RECORD NO. 18-5261

THE LEX GROUPDC ♦ 1050 Connecticut Avenue, N.W. ♦ Suite 500, #5190 ♦ Washington, D.C. 20036

(202) 955-0001 ♦ (800) 856-4419 ♦ 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; NICHOLAS MEZLAK,

Plaintiffs - Appellees,

v.

FEDERAL ELECTION COMMISSION,

Defendant - Appellee.

----------------------------------------------------------------------------

CROSSROADS GRASSROOTS POLICY STRATEGIES,

Intervenor Defendant - Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF OF APPELLEES

Stuart McPhail

Adam J. Rappaport

Nikhel S. Sus

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON

1101 K Street, NW, Suite 201

Washington, DC 20005

(202) 408-5565

Counsel for Plaintiffs - Appellees

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

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

and Ethics in Washington and Nicholas Mezlak hereby certify as follows: 

A. Parties and Amici. Intervenor-Defendant Appellant is Crossroads 

Grassroots Policies Strategies (“Crossroads”). Plaintiffs-Appellees are Citizens for 

Responsibility and Ethics in Washington (“CREW”), a non-profit corporation, and 

Nicholas Mezlak. The Federal Election Commission was the defendant below but 

did not appeal and has filed notice that it does not intend to file a brief in this 

matter. There were no amici curiae in the district court. Senate Majority Leader 

Mitch McConnell; the U.S. Chamber of Commerce; the Institute for Free Speech; 

and Free Speech Coalition, Free Speech Defense and Education Fund, Citizens 

United, Citizens United Foundation, DownsideDC.org, Downsize DC Foundation, 

National Right to Work Committee, U.S. Constitutional Rights Legal Defense 

Fund, Gun Owners of America, Inc., Gun Owners Foundation, Public Advocates 

of the United States, Policy Analysis Center, Conservative Legal Defense and 

Education Fund, and the Senior Citizens League have filed briefs as amicus curiae 

on behalf of Appellant. Appellees understand additional amici curiae may appear 

in this matter.

B. Rulings Under Review. The rulings under review are the district 

court’s March 22, 2017 order and accompanying memorandum opinion, ECF Dkt. 

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Nos. 21, 22, and the district court’s August 3, 2018 judgment and memorandum 

opinion, ECF Dkt. Nos. 42, 43, in CREW v. FEC, No. 16-cv-00259-BAH (Howell, 

J.). The March 22, 2017 memorandum opinion is available at 243 F. Supp. 3d 91 

and is reprinted in the Joint Appendix (“JA”) at __. The March 22, 2017 order is 

printed in the JA at ___. The August 3, 2018 memorandum opinion is available at 

316 F. Supp. 3d 349 and reprinted in the JA at ____. The August 3, 2018 judgment 

is reprinted in the JA at ___. 

C. Related Cases. This case was previously before this Court, which 

issued a per curiam opinion denying Crossroads’s request for an emergency stay 

pending appeal of the district court’s judgment. See CREW v. FEC, 904 F.3d 1014 

(D.C. Cir. 2018) (per curiam) (Henderson, Millet, and Wilkins, JJ.). This case was 

also before the United States Supreme Court on Crossroads’s emergency motion 

for a stay pending appeal, which similarly denied Crossroads’s request. See 

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

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CORPORATE DISCLOSURE STATEMENT 

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

26.1, plaintiff-appellee 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 principal 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 independent expenditures, 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 ....................................................... iii 

TABLE OF AUTHORITIES .................................................................................... vi 

GLOSSARY ............................................................................................................. xv 

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

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

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

STATEMENT OF THE CASE .................................................................................. 2 

I. The FECA’s Unambiguous Reporting Requirements ........................... 2 

II. The Regulation’s Conflicting Requirement .......................................... 7 

III. The Administrative Proceeding and Litigation Below ......................... 9 

IV. Post-Judgment Proceedings ................................................................. 14 

SUMMARY OF THE ARGUMENT ...................................................................... 16 

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

I. Standard of Review ............................................................................. 20 

II. The Regulation Conflicts with the FECA ........................................... 20 

A. The Statutory Text Alone Proves the Regulation is 

Invalid ....................................................................................... 21 

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B. Crossroads’s Attempts to Manufacture Ambiguity Fail ........... 27 

C. Even if There Were Ambiguity, The Regulation Was Not 

a Permissible Construction ....................................................... 36 

D. The District Court Properly Invalidated 11 C.F.R. 

§ 109.10(e)(1)(vi) ...................................................................... 44 

III. CREW Exhausted Administrative Remedies Though It Need 

Not Have and Its Attempt at Exhaustion was Futile ........................... 46 

IV. CREW Had Standing Below ............................................................... 50 

V. Crossroads, However, Does Not Have Standing To Bring This 

Appeal.................................................................................................. 52 

CERTIFICATE OF COMPLIANCE 

CERTIFICATE OF FILING AND SERVICE 

ADDENDUM 

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TABLE OF AUTHORITIES 

Page(s) 

CASES 

AFL-CIO v. FEC, 

 333 F.3d 168 (D.C. Cir. 2003) ....................................................................... 39 

Allied-Signal Inc. v. Nuclear Regulatory Comm’n, 

 988 F.2d 146 (D.C. Cir. 1993) ....................................................................... 14 

Am. Library Ass’n v. Barr, 

 956 F.2d 1178 (D.C. Cir. 1992) ..................................................................... 53 

ANSWER Coal. v. DC, 

 798 F. Supp. 2d 134 (D.D.C. 2011) ......................................................... 53, 54 

Ashton v. Pierce, 

 716 F.2d 56 (D.C. Cir. 1983) ......................................................................... 38 

Ass’n of Flight Attendants v. Chao-CWA, 

 493 F.3d 155 (D.C. Cir. 2007) ....................................................................... 48 

AT&T Co. v. FCC, 

 978 F.2d 727 (D.C. Cir. 1992) ........................................................... 48, 49, 51 

Avocados Plus Inc. v. Veneman, 

 370 F.3d 1243 (D.C. Cir. 2004) ............................................................... 20, 48

Barnhart v. Walton, 

 535 U.S. 212 (2002)....................................................................................... 23

Bismullah v. Gates, 

 551 F.3d 1068 (D.C. Cir. 2009) ......................................................... 38, 39, 40

Bluman v. FEC, 

 800 F. Supp. 2d 281 (D.D.C. 2011) ................................................................. 5

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Buckley v. Valeo, 

 424 U.S. 1 (1976) ...................................................................3, 4, 5, 33, 35, 41

Califano v. Yamasaki, 

 442 U.S. 682 (1979)....................................................................................... 46 

Camp v. Pitts, 

 411 U.S. 138 (1973)....................................................................................... 32 

Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk A/S, 

 566 U.S. 399 (2012)....................................................................................... 30 

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

 511 U.S. 164 (1994)................................................................................. 24, 40 

cf. ANSWER Coal. v. DC, 

 589 F.3d 433 (D.C. Cir. 2009) ....................................................................... 53 

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 

 467 U.S. 837 (1984)........................................................ 20, 21, 24, 30, 35, 36

Citizens United v. FEC, 

 558 U.S. 310 (2010)................................................................... 5, 9, 35, 40, 42

Clapper v. Amnesty Int’l, USA, 

 568 U.S. 398 (2013)....................................................................................... 53 

Coburn v. McHugh, 

 679 F.3d 924 (D.C. Cir. 2012) ....................................................................... 48 

Council for Urological Interests v. Burwell, 

 790 F.3d 212 (D.C. Cir. 2015) ........................................................... 32, 36, 37 

CREW v. FEC, 

 892 F.3d 434 (D.C. Cir. 2018) ....................................................................... 50 

CREW v. FEC, 

 904 F.3d 1014 (D.C. Cir. 2018) ................ 7, 15, 16, 17, 19, 24, 27, 35, 39, 51 

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Crossroads GPS v. FEC, 

 788 F.3d 312 (D.C. Cir. 2015) ................................................................. 12, 52 

Darby v. Disneros, 

 509 U.S. 137 (1993)....................................................................................... 49 

FEC v. Akins, 

 524 U.S. 11 (1998)......................................................................................... 51 

FEC v. Christian Coal., 

 965 F. Supp. 66 (D.D.C. 1997) ...................................................................... 50 

FEC v. DSCC, 

 454 U.S. 27 (1981)......................................................................................... 39 

FEC v. Furgatch, 

 807 F.2d 857 (9th Cir. 1987) ......................................................................... 29

FEC v. Mass. Citizens for Life (“MCFL”), 

 479 U.S. 238 (1986)...........................................................5, 17, 24, 25, 26, 35 

FEC v. O’Donnell, 

 209 F. Supp. 3d 727 (D. Del. 2016) .............................................................. 50 

FEC v. Ted Haley Cong. Comm., 

 852 F.2d 1111 (9th Cir. 1988) ....................................................................... 39 

Forest Cnty. Potawatomi Cmmty v. United States, 

 270 F. Supp. 3d 174 (D.D.C. 2017) ............................................................... 32 

Hays v. Sebelius, 

 589 F.3d 1279 (D.C. Cir. 2009) ..................................................................... 28 

Hollingsworth v. Perry, 

 570 U.S. 693 (2013)....................................................................................... 52 

Larouche v. FEC, 

 28 F.3d 137 (D.C. Cir. 1994) ......................................................................... 50 

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Liberty Mut. Ins. Co. v. Travelers Indem. Co., 

 78 F.3d 639 (D.C. Cir. 1996) ......................................................................... 52 

Matthew A. Goldstein, PLLC v. U.S. Dep’t of State, 

 851 F.3d 1 (D.C. Cir. 2017) ........................................................................... 53 

McConnell v. FEC, 

 540 U.S. 93 (2003)......................................................................................... 35

McCutcheon v. FEC, 

 572 U.S. 185 (2014)............................................................................... 5, 8, 42 

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

 463 U.S. 29 (1983)......................................................................................... 36 

Murphy Expl. and Prod. Co. v. U.S. Dep’t of Interior, 

 270 F.3d 957 (D.C. Cir. 2001) ................................................................. 48, 51 

Mylan Pharm., Inc. v. Shalala, 

 81 F. Supp. 2d 30 (D.D.C. 2000) ............................................................. 30, 31

N.H. Motor Transp. Ass’n v. Rowe, 

 448 F.3d 66 (1st Cir. 2006) ............................................................................ 31 

Nader v. FEC, 

 725 F.3d 226 (D.C. Cir 2013) ........................................................................ 53 

Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs, 

 145 F.3d 1399 (D.C. Cir. 1998) ............................................................... 20, 46 

NCPAC v. FEC, 

 626 F.2d 953 (D.C. Cir. 1980) ....................................................................... 39 

NLRB Union v. FLRA, 

 834 F.2d 191 (D.C. Cir. 1987) ................................................................. 49, 51 

NLRB v. SW General, Inc., 

 137 S. Ct. 929 (2017) ..................................................................................... 24 

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Novicki v. Cook, 

 946 F.2d 938 (D.C. Cir. 1991) ....................................................................... 20

P&V Enter. v. U.S. Army Corps of Eng’rs, 

 516 F.3d 1021 (D.C. Cir. 2008) ............................................................... 51-52 

Paralyzed Veterans of Am. v. U.S. Dep’t of Trans., 

 909 F.3d 438 (D.C. Cir. 2018) ....................................................................... 20 

Pereira v. Sessions, 

 138 S. Ct. 2105 (2018) ............................................................................. 16, 24

Perot v. FEC, 

 97 F.3d 553 (D.C. Cir. 1996) ................................................................... 13, 49

Pillsbury v. United Eng’g Co., 

 342 U.S. 197 (1952)....................................................................................... 31 

Ratzlaf v. United States, 

 510 U.S. 135 (1994)....................................................................................... 24

SAS Inst. Inc. v. Iancu, 

 138 S. Ct. 1348 (2018) ............................................................................. 30, 31

Seminole Tribe of Fl. v. Florida, 

 517 U.S. 44 (1996)......................................................................................... 26 

Shays v. FEC, 

 414 F.3d 76 (D.C. Cir. 2005) .......................................... 23, 36, 39, 40, 41, 51

Shearman v. Comm’r of Internal Revenue, 

 66 F.2d 256 (2d Cir. 1933) ............................................................................ 38

Spannaus v. FEC, 

 990 F.2d 643 (D.C. Cir. 1993) ....................................................................... 15

SpeechNow.org v. FEC, 

 599 F.3d 686 (D.C. Cir. 2010) ......................................................... 3, 5, 35, 42 

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Stanley v. Georgia, 

 394 U.S. 557 (1969)....................................................................................... 51 

Summers v. Earth Island Inst., 

 555 U.S. 488 (2009)................................................................................. 53, 54 

U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 

 513 U.S. 18 (1994)......................................................................................... 52 

U.S. ex rel. Oliver v. Philip Morris USA Inc., 

 763 F.3d 36 (D.C. Cir. 2014) ......................................................................... 32 

U.S. Telecomm. Assoc. v. FCC, 

 825 F.3d 674 (D.C. Cir. 2016) ....................................................................... 36

United States v. Hagler, 

 700 F.3d 1091 (7th Cir. 2012) ................................................................. 30-31 

United States v. Williams, 

 553 U.S. 285 (2008)....................................................................................... 35

Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 

 425 U.S. 748 (1976)....................................................................................... 43 

Van Hollen v. FEC, 

 811 F.3d 486 (D.C. Cir. 2016) ........................................................... 28, 29, 42 

Vote Choice, Inc. v. Di Stefano, 

 814 F. Supp. 186 (D.R.I. 1992) ..................................................................... 26 

Warger v. Shauers, 

 135 S. Ct. 521 (2014) ............................................................................... 34-35 

Weaver v. Fed. Motor Carrier Safety Admin., 

 744 F.3d 142 (D.C. Cir. 2014) ................................................................. 13, 51

Zuber v. Allen, 

 396 U.S. 168 (1969)................................................................................. 37, 41

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STATUTES 

2 U.S.C. § 434 .............................................................................................. 10-11, 47

2 U.S.C. § 434(b)(2)................................................................................................... 6 

2 U.S.C. § 434(c)(1) ................................................................................................... 9 

2 U.S.C. § 434(c)(2)(C) ............................................................................................. 9 

2 U.S.C. § 434(e) ......................................................................................... 32, 33, 37 

2 U.S.C. § 434(e)(1) ............................................................................................. 6, 37 

2 U.S.C. § 435 .......................................................................................................... 33 

5 U.S.C. § 706 ............................................................................................................ 1 

28 U.S.C. § 1331 ........................................................................................................ 1 

52 U.S.C. § 30101(4) ............................................................................................. 3, 5 

52 U.S.C. § 30101(8)(A) ........................................................................................ 4, 5 

52 U.S.C. § 30101(9)(A) .......................................................................................... 44 

52 U.S.C. § 30101(9)(B)(ii) ....................................................................................... 5 

52 U.S.C. § 30101(17) ......................................................................................... 3, 44 

52 U.S.C. § 30101(20) ............................................................................................... 5 

52 U.S.C. § 30102 ...................................................................................................... 2 

52 U.S.C. § 30103 ...................................................................................................... 3 

52 U.S.C. § 30104 .................................................................................................. 2, 3 

52 U.S.C. § 30104(b) ....................................................................................... 3, 5, 34 

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52 U.S.C. § 30104(b)(3)(A) ...........................................................3, 4, 17, 21, 30, 34 

52 U.S.C. § 30104(b)(6)(B)(iii) ............................................................................... 22 

52 U.S.C. § 30104(c) ..................................................................................... 3, 28, 33 

52 U.S.C. § 30104(c)(1) ......................... 1, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 

20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 33, 

34, 35, 37, 38, 39, 42, 44, 45, 46, 47, 52 

52 U.S.C. § 30104(c)(2) .......................................................... 6, 8, 11, 21, 25, 28, 46 

52 U.S.C. § 30104(c)(2)(A) ............................................................................... 22, 31 

52 U.S.C. § 30104(c)(2)(B) ..................................................................................... 22 

52 U.S.C. § 30104(c)(2)(C) ........................... 1, 4, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 

20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 32, 33, 

35, 37, 38, 39, 42, 44, 45, 46, 47, 52 

52 U.S.C. § 30104(c)(3) ........................................................................................... 34 

52 U.S.C. § 30104(f) ........................................................................................ 3, 5, 28 

52 U.S.C. § 30109(a)(8)(A) ................................................................................. 1, 12 

52 U.S.C. § 30109(a)(8)(B) ..................................................................................... 15 

REGULATIONS 

11 C.F.R. § 104.20(c)(7) .......................................................................................... 42 

11 C.F.R. § 109.10 ............................................................................................... 2, 41 

11 C.F.R. § 109.10(b)-(e) ......................................................................................... 11 

11 C.F.R. § 109.10(e)(1)(vi) ............................ 1, 7, 9, 10, 12, 13, 14, 18, 20, 21, 23, 

29, 35, 36, 38, 40, 41, 44, 46, 47, 48 

11 C.F.R. § 110.1(b)(6) ............................................................................................ 43 

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OTHER AUTHORITIES 

156 Cong. Rec. H4828 (June 24, 2010) ................................................................... 40 

156 Cong. Rec. S7388 (Sept. 23, 2010) ................................................................... 40 

68 Fed. Reg. 404 (Jan. 3, 2003) ............................................................................... 41 

FEC Index of Independent Expenditures, 1979-1980 (Nov. 1981) ......................... 34 

FEC provides guidance following U.S. District Court decision in 

CREW v. FEC, 316 F. Supp. 3d 349 (D.D.C. 2018) (Oct. 4, 2018) ........................ 16 

FEC, AO 2008-10 (Oct. 24, 2008) ........................................................................... 44 

FEC, Independent Expenditures (last visited Mar. 27, 2019).................................. 53 

FEC, Independent Expenditures Supporting/Opposing 2008 Presidential 

Campaigns by Candidate Through November 6, 2018 ........................................... 34 

FECA Amendments of 1979, Pub. L. 96-187, 93 Stat. 1339 (1980) .................. 7, 31 

First General Counsel’s Report 12–17, 

MUR 6696R (Crossroads) (Aug. 24, 2018) ....................................................... 14-15 

H.R. 5175, 111th Cong. (2010) ................................................................................ 40 

Josh Israel, Karl Rove’s Outside Spending Groups Migrate To 

New Dark Money Outfit, Thinkprogress (Aug. 11, 2016) ...................................... 54 

Legislative History of [FECA] Amendments of 1979 (1983) 

(“FECA 1979 History”) ............................................................................................. 7 

One Nation rising: Rove-linked group goes from no revenue to 

more than $10 million in 2015, Opensecrets News (Nov. 17, 2016) ...................... 54 

OpenSecrets.org, Total Outside Spending by Election Cycle, 

Excluding Party Committees ............................................................................... 9, 54 

Oxford English Dictionary 4 (2d ed. 1989) ............................................................. 30 

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S. 3628, 111th Cong. (2010) .................................................................................... 40 

 

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GLOSSARY 

APA Administrative Procedure Act 

BCRA Bipartisan Campaign Reform Act of 2002 

CREW Citizens for Responsibility and Ethics in Washington and 

Nicholas Mezlak 

Crossroads Crossroads Grassroots Policy Strategies 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

IE Independent Expenditure 

JA Joint Appendix 

OGC Federal Election Commission’s Office of General Counsel 

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STATEMENT OF JURISDICTION 

As discussed further below, this Court lacks jurisdiction over this appeal 

because the sole appellant here, Crossroads, suffered no concrete and non-mooted 

injury traceable to the judgment below. The district court, however, possessed 

jurisdiction under 5 U.S.C. § 706, 28 U.S.C. § 1331, and 52 U.S.C. 

