this Court's September 19,2016 Order 

directing the FEC to reevaluate its decisions not to investigate two political advocacy 

organizations. For the reasons that follow, the Court will deny the motion. 

I. Background 

In September 2016, the Court issued a Memorandum Opinion and Order granting 

summary judgment for Plaintiffs, who had challenged the FEC's decisions (by tie vote) not to 

investigate two organizations-American Action Network ("AAN") and Americans for Jobs 

Security ("AJS")-for failing to register as political committees. See Mem. Op., ECF No. 52; 

Order, ECF No. 53. The FEC's decisions had turned on its determination that AAN and AJS did 

not have an election-related "major purpose,'" and in reaching that conclusion, the FEC had 

I An organization must register as a political committee (I) when it contributes or spends 

more than $1,000 in a calendar year for the purpose of influencing a federal election, see 52 

U.S.C. § 30101(4)(A), and (2) when its "major purpose" is "the nomination or election ofa 

candidate." Buckley v. Valeo, 424 U.S. 1,79. It was undisputed that AAN and AJS had 

satisfied the first condition, so the legality of the FEC's dismissal decisions tumed on the 

Commission's analysis orlhe "major purpose" test. 

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considered the organizations' spending on express advocacy (ads "expressly advocating the 

election or defeat of a clearly identified candidate," 52 U .S.C. § 30 I 01) but not their spending on 

"electioneering communications" (ads broadcast in the lead-up to elections that reference federal 

candidates but do not expressly advocate for or against them, id. § 30104(1)(1)-(3)). Plaintiffs 

challenged the FEe's decision to treat the organizations' electioneering communications 

spending as essentially irrelevant to the major-purpose inquiry. 

In its Opinion, the Court largely agreed with Plaintiffs: It declared "contrary to law" the 

Commissioners' decision to exclude from the category of spending showing a campaign-related 

major purpose all spending on communications that did not meet the technical definition of 

"express advocacy." Id. at 23. The Court also deemed arbitrary and "contrary to law" the 

"Commissioners' refusal to give any weight whatsoever to an organizations' relative spending in 

the most recent calendar year." l.Q., at 25-26. Having identified these two legal errors, the Court 

ordered the FEC to "conform with the Court's declaration within 30 days," pursuant to the 

judicial review provisions of the Federal Election Campaign Act ("FECA"). Order, ECF No. 53 

(citing 52 U.S.C. § 30 I 09). However, the Court did not compel the Commission to arrive at a 

different result-i.e., to reverse course and commence an investigation into whether AAN or AJS 

had unlawfully failed to register as political committees. 

A. AAN Matter on Remand 

On remand, and within the 30-day window set out in the Order, the FEC reopened the 

AAN matter, notified the parties, and reconsidered the record in light of the Court's Order. PIs.' 

Mot. for Order to Del'. to Show Cause ("Show Cause Mot. "), Ex. 1. However, once again, the 

Commissioners cast a tie vote on whether there was reason to believe AAN had unlawfully failed 

to register as a political committee. FEC, Certification, MUR 6589R (American Action 

2 

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Network) at I, http://eqsJec.gov/eqsdocsMUR/16044401006.pdf). 

As is customary, the "controlling group" of Commissioners-i.e., those finding there was 

no reason to believe there had been a violation-issued a statement of reasons for their decision. 

See PIs.' Show Cause Mot., Ex. 2 ("Controlling Commissioners' Statement"). In that statement, 

which numbers nineteen single-spaced pages, the Commissioners: summarized this Court's 

September Opinion, including the two legal errors the Court had isolated, id. at 4-5; briefly 

outlined a new framework for evaluating whether AAN's electioneering communications (i.e., 

non-express advocacy) indicated a major purpose to nominate or elect a federal candidate, id. at 

5-6; and then applied that framework in a fact-intensive manner to each of AAN's electioneering 

communications, id. at 6-17. Whereas, prior to the Court's Order, the FEC had found no 

electioneering communications to indicate an election-related major purpose, it now identified 

four. For instance, the Commissioners explained that one ad, which "appear[ed] to be more 

about creating a negative impression of[a candidate for federal office] in the mind of the viewer 

than on changing [the candidate's] legislative behavior," was "indicative of a major purpose to 

nominate or elect federal candidates." J.Q, at 12. 

After analyzing the ads, the Commissioners added the amounts AAN spent on the four 

electioneering communications identified as relevant to the amounts the organization spent on 

express advocacy, and concluded that "AAN's total outlay on ads indicating a purpose to 

nominate or elect federal candidates would still constitute only 26%-well under half-of its 

overall spending." J.Q, at 17. That finding, together with a "consideration of AAN's mode of 

organization [and] official statements," led the Commissioners to conclude that there was no 

"reason to believe" AAN had violated FECA's registration and reporting requirements. 