§ 30109(a)(8)(A). 

STATEMENT OF ISSUES PRESENTED 

(1) Whether 52 U.S.C. § 30104(c)(1) and (c)(2)(C), which respectively require a 

person making qualifying IEs to disclose the source of “all contributions” 

aggregating over $200 each year, and to identify the contributions given “for 

the purpose of furthering an independent expenditure,” id. (emphasis added), 

unambiguously impose complementary disclosure obligations conflicting 

with 11 C.F.R. § 109.10(e)(1)(vi)’s requirement to only disclose 

contributions given “for the purpose of furthering the reported independent 

expenditure,” id. (emphasis added)? 

(2) Whether the district court erred in finding 11 C.F.R. § 109.10(e)(1)(vi) was 

not a reasonable interpretation of 52 U.S.C. § 30104(c)(1) and (c)(2)(C) 

where the FEC failed to explain or even recognize the divergence between 

the regulation and the statute’s dual commands? 

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(3) Whether the district court abused its discretion in finding that CREW 

exhausted administrative remedies before seeking suit by identifying in the 

FEC proceedings below the conflict between the statute’s two subsections 

and the regulation, and that such presentation was futile in any event, given 

the FEC’s refusal to address the conflict despite knowing of it for at least 

seven years? 

(4) Whether the FEC’s application of the regulation to CREW gave CREW 

standing to seek judicial review within six years? 

(5) Whether Crossroads has standing to bring this appeal where Crossroads 

faces no risk of enforcement for past IEs, and where it has and had no 

concrete plans to make future IEs? 

STATUTES AND REGULATIONS 

This litigation involves the FECA, 52 U.S.C. § 30104, and 11 C.F.R. 

§ 109.10, both reproduced in the Addendum. 

STATEMENT OF THE CASE 

I. The FECA’s Unambiguous Reporting Requirements 

Groups and individuals that engage in election-related activities are 

subjected to disclosure obligations under the FECA. Groups that engage in 

extensive campaigning, called “political committees,” are subject to continuous 

reporting, organizational, and record keeping requirements. 52 U.S.C. §§ 30102, 

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30103, 30104.1 Those who are less extensively involved are subjected to fewer 

requirements and report if and when they engage in federal election activity. See, 

e.g., 52 U.S.C. § 30104(c), (f). Nonetheless, to ensure voters “know[] who is 

speaking about a candidate and who is funding that speech,” SpeechNow.org v. 

FEC, 599 F.3d 686, 698 (D.C. Cir. 2010), the FECA guarantees the public robust 

disclosure from these entities. 

Relevant here, the FECA imposes two separate but complementary 

contribution disclosure obligations on anyone making more than $250 in 

“independent expenditures,” 52 U.S.C. § 30104(c)(1), defined as communications 

that expressly advocate for the election or defeat of a federal candidate, 52 U.S.C. 

§ 30101(17). 

First, the FECA requires: 

Every person (other than a political committee) who makes 

independent expenditures in an aggregate amount or value in excess 

of $250 during a calendar year shall file a statement containing the 

information required under subsection (b)(3)(A) for all

contributions received by such person. 

52 U.S.C. § 30104(c)(1) (emphasis added). The referenced subsection (b) governs 

disclosure reports for political committees, and subsection (b)(3)(A) covers the 

 

1 Political committees are groups with “contributions” or “expenditures” over 

$1,000 a year, 52 U.S.C. § 30101(4), and are under the control of a candidate or 

have a “major purpose” of influencing elections, Buckley v. Valeo, 424 U.S. 1, 79 

(1976).

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scope of contributors they must disclose. By the explicit cross-reference to 

subsection (b)(3)(A), subsection (c)(1) subjects non-political committees making 

IEs to the same contributor disclosure obligation that the FECA imposes on 

political committees. Specifically, the cross-reference requires an IE maker to: 

[I]dentif[y] . . . each . . . person (other than a political committee) 

who makes a contribution . . . whose contribution or contributions 

have an aggregate amount or value in excess of $200 within the 

calendar year . . . , together with the date and amount of any such 

contribution. 

52 U.S.C. § 30104(b)(3)(A) (emphasis added).2 

Second, the FECA further requires IE makers to identify in the statement 

required by subsection (c)(1) certain of those contributors: 

Statements required to be filed by this subsection shall be filed in 

accordance with subsection (a)(2), and shall include . . . the 

identification of each person who made a contribution in excess of 

$200 to the person filing such statement which was made for the 

purpose of furthering an independent expenditure. 

52 U.S.C. § 30104(c)(2)(C) (emphasis added). 

Each subsection requires the reporting of a “contribution,” which the FECA 

defines as a thing of value given “for the purpose of influencing any election for 

Federal office.” 52 U.S.C. § 30101(8)(A). Thus, as used in the FECA, the terms 

 

2

 Though the obligation is the same for political committees and IE makers, the 

effective result is not. All funds donated to a political committee are contributions 

because political committees are “by definition, campaign related,” Buckley, 424 

U.S. at 79, while only donations to IE makers intended to influence elections are 

contributions, 52 U.S.C. § 30101(8)(A). 

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“contribution” and donation are not synonymous: “contribution” covers only 

transfers intended to influence an election.3

As the Supreme Court held in construing these provisions, they respectively 

require non-political committees making more than $250 in IEs “to identify all 

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

influence elections . . . , and . . . to identify all persons making contributions over 

$200 who request that the money be used for independent expenditures.” FEC v. 

Mass. Citizens for Life (“MCFL”), 479 U.S. 238, 262 (1986). As with all FECA 

disclosure, these provisions serve compelling state interests including “providing 

the electorate with information about the sources of election-related spending” and 

“deter[ing] actual corruption and avoid[ing] the appearance of corruption.” 

McCutcheon v. FEC, 572 U.S. 185, 223 (2014); Citizens United v. FEC, 558 U.S. 

310, 369 (2010) (voters have compelling interest in knowing “the funding sources” 

for campaign ads); MCFL, 479 U.S. at 262; Buckley, 424 U.S. at 66–67, 76 (voters 

have compelling interest in being “fully informed” about “[t]he sources of a 

candidate’s financial support”); see also SpeechNow.org, 599 F.3d at 698; Bluman 

v. FEC, 800 F. Supp. 2d 281, 288 n.3 (D.D.C. 2011) (Kavanaugh, J. for three-

 

3 The FECA regulates several activities that influence an election, including 

funding IEs, electioneering communications, partisan voter drives, candidates, 

parties, and political committees. See, e.g., 52 U.S.C. § 30101(8)(A), (9)(B)(ii), 20, 

§ 30104(b), (f).

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judge District Court) (disclosure furthers “the government’s interest [ ] in 

preventing foreign influence over U.S. elections”). 

The complementary reporting obligations mirror the FECA’s pre-1979 dual 

reporting obligations for IEs.4

 First, as with today’s subsection (c)(1), the prior 

language required those making IEs to “file with the Commission . . . a statement 

containing . . . the information required of a candidate or political committee 

receiving . . . a contribution [in excess of $100].” 2 U.S.C. § 434(e)(1) (1976). The 

“information required” was the identity of qualifying contributors, as well as the 

date and amount of the contribution. Id. § 434(b)(2). Second, in a variant of 

today’s subsection (c)(2), the pre-1979 FECA required a contributor who gave to a 

non-political committee to also “file . . . a statement containing the information 

required of a person who makes a contribution in excess of $100 to a candidate or 

political committee.” Id. § 434(e)(1). The information required was again the 

contributor’s identity, and date and amount of the contribution. Id. § 434(b)(2). 

Thus, a contributor intending to support an IE by a non-political committee—any 

IE—was required to self-report even if the recipient never made an IE or ran a 

different IE from the type intended by the contributor. The 1979 amendments 

shifted that second reporting burden to the recipient of the contribution to 

 

4 The district court’s opinion provides a lengthy discussion of the history of the 

relevant portion of the FECA. JA___(Doc. 43 at 25–35). 

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“[s]implif[y] reporting without affecting meaningful disclosure.” Legislative 

History of [FECA] Amendments of 1979, 103 (1983), https://bit.ly/2BopE8F 

(“FECA 1979 History”). 

II. The Regulation’s Conflicting Requirement 

Congress directed the FEC to write new regulations reflecting the 

voluminous changes to the FECA contained in the 1979 amendments and gave the 

agency only two months to do so. FECA Amendments of 1979, Pub. L. 96-187 

§ 303, 93 Stat. 1339 (1980). In its haste, the FEC adopted a regulation purporting 

to implement subsections (c)(1) and (c)(2)(C) but that in fact failed to capture the 

dual requirements Congress imposed. That regulation, 11 C.F.R. 

§ 109.10(e)(1)(vi), completely ignored the reporting requirement of subsection 

(c)(1), and “sharply narrow[ed]” the reporting requirement under subsection 

(c)(2)(C), CREW v. FEC, 904 F.3d 1014, 1016 (D.C. Cir. 2018) (per curiam). In 

contrast to the statute, the regulation required only that the IE maker: 

[I]denti[fy] each person who made a contribution in excess of $200 to 

the person filing such report, which contribution was made for the 

purpose of furthering the reported independent expenditure. 

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

The FEC interpreted the regulation to require reporting only where a 

contributor “earmarked contributions for specific expenditures in the precise form 

set out in a particular report”—i.e., an “express link between the receipt and 

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independent expenditure.” JA___(Doc. 43 at 80; AR173). Accordingly, per the 

regulation, an IE maker need not disclose contributions given to “further the 

election of a particular federal candidate” and in fact used to make IEs to support 

that candidate’s election, JA___(AR174), nor disclose contributors who were 

solicited after watching “exampl[e]” IEs to fund IEs that made nearly identical 

attacks on the same candidates as in the examples, JA___(AR077–78, AR094–95, 

AR103–06, AR174–75). As a result, the regulation produced almost no reporting 

about the “sources of election-related spending.” McCutcheon, 572 U.S. at 223; 

see, e.g., JA___(Doc. 1-1 at 2) (Crossroads aired over $50 million in IEs in 2012 

but reported “0” in contributions). 

The FEC never issued an explanation for its abandonment of subsection 

(c)(1)’s disclosure requirement or its narrowing of subsection (c)(2)(C). Rather, its 

entire explanation for the regulation comprised a single sentence: “This section has 

been amended to incorporate the changes set forth in [52] U.S.C. [§] [30104](c)(1) 

and (2) regarding reporting requirements for persons, other than a political 

committee, who make independent expenditures.” JA___(AR1503). The 

rulemaking record also shows no reason for the regulation’s divergence from the 

FECA or, in fact, that the agency was even aware of this divergence. Rather, it 

shows that the FEC first proposed a regulation reflecting the language of 

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subsection (c)(2)(C), but inexplicably changed that language to the final form 

without prompting or discussion. See JA___(Doc. 43 at 38–40). 

Nonetheless, prior to Citizens United, 558 U.S. 310, the regulation’s 

divergence from the statute had little effect because there were very few IEs by 

non-political committees. See OpenSecrets.org, Total Outside Spending by 

Election Cycle, Excluding Party Committees, https://bit.ly/2OuygS0. That changed 

when Citizens United permitted corporate and union IEs. Id. Because of the 

regulation, however, the explosion in IEs following Citizens United was not 

accompanied by parallel disclosure: despite millions being spent on IEs by nonpolitical committees, virtually no contributions were reported. JA___(Doc. 27 at 

15–17 & nn. 5–11). This divergence brought new attention to 11 C.F.R. 

§ 109.10(e)(1)(vi), leading then-Congressman Van Hollen to petition for a 

rulemaking change in 2011 to bring the regulation into compliance with the statute. 

See JA___(AR172 & n.48). Even though the FEC staff acknowledged that the 

regulation conflicted with the statute, no action was taken. Id.

III. The Administrative Proceeding and Litigation Below 

The present action arises from the application of the invalid regulation to 

CREW in an administrative proceeding where CREW alleged that Crossroads 

violated 52 U.S.C. § 30104(c)(1), (c)(2)(C) (then 2 U.S.C. § 434(c)(1) and 

(c)(2)(C)), and 11 C.F.R. § 109.10(e)(1)(vi). JA___(AR101–02, AR109, AR110, 

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AR113).5 CREW explained that, under subsection (c)(1), individuals making 

qualified IEs must “identif[y] each person . . . who makes contributions totaling 

more than $200 in a calendar year to the person making the independent 

expenditure.” JA___(AR101 ¶ 14). CREW also explained that, under subsection 

(c)(2)(C), such individuals must further “identify each person who made a 

contribution in excess of $200 to the person filing the report ‘which was made for 

the purpose of furthering an independent expenditure.’” JA___(AR101 ¶ 15). 

Finally, CREW explained 11 C.F.R. § 109.10(e)(1)(vi) required disclosure of 

contributions given “for the purpose of furthering the reported” IE. JA___(AR102 

¶ 16). 

CREW’s complaint alleged that Crossroads violated each of these provisions 

when it received but did not disclose a multi-million dollar contribution to aid the 

election of a federal candidate, accepted millions more in “matching” contributions 

for the same purpose, and collected more contributions from individuals who were 

first shown example IEs of the type their money would fund. JA___(AR103–15). 

As CREW alleged the contributions met even the narrow test imposed under 11 

C.F.R. § 109.10(e)(1)(vi)—and thus necessarily the broader tests of subsections 

(c)(1) and (c)(2)(C)—CREW asserted Crossroads’s failures violated “2 U.S.C. 

 

5 Citations are to CREW’s amended administrative complaint. The cited portions 

also appear in CREW’s original administrative complaint. JA___(AR001–52).

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§ 434,” without limitation to subsection, “and 11 C.F.R. §§ 109.10(b)-(e).” 

JA___(AR109 ¶44, AR110 ¶ 50, AR113 ¶ 60). CREW requested the FEC order 

disclosure of these contributions. JA___(AR115). 

In addition, though the FEC could not strike the invalid regulation in the 

enforcement proceeding triggered by CREW’s complaint, and despite the recent 

commitment of three commissioners to not correct the regulation’s invalidity, 

JA___(AR172 & n.48), CREW also complained that the regulation “did not give 

full effect to [§ 30104’s] provisions” of subsections (c)(1) and (c)(2). 

JA___(AR102 ¶ 16 & n.1).6

 CREW therefore requested the agency look through 

the regulation to the underlying statute to find violations of subsections (c)(1) and 

(c)(2), effectively treating the regulation as invalid. 

Crossroads responded to CREW’s allegations, including to CREW’s 

allegation that the regulation failed to give effect to either subsection (c)(1) or 

(c)(2)(C). JA___(AR083) (arguing the regulation “incorporates” both subsections 

(c)(1) and (c)(2)(C), and that “CREW’s Suggestion That the Regulation Does Not 

‘Give Full Effect’ to the Act Is Irrelevant”). 

The FEC staff reviewed all of CREW’s allegations and recognized that the 

regulation was in conflict with the statute. See JA___(AR172, AR173 n.51, 

 

6 Rather than mere “background,” Crossroads Br. 25, this language is contained in 

the complaint’s discussion of the applicable law, which set out the entire legal 

basis for CREW’s allegations, see JA___(AR101–02). 

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AR175–76 & n.57). Specifically, the OGC acknowledged the regulation was 

“silent concerning [subsection (c)(1)’s] additional reporting requirement,” and was 

in conflict with subsection (c)(2)(C)’s “arguably more expansive approach.” Id.

Nevertheless, finding the regulation governed the FEC’s interpretation of the 

statute, the OGC recommending dismissing each of CREW’s claims. Id. The OGC 

first applied the regulation to CREW’s subsection (c)(2)(C) claim, finding the 

regulation “constitutes the Commission’s controlling interpretation” of subsection 

(c)(2)(C). JA___(AR175 n.57). Next, it applied the regulation to CREW’s 

subsection (c)(1) claim, concluding the regulation’s existence would mean 

Crossroads “could raise equitable concerns” justifying dismissing the subsection 

(c)(1) claim as a matter of prosecutorial discretion. Id. ___(AR175–76). Finally, it 

found that the facts did not establish an “express link” between the contribution 

and a specific reported IE sufficient to show a violation of 11 C.F.R. 

§ 109.10(e)(1)(vi). JA___(AR173–75). The Commission deadlocked on the OGC’s 

recommendation, leading to dismissal of CREW’s complaint. JA___(AR193, 

AR195). 

CREW sought review of that dismissal under the FECA, 52 U.S.C. 

§ 30109(a)(8)(A), and challenged the regulation’s validity under the APA. 

JA___(Doc. 1). Crossroads intervened below to protect its interest in defending its 

favorable FEC judgment. See Crossroads v. FEC, 788 F.3d 312 (D.C. Cir. 2015)

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(respondent may intervene to defend FECA claim). Both Crossroads and the FEC 

moved to dismiss CREW’s claims, but the district court rejected the motions 

except insofar as CREW asserted APA claims that were duplicative of its FECA 

claims. JA___(Doc. 22 at 20). Nonetheless, because the “FECA has no provisions 

governing judicial review of regulations,” JA___(id. at 21) (quoting Perot v. FEC, 

97 F.3d 553, 560 (D.C. Cir. 1996), the district court found CREW’s challenge to 

the validity of 11 C.F.R. § 109.10(e)(1)(vi) could proceed under the APA. 

JA___(id. at 22). Further, the court held that because the regulation had been 

applied to CREW in the administrative proceeding, CREW’s legal challenge to the 

validity of the regulation was timely and satisfied Article III. JA___(id. at 16–17 & 

n.5) (citing Weaver v. Fed. Motor Carrier Safety Admin., 744 F.3d 142, 145 (D.C. 

Cir. 2014)).

The district court subsequently granted summary judgment to CREW on its 

FECA and APA claims. With respect to the APA claim, the district court rejected 

the FEC’s and Crossroads’s defenses that subsections (c)(1) and (c)(2)(C) together 

imposed only a single disclosure obligation that was inherently ambiguous, and 

that the regulation was a valid application of each subsection. JA___(Doc. 28 at 

49–50; Doc. 30 at 24–28; Doc. 36 at 32). Rather, it found that 52 U.S.C. 

§ 30104(c)(1) and (c)(2)(C) “unambiguously require separate and complementary” 

reports of contributors and “mandate significantly more disclosure than” 11 C.F.R. 

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§ 109.10(e)(1)(vi). JA___(Doc. 43 at 92). In doing so, it relied on the plain text of 

the statute, which was supported by the statutory structure, statutory history, and 

the fact that the Supreme Court had construed 52 U.S.C. § 30104(c)(1) and 

(c)(2)(C) in the same way. JA___(id. at 53–65). The remainder of the district 

court’s opinion was largely devoted to rejecting the FEC’s and Crossroads’s 

numerous “unsupported” arguments, including challenges to CREW’s standing, 

exhaustion of its APA claim, and CREW’s FECA claim. See JA___(id. 43–52 & 

nn. 30–32, 65–92, 99–112). Finally, the district court deemed vacatur the proper 

remedy. JA___(Doc. 43 at 93–99) (applying Allied-Signal Inc. v. Nuclear 

Regulatory Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 1993)). The court 

nonetheless stayed the order for 45 days to permit the FEC to craft interim rules to 

address the timing of filing, but not to limit disclosure mandated by the FECA. 

JA___(id. at 88–89, 99). 

IV. Post-Judgment Proceedings 

The district court’s judgment remanded the FECA claim back to the FEC. 

JA___(Doc. 43 at 112). On remand, the FEC found all of the relevant funds 

donated to Crossroads were contributions that should have been disclosed under 

subsection (c)(1) and the funds solicited after watching example IEs should have 

been disclosed under subsection (c)(2)(C), but it concluded that dismissal was still 

warranted because Crossroads relied on the regulation. First General Counsel’s 

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Report 12–17, MUR 6696R (Crossroads) (Aug. 24, 2018), https://bit.ly/2OoygTC. 

CREW did not seek judicial review of the new dismissal decision, and the time for 

such review expired on October 27, 2018. 52 U.S.C. § 30109(a)(8)(B); Spannaus 

v. FEC, 990 F.2d 643, 645 (D.C. Cir. 1993). 

Crossroads thereafter sought an indefinite stay of the district court’s 

judgment before both the district court and this Court. Both courts rejected 

Crossroads’s request. See CREW v. FEC, 904 F.3d 1014 (D.C. Cir. 2018) (per 

curiam); CREW v. FEC, No. 16-cv-00259, Minute Order (Sept. 15, 2008). 

Specifically, this Court held Crossroads had failed to “demonstrate any ‘likelihood’ 

of success” in reviving the invalidated regulation because “the regulation squeezes 

the Act’s explicit disclosure obligation beyond what the plain statutory text can 

bear,” CREW, 904 F.3d at 1017 (emphasis added): 

In particular, the regulation shrinks the statutory duty to disclose 

contributions intended for “an expenditure” down to only those 

donations intended to support “the” specific “reported independent 

expenditure.” 11 C.F.R. § 109.10(e)(1)(vi). In doing so, the 

Commission’s regulation confines the reporting obligation to only that 

small subset of donors who not only earmark their contributions for a 

particular cause or candidate for the specific purpose of influencing 

the outcome of an identified election, but also pick the script of an 

independent expenditure that matches the actual form reported. Thus, 

the regulation empties Subsection (c)(1)’s disclosure obligation of a 

large portion of its intended operation. 

Id. In so holding, the Court rejected many of the arguments Crossroads raises 

here—including the age of the regulation, and “(debatable) legislative history and 

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post-enactment congressional action”—deeming such matters irrelevant because 

“the ‘text alone is enough to resolve the case.’” Id. at 1018 (quoting Pereira v. 

Sessions, 138 S. Ct. 2105, 2114 (2018)). The Court also rejected Crossroads’s 

arguments—repeated here—that CREW lacked standing below, that CREW’s 

challenge was untimely, and that the FEC’s post-judgment dismissal of CREW’s 

FECA claim affected CREW’s standing. Id.; Crossroads Br. 31–35. The Court 

further questioned whether the judgment below caused any non-speculative injury 

to Crossroads. CREW, 904 F.3d at 1019 (noting Crossroads failed to “identify any 

actual independent expenditures it has made this quarter or had intended to make in 

the coming months that are deterred by the [district court] order”). 

The Supreme Court likewise rejected Crossroads’s request to it to stay this 

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

The FEC shortly thereafter issued guidance on 52 U.S.C. § 30104(c)(1) and 

(c)(2)(C). FEC provides guidance following U.S. District Court decision in CREW 

v. FEC, 316 F. Supp. 3d 349 (D.D.C. 2018) (Oct. 4, 2018) (“FEC Guidance”), 

https://bit.ly/2yKmqxt. The FEC stated that it would not enforce subsections (c)(1) 

or (c)(2)(C) against any IE made prior to September 18, 2018. Id. 

SUMMARY OF THE ARGUMENT 

On the merits, the “‘text alone is enough to resolve the case.’” CREW, 904 

F.3d at 1018 (quoting Pereira, 138 S. Ct. at 2114). The FECA unambiguously 

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requires any person making more than $250 in “independent expenditures”—i.e., 

explicit campaign ads—to disclose, among other things, two categories of 

information about the sources of their funds. First, they must disclose the same 

information political committees must disclose about their contributors: the 

identity of each person who “makes a contribution . . . in excess of $200 within a 

calendar year . . . , together with the date and amount of any such contribution.” 52 

U.S.C. § 30104(b)(3)(A) (incorporated by reference in 52 U.S.C. § 30104(c)(1)). 

Second, they must further “identi[fy] . . . each person who made a contribution in 

excess of $200 . . . for the purpose of furthering an independent expenditure.” 52 

U.S.C. § 30104(c)(2)(C). As the Supreme Court recognized thirty years ago, these 

dual “reporting obligations provide precisely the information necessary to monitor 

. . . independent spending activity and [the] receipt of contributions” to prevent 

“undisclosed political spending” and the use of “conduits.” MCFL, 479 U.S. at 

262. 

The FEC regulation purporting to incorporate these provisions “sharply 

narrow[ed] the obligation . . . to disclose significant donations to support 

independent expenditures specifically intended to influence the outcome of a 

federal election.” CREW, 904 F.3d at 1016. Rather than require disclosure of “all

contributions” over $200 and further identification of contributions intended to 

further “an independent expenditure,” 52 U.S.C. § 30104(c)(1), (c)(2)(C) 

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(emphasis added), the regulation required only the reporting of contributions “for 

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

§ 109.10(e)(1)(vi) (emphasis added). 

This regulation—adopted in haste after Congress’s wholesale revision of the 

FECA—severely limited voters’ access to the information Congress intended to be 

disclosed. For example, the regulation meant an organization would not report 

funds it knew were provided “to be used in some manner that would aid the 

election” of a federal candidate, despite the recipient then spending millions on IEs 

to support that very same candidate. JA___(AR095 ¶10, AR104, AR167; Doc. 1 ¶ 

44; Doc. 1-1 at 2, Doc. 14 ¶ 44). Similarly, the regulation meant an organization 

would not disclose contributors who gave it funds after watching “exampl[e]” IEs 

and knew their contributions were to pay for the increasing cost of airing such ads, 

despite the organization then spending millions on ads mirroring the example ads 

and attacking or supporting the same candidates. JA___(AR077–78, Doc. 1 ¶¶ 52–

53, Doc. 14 ¶¶ 52–53). Indeed, almost no contributions have been reported by 

those making IEs for as long as 11 C.F.R. § 109.10(e)(1)(vi) has been on the 

books. JA___(Doc. 27 at 15–16 & nn. 7–9). 

Given this stark contradiction, the district court below correctly found that 

the regulation conflicted with the plain terms of the FECA and struck the 

regulation. JA___(Doc. 43 at 112). This Court agreed, finding “the regulation 

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squeezes the Act’s explicit disclosure obligation beyond what the statutory text can 

bear.” CREW, 904 F.3d at 1017. 

Nevertheless, Crossroads brings the instant appeal seeking to rewrite the 

FECA and reimpose the invalid regulation. Both the court below and this Court 

have already rejected Crossroads’s various attempts to introduce ambiguity in the 

statute, and its efforts are no more persuasive on the third try. Crossroads therefore 

raises a scattershot of arguments to say the district court below should never have 

reached the merits, but those arguments are also unavailing. This Court already 

found CREW had standing below and that CREW’s claim was timely, see CREW, 

904 F.3d at 1018—a decision twice reached by the district court, JA___(Doc. 22, 

Doc. 43). Crossroads also fails to show the district court abused its discretion in 

finding CREW had exhausted any administrative remedies and that, even had it 

not, such exhaustion was futile. 

Crossroads, in contrast, lacks standing to bring this appeal. Crossroads 

ceased making IEs in 2014, years before the judgment below. It has no concrete 

plans to make more IEs and had none at the time of the judgment. Crossroads’s 

sole standing to intervene below was to defend against reopening the FEC 

enforcement action against it that was the subject of CREW’s then pending FECA 

claim; but any appeal based on that threat was mooted when the FEC dismissed 

that claim on remand from the district court. Crossroads shows no risk of 

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enforcement against it arising from its other past IEs—the last of which is almost 

five years old. Accordingly, though this Court should affirm the judgment below if 

it were presented an appeal within its jurisdiction, the Court should dismiss this 

appeal because Crossroads does not bring one. 

ARGUMENT 

I. Standard of Review 

This Court reviews the district court’s summary judgment under the APA, 

its application of the Chevron doctrine, and its determination of jurisdiction de 

novo. Paralyzed Veterans of Am. v. U.S. Dep’t of Trans., 909 F.3d 438, 443 (D.C. 

Cir. 2018); Novicki v. Cook, 946 F.2d 938, 941 (D.C. Cir. 1991). This Court 

reviews the district court’s determinations about non-jurisdictional administrative 

exhaustion for abuse of discretion. Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 

1251 (D.C. Cir. 2004). Similarly, challenges to the scope of equitable relief 

awarded are subject to the district court’s “broad discretion.” Nat’l Min. Ass’n v. 

U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1408 (D.C. Cir. 1998). 

II. The Regulation Conflicts with the FECA 

This case concerns whether an FEC regulation, 11 C.F.R. § 109.10(e)(1)(vi), 

conflicts with the dual contributor reporting obligations imposed by 52 U.S.C. 

§ 30104(c)(1) and (c)(2)(C). Under Chevron, the regulation is invalid if it either (1) 

conflicts with the unambiguous meaning of the statute or (2) is not a “permissible 

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construction” of an ambiguous statute. Chevron, U.S.A., Inc. v. Nat. Res. Def. 

Council, Inc., 467 U.S. 837, 842–43 (1984). The regulation here fails the first step, 

which resolves the case, but would also fail the second step even if the statute was 

assumed to be ambiguous. 

A. The Statutory Text Alone Proves the Regulation is Invalid 

The regulation in question here cannot be reconciled with the text of 52 

U.S.C. § 30104(c)(1) and (c)(2)(C); thus, the regulation must fail. Rather than limit 

disclosure to contributions tied to a single specific “reported independent 

expenditure,” 11 C.F.R. § 109.10(e)(1)(vi), the plain text of 52 U.S.C. 

§ 30104(c)(1) and (c)(2)(C) require far greater disclosure. 

Subsection (c)(1) not only sets out the activity that triggers the obligation to 

file a statement (contrary to Crossroads’s cabined reading, see Crossroads Br. 5, 

37–38), but also lays out information that must be included in that statement: 

[A] statement containing the information required under subsection 

(b)(3)(A) for all contributions received by such person. 

52 U.S.C. § 30104(c)(1) (emphasis added). Unambiguously, subsection (c)(1) 

mandates the disclosure of “information,” and, by explicit cross-reference to 

subsection (b)(3)(A), imposes on IE makers the same obligation to disclose 

contributors that the FECA imposes on political committees (while not 

incorporating all other obligations imposed on political committees). Specifically, 

the “information required” to be disclosed under subsection (b)(3)(A) is the 

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identity of each “person (other than a political committee) who makes a 

contribution . . . , whose contribution or contributions have an aggregate amount in 

excess of $200 with the calendar year . . . , together with the date and amount of 

any such contribution.” 

Subsection (c)(2) then provides additional requirements for the statement or 

statements to be made by those making IEs, as well as the manner of filing. See 52 

U.S.C. § 30104(c)(2) (“Statements required to be filed under this subsection shall 

be filed in accordance with subsection (a)(2), and shall include--”). Subsection 

(c)(2)(A) requires information about the IE itself—who received the payment, the 

date, time and amount of the payment, information about the candidate, etc. 52 

U.S.C. § 30104(c)(2)(A) (incorporating by reference 52 U.S.C. 

§ 30104(b)(6)(B)(iii)). Subsection (c)(2)(B) requires a certification that the 

reported IE is in fact independent. 52 U.S.C. § 30104(c)(2)(B). Subsection 

(c)(2)(C)—the subsection relevant here—then requires additional contributor 

information that is to be included in the statement required by subsection (c)(1): 

[T]he identification of each person who made a contribution in 

excess of $200 to the person filing such statement which was made 

for the purpose of furthering an independent expenditure. 

52 U.S.C. § 30104(c)(2)(C). This additional contribution disclosure requirement 

“speaks clearly to the precise question at issue” about the type of contributions to 

be identified under it: those given for the purpose of furthering “an” independent 

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expenditure. Barnhart v. Walton, 535 U.S. 212, 217–218 (2002) (“[Courts] must 

give effect to the unambiguously express intent of Congress.”). 

The plain text of subsections (c)(1) and (c)(2)(C) thus flatly contradict the 

excessively narrow focus of reporting in 11 C.F.R. § 109.10(e)(1)(vi) on only 

contributions intended to further “the reported independent expenditure.” Nowhere 

in the regulation is subsection (c)(1)’s mandate to disclose all contributions over 

$200 a year regardless of whether they were to further an IE or not—just like 

political committees do. Nor does the regulation reflect the scope of contributions 

to be identified under subsection (c)(2)(C), a scope on which Congress “has 

directly spoken.” Shays v. FEC, 414 F.3d 76, 105 (D.C. Cir. 2005). Rather than 

requiring an “express link” between a contribution and the specific and particular 

reported IE, JA___(AR173), Congress explicitly required only that the contributor 

intend to further “an independent expenditure,” regardless of whether it is the IE 

eventually made and reported, 52 U.S.C. § 30104(c)(2)(C). 

The distinction in disclosure obligations is evident from the facts of the 

administrative proceeding below. Funds given expressly to “aid the election” of a 

federal candidate indisputably are “contributions” that must be disclosed under 

subsection (c)(1), but the FEC found the regulation did not require their disclosure. 

JA___(AR095). Similarly, funds solicited after viewing “exampl[e]” IEs are 

indisputably funds intended to further “an independent expenditure,” but the FEC 

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found the regulation did not require their disclosure. JA___(AR078). Indeed, 

Crossroads and its amici are before this Court because they understand the 

regulation required far less disclosure than required under either subsections (c)(1) 

or (c)(2)(C). See Crossroads Br. 10; see also e.g. U.S. Chamber Amicus Br. 18–19, 

ECF No. 1779164 (praising the regulation for “limiting the disclosure 

requirement” of the FECA). 

While “traditional tools of statutory construction” are available to assist a 

court in interpreting a statute to determine whether it is ambiguous, Chevron, 467 

U.S. at 843 n.9, courts do not reach for those tools when the “plain text of the 

statute” dictates its meaning, Pereira, 138 S. Ct. at 2114; Ratzlaf v. United States, 

510 U.S. 135, 147–48 (1994) (“[W]e do not resort to legislative history to cloud a 

statutory text that is clear.”); Central Bank of Denver, N.A., v. First Interstate Bank 

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

a duly enacted statute.”). When “the text is clear,” courts do “not consider . . . 

extra-textual evidence.” NLRB v. SW General, Inc., 137 S. Ct. 929, 942 (2017). 