3 

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B. AJS Matter on Remand2 

Plaintiffs now move the Court for an order to show cause, asserting that the FEC "failed 

to act in conformity with" the Court's September Order. Pis.' Show Cause Mot. I. 

II. Legal Standard 

Orders to show cause may be issued at a court's discretion. See Watkins v. Washington, 

511 F.2d 404, 406 (D.C. Cir. 1975). However, at least where employed to enforce a court's 

previous order, such an order is generally appropriate "where an administrative agency plainly 

neglects the terms ofa mandate." Int'l Ladies' Garment Workers' Union v. Donovan, 733 F.2d 

920, 922 (D.C. Cir. 1984). And in any event, a motion seeking to enforce a judgment "is not the 

proper means" to challenge an agency's action where the grounds for that challenge exceed the 

scope of the relevant judgment. Heartland Reg'l Med. Ctr. v. Leavitt, 415 F.3d 24, 30 (D.C. Cir. 

2005). 

III. Analysis 

Plaintiffs' motion fails for at least two separate reasons.] First, although Plaintiffs 

2 The Court has redacted its discussion of the AJS matter from the public version of this 

Opinion under the confidentiality provisions of FECA. See 52 U.S.c. § 3010 1 (a)(12)(A). An 

unredacted version will be filed under seal. 

3 In addition to the rationales outlined below, the Cou11 questions whether a motion for an 

order to show cause is ever an appropriate mechanism for challenging the FEC's compliance 

with a court's contrary-to-Iaw declaration. FECA's text indicates that where the FEC has failed 

to comply with such a declaration, an aggrieved party shall "bring ... a civil action to remedy 

4 

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summarily assert that the FEC "failed to act in conformity with" the Court's September Order, 

Pis.' Show Cause Mot. 1, their arguments are largely untethered to any declarations of this 

Court. For instance, Plaintiffs argue that the Commissioners' newly articulated framework relies 

on a misreading of McConnell v. FEC, 540 U.S. 93 (2003), see Pis.' Show Cause Mot. 6-12, and 

that the application of that framework was arbitrary and capricious, see id. at 12-21. Those are 

new arguments, unrelated to anything this Court resolved in its previous ruling, and they are 

properly taken up in a separate suit. See Heartland, 415 F.3d at 30. Indeed, Plaintiffs have filed 

such a suit, see Citizens for Responsibility and Ethics in Washington v. FEC, Case No. 16-2255, 

and there, the Court may heal' Plaintiffs' newly developed arguments. 

Second, to the extent Plaintiffs do mean to argue that the FEC has failed to comply with 

this Court's Order, that contention is off the mark. With respect to the AAN matter, the FEC 

reopened it, developed a new framework for evaluating which expenditures suggested an 

election-related purpose, and applied that new framework to AAN's ads. Critically, the new 

framework the FEC developed was free of the legal errors identified in this Court's previous 

Opinion and Order. The FEC no longer excluded as irrelevant to the major-purpose inquiry, on a 

categorical basis, all spending on electioneering communications (i.e., non-express advocacy).4 

Instead, it left open the possibility that at least some of the spending on those ads might indicate 

the violation involved in the original complaint." 52 U.S.C. § 30I09(8)(C) (emphasis added). 

This suggests that the proper procedure for challenging compliance with a court order issued 

under FECA's judicial review mechanism is the filing of a new suit, not a motion to enforce the 

earlier judgment. 

4 The Commissioners also made clear that their determination did not turn on the 

application of the "lifetime-only" rule, which the Court had considered arbitrary and capricious, 

at least as applied to AJS. See Controlling Commissioners' Statement 17 n.52 (HEven if we 

considered AAN's spending solely in a single year [as opposed to over its two-year lifetime] the 

amount of its spending that indicates a purpose to nominate or elect federal candidates would 

constitute less than 28% of its total spending in that time period."). 

5 

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a campaign-related major purpose. And it identified four such ads that did indicate such a 

purpose. Plaintiffs suggest that the FEC failed to comply with this Court's Order because their 

decision "resulted in ... finding many or even most of AAN's electioneering communications 

[to be] not electoral." PIs.' Show Cause Mot. 7. But the Court never ordered the FEC to reach a 

particular result, or to consider any particular ad--or any proportion of electioneering 

communications-election-related. Instead, the Court directed the FEC to reconsider its decision 

without "exclud[ing] from its [major purpose] consideration all non-express advocacy." Mem. 

Op. at 23. The FEC did just that. 

IV. Conclusion 

For the reasons outlined above, it is hereby 

ORDERED that Plaintiffs' Motion for an Order to Show Cause is DENIED. 

It. a 

United States District Judge 

Date: April 6, 2017 

6 

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