Both the court below and this Court were correct in finding that the “text 

alone is enough to resolve th[is] case.” CREW, 904 F.3d at 1018; JA___(Doc. 43 at

53–65). Similarly, the Supreme Court was correct in MCFL to recognize the 

statute’s plain reading. MCFL, 479 U.S. at 262. There, the Court recognized that a 

group that did not qualify as a political committee would nonetheless be subject to 

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contributor reporting under both 52 U.S.C. § 30104(c)(1) and (c)(2)(C). The Court 

said these “disclosure provisions”—plural—require disclosure of, first, “all 

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

influence elections” and, second, “all persons making contributions over $200 who 

request that the money be used for independent expenditures.” Id. at 262.7

 The 

Court expressed no difficulty in reading the statute, nor did it appeal to any 

extraneous evidence to wrest this interpretation from the text. Rather, the Court 

gave the text its plain meaning because its plain meaning was evident. 

Nor is this mere “dicta.” Crossroads Br. 40 n.12.8

 Rather, in MCFL, the 

Court confronted the question of whether a nonprofit organization could be 

 

7 In an earlier portion of the opinion only joined by three other justices, Justice 

Brennan made this distinction even more explicit: 

Section [30104](c) provides that any such person that during the year 

makes independent expenditures exceeding $250 must: (1) identify all 

contributors who contribute in a given year over $200 in the aggregate 

to funds to influence elections, § [30104](c)(1), . . . and (3) identify 

any persons who make contributions over $200 that are earmarked for 

the purpose of furthering independent expenditures, 

§ [30104](c)(2)(C). 

MCFL, 479 U.S. at 252. Though that portion did not enjoy a majority of the Court, 

Justice O’Connor, who joined the other portions, did not take issue with Justice 

Brennan’s description of subsections (c)(1) and (c)(2). Rather, she explained she 

did not join this portion of the opinion because she differed with Justice Brennan 

on the source of the burden on the petitioner. See id. at 266 (O’Connor, J., 

concurring in part and concurring in the judgment). 

8 Crossroads states the platitude that non-essential parts of MCFL are dicta. Id. But 

MCFL’s discussion of subsections (c)(1) and (c)(2)(C) were essential, and 

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constitutionally banned from making its own IEs and required to form a political 

committee instead. 479 U. S. at 241. The government argued that the ban and 

political committee requirement were necessary to protect compelling state 

interests in disclosure. Id. at 262. The Court rejected that argument, finding the 

disclosure imposed by subsections (c)(1) and (c)(2)(C) on IE makers were “less 

restrictive” but still adequate to combat corruption and prevent conduits of 

undisclosed spending. Id. Thus, the Court’s understanding of the scope of 

disclosure imposed by the subsections were “necessary to [the Court’s] result,” and 

thus its discussion of the subsections is part of the Court’s holding. Seminole Tribe 

of Fl. v. Florida, 517 U.S. 44, 67 (1996).

In short, the Supreme Court, this Court, and the district court have all 

recognized that Congress spoke plainly in subsections (c)(1) and (c)(2)(C): those 

making qualifying IEs must disclose the source of all contributions over $200 per 

year and must further identify the contributions given for the purpose of furthering 

IEs. The regulation conflicted with that plain language and thus was invalid. 

 

Crossroads’s authority only notes that MCFL’s three-part test for qualifying 

nonprofit organizations was dicta. MCFL, 479 U.S. at 271 (Rehnquist, J., 

concurring and dissenting); Vote Choice, Inc. v. Di Stefano, 814 F. Supp. 186, 191 

n.12 (D.R.I. 1992) (same)).

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B. Crossroads’s Attempts to Manufacture Ambiguity Fail 

Despite this plain text, Crossroads recycles failed arguments to attempt to 

introduce some ambiguity. But as this Court found, because the text is clear, courts 

do not consider the type of arguments Crossroads’s advances. CREW, 904 F.3d at 

1018. Nonetheless, even if considered, they do not support the weight Crossroads’s 

places on them. 

1. Crossroads asserts ambiguity arises from the district court’s discussion of 

the scope of “contributions” to be disclosed under subsection (c)(1), see

Crossroads Br. 17, but simply garbles the opinion below. It is both true that 

subsection (c)(1)’s disclosure is not “unbounded”—it mandates only disclosure of 

“contributions” (funds given for the purpose of influencing an election) and not 

donations, and limits reporting to contributions over $200 a year—and that 

subsection (c)(1) does not impose additional boundaries on the type of 

contributions to be disclosed by requiring that the funds be “earmarked for a 

specific or single political purpose.” JA___(Doc. 43 at 36, 55). For example, funds 

given to aid the election of a federal candidate are “contributions” under the Act, 

even though the funds were not earmarked to any particular means to do so. 

2. Crossroads next argues subsection (c)’s headings demonstrate that 

subsection (c)(1) is limited to ordering “filings” while subsection (c)(2)(C) 

provides the “contents” of those filings, Crossroads Br. 38, but the “heading of a 

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section cannot limit the plain meaning of the text.” Hays v. Sebelius, 589 F.3d 

1279, 1282 (D.C. Cir. 2009). Nor does Crossroad’s argument work: Crossroads 

admits subsection (c)(1) is not limited to a “filing” requirement, but also requires 

that filing contain certain information. Crossroads Br. 38–39. Similarly, subsection 

(c)(2) is not limited to the “contents” of the statement, but also lays out the manner 

of filing. 52 U.S.C. § 30104(c)(2) (statements to be filed “in accordance with 

subsection (a)(2)”). Rather, the subsection’s heading describes the items contained 

in toto. 

3. Crossroads oddly argues that a plain reading of the statute delinks 

subsections (c)(1) and (c)(2)(C), leaving (c)(2)(C) without an “affirmative 

statement that the [IE] maker do anything.” Crossroads Br. 39. But subsection 

(c)(2) starts by linking the information therein required with the “[s]tatements 

required to be filed by this subsection,” i.e., subsection (c), which includes 

subsection (c)(1). 52 U.S.C. § 30104(c). Subsection (c)(2) thus unambiguously 

requires additional information be included in the statements mandated by 

subsection (c)(1). 

4. Crossroads next asserts that Van Hollen v. FEC, 811 F.3d 486, 493 (D.C. 

Cir. 2016), read ambiguity into the FECA’s IE reporting requirements, Crossroads 

Br. 39–40, but Van Hollen did no such thing. Van Hollen concerned a different 

statutory disclosure provision, 52 U.S.C. § 30104(f), relating to a different type of 

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communication, which was not linked to political committee disclosure, cf. id.

§ 30104(c)(1), and did not directly speak to the scope of contributions to be 

disclosed, cf. id. § 30104(c)(1), (c)(2)(C). The case did not concern IE reporting, 

did not discuss subsection (c)(1), and only noted that the FEC’s proposed 

regulation for electioneering communications—adopted to fill a hole unanticipated 

by Congress and created when the Supreme Court invalidated part of BCRA—

worked “in precisely the same way” as “§ 30104(c)(2)(C).” Van Hollen, 811 F.3d 

at 490, 493. Notably, the proposed regulation required disclosure of any 

contribution “made for the purpose of furthering electioneering communications.” 

Van Hollen, 811 F.3d at 488. That indeed mirrors subsection (c)(2)(C)—both cover 

contributions intended to further any of the covered communications, without 

needing to tie them to the reported communication. It expressly does not mirror 11 

C.F.R. § 109.10(e)(1)(vi).9

 

5. Crossroads’s other authority, FEC v. Furgatch, 807 F.2d 857 (9th Cir. 

1987), is similarly uninstructive. Cf. Crossroads Br. 40. That out-of-circuit case 

considered whether a certain communication was an IE, Furgatch, 807 F.2d at 858, 

and only in a footnote in background did the opinion touch on IE reporting—an 

 

9 While three FEC commissioners erroneously interpreted the electioneering 

communication regulation to be limited to contributions for a specific reported 

electioneering communication, http://eqs.fec.gov/eqsdocsMUR/10044274536.pdf, 

that interpretation has never been adopted by the FEC and was not before the court 

in Van Hollen.

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issue not relevant to that case. Id. at 859 n.2. Furgatch was silent on subsection 

(c)(1)’s requirement that statements “contain the information” required by 

subsection (b)(3)(A), and it merely quoted subsection (c)(2)(C). 

6. Crossroads next argues that subsection (c)(2)(C)’s use of an indefinite 

article, “an,” is inherently ambiguous (an argument with no bearing on subsection 

(c)(1)). Crossroads Br. 40–41. “Simply because Congress chose to employ the 

indefinite article,” however, “does not imply that ‘Congress has explicitly left a 

gap for the agency to fill.’” Mylan Pharm., Inc. v. Shalala, 81 F. Supp. 2d 30, 37 

(D.D.C. 2000) (quoting Chevron, 467 U.S. at 843). Crossroads argues that “an” 

means “one,”—which is not disputed—but then simply asserts without basis that it 

must mean a particular one, i.e., the one reported IE and none other. Crossroads 

Br. 40–41. Crossroads relies on Caraco Pharmaceutical Laboratories, Ltd. v. Novo 

Nordisk A/S, 566 U.S. 399 (2012), but the Court there interpreted a very different 

phrase: “not an,” id. at 413. “[N]ot an” presents unique interpretative complexities, 

as it could be satisfied either by negating any one of a set (i.e., “not a particular 

one”) or by negating all of the set (i.e., “not any”). See id. “An,” when used in the 

positive, however, does not present those complexities: it is satisfied whenever one 

of the identified set is present. Oxford English Dictionary 4 (2d ed. 1989) (defining 

“an” to mean “one, some, any”); see also SAS Inst. Inc. v. Iancu, 138 S. Ct. 1348, 

1354 (2018) (looking to OED to define “any”); United States v. Hagler, 700 F.3d 

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1091, 1096–97 (7th Cir. 2012) (noting “‘an’ generally implies the possibility of a 

larger number than just one”; but finding statute’s use of “the person” limited 

prosecution of the specific defendant); N.H. Motor Transp. Ass’n v. Rowe, 448 

F.3d 66, 72 (1st Cir. 2006) (recognizing “an” and “any” are synonymous when 

used in the positive); Mylan, 81 F. Supp. 2d at 37 (“‘[A] court’ may refer to a 

district court, an appellate court, one of the two, or both.”); JA___(Doc. 43 at 57–

58) (citing contemporary dictionaries). Nor does it matter that Congress could have 

chosen a synonym like “any” to reach the same result. See SAS Inst., 138 S. Ct. at 

1355 (court is “not to supplant [Congress’s] commands with others it may prefer”). 

Crossroads similarly points to legislative history and the use of definite 

articles at times therein to describe different obligations, but that simply shows that 

“Congress knew the difference between ‘[the]’ and ‘[an]’ and used the words 

advisedly.” Pillsbury v. United Eng’g Co., 342 U.S. 197, 199 (1952).10 Indeed, the 

statute itself demonstrates this, limiting reporting of the candidate identified to “the

independent expenditure” (i.e., each statement must identify the candidate 

identified in each IE), 52 U.S.C. § 30104(c)(2)(A) (emphasis added), but requiring 

 

10 Contrary to Crossroads’s misreading, Crossroads Br. 41, the legislative history 

shows only that Congress intended to shift the disclosure from contributors to the 

IE makers, who make “the independent expenditure” that is reported and who must 

now report “the contribution[s]” they receive. FECA 1979 History 103. At no point 

in that history did the FEC propose or Congress endorse limiting reporting to only 

contributions given to further a single particular IE. 

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reporting of contributions given to further “an independent expenditure,” 52 

U.S.C. § 30104(c)(2)(C) (emphasis added). 

Crossroads then falls back on administrative history to try to cast ambiguity 

on subsection (c)(2)(C), pointing to a pre-1979 form which required contributors to 

report the candidate whose election the contribution sought to influence. 

Crossroads Br. 42.11 The form, of course, cannot overcome the clear statutory text 

of either the current FECA or the pre-1979 FECA. Nor is it in conflict with either 

that prior text or the current subsection (c)(2)(C). In accordance with the pre-1979 

FECA, the contributor did not tie their contribution to some reported IE: rather, 

they reported whenever they made their contribution regardless of whether the IE 

they contemplated was ever made, and they had to report the candidate they sought 

to support even if it differed from the reported IE. See, e.g., Crossroads Add. 7a; 

see also 2 U.S.C. § 434(e) (1976) (“Every person . . . who makes contributions . . . 

shall file . . . a statement containing the information required of a person who 

 

11 These materials were not included in the administrative record and not identified 

by the FEC as a justification for the regulation—either in its 1980 explanation or in 

the litigation below. See Crossroads Br. Add. 6a. The materials, even assuming 

their authenticity, but see Fed. R. Evid. 901, are outside the scope of review here as 

they were not in the administrative record and Crossroads fails to show 

supplementation is appropriate. See Camp v. Pitts, 411 U.S. 138, 141–42 (1973); 

Council for Urological Interests v. Burwell, 790 F.3d 212, 222 (D.C. Cir. 2015); 

Forest Cnty. Potawatomi Cmmty v. United States, 270 F. Supp. 3d 174, 183 

(D.D.C. 2017). Nor did any party submit them to the district court. U.S. ex rel. 

Oliver v. Philip Morris USA Inc., 763 F.3d 36, 44 (D.C. Cir. 2014).

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makes a contribution . . . to a candidate or political committee.”). Crossroads also 

seeks to limit the “information required” language in the pre-1979 statute to only 

the “date, amount” of the contribution, Crossroads Br. 42, just as it does with the 

current subsection (c)(1), id. 38–39. That would have led to a nonsensical result: a 

contributor would only report the date and amount of a contribution but would not 

otherwise identify themselves. Rather, the pre-1979 form, like today’s subsection 

(c)(2)(C), required disclosure of a contribution, including the contributor’s identity 

as well as the date and amount, regardless of the IE it intended to further. 

7. Crossroad’s amici provide it no help. One amicus notes that the activity 

triggering reporting under § 30104(c) is the making of an IE, which the amicus 

says implies that the reportable contributions must similarly be limited. See 

McConnell Amicus Br. 19, ECF No. 1778186. When first drafted, however, the 

relevant triggering activity was not limited to IEs but rather included any 

“expenditures.” See 2 U.S.C. § 435 (1970).12 It was the Supreme Court that limited 

the expenditure trigger to IEs alone. See Buckley, 424 U.S. at 78–80. Congress then 

ratified that change in the 1976 amendments, FECA Amendments of 1976, Pub. L. 

94-283, § 104(d), 90 Stat. 475 (1976), but left the obligation triggered as the same

 

12 Further, at that time, making a “contribution” also triggered a reporting 

requirement. 2 U.S.C. § 434(e) (1976). Buckley did not limit that trigger to 

contributions for IEs. See Buckley, 424 U.S. at 78 (including funds earmarked for 

any “political purpose”). The 1979 amendments removed this an independent 

trigger for reporting. 

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one imposed on political committees: to disclose all contributions over $200. 

There is no dispute that political committees must report contributions even if 

those funds are not intended to support IEs, and by explicit cross-reference, 

subsection (c)(1) imposes the same obligation on IE makers. 

Crossroads’s amici further argue that subsection (c)(3) requires all 

information in IE disclosure statements to be segregable on a candidate-bycandidate basis, including the reported contributions. McConnell Amicus Br. 29–

30. But that is not so, because the indices do not list the IE maker’s contributors. 

See, e.g., FEC Index of Independent Expenditures, 1979-1980 (Nov. 1981), 

https://bit.ly/2OtkOie; FEC, Independent Expenditures Supporting/Opposing 2008 

Presidential Campaigns by Candidate Through November 6, 2018, 

https://bit.ly/2YtTsxe. Thus, nothing in subsection (c)(3) requires that the reported 

contributions be attributable on an IE-by-IE basis. The same amicus also attempts 

to generate ambiguity from the FECA’s references to “statements” and “reports,” 

McConnell Amicus Br. 20, but that argument fails because subsection (c)(1) 

incorporates “the information required under subsection (b)(3)(A),” 52 U.S.C. 

§ 30104(c)(1), regardless of the method used to submit it to FEC. 

Finally, several amici argue that constitutional avoidance requires the Court 

read ambiguity into the statute where there is none. “[C]onstitutional avoidance,” 

however, “has no role to play” when the text is clear. Warger v. Shauers, 135 S. 

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Ct. 521, 529 (2014). Moreover, there is no constitutional problem to avoid: 

subsections (c)(1) and (c)(2)(C) merely mandate contribution disclosure by those 

making IEs, and courts have found disclosure of such election-related funds is 

constitutional, even if not limited to contributions to fund IEs. See Citizens United, 

558 U.S. at 370 (upholding disclosure of contributions); McConnell v. FEC, 540 

U.S. 93, 200 (2003) (same); Buckley, 424 U.S. at 66–67 (same); SpeechNow.org, 

599 F.3d at 698 (same). Indeed, the Court relied on the constitutionality of 

subsections (c)(1) and (c)(2)(C) to strike down a different burden on IE makers. 

See MCFL, 479 U.S. at 262. Accordingly, there is no constitutional concern that 

could justify 11 C.F.R. § 109.10(e)(1)(vi)’s departure from the plain text.13 

In sum, subsections (c)(1) and (c)(2)(C) are unambiguous. Nothing in 

Crossroads’s or its amici’s arguments give cause for this Court to depart from its 

prior finding that the “text alone is enough to resolve th[is] case.” CREW, 904 F.3d 

at 1018. The regulation fails under Chevron step one, and the district court was 

therefore correct to strike it as invalid. 

 

13 Nor does the definition of “contribution” create any constitutional avoidance 

issues when incorporated into subsection (c)(1). First, regardless of the definition, 

the FECA unambiguously imposes the same contribution reporting requirements 

on IE-makers as political committees, meaning the regulation failed under any

definition of contribution. Second, the existence of “close cases” on the facts does 

not mean the definition is vague. United States v. Williams, 553 U.S. 285, 305–06 

(2008). Third, Buckley itself interpreted contribution to remove any vagueness 

concerns, and found the term was constitutionally unambiguous without being 

limited to funds intended to further IEs. Buckley, 424 U.S. at 78. 

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C. Even if There Were Ambiguity, The Regulation Was Not a 

Permissible Construction 

For the reasons stated above, the Court need not proceed to the second step 

of Chevron. Nonetheless, even if the statute were deemed to be ambiguous, the 

district court correctly found that 11 C.F.R. § 109.10(e)(1)(vi) also fails Chevron’s 

second step. JA___(Doc. 43 at 92 n.48).14 

Under Chevron’s second step, courts determine “whether the agency’s 

interpretation is reasonable,” Shays, 414 F.3d at 96, “look[ing] to what the agency 

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

make that determination, Burwell, 790 F.3d at 222. 

Disregarding this rule, Crossroads relies on arguments not advanced in the 

FEC’s terse explanation for 11 C.F.R. § 109.10(e)(1)(vi). That is perhaps 

understandable as the entirety of the FEC’s explanation is contained in twenty-nine 

words that does not even recognize, never mind explain, the regulation’s 

divergence from the statute. JA___(AR1503). Nonetheless, Crossroads’s 

 

14 The district court’s holding also rendered the regulation independently invalid for 

its failure to “articulate a satisfactory explanation for its action including a rational 

connection between the facts found and the choice made,” Motor Vehicle Mfrs. 

Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983); see 

also Shays v. FEC, 528 F.3d 914, 931–32 (D.C. Cir. 2008). A failure to explain is a 

substantive error that may be reviewed after an agency applies the regulation to a 

party. See, e.g., U.S. Telecomm. Assoc. v. FCC, 825 F.3d 674, 701 (D.C. Cir. 2016) 

(challenge to agency’s “fail[ure] to adequately explain” action is “substantive 

challenge[]”).

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arguments remain improper because they were not the reason contemporaneously 

given by the FEC. Burwell, 790 F.3d at 222. They also fail to explain the 

divergence. 

Crossroads implies that the FEC need not have explained the regulation 

because it was heavily involved in the legislative process. Crossroads Br. 43. Yet 

Crossroads points to nothing in that involvement where the FEC recommended 

eliminating political committee-like contributor disclosure for those making IEs, 

despite the earlier statute’s imposition of those obligations. See 2 U.S.C. § 434(e) 

(1976). Nor does Crossroads point to any evidence that the FEC recommended 

narrowing the contributor self-reporting obligation to the point of oblivion by 

requiring an explicit link between the contribution and a reported IE. That is 

because no such recommendation is in the record. See Zuber v. Allen, 396 U.S. 

168, 193 (1969) (rejecting agency interpretation despite involvement in legislative 

drafting where agency “failed to communicate [its] understanding to the drafters”). 

Rather the FEC merely proposed shifting the contributor self-reporting obligation 

to the IE makers, FECA 1979 History 24–25, which then would apply in addition 

to the IE maker reporting obligation already in then-subsection (e)(1). Congress 

ratified that recommendation by dropping the contributor self-reporting obligation 

from then-subsection (e)(1) (now subsection (c)(1)) and moving it to a new 

subsection, (c)(2)(C). Congress changed nothing else about the contributor 

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reporting obligations relevant here. Indeed, had the FEC recommended either 

eliminating subsection (c)(1) reporting or severely limiting subsection (c)(2)(C) 

reporting as in 11 C.F.R. § 109.10(e)(1)(vi), then Congress expressly rejected

those suggestions because it explicitly retained subsection (c)(1) reporting and 

spoke directly on the scope of reporting required in subsection (c)(2)(C).15 

Crossroads next relies on Congressional inaction since 1979, Crossroads Br. 

45, but it does not show Congress thereby ratified 11 C.F.R. § 109.10(e)(1)(vi). 

First, “Congress cannot by its silence ratify an administrative interpretation that is 

contrary to the plain meaning of the Act.” Ashton v. Pierce, 716 F.2d 56, 63 (D.C. 

Cir. 1983). Second, Crossroads fails to show “overwhelming evidence that 

Congress considered and failed to act upon the precise issue before the court” to 

make Congressional inaction even “probative.” Bismullah v. Gates, 551 F.3d 1068, 

1074 (D.C. Cir. 2009). Crossroads and its amici can only point to congressional 

consideration of other aspects of campaign finance, for example, debates about 

BCRA, which did not change the scope of IE reporting, see Crossroads Br. 8 n.2; 

id. at 47 (citing 145 Cong. Rec. S12734, S12753 (Oct. 18, 1999) (discussing 

 

15 Crossroads tries to bootstrap the post-enactment regulation into the FEC’s 

“contemporaneous construction,” Crossroads Br. 44, but the regulation’s language 

appears nowhere in the contemporaneous recommendations, see also Shearman v. 

Comm’r of Internal Revenue, 66 F.2d 256, 257 (2d Cir. 1933) 

(“[C]ontemporaneous agency construction, if contrary to the terms of the statute, is 

merely erroneous, and has no effect except to call for correction.”). 

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regulation of non-IE “issue advocacy”); 143 Cong. Rec. S10485, S10486 (Oct. 7, 

1997) (addressing disclosure by 501(c)(4) groups); 143 Cong. Rec. S10661 (Oct. 8, 

1997) (addressing reporting obligations of political committees)), or bills creating 

electronic filing and addressing similarly irrelevant issues, id. at 8 n.2. That hardly 

amounts to “overwhelming evidence that Congress considered and failed to act 

upon the precise issue” of contributor disclosure triggered by IEs under subsections 

(c)(1) and (c)(2)(C). Bismullah, 551 F.3d at 1074. 

Nor is there some special ‘inaction means ratification’ rule that applies to the 

FECA. Cf. Crossroads Br. 46 n.15. Even with respect to the FECA, “postenactment congressional inaction” has little probative use. CREW, 904 F.3d at 

1018; see also AFL-CIO v. FEC, 333 F.3d 168, 175 (D.C. Cir. 2003) (“Congress’s 

failure to act obviously cannot be viewed as a clear expression of intent.”); Shays 

v. FEC, 337 F. Supp. 2d 28, 60–61 (D.D.C. 2004) (rejecting congressional 

ratification of FEC regulation), aff’d, 414 F.3d 76 (D.C. Cir. 2005).16 While FEC 

regulations and forms go to Congress to review, there is still no evidence Congress 

 

16 The cases cited by Crossroad’s only used congressional inaction to support an 

interpretation otherwise found reasonable by the court. See e.g., FEC v. DSCC, 454 

U.S. 27, 32–35 (1981) (holding courts are “final authorities on issue of statutory 

construction”; noting agency’s position was supported by legislative history); FEC 

v. Ted Haley Cong. Comm., 852 F.2d 1111, 1114–16 (9th Cir. 1988) (finding 

statute had no “plain meaning,” and regulation ensured statute would not be 

rendered “meaningless” by evasion); NCPAC v. FEC, 626 F.2d 953, 956 & n.7 

(D.C. Cir. 1980) (finding nothing in text of statute contrary to regulation, and 

noting congressional inaction was only “further evidence” of plain reading). 

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40 

expressly considered 11 C.F.R. § 109.10(e)(1)(vi), recognized the conflict, and 

then adopted it. Cf. Bismullah, 551 F.3d at 1074. Indeed, it is highly unlikely 

Congress did so given that 11 C.F.R. § 109.10(e)(1)(vi) came to Congress as part 

of a full rewrite of all FEC regulations, consisting of over a hundred regulations 

spanning forty pages, JA___(AR1495–1542), and at a time long before Citizens 

United when non-political party IEs were relatively non-existent. In contrast, when 

Congress finally did become aware of the conflict, members of Congress sought to 

remedy it through legislative action. See, e.g., H.R. 5175, 111th Cong. (2010); S. 

3628, 111th Cong. (2010). That bill passed the House but failed due to a Senate 

filibuster by a single vote. 156 Cong. Rec. H4828 (June 24, 2010); 156 Cong. Rec. 

S7388 (Sept. 23, 2010). While “failed legislative proposals are particularly 

dangerous ground on which to rest an interpretation of a prior statute,” Central 

Bank, 511 U.S. at 187, that action hardly shows a Congress fully in agreement with 

11 C.F.R. § 109.10(e)(1)(vi). 

For the same reason, the age of the regulation cannot save it from invalidity. 

Though it had little impact in its first three decades of existence, shortly after it had 

real impact in the wake of the Citizens United decision, affected parties began to 

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41 

take notice. Congress sought to amend the statute, a rulemaking petition was filed, 

and CREW began this challenge.17 

Nor do Crossroads’s belabored congressional purpose arguments justify 11 

C.F.R. § 109.10(e)(1)(vi). Crossroads places inordinate weight on the 1979 

Amendments’ purpose to “simplify reporting and administrative procedures” to 

conclude those Amendments intended to effectively eliminate contributor 

reporting. Crossroads Br. 50. Rather, as is clear from the history, the amendments 

simplified reporting by shifting the contributors self-reporting obligation to the IE 

maker, but otherwise left the IE maker’s previous obligations in place and did not 

otherwise impact the information to be reported. 

In contrast, limiting contributor disclosure to the point of non-existence did 

not further the FECA’s purpose of providing “total disclosure.” Buckley, 424 U.S. 

at 76. Rather, the regulation “frustrate[ed] the policy that Congress sought to 

implement” because it allowed contributors and IE makers to “evade—almost 

completely—” the FECA’s disclosure obligations. Shays, 528 F.3d at 925 

(affirming striking of regulation); see also Zuber, 396 U.S. at 193 (rejecting 

interpretation by agency involved in drafting where interpretation frustrated 

 

17 Crossroads asserts that no party submitted comment relating to 11 C.F.R. 

§ 109.10(e)(1)(vi) during the 2003 rulemaking relating to BCRA. Crossroads Br. 

50. That is because that rulemaking, and the BCRA itself, did not impact the scope 

of IE reporting. See 68 Fed. Reg. 404, 415 (Jan. 3, 2003) (renumbering 11 C.F.R. 

§109.10 but not altering disclosure). 

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statute’s purpose). As noted, under the regulation, almost no contributor was ever 

reported, despite the millions spent on IEs post-Citizens United. JA___(Doc. 27 

15–17). Indeed, the facts below make plain the frustration of the statute’s purpose. 

Despite Crossroads spending millions on IEs, viewers never learned the identity of 

anyone who was behind Crossroads and the “sources of [its] election-related 

spending.” McCutcheon, 572 U.S. at 223; Citizens United, 558 U.S. at 369 (FECA 

serves purpose of informing public about “the funding sources for the ads” 

speaking about a candidate); SpeechNow.org, 599 F.3d at 698 (public has interest 

in knowing not only who is making an IE, but also “who is funding that speech”). 

Crossroads’s red-herrings about over-disclosure also would not justify the 

regulation. “[I]ndividuals who contribute to a union or corporation’s general 

treasury” or give to “an animal welfare organization to lobby the local city council 

for a shelter” but lack a purpose to influence elections, Crossroads Br. 51–52, are 

not making “contributions” under the Act and are not reported. The regulation is 

not needed to protect them.18 Crossroads further worries that a contributor 

intending to attack one candidate in Alaska may be identified in a report for an IE 

triggered by the recipient’s attack on another candidate in Arkansas. Crossroads 

 

18 Van Hollen was concerned about these donors being captured by a rule that 

required reporting of all “donations.” See 811 F.3d at 488, see also 11 C.F.R. 

§ 104.20(c)(7). Subsections (c)(1) and (c)(2)(C)’s focus on “contributions” does 

not raise that concern.

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Br. 52. But that is exactly what happens when a contributor gives to a political 

committee—the committee reports the contribution regardless of whether it ever 

spends funds on the Alaska race at all. By expressly incorporating the FECA’s 

political committee contributor requirements, the FECA contemplates the exact 

same result with respect to those making IEs.19

Indeed, the facts here amply demonstrate the hazard of reporting only 

contributions tied to a specific IE: nothing is disclosed. Rather, contributions are 

far more likely to be targeted to “aid[ing] the election” of a federal candidate, but 

remain ambivalent about how that support is offered, JA___(AR095); or they give 

money after seeing the recipient’s “exampl[e]” IEs, but don’t have a fully formed 

idea about the exact nature of the IE that should eventually run, JA___(AR078). 

Congress sensibly wanted those contributions disclosed and wrote the FECA to 

expressly mandate that. 

Indeed, by tying the contributor so closely to the IE, the regulation created 

redundancy in the FECA. That’s because a contributor who intends to fund a 

specific IE that is reported is not a contributor at all: they have not “relinquish[ed] 

control over the contribution.” 11 C.F.R. § 110.1(b)(6). Rather, anyone funding a 

specific IE has in fact “mad[e]” the IE, since one “makes” an IE by “pay[ing]” for 

 

19 Moreover, the agency’s sole constitutional means to address confusion is to 

“open the channels of communication rather than close them.” See Va. State Bd. of 

Pharm. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976).

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it. 52 U.S.C. §§ 30101(9)(A), (17), 30104(c)(1); see also FEC, AO 2008-10 (Oct. 

24, 2008), http://bit.ly/2AITSaa (one who funds a specific IE, even if created by 

third-party, has “made” the IE). 

In sum, subsections (c)(1) and (c)(2)(C) are not ambiguous about what 

contributor information must be reported, but even if they were, Crossroads fails to 

offer a contemporaneous justification by the agency to show that the regulation is a 

reasonable interpretation of any ambiguity that exists. 

D. The District Court Properly Invalidated 11 C.F.R. 

§ 109.10(e)(1)(vi) 

Though somewhat cryptic, Crossroads appears to attack the scope of the 

district court’s injunction invalidating 11 C.F.R. § 109.10(e)(1)(vi) because, 

Crossroads asserts, “CREW only alleged that ‘11 C.F.R. § 109.101(e)(1)(vi) is 

unlawful and invalid [as to FECA (c)(2)].’” Crossroads Br. 30 (alterations in 

original). Crossroads’s attacks are factually inaccurate, illogical, and fail to show 

the district court abused its broad discretion. 

First, as demonstrated by the alterations in Crossroads’s quotes, CREW’s 

attack on the validity of the regulation was not limited to its conflict with 

subsection (c)(2)(C). Rather, CREW alleged the regulation “conflicts with the 

[reporting obligations] imposed by the statute under the FECA” and therefore is 

“unlawful and invalid.” JA___(Doc. 1 ¶ 121) (emphasis added). Of course, because 

the FEC had already admitted below that the regulation conflicted with subsection 

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(c)(1), that issue was not a focus of CREW’s complaint. But Crossroads and the 

FEC put that issue squarely before the district court when, as part of their defense, 

they argued that the regulation did accurately reflect both subsections (c)(1) and 

(c)(2)(C). See JA___(Doc. 28 at 49–50; Doc. 30 at 24–28; Doc. 36 at 32). Indeed, 

by asserting that Crossroads violated subsection (c)(1), JA___(Doc. 1 ¶¶ 125–31), 

CREW by necessity claimed that (a) the regulation was silent as to subsection 

(c)(1) and thus not an agency interpretation of that subsection, or (b) the regulation 

was an interpretation of subsection (c)(1) but was invalid. That’s what CREW 

argued below. JA___(Doc. 33 at 24–31). 

Crossroads’s attempt to finely slice the invalidation is also illogical: the 

regulation is either valid or not. It cannot be invalid as to subsection (c)(2)(C) but 

valid as to subsection (c)(1). Indeed, the only way for the regulation not to directly 

conflict with subsection (c)(1) is if the regulation was not intended to cover 

subsection (c)(1) reporting. That was the FEC’s position in the administrative 

proceeding below and a position vehemently contested by Crossroads because it 

results in the same ruling on the matter: that subsection (c)(1) applies on its own 

force and the regulation is not a valid interpretation of it.20 

 

20 Crossroads incorrectly asserts that the district court dismissed any challenge to 

the validity of the regulation beyond its conflict with 52 U.S.C. § 30104(c)(2)(C). 

Crossroads Br. 30. Even assuming a validity claim could be limited to a conflict 

with only one subsection, that is not what the court found. Rather, it found CREW 

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Lastly, Crossroads fails to show any fault in the “broad discretion” of the 

district court to craft equitable relief. Nat’l Min., 145 F.3d at 1408. The district 

court was “well within its discretion in finding that the complaint placed the 

[defendants] on notice” that CREW was attacking the validity of 11 C.F.R. 

§ 109.10(e)(1)(vi) under both subsections (c)(1) and (c)(2). Id. The scope of the 

injunctive relief “is dictated by the extent of the violation established,” Califano v. 

Yamasaki, 442 U.S. 682, 702 (1979), not from some tortured reading of the 

pleadings. The district court properly declared the regulation was in conflict with 

both subsections (c)(1) and (c)(2)(C) and struck it as invalid based on the conflict 

demonstrated below. 

III. CREW Exhausted Administrative Remedies Though It Need Not Have, 

and Its Attempt at Exhaustion was Futile 

Crossroads spends much of its briefing trying to keep the validity of the 

regulation out of the courts, relying on a strained reading of the administrative 

proceedings and its assertion that CREW just should not be able to challenge the 

regulation outside of notice-and-comment rulemaking. Crossroads’s arguments are 

again wrong on the facts, however, and meritless even if they were accurate. 

 

could pursue its claim seeking to declare the regulation “unlawful and invalid,” 

period. JA___(Doc. 22 at 21). 

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First, Crossroads simply ignores the fact that CREW’s administrative 

complaint alleged subsection (c)(1) imposed a distinct disclosure obligation from 

subsection (c)(2)(C). In fact, CREW alleged that: 

The FECA requires every person (other than a political committee) 

who expends more than $250 on independent expenditures during a 

calendar year to file reports with the FEC identifying each person 

(other than a political committee) who makes contributions totaling 

more than $200 in a calendar year to the person making independent 

expenditures. 2 U.S.C. § 434(c)(1) (referencing 2 U.S.C. 

§ 434(b)(3)(A)). 

JA___(AR101 ¶ 14).21 Then, after laying out subsection (c)(2)(C), CREW alleged 

that “FEC regulations interpret these provisions”—plural—in 11 C.F.R. 

§ 109.10(e)(1)(vi), while noting that the regulation “fails to give full effect to these 

provisions”—again, plural. JA___(AR102 ¶ 16 & n.5) (emphasis added). Rather 

than confining the issues to a footnote in “background,” Crossroads Br. 25, CREW 

squarely laid out the conflict between the regulation and the statute, and then asked 

the FEC to enforce both provisions of the FECA independently from the 

regulation. JA___(AR109 ¶ 44, AR110 ¶ 50, AR113 ¶ 60) (alleging Crossroads 

“violated 2 U.S.C. § 434 and 11 C.F.R. § 109.10(e)(1)(vi)”). CREW’s complaint 

was more than adequate to alert the FEC and Crossroads to the issue, as both 

addressed the validity of the regulation in their responses. JA___(AR083; AR175 

 

21 Crossroads incorrectly states CREW’s entire discussion of subsection (c)(1) is 

limited to its mandate of quarterly reports. See Crossroads Br. 27 (quoting 

JA___(AR102 ¶ 17)).

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n.57). Given that record, it was eminently reasonable, and surely not an “abuse of 

discretion,” Avocados Plus, 370 F.3d at 1250, for the district court to conclude that 

CREW exhausted any administrative remedies as to the validity of the regulation. 

JA___(Doc. 43 at 48–51) (finding CREW provided the FEC “the opportunity to 

consider the matter, make its ruling, and state the reasons for its actions,” citing 

Coburn v. McHugh, 679 F.3d 924, 931 (D.C. Cir. 2012)). 

Moreover, the district court recognized CREW’s attempt at exhaustion—

while made—was also futile, and thus CREW need not have exhausted at all. 

JA___(Doc. 43 at 48 n. 30) (citing Ass’n of Flight Attendants v. Chao-CWA, 493 

F.3d 155, 159 (D.C. Cir. 2007) (courts may excuse exhaustion where it is futile)). 

As the district court noted, three commissioners blocked a rulemaking to revise 11 

C.F.R. § 109.10(e)(1)(vi) to conform with the FECA, despite the fact that their 

own OGC recognized the regulation conflicted with the statute. Id.; see also 

JA___(AR172 & n.48). Indeed, Crossroads cites a letter from two of those 

commissioners further committing themselves to the invalid regulation. Crossroads 

Br. 18. 

Furthermore, even without these findings, there is simply no need to exhaust 

administrative remedies to challenge the validity of a rule. See AT&T Co. v. FCC, 

978 F.2d 727, 734 (D.C. Cir. 1992); Murphy Expl. and Prod. Co. v. U.S. Dep’t of 

Interior, 270 F.3d 957, 958–59 (D.C. Cir. 2001) (holding plaintiff could challenge 

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legality of rule even if it did not challenge rule before agency); see also Darby v. 

Disneros, 509 U.S. 137, 154 (1993) (holding “[c]ourts are not free to impose an 

exhaustion requirement” to APA claims). AT&T is particularly instructive. There, 

the plaintiff filed an administrative complaint that did not mention the relevant 

regulation at all. 978 F.2d at 730. Rather, the respondent raised it in defense, and 

the agency relied on it in dismissing the complaint. Id. at 730–31. Nonetheless, the 

plaintiff was still able to challenge that regulation in court simply because the 

regulation was applied to it. Id. at 734.22 

Crossroads confuses the issue by relying on the FECA’s exhaustion 

requirements applicable to judicial review of a dismissal of an administrative 

complaint. Crossroads Br. 24. Crossroads simply asserts the same statutory 

requirements apply to challenge to a regulation’s validity under the APA, but it 

cites nothing for that conclusion. Rather, Crossroads ignores the fact that “[t]he 

FECA has no provisions governing judicial review of regulations, so an action 

challenging its implementing regulations should be brought under the [APA].” 

Perot, 97 F.3d at 560. 

 

22 Crossroads’s authority relates to a challenge in the initial review period after 

rulemaking, see Crossroads Br. 23–24, not to a challenge after application. See

NLRB Union v. FLRA, 834 F.2d 191, 196 (D.C. Cir. 1987) (requiring exhaustion 

would “effectively deny many parties ultimately affected by a rule an opportunity 

to question its validity”). 

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In short, Crossroads fails to show the district court abused its discretion in 

finding that CREW exhausted its remedies, even though it was futile, and despite 

the fact exhaustion is unnecessary for this APA claim. 

IV. CREW Had Standing Below 

Crossroads also challenges CREW’s standing to seek APA relief below, 

asserting CREW’s injuries were not remedial because Crossroads was immune 

from enforcement and because CREW did not challenge the regulation within six 

years of its adoption. These arguments have now been rejected three times and 

should again be rejected. 

To start, Crossroads did not enjoy immunity from enforcement. First, the 

viability of a 52 U.S.C. § 30111(e) defense depends on facts that are in dispute 

here and does not block all remedies. See Larouche v. FEC, 28 F.3d 137, 142 

(D.C. Cir. 1994); FEC v. O’Donnell, 209 F. Supp. 3d 727, 743 (D. Del. 2016); 

JA___(Doc. 43 at 106–07). Second, CREW v. FEC, 892 F.3d 434 (D.C. Cir. 

2018), does not apply where the dismissal was non-discretionary, or where the 

FEC has abdicated enforcement by adopting an invalid regulation. JA___(AR175–

76 & n.57; Doc. 43 at 107–10). Third, the statute of limitations did not bar the FEC 

from seeking equitable relief. See FEC v. Christian Coal., 965 F. Supp. 66, 71 

(D.D.C. 1997). Fourth, Crossroads’s repeated assertion that CREW’s purported 

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abandonment of its FECA claim after judgment defeated its standing before 

judgment remains “wrong chronologically.” CREW, 904 F.3d at 1018. 

More importantly, the viability of CREW’s FECA claim was and is 

irrelevant to its APA claim. CREW’s APA claim arises from the fact that the 

regulation was “applied” to it. AT&T, 978 F.2d at 734. While Crossroads would 

prefer CREW pursue a rulemaking, Crossroads Br. 34, “[n]othing . . . prevents 

[CREW] from pursuing its claim in a second form;” i.e., though this lawsuit. 

Murphy Expl., 270 F.3d at 958–59. The regulation’s existence and its application 

to CREW violated CREW’s right to receive information, causing CREW injury, 

regardless of whether CREW could have brought a successful FECA claim. See 

FEC v. Akins, 524 U.S. 11, 21 (1998); Stanley v. Georgia, 394 U.S. 557, 564 

(1969). Nor was redress limited to the FECA claim. Rather, “[w]here an agency 

rule causes the injury, as here, the redressability requirement may be satisfied by 

vacating the challenged rule.” Shays, 414 F.3d at 95. That is precisely what the 

district court did, remedying CREW’s injury not only from Crossroads’s failure to 

disclose, but from all IE-makers who failed and would fail to disclose due to the 

regulation. 

For the same reason, CREW’s claim was timely. Weaver, 744 F.3d at 145; 

AT&T, 978 F.2d at 734 n.7; NLRB Union, 834 F.2d at 195. CREW brought a facial 

challenge to the regulation within six years of its application to CREW. P&V 

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Enter. v. U.S. Army Corps of Eng’rs, 516 F.3d 1021, 1026 (D.C. Cir. 2008). 

CREW need not show the application was “material,” cf. Crossroads Br. 31 

(introducing term without any authority), but the application clearly was: the 

regulation was the sole reason given to dismiss both of CREW’s subsection (c)(1) 

and (c)(2)(C) claims. See JA___(AR175–76 & n.57). 

V. Crossroads, However, Does Not Have Standing To Bring This Appeal 

In contrast to CREW, Crossroads does not have standing to bring this 

appeal. Appellants must establish Article III standing to appeal. Hollingsworth v. 

Perry, 570 U.S. 693, 715 (2013). To do so, appellants must establish that the 

judgment below caused them injury. Liberty Mut. Ins. Co. v. Travelers Indem. Co., 

78 F.3d 639, 642 (D.C. Cir. 1996).23 Crossroads has not done that. 

First, Crossroads intervened below to defend its first FECA dismissal. See 

Crossroads GPS v. FEC, 788 F.3d 312 (D.C. Cir. 2015). Any interest Crossroads 

had in defending that action, however, was mooted when the FEC dismissed 

CREW’s claims on remand.24 Crossroads has demonstrated “no material risk of 

 

23 Because an appellant’s injury must stem from the judgment, the time to 

determine an appellant’s standing is not the commencement of litigation. Cf. 

Crossroads Br. 19. 

24 Contrary to one amicus, even a moot appeal would not require vacating the 

judgment below. Crossroad’s interest was mooted by the FEC’s dismissal on new 

grounds, not the “unilateral action of the party who prevailed,” U.S. Bancorp 

Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 25 (1994), and the APA claim is 

not on appeal because the real party in interest who is bound the injunction, the 

FEC, “declined to pursue its appeal,” id. at 25–26. 

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enforcement” from the FEC over its other IEs, Matthew A. Goldstein, PLLC v. U.S. 

Dep’t of State, 851 F.3d 1, 5 (D.C. Cir. 2017), particularly where the FEC has 

adopted an express policy of not seeking enforcement for any IE before September 

18, 2018 and Crossroads ceased making IEs in 2014.25 See FEC Guidance. 

That leaves the purported chill from the judgment on Crossroads’s future 

IEs. But Crossroads fails to demonstrate any “concrete plans” to have engaged in 

IEs at the time of judgment which could have been chilled by it. Summers v. Earth 

Island Inst., 555 U.S. 488, 496 (2009). Indeed, Crossroads now admits that it 

ceased all plans to make IEs four years before the judgment. Crossroads Br. 10. 

Crossroads’s worry about a “legal cloud” is no more than a “speculative” fear of a 

future event, not a “certainly impending” injury. Clapper v. Amnesty Int’l, USA, 

568 U.S. 398, 401 (2013); see also Nader v. FEC, 725 F.3d 226, 229 (D.C. Cir 

2013) (no standing for candidate who did not have concrete plans to run for 

office); Am. Library Ass’n v. Barr, 956 F.2d 1178, 1194 (D.C. Cir. 1992) 

(“[S]ubjective ‘chill’ alone will not suffice to confer standing on a litigant bringing 

a pre-enforcement facial challenge to a statute allegedly infringing on the freedom 

of speech.”); cf. ANSWER Coal. v. DC, 589 F.3d 433, 435–36 (D.C. Cir. 2009) 

(plaintiffs facing pending “enforcement action” for speech and who currently 

 

25 See FEC, Independent Expenditures (last visited Mar. 27, 2019), 

https://bit.ly/2N5Xjyc.

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suffered viewpoint discrimination had standing on motion to dismiss); see also 

ANSWER Coal. v. DC, 798 F. Supp. 2d 134, 143 (D.D.C. 2011) (noting plaintiff 

submitted “specific postering campaigns” that violated statute). Nor does 

Crossroads even now identify an untimely but concrete plan to make an IE—likely 

because the record shows Crossroads has terminated its electioneering to take 

advantage of another organization’s tax-exempt status. Robert Maguire, One 

Nation rising: Rove-linked group goes from no revenue to more than $10 million 

in 2015, OPENSECRETS NEWS (Nov. 17, 2016), https://bit.ly/2fJebqp; Josh Israel, 

Karl Rove’s Outside Spending Groups Migrate To New Dark Money Outfit, 

THINKPROGRESS (Aug. 11, 2016), https://bit.ly/2Ccvy0z. 

While Crossroads desires to “resume making independent expenditures” 

without disclosure “some day,” the impairment of that desire is not an Article III 

injury. Law Aff. ¶ 10, ECF 1757141; Summers, 555 U.S. at 496. Crossroads shows 

no concrete injury traceable to the judgment below, so the appeal must be 

dismissed for lack of jurisdiction. 

CONCLUSION 

CREW respectfully requests this Court dismiss the instant appeal as 

Crossroads lacks standing to bring it. Alternatively, if this Court finds this appeal is 

properly within its jurisdiction, CREW respectfully requests this Court affirm 

judgment of the district court below. 

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55 

Respectfully submitted, 

 /s/ Stuart C. McPhail 

STUART C. McPHAIL 

smcphail@citizensforethics.org 

(D.C. Bar. No. 1032529) 

ADAM J. RAPPAPORT 

arappaport@citizensforethics.org 

(D.C. Bar No. 479866) 

NIKHEL S. SUS 

nsus@citizensforethics.org

(D.C. Bar No. 1017937) 

Citizens for Responsibility and Ethics in 

Washington 

1101 K Street, N.W., Suite 201 

Washington, D.C. 20005 

Telephone: (202) 408-5565 

Fax: (202) 588-5020 

Counsel for Citizens for Responsibility and 

Ethics in Washington and Nicholas Mezlak

USCA Case #18-5261 Document #1783306 Filed: 04/17/2019 Page 72 of 106
CERTIFICATE OF COMPLIANCE 

1. This brief complies with type-volume limits because, excluding the parts of 

the document exempted by Fed. R. App. R. 32(f) (cover page, disclosure 

statement, table of contents, table of citations, statement regarding oral 

argument, signature block, certificates of counsel, addendum, attachments): 

[ X ] this brief contains [12,942] words. 

[ ] this brief uses a monospaced type and contains [state the number of] 

lines of text. 

2. This brief document complies with the typeface and type style requirements 

because: 

[ X ] this brief has been prepared in a proportionally spaced typeface using 

[Microsoft Word 2016] in [14pt Times New Roman]; or 

[ ] this brief 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: April 17, 2019 /s/ Stuart C. McPhail 

 Counsel for Appellee 

USCA Case #18-5261 Document #1783306 Filed: 04/17/2019 Page 73 of 106
CERTIFICATE OF FILING AND SERVICE 

 I hereby certify that on this 17th day of April, 2019, I caused this Page Proof 

Brief of Appellees 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: 

Thomas W. Kirby 

Michael Eugene Toner 

Andrew Gillum Woodson 

 WILEY REIN, LLP 

1776 K Street, NW 

Washington, D.C. 20006-2359 

202-716-7000 

Counsel for Appellant 

Kevin Andrew Deeley 

Seth Edward Nesin 

Harry Jacobs Summers 

FEDERAL ELECTION COMMISSION

1050 First Street, NE 

Washington, D.C. 20463 

(202) 694-1650 

Counsel for Non-Appearing Appellee

 /s/ Stuart C. McPhail 

 Counsel for Appellee 

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ADDENDUM 

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ii 

TABLE OF CONTENTS 

Appendix Page 

52 U.C.S. § 30104 ........................................................................................... Add. 1 

11 C.F.R. § 109.10 ........................................................................................ Add. 28 

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Add. 1 

52 U.C.S. § 30104 

TITLE 52. VOTING AND ELECTIONS 

SUBTITLE III. FEDERAL CAMPAIGN FINANCE 

CHAPTER 301. FEDERAL ELECTION CAMPAIGNS 

DISCLOSURE OF FEDERAL CAMPAIGN FUNDS 

 

§ 30104. Reporting Requirements 

(a) Receipts and disbursements by treasurers of political committees; 

filing requirements 

(1) Each treasurer of a political committee shall file reports of receipts 

and disbursements in accordance with the provisions of this 

subsection. The treasurer shall sign each such report. 

(2) If the political committee is the principal campaign committee of a 

candidate for the House of Representatives or for the Senate— 

(A) in any calendar year during which there is1 regularly scheduled 

election for which such candidate is seeking election, or 

nomination for election, the treasurer shall file the following 

reports: 

(i) a pre-election report, which shall be filed no later than the 12th 

day before (or posted by any of the following: registered mail, 

certified mail, priority mail having a delivery confirmation, or 

express mail having a delivery confirmation, or delivered to an 

overnight delivery service with an on-line tracking system, if 

posted or delivered no later than the 15th day before) any 

election in which such candidate is seeking election, or 

nomination for election, and which shall be complete as of the 

20th day before such election; 

(ii) a post-general election report, which shall be filed no later than 

the 30th day after any general election in which such candidate 

has sought election, and which shall be complete as of the 20th 

day after such general election; and 

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(iii) additional quarterly reports, which shall be filed no later than 

the 15th day after the last day of each calendar quarter, and 

which shall be complete as of the last day of each calendar 

quarter: except that the report for the quarter ending December 

31 shall be filed no later than January 31 of the following 

calendar year; and 

(B) in any other calendar year the treasurer shall file quarterly reports, 

which shall be filed not later than the 15th day after the last day of 

each calendar quarter, and which shall be complete as of the last 

day of each calendar quarter, except that the report for the quarter 

ending December 31 shall be filed not later than January 31 of the 

following calendar year. 

(3) If the committee is the principal campaign committee of a candidate 

for the office of President— 

(A) in any calendar year during which a general election is held to fill 

such office— 

(i) the treasurer shall file monthly reports if such committee has on 

January 1 of such year, received contributions aggregating 

$100,000 or made expenditures aggregating $100,000 or 

anticipates receiving contributions aggregating $100,000 or 

more or making expenditures aggregating $100,000 or more 

during such year: such monthly reports shall be filed no later 

than the 20th day after the last day of each month and shall be 

complete as of the last day of the month, except that, in lieu of 

filing the report otherwise due in November and December, a 

pre-general election report shall be filed in accordance with 

paragraph (2)(A)(i), a post-general election report shall be filed 

in accordance with paragraph (2)(A)(ii), and a year end report 

shall be filed no later than January 31 of the following calendar 

year; 

(ii) the treasurer of the other principal campaign committees of a 

candidate for the office of President shall file a pre-election 

report or reports in accordance with paragraph (2)(A)(i), a postgeneral election report in accordance with paragraph (2)(A)(ii), 

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and quarterly reports in accordance with paragraph (2)(A)(iii); 

and 

(iii) if at any time during the election year a committee filing under 

paragraph (3)(A)(ii) receives contributions in excess of 

$100,000 or makes expenditures in excess of $100,000, the 

treasurer shall begin filing monthly reports under paragraph 

(3)(A)(i) at the next reporting period; and 

(B) in any other calendar year, the treasurer shall file either— 

(i) monthly reports, which shall be filed no later than the 20th day 

after the last day of each month and shall be complete as of the 

last day of the month; or 

(ii) quarterly reports, which shall be filed no later than the 15th day 

after the last day of each calendar quarter and which shall be 

complete as of the last day of each calendar quarter. 

(4) All political committees other than authorized committees of a 

candidate shall file either— 

(A)

(i) quarterly reports, in a calendar year in which a regularly 

scheduled general election is held, which shall be filed no later 

than the 15th day after the last day of each calendar quarter: 

except that the report for the quarter ending on December 31 of 

such calendar year shall be filed no later than January 31 of the 

following calendar year; 

(ii) a pre-election report, which shall be filed no later than the 12th 

day before (or posted by any of the following: registered mail, 

certified mail, priority mail having a delivery confirmation, or 

express mail having a delivery confirmation, or delivered to an 

overnight delivery service with an on-line tracking system, if 

posted or delivered no later than the 15th day before) any 

election in which the committee makes a contribution to or 

expenditure on behalf of a candidate in such election, and 

which shall be complete as of the 20th day before the election; 

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(iii) a post-general election report, which shall be filed no later than 

the 30th day after the general election and which shall be 

complete as of the 20th day after such general election; and 

(iv) in any other calendar year, a report covering the period 

beginning January 1 and ending June 30, which shall be filed 

no later than July 31 and a report covering the period beginning 

July 1 and ending December 31, which shall be filed no later 

than January 31 of the following calendar year; or 

(B) monthly reports in all calendar years which shall be filed no later 

than the 20th day after the last day of the month and shall be 

complete as of the last day of the month, except that, in lieu of 

filing the reports otherwise due in November and December of any 

year in which a regularly scheduled general election is held, a pregeneral election report shall be filed in accordance with paragraph 

(2)(A)(i), a post-general election report shall be filed in accordance 

with paragraph (2)(A)(ii), and a year end report shall be filed no 

later than January 31 of the following calendar year. 

Notwithstanding the preceding sentence, a national committee of a 

political party shall file the reports required under subparagraph (B). 

(5) If a designation, report, or statement filed pursuant to this Act (other 

than under paragraph (2)(A)(i) or (4)(A)(ii) or subsection (g)(1)) is 

sent by registered mail, certified mail, priority mail having a delivery 

confirmation, or express mail having a delivery confirmation, the 

United States postmark shall be considered the date of filing the 

designation, report or statement. If a designation, report or statement 

filed pursuant to this Act (other than under paragraph (2)(A)(i) or 

(4)(A)(ii), or subsection (g)(1)) is sent by an overnight delivery 

service with an on-line tracking system, the date on the proof of 

delivery to the delivery service shall be considered the date of filing 

of the designation, report, or statement. 

(6)

(A) The principal campaign committee of a candidate shall notify the 

Secretary or the Commission, and the Secretary of State, as 

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appropriate, in writing, of any contribution of $1,000 or more 

received by any authorized committee of such candidate after the 

20th day, but more than 48 hours before, any election. This 

notification shall be made within 48 hours after the receipt of such 

contribution and shall include the name of the candidate and the 

office sought by the candidate, the identification of the contributor, 

and the date of receipt and amount of the contribution. 

(B) Notification of expenditure from personal funds 

(i) Definition of expenditure from personal funds 

In this subparagraph, the term “expenditure from personal 

funds” means-- 

(I) an expenditure made by a candidate using personal funds; 

and 

(II) a contribution or loan made by a candidate using personal 

funds or a loan secured using such funds to the candidate's 

authorized committee. 

(ii) Declaration of intent 

Not later than the date that is 15 days after the date on which an 

individual becomes a candidate for the office of Senator, the 

candidate shall file a declaration stating the total amount of 

expenditures from personal funds that the candidate intends to 

make, or to obligate to make, with respect to the election that 

will exceed the State-by-State competitive and fair campaign 

formula with— 

(I) the Commission; and 

(II) each candidate in the same election. 

(iii) Initial notification 

Not later than 24 hours after a candidate described in clause (ii) 

makes or obligates to make an aggregate amount of 

expenditures from personal funds in excess of 2 times the 

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threshold amount in connection with any election, the candidate 

shall file a notification with— 

(I) the Commission; and 

(II) each candidate in the same election. 

(iv) Additional notification 

After a candidate files an initial notification under clause (iii), 

the candidate shall file an additional notification each time 

expenditures from personal funds are made or obligated to be 

made in an aggregate amount that exceed2 $10,000 with— 

(I) the Commission; and 

(II) each candidate in the same election. 

Such notification shall be filed not later than 24 hours after the 

expenditure is made. 

(v) Contents 

A notification under clause (iii) or (iv) shall include— 

(I) the name of the candidate and the office sought by the 

candidate; 

(II) the date and amount of each expenditure; and 

(III) the total amount of expenditures from personal funds that 

the candidate has made, or obligated to make, with respect 

to an election as of the date of the expenditure that is the 

subject of the notification. 

(C) Notification of disposal of excess contributions 

In the next regularly scheduled report after the date of the election 

for which a candidate seeks nomination for election to, or election 

to, Federal office, the candidate or the candidate's authorized 

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committee shall submit to the Commission a report indicating the 

source and amount of any excess contributions (as determined 

under paragraph (1) of section 30116(i) of this title) and the 

manner in which the candidate or the candidate's authorized 

committee used such funds. 

(D) Enforcement 

For provisions providing for the enforcement of the reporting 

requirements under this paragraph, see section 30109 of this title. 

(E) The notification required under this paragraph shall be in addition 

to all other reporting requirements under this Act. 

(7) The reports required to be filed by this subsection shall be cumulative 

during the calendar year to which they relate, but where there has 

been no change in an item reported in a previous report during such 

year, only the amount need be carried forward. 

(8) The requirement for a political committee to file a quarterly report 

under paragraph (2)(A)(iii) or paragraph (4)(A)(i) shall be waived if 

such committee is required to file a pre-election report under 

paragraph (2)(A)(i), or paragraph (4)(A)(ii) during the period 

beginning on the 5th day after the close of the calendar quarter and 

ending on the 15th day after the close of the calendar quarter. 

(9) The Commission shall set filing dates for reports to be filed by 

principal campaign committees of candidates seeking election, or 

nomination for election, in special elections and political committees 

filing under paragraph (4)(A) which make contributions to or 

expenditures on behalf of a candidate or candidates in special 

elections. The Commission shall require no more than one preelection report for each election and one post-election report for the 

election which fills the vacancy. The Commission may waive any 

reporting obligation of committees required to file for special 

elections if any report required by paragraph (2) or (4) is required to 

be filed within 10 days of a report required under this subsection. The 

Commission shall establish the reporting dates within 5 days of the 

setting of such election and shall publish such dates and notify the 

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principal campaign committees of all candidates in such election of 

the reporting dates. 

(10) The treasurer of a committee supporting a candidate for the office of 

Vice President (other than the nominee of a political party) shall file 

reports in accordance with paragraph (3). 

(11)

(A) The Commission shall promulgate a regulation under which a 

person required to file a designation, statement, or report under this 

Act— 

(i) is required to maintain and file a designation, statement, or 

report for any calendar year in electronic form accessible by 

computers if the person has, or has reason to expect to have, 

aggregate contributions or expenditures in excess of a threshold 

amount determined by the Commission; and 

(ii) may maintain and file a designation, statement, or report in 

electronic form or an alternative form if not required to do so 

under the regulation promulgated under clause (i). 

(B) The Commission shall make a designation, statement, report, or 

notification that is filed with the Commission under this Act 

available for inspection by the public in the offices of the 

Commission and accessible to the public on the Internet not later 

than 48 hours (or not later than 24 hours in the case of a 

designation, statement, report, or notification filed electronically) 

after receipt by the Commission. 

(C) In promulgating a regulation under this paragraph, the Commission 

shall provide methods (other than requiring a signature on the 

document being filed) for verifying designations, statements, and 

reports covered by the regulation. Any document verified under 

any of the methods shall be treated for all purposes (including 

penalties for perjury) in the same manner as a document verified 

by signature. 

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(D) As used in this paragraph, the term “report” means, with respect to 

the Commission, a report, designation, or statement required by 

this Act to be filed with the Commission. 

(12) Software for filing of reports 

(A) In general 

The Commission shall— 

(i) promulgate standards to be used by vendors to develop software 

that— 

(I) permits candidates to easily record information concerning 

receipts and disbursements required to be reported under this 

Act at the time of the receipt or disbursement; 

(II) allows the information recorded under subclause (I) to be 

transmitted immediately to the Commission; and 

(III) allows the Commission to post the information on the 

Internet immediately upon receipt; and 

(ii) make a copy of software that meets the standards promulgated 

under clause (i) available to each person required to file a 

designation, statement, or report in electronic form under this 

Act. 

(B) Additional information 

To the extent feasible, the Commission shall require vendors to 

include in the software developed under the standards under 

subparagraph (A) the ability for any person to file any designation, 

statement, or report required under this Act in electronic form. 

(C) Required use 

Notwithstanding any provision of this Act relating to times for 

filing reports, each candidate for Federal office (or that candidate's 

authorized committee) shall use software that meets the standards 

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promulgated under this paragraph once such software is made 

available to such candidate. 

(D) Required posting 

The Commission shall, as soon as practicable, post on the Internet 

any information received under this paragraph. 

(b) Contents of reports 

Each report under this section shall disclose— 

(1) the amount of cash on hand at the beginning of the reporting period; 

(2) for the reporting period and the calendar year (or election cycle, in the 

case of an authorized committee of a candidate for Federal office), the 

total amount of all receipts, and the total amount of all receipts in the 

following categories: 

(A) contributions from persons other than political committees; 

(B) for an authorized committee, contributions from the candidate; 

(C) contributions from political party committees; 

(D) contributions from other political committees; 

(E) for an authorized committee, transfers from other authorized 

committees of the same candidate; 

(F) transfers from affiliated committees and, where the reporting 

committee is a political party committee, transfers from other 

political party committees, regardless of whether such committees 

are affiliated; 

(G) for an authorized committee, loans made by or guaranteed by the 

candidate; 

(H) all other loans; 

(I) rebates, refunds, and other offsets to operating expenditures; 

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(J) dividends, interest, and other forms of receipts; and 

(K) for an authorized committee of a candidate for the office of 

President, Federal funds received under chapter 95 and chapter 96 

of Title 26; 

(3) the identification of each-- 

(A) person (other than a political committee) who makes a contribution 

to the reporting committee during the reporting period, whose 

contribution or contributions have an aggregate amount or value in 

excess of $200 within the calendar year (or election cycle, in the 

case of an authorized committee of a candidate for Federal office), 

or in any lesser amount if the reporting committee should so elect, 

together with the date and amount of any such contribution; 

(B) political committee which makes a contribution to the reporting 

committee during the reporting period, together with the date and 

amount of any such contribution; 

(C) authorized committee which makes a transfer to the reporting 

committee; 

(D) affiliated committee which makes a transfer to the reporting 

committee during the reporting period and, where the reporting 

committee is a political party committee, each transfer of funds to 

the reporting committee from another political party committee, 

regardless of whether such committees are affiliated, together with 

the date and amount of such transfer; 

(E) person who makes a loan to the reporting committee during the 

reporting period, together with the identification of any endorser or 

guarantor of such loan, and the date and amount or value of such 

loan; 

(F) person who provides a rebate, refund, or other offset to operating 

expenditures to the reporting committee in an aggregate amount or 

value in excess of $200 within the calendar year (or election cycle, 

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in the case of an authorized committee of a candidate for Federal 

office), together with the date and amount of such receipt; and 

(G) person who provides any dividend, interest, or other receipt to the 

reporting committee in an aggregate value or amount in excess of 

$200 within the calendar year (or election cycle, in the case of an 

authorized committee of a candidate for Federal office), together 

with the date and amount of any such receipt; 

(4) for the reporting period and the calendar year (or election cycle, in the 

case of an authorized committee of a candidate for Federal office), the 

total amount of all disbursements, and all disbursements in the 

following categories: 

(A) expenditures made to meet candidate or committee operating 

expenses; 

(B) for authorized committees, transfers to other committees 

authorized by the same candidate; 

(C) transfers to affiliated committees and, where the reporting 

committee is a political party committee, transfers to other political 

party committees, regardless of whether they are affiliated; 

(D) for an authorized committee, repayment of loans made by or 

guaranteed by the candidate; 

(E) repayment of all other loans; 

(F) contribution refunds and other offsets to contributions; 

(G) for an authorized committee, any other disbursements; 

(H) for any political committee other than an authorized committee— 

(i) contributions made to other political committees; 

(ii) loans made by the reporting committees; 

(iii) independent expenditures; 

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(iv) expenditures made under section 30116(d) of this title; and 

(v) any other disbursements; and 

(I) for an authorized committee of a candidate for the office of 

President, disbursements not subject to the limitation of section 

30116(b) of this title; 

(5) the name and address of each-- 

 

(A) person to whom an expenditure in an aggregate amount or value in 

excess of $200 within the calendar year is made by the reporting 

committee to meet a candidate or committee operating expense, 

together with the date, amount, and purpose of such operating 

expenditure; 

(B) authorized committee to which a transfer is made by the reporting 

committee; 

(C) affiliated committee to which a transfer is made by the reporting 

committee during the reporting period and, where the reporting 

committee is a political party committee, each transfer of funds by 

the reporting committee to another political party committee, 

regardless of whether such committees are affiliated, together with 

the date and amount of such transfers; 

(D) person who receives a loan repayment from the reporting 

committee during the reporting period, together with the date and 

amount of such loan repayment; and 

(E) person who receives a contribution refund or other offset to 

contributions from the reporting committee where such 

contribution was reported under paragraph (3)(A) of this 

subsection, together with the date and amount of such 

disbursement; 

(6)

(A) for an authorized committee, the name and address of each person 

who has received any disbursement not disclosed under paragraph 

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(5) in an aggregate amount or value in excess of $200 within the 

calendar year (or election cycle, in the case of an authorized 

committee of a candidate for Federal office), together with the date 

and amount of any such disbursement; 

(B) for any other political committee, the name and address of each— 

(i) political committee which has received a contribution from the 

reporting committee during the reporting period, together with 

the date and amount of any such contribution; 

(ii) person who has received a loan from the reporting committee 

during the reporting period, together with the date and amount 

of such loan; 

(iii) person who receives any disbursement during the reporting 

period in an aggregate amount or value in excess of $200 within 

the calendar year (or election cycle, in the case of an authorized 

committee of a candidate for Federal office), in connection with 

an independent expenditure by the reporting committee, 

together with the date, amount, and purpose of any such 

independent expenditure and a statement which indicates 

whether such independent expenditure is in support of, or in 

opposition to, a candidate, as well as the name and office 

sought by such candidate, and a certification, under penalty of 

perjury, whether such independent expenditure is made in 

cooperation, consultation, or concert, with, or at the request or 

suggestion of, any candidate or any authorized committee or 

agent of such committee; 

(iv) person who receives any expenditure from the reporting 

committee during the reporting period in connection with an 

expenditure under section 30116(d) of this title, together with 

the date, amount, and purpose of any such expenditure as well 

as the name of, and office sought by, the candidate on whose 

behalf the expenditure is made; and 

(v) person who has received any disbursement not otherwise 

disclosed in this paragraph or paragraph (5) in an aggregate 

amount or value in excess of $200 within the calendar year (or 

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election cycle, in the case of an authorized committee of a 

candidate for Federal office), from the reporting committee 

within the reporting period, together with the date, amount, and 

purpose of any such disbursement; 

(7) the total sum of all contributions to such political committee, together 

with the total contributions less offsets to contributions and the total 

sum of all operating expenditures made by such political committee, 

together with total operating expenditures less offsets to operating 

expenditures, for both the reporting period and the calendar year (or 

election cycle, in the case of an authorized committee of a candidate 

for Federal office); and 

(8) the amount and nature of outstanding debts and obligations owed by 

or to such political committee; and where such debts and obligations 

are settled for less than their reported amount or value, a statement as 

to the circumstances and conditions under which such debts or 

obligations were extinguished and the consideration therefor. 

(c) Statements by other than political committees; filing; contents; 

indices of expenditures 

(1) Every person (other than a political committee) who makes 

independent expenditures in an aggregate amount or value in excess 

of $250 during a calendar year shall file a statement containing the 

information required under subsection (b)(3)(A) for all contributions 

received by such person. 

(2) Statements required to be filed by this subsection shall be filed in 

accordance with subsection (a)(2), and shall include— 

(A) the information required by subsection (b)(6)(B)(iii), indicating 

whether the independent expenditure is in support of, or in 

opposition to, the candidate involved; 

(B) under penalty of perjury, a certification whether or not such 

independent expenditure is made in cooperation, consultation, or 

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

any authorized committee or agent of such candidate; and 

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(C) the identification of each person who made a contribution in excess 

of $200 to the person filing such statement which was made for the 

purpose of furthering an independent expenditure. 

(3) The Commission shall be responsible for expeditiously preparing 

indices which set forth, on a candidate-by-candidate basis, all 

independent expenditures separately, including those reported under 

subsection (b)(6)(B)(iii), made by or for each candidate, as reported 

under this subsection, and for periodically publishing such indices on 

a timely pre-election basis. 

 

(d) Filing by facsimile device or electronic mail 

(1) Any person who is required to file a statement under subsection (c) or 

(g) of this section, except statements required to be filed electronically 

pursuant to subsection (a)(11)(A)(i) may file the statement by 

facsimile device or electronic mail, in accordance with such 

regulations as the Commission may promulgate. 

(2) The Commission shall make a document which is filed electronically 

with the Commission pursuant to this paragraph accessible to the 

public on the Internet not later than 24 hours after the document is 

received by the Commission. 

(3) In promulgating a regulation under this paragraph, the Commission 

shall provide methods (other than requiring a signature on the 

document being filed) for verifying the documents covered by the 

regulation. Any document verified under any of the methods shall be 

treated for all purposes (including penalties for perjury) in the same 

manner as a document verified by signature. 

(e) Political committees 

(1) National and congressional political committees 

The national committee of a political party, any national congressional 

campaign committee of a political party, and any subordinate 

committee of either, shall report all receipts and disbursements during 

the reporting period. 

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(2) Other political committees to which section 30125 of this title applies 

(A) In general 

In addition to any other reporting requirements applicable under 

this Act, a political committee (not described in paragraph (1)) to 

which section 30125(b)(1) of this title applies shall report all 

receipts and disbursements made for activities described in section 

30101(20)(A) of this title, unless the aggregate amount of such 

receipts and disbursements during the calendar year is less than 

$5,000. 

(B) Specific disclosure by State and local parties of certain nonFederal amounts permitted to be spent on Federal election activity 

Each report by a political committee under subparagraph (A) of 

receipts and disbursements made for activities described in section 

30101(20)(A) of this title shall include a disclosure of all receipts 

and disbursements described in section 30125(b)(2)(A) and (B) of 

this title. 

(3) Itemization 

If a political committee has receipts or disbursements to which this 

subsection applies from or to any person aggregating in excess of 

$200 for any calendar year, the political committee shall separately 

itemize its reporting for such person in the same manner as required in 

paragraphs (3)(A), (5), and (6) of subsection (b). 

(4) Reporting periods 

Reports required to be filed under this subsection shall be filed for the 

same time periods required for political committees under subsection 

(a)(4)(B). 

(f) Disclosure of electioneering communications 

(1) Statement required 

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Every person who makes a disbursement for the direct costs of 

producing and airing electioneering communications in an aggregate 

amount in excess of $10,000 during any calendar year shall, within 24 

hours of each disclosure date, file with the Commission a statement 

containing the information described in paragraph (2). 

(2) Contents of statement 

Each statement required to be filed under this subsection shall be 

made under penalty of perjury and shall contain the following 

information: 

(A) The identification of the person making the disbursement, of any 

person sharing or exercising direction or control over the activities 

of such person, and of the custodian of the books and accounts of 

the person making the disbursement. 

(B) The principal place of business of the person making the 

disbursement, if not an individual. 

(C) The amount of each disbursement of more than $200 during the 

period covered by the statement and the identification of the person 

to whom the disbursement was made. 

(D) The elections to which the electioneering communications pertain 

and the names (if known) of the candidates identified or to be 

identified. 

(E) If the disbursements were paid out of a segregated bank account 

which consists of funds contributed solely by individuals who are 

United States citizens or nationals or lawfully admitted for 

permanent residence (as defined in section 1101(a)(20) of Title 8) 

directly to this account for electioneering communications, the 

names and addresses of all contributors who contributed an 

aggregate amount of $1,000 or more to that account during the 

period beginning on the first day of the preceding calendar year 

and ending on the disclosure date. Nothing in this subparagraph is 

to be construed as a prohibition on the use of funds in such a 

segregated account for a purpose other than electioneering 

communications. 

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(F) If the disbursements were paid out of funds not described in 

subparagraph (E), the names and addresses of all contributors who 

contributed an aggregate amount of $1,000 or more to the person 

making the disbursement during the period beginning on the first 

day of the preceding calendar year and ending on the disclosure 

date. 

(3) Electioneering communication 

For purposes of this subsection— 

(A) In general 

(i) The term “electioneering communication” means any 

broadcast, cable, or satellite communication which— 

(I) refers to a clearly identified candidate for Federal office; 

(II) is made within— 

(aa) 60 days before a general, special, or runoff election for 

the office sought by the candidate; or 

(bb) 30 days before a primary or preference election, or a 

convention or caucus of a political party that has 

authority to nominate a candidate, for the office sought 

by the candidate; and 

(III) in the case of a communication which refers to a candidate 

for an office other than President or Vice President, is 

targeted to the relevant electorate. 

(ii) If clause (i) is held to be constitutionally insufficient by final 

judicial decision to support the regulation provided herein, then 

the term “electioneering communication” means any broadcast, 

cable, or satellite communication which promotes or supports a 

candidate for that office, or attacks or opposes a candidate for 

that office (regardless of whether the communication expressly 

advocates a vote for or against a candidate) and which also is 

suggestive of no plausible meaning other than an exhortation to 

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vote for or against a specific candidate. Nothing in this 

subparagraph shall be construed to affect the interpretation or 

application of section 100.22(b) of title 11, Code of Federal 

Regulations. 

(B) Exceptions 

The term “electioneering communication” does not include— 

(i) a communication appearing in a news story, commentary, or 

editorial distributed through the facilities of any broadcasting 

station, unless such facilities are owned or controlled by any 

political party, political committee, or candidate; 

(ii) a communication which constitutes an expenditure or an 

independent expenditure under this Act; 

(iii) a communication which constitutes a candidate debate or forum 

conducted pursuant to regulations adopted by the Commission, 

or which solely promotes such a debate or forum and is made 

by or on behalf of the person sponsoring the debate or forum; or 

(iv) any other communication exempted under such regulations as 

the Commission may promulgate (consistent with the 

requirements of this paragraph) to ensure the appropriate 

implementation of this paragraph, except that under any such 

regulation a communication may not be exempted if it meets 

the requirements of this paragraph and is described in section 

30101(20)(A)(iii) of this title. 

(C) Targeting to relevant electorate 

For purposes of this paragraph, a communication which refers to a clearly 

identified candidate for Federal office is “targeted to the relevant 

electorate” if the communication can be received by 50,000 or more 

persons— 

(i) in the district the candidate seeks to represent, in the case of a 

candidate for Representative in, or Delegate or Resident 

Commissioner to, the Congress; or 

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(ii) in the State the candidate seeks to represent, in the case of a 

candidate for Senator. 

(4) Disclosure date 

 For purposes of this subsection, the term “disclosure date” means— 

(A) the first date during any calendar year by which a person has made 

disbursements for the direct costs of producing or airing 

electioneering communications aggregating in excess of $10,000; 

and 

(B) any other date during such calendar year by which a person has 

made disbursements for the direct costs of producing or airing 

electioneering communications aggregating in excess of $10,000 

since the most recent disclosure date for such calendar year. 

(5) Contracts to disburse 

 For purposes of this subsection, a person shall be treated as having made 

a disbursement if the person has executed a contract to make the 

disbursement. 

(6) Coordination with other requirements 

 Any requirement to report under this subsection shall be in addition to 

any other reporting requirement under this Act. 

(7) Coordination with Title 26 

 Nothing in this subsection may be construed to establish, modify, or 

otherwise affect the definition of political activities or electioneering 

activities (including the definition of participating in, intervening in, or 

influencing or attempting to influence a political campaign on behalf of 

or in opposition to any candidate for public office) for purposes of Title 

26. 

(g) Time for reporting certain expenditures 

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(1) Expenditures aggregating $1,000 

(A) Initial report 

 A person (including a political committee) that makes or contracts 

to make independent expenditures aggregating $1,000 or more 

after the 20th day, but more than 24 hours, before the date of an 

election shall file a report describing the expenditures within 24 

hours. 

(B) Additional reports 

 After a person files a report under subparagraph (A), the person 

shall file an additional report within 24 hours after each time the 

person makes or contracts to make independent expenditures 

aggregating an additional $1,000 with respect to the same election 

as that to which the initial report relates. 

(2) Expenditures aggregating $10,000 

(A) Initial report 

 A person (including a political committee) that makes or 

contracts to make independent expenditures aggregating 

$10,000 or more at any time up to and including the 20th day 

before the date of an election shall file a report describing the 

expenditures within 48 hours. 

(B) Additional reports 

 After a person files a report under subparagraph (A), the person 

shall file an additional report within 48 hours after each time 

the person makes or contracts to make independent 

expenditures aggregating an additional $10,000 with respect to 

the same election as that to which the initial report relates. 

(3) Place of filing; contents 

A report under this subsection— 

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(A) shall be filed with the Commission; and 

(B) shall contain the information required by subsection (b)(6)(B)(iii), 

including the name of each candidate whom an expenditure is 

intended to support or oppose. 

(4) Time of filing for expenditures aggregating $1,000 

 Notwithstanding subsection (a)(5), the time at which the statement 

under paragraph (1) is received by the Commission or any other 

recipient to whom the notification is required to be sent shall be 

considered the time of filing of the statement with the recipient. 

(h) Reports from Inaugural Committees 

 The Federal Election Commission shall make any report filed by an 

Inaugural Committee under section 510 of Title 36 accessible to the 

public at the offices of the Commission and on the Internet not later than 

48 hours after the report is received by the Commission. 

(i) Disclosure of bundled contributions 

(1) Required disclosure 

 Each committee described in paragraph (6) shall include in the first 

report required to be filed under this section after each covered period 

(as defined in paragraph (2)) a separate schedule setting forth the 

name, address, and employer of each person reasonably known by the 

committee to be a person described in paragraph (7) who provided 2 

or more bundled contributions to the committee in an aggregate 

amount greater than the applicable threshold (as defined in paragraph 

(3)) during the covered period, and the aggregate amount of the 

bundled contributions provided by each such person during the 

covered period. 

(2) Covered period 

In this subsection, a “covered period” means, with respect to a committee— 

(A) the period beginning January 1 and ending June 30 of each year; 

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(B) the period beginning July 1 and ending December 31 of each year; 

and 

(C) any reporting period applicable to the committee under this section 

during which any person described in paragraph (7) provided 2 or 

more bundled contributions to the committee in an aggregate 

amount greater than the applicable threshold. 

(3) Applicable threshold 

(A) In general 

 In this subsection, the “applicable threshold” is $15,000, except 

that in determining whether the amount of bundled contributions 

provided to a committee by a person described in paragraph (7) 

exceeds the applicable threshold, there shall be excluded any 

contribution made to the committee by the person or the person's 

spouse. 

(B) Indexing 

 In any calendar year after 2007, section 30116(c)(1)(B) of this title 

shall apply to the amount applicable under subparagraph (A) in the 

same manner as such section applies to the limitations established 

under subsections (a)(1)(A), (a)(1)(B), (a)(3), and (h) of such 

section, except that for purposes of applying such section to the 

amount applicable under subparagraph (A), the “base period” shall 

be 2006. 

(4) Public availability 

The Commission shall ensure that, to the greatest extent practicable— 

(A) information required to be disclosed under this subsection is publicly 

available through the Commission website in a manner that is 

searchable, sortable, and downloadable; and 

(B) the Commission's public database containing information disclosed 

under this subsection is linked electronically to the websites 

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maintained by the Secretary of the Senate and the Clerk of the House 

of Representatives containing information filed pursuant to the 

Lobbying Disclosure Act of 1995. 

(5) Regulations 

 Not later than 6 months after September 14, 2007, the Commission 

shall promulgate regulations to implement this subsection. Under such 

regulations, the Commission— 

(A) may, notwithstanding paragraphs (1) and (2), provide for quarterly 

filing of the schedule described in paragraph (1) by a committee 

which files reports under this section more frequently than on a 

quarterly basis; 

(B) shall provide guidance to committees with respect to whether a 

person is reasonably known by a committee to be a person 

described in paragraph (7), which shall include a requirement that 

committees consult the websites maintained by the Secretary of the 

Senate and the Clerk of the House of Representatives containing 

information filed pursuant to the Lobbying Disclosure Act of 1995; 

(C) may not exempt the activity of a person described in paragraph (7) 

from disclosure under this subsection on the grounds that the 

person is authorized to engage in fundraising for the committee or 

any other similar grounds; and 

(D) shall provide for the broadest possible disclosure of activities 

described in this subsection by persons described in paragraph (7) 

that is consistent with this subsection. 

(6) Committees described 

 A committee described in this paragraph is an authorized committee 

of a candidate, a leadership PAC, or a political party committee. 

(7) Persons described 

 A person described in this paragraph is any person, who, at the time a 

contribution is forwarded to a committee as described in paragraph 

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(8)(A)(i) or is received by a committee as described in paragraph 

(8)(A)(ii), is— 

(A) a current registrant under section 4(a) of the Lobbying Disclosure 

Act of 1995; 

(B) an individual who is listed on a current registration filed under 

section 4(b)(6) of such Act or a current report under section 

5(b)(2)(C) of such Act; or 

(C) a political committee established or controlled by such a registrant 

or individual. 

(8) Definitions 

For purposes of this subsection, the following definitions apply: 

(A) Bundled contribution 

 The term “bundled contribution” means, with respect to a 

committee described in paragraph (6) and a person described in 

paragraph (7), a contribution (subject to the applicable threshold) 

which is— 

(i) forwarded from the contributor or contributors to the committee 

by the person; or 

(ii) received by the committee from a contributor or contributors, 

but credited by the committee or candidate involved (or, in the 

case of a leadership PAC, by the individual referred to in 

subparagraph (B) involved) to the person through records, 

designations, or other means of recognizing that a certain 

amount of money has been raised by the person. 

(B) Leadership PAC 

 The term “leadership PAC” means, with respect to a candidate for 

election to Federal office or an individual holding Federal office, a 

political committee that is directly or indirectly established, 

financed, maintained or controlled by the candidate or the 

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individual but which is not an authorized committee of the 

candidate or individual and which is not affiliated with an 

authorized committee of the candidate or individual, except that 

such term does not include a political committee of a political 

party. 

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11 C.F.R. § 109.10

How do political committees and other persons 

report independent expenditures? 

(a) Political committees, including political party committees, must report 

independent expenditures under 11 CFR 104.4. 

(b) Every person that is not a political committee and that makes 

independent expenditures aggregating in excess of $ 250 with respect to a 

given election in a calendar year shall file a verified statement or report 

on FEC Form 5 in accordance with 11 CFR 104.4(e) containing the 

information required by paragraph (e) of this section. Every person filing 

a report or statement under this section shall do so in accordance with the 

quarterly reporting schedule specified in 11 CFR 104.5(a)(1)(i) and (ii) 

and shall file a report or statement for any quarterly period during which 

any such independent expenditures that aggregate in excess of $ 250 are 

made and in any quarterly reporting period thereafter in which additional 

independent expenditures are made. 

(c) For each election in which a person who is not a political committee 

makes independent expenditures, the person shall aggregate its 

independent expenditures made in each calendar year to determine its 

reporting obligation. When such a person makes independent 

expenditures aggregating $ 10,000 or more for an election in any 

calendar year, up to and including the 20th day before an election, the 

person must report the independent expenditures on FEC Form 5, or by 

signed statement if the person is not otherwise required to file 

electronically under 11 CFR 104.18. The person making the independent 

expenditures aggregating $ 10,000 or more must ensure that the 

Commission receives the report or statement by 11:59 p.m. Eastern 

Standard/Daylight Time on the second day following the date on which a 

communication is publicly distributed or otherwise publicly 

disseminated. Each time subsequent independent expenditures relating to 

the same election aggregate an additional $ 10,000 or more, the person 

making the independent expenditures must ensure that the Commission 

receives a new 48-hour report of the subsequent independent 

expenditures. Each 48-hour report must contain the information required 

by paragraph (e)(1) of this section. 

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(d) Every person making, after the 20th day, but more than 24 hours before 

12:01 a.m. of the day of an election, independent expenditures 

aggregating $ 1,000 or more with respect to a given election must report 

those independent expenditures and ensure that the Commission receives 

the report or signed statement by 11:59 p.m. Eastern Standard/Daylight 

Time on the day following the date on which a communication is 

publicly distributed or otherwise publicly disseminated. Each time 

subsequent independent expenditures relating to the same election 

aggregate $ 1,000 or more, the person making the independent 

expenditures must ensure that the Commission receives a new 24-hour 

report of the subsequent independent expenditures. (See 11 CFR 104.4(f) 

for aggregation.) Such report or statement shall contain the information 

required by paragraph (e) of this section. 

(e) Content of verified reports and statements and verification of reports and 

statements. 

(1) Contents of verified reports and statement. If a signed report or 

statement is submitted, the report or statement shall include: 

(i) The reporting person's name, mailing address, occupation, and the 

name of his or her employer, if any; 

(ii) The identification (name and mailing address) of the person to 

whom the expenditure was made; 

(iii) The amount, date, and purpose of each expenditure; 

(iv) [Effective until Mar. 31, 2019.] A statement that indicates whether 

such expenditure was in support of, or in opposition to a candidate, 

together with the candidate's name and office sought; 

(iv) [Effective Mar. 31, 2019.] A statement that indicates whether such 

expenditure was in support of, or in opposition to a candidate, 

together with the candidate's name and office sought; if the 

expenditure meets the criteria set forth in 11 CFR 

104.3(b)(3)(vii)(C), memo text must be used to indicate the states 

in which the communication is distributed, as prescribed in that 

section; 

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(v) A verified certification under penalty of perjury as to whether such 

expenditure was made in cooperation, consultation, or concert 

with, or at the request or suggestion of a candidate, a candidate's 

authorized committee, or their agents, or a political party 

committee or its agents; and 

(vi) The identification of each person who made a contribution in 

excess of $ 200 to the person filing such report, which contribution 

was made for the purpose of furthering the reported independent 

expenditure. 

(2) Verification of independent expenditure statements and reports. Every 

person shall verify reports and statements of independent expenditures 

filed pursuant to the requirements of this section by one of the 

methods stated in paragraph (e)(2)(i) or (ii) of this section. Any report 

or statement verified under either of these methods shall be treated for 

all purposes (including penalties for perjury) in the same manner as a 

document verified by signature. 

(i) For reports or statements filed on paper (e.g., by hand-delivery, 

U.S. Mail, or facsimile machine), the person who made the 

independent expenditure shall certify, under penalty of perjury, the 

independence of the expenditure by handwritten signature 

immediately following the certification required by paragraph 

(e)(1)(v) of this section. 

(ii) For reports or statements filed by electronic mail, the person who 

made the independent expenditure shall certify, under penalty of 

perjury, the independence of the expenditure by typing the 

treasurer's name immediately following the certification required 

by paragraph (e)(1)(v) of this section. 

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