UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CITIZENS FOR RESPONSIBILITY AND 

ETHICS IN WASHINGTON, et al., 

 Plaintiffs, 

 v. 

FEDERAL ELECTION COMMISSION, 

 Defendant, 

CROSSROADS GRASSROOTS POLICY 

STRATEGIES, 

 

Intervenor-Defendant. 

Civil Action No. 1:16-cv-00259-BAH 

CROSSROADS GRASSROOTS POLICY STRATEGIES’ REPLY MEMORANDUM 

IN SUPPORT OF ITS CROSS-MOTION FOR SUMMARY JUDGMENT 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 1 of 59
i 

TABLE OF CONTENTS 

TABLE OF AUTHORITIES ......................................................................................................... iii 

LIST OF ABBREVIATIONS ....................................................................................................... xii 

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

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

I. THE COURT SHOULD DISMISS CREW’S COMPLAINT BECAUSE CGPS 

COMPLIED WITH THE FEC’S REGULATION. .............................................................4 

A. CGPS Complied With the FEC’s Regulation, and the FEC Properly Declined to 

Open an Investigation ....................................................................................................4 

B. CGPS Was Entitled to Rely on the Regulation and Did So in Good Faith, Thereby 

Defeating CREW’s Claims Two and Three ...................................................................6 

1. CGPS Had a Statutory Right to Rely on the Regulation ..........................................6 

2. The Regulation Protects CGPS Against “Equitable” Remedies .............................9 

3. CGPS Had a Constitutional Right to Rely on the Regulation ...............................11 

II. THE COURT SHOULD DISMISS CREW’S CLAIMS TWO AND THREE BECAUSE 

CREW FAILED TO EXHAUST ADMINISTRATIVE REMEDIES ..............................14 

A. CREW’s Administrative Complaint Failed to Challenge the Regulation’s Validity or 

Claim any Violation of the FECA’s IE Coverage Provision .......................................14 

B. CREW Failed to Exhaust Administrative Remedies by Not Presenting These Claims 

in Its Administrative Complaint, as the FECA Required It to Do ...............................15 

C. The Fact That CREW Is Now Challenging a Regulation’s Validity Does Not Excuse 

Its Failure to Exhaust Administrative Remedies .........................................................18 

D. CREW Failed to Follow the Appropriate Procedure for Challenging the Validity of 

the FEC’s IE Reporting Regulation ............................................................................19 

III. THE COURT SHOULD DISMISS CREW’S CLAIM TWO BECAUSE CREW’S 

CHALLENGE TO THE REGULATION IS TIME-BARRED .........................................21 

IV. THE COURT SHOULD DISMISS CREW’S CLAIMS TWO AND THREE 

BECAUSE THE FEC’S EXPLANATION FOR THE REGULATION 

IMPLEMENTING THE STATUTE WAS SUFFICIENT ................................................23 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 2 of 59
ii 

V. THE COURT SHOULD DISMISS CREW’S CLAIMS TWO AND THREE 

BECAUSE THE REGULATION PROPERLY IMPLEMENTS THE STATUTE ..........24 

A. The FEC’s IE Reporting Regulation Properly Construes the Content Provision ........24 

1. The Statute Supports the FEC’s Interpretation Under Chevron Step One ............24 

2. The Regulation Is Proper Under Chevron Step Two .............................................27

i. Extrinsic post hoc campaign finance data cannot provide evidence of 

congressional intent or be considered in an APA challenge to the 

regulation’s validity .........................................................................................27 

ii. CREW’s extrinsic post hoc evidence fails to show the regulation has 

resulted in “no disclosure” of contributors on IE reports ................................29 

iii. The regulation is not redundant .......................................................................30 

B. The FEC’s IE Reporting Regulation Properly Construes the Coverage Provision, 

and CREW’s Alternative Reading Would Result in Misleading Reporting ................32 

C. Congress Has Ratified the FEC’s IE Reporting Regulation ........................................37 

VI. THE FEC’S DISMISSAL IS ENTITLED TO DEFERENCE ..........................................40 

VII. TO THE EXTENT THE COURT DOES NOT GRANT SUMMARY JUDGMENT 

TO THE FEC AND CGPS, THE APPROPRIATE REMEDY IS TO LEAVE THE 

REGULATION IN PLACE AND REMAND TO THE FEC FOR FURTHER 

PROCEEDINGS ................................................................................................................43

CONCLUSION ..............................................................................................................................45 

   

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 3 of 59
iii 

TABLE OF AUTHORITIES 

 Page(s) 

Cases 

A.L. Pharma, Inc. v. Shalala, 

62 F.3d 1484 (D.C. Cir. 1995) .................................................................................................44 

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

516 F. Supp. 2d 1 (D.D.C. 2007) .............................................................................................26 

Abhe & Svoboda, Inc. v. Chao, 

508 F.3d 1052 (D.C. Cir. 2007) ...................................................................................12, 13, 14 

Abourezk v. Reagan, 

785 F.2d 1043 (D.C. Cir. 1986), aff’d, 484 U.S. 1 (1987) .......................................................38 

Akins v. FEC, 

101 F.3d 731 (D.C. Cir. 1996) ...........................................................................................40, 41 

Allied–Signal, Inc. v. NRC, 

988 F.2d 146 (D.C.Cir.1993) ...................................................................................................43 

Am. Iron & Steel Inst. v. EPA, 

526 F.2d 1027 (3d Cir. 1975), amended, 560 F.2d 589 (3d Cir. 1977) ...................................23 

Am. Wild Horse Pres. Campaign v. Salazar, 

859 F. Supp. 2d 33 (D.D.C. 2012) ...........................................................................................28

Armstrong v. Dist. of Columbia Pub. Library, 

154 F. Supp. 2d 67 (D.D.C. 2001) ...........................................................................................11

Assoc. of Flight Attendants-CWA v. Chao, 

493 F.3d 155 (D.C. Cir. 2007) ...........................................................................................20, 28 

AT&T v. FCC, 

978 F.2d 727 (D.C. Cir. 1992) .................................................................................................18 

Avocados Plus Inc. v. Veneman, 

370 F.3d 1243 (D.C. Cir. 2004) .........................................................................................17, 18

Banner Health v. Price, 

867 F.3d 1323 (D.C. Cir. 2017) ...............................................................................................43 

Bismullah v. Gates, 

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

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 4 of 59
iv 

Buckley v. Valeo, 

424 U.S. 1 (1976) ............................................................................................................. passim

Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 

566 U.S. 399 (2012) .................................................................................................................25 

Citizens United v. FEC, 

558 U.S. 310 (2010) .................................................................................................................33 

Coburn v. McHugh, 

679 F.3d 924 (D.C. Cir. 2012) .................................................................................................15 

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

983 F. Supp. 2d 1 (D.D.C. 2013), aff’d, 795 F.3d 151 (D.C. Cir. 2015) .................................42 

CREW v. FEC, 

209 F. Supp. 3d 77 (D.D.C. 2016) ...........................................................................................41

Darby v. Cisneros, 

509 U.S. 137 (1993) .................................................................................................................18 

DSCC v. FEC, 

745 F. Supp. 742 (D.D.C. 1990) ......................................................................................4, 5, 40 

Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 

485 U.S. 568 (1988) .................................................................................................................34 

Encino Motorcars, LLC v. Navarro, 

136 S. Ct. 2117 (2016) .............................................................................................................21 

FEC v. Craig for U.S. Senate, 

70 F. Supp. 3d 82 (D.D.C. 2014), aff’d 816 F.3d 829 (D.C. Cir. 2016) ....................................8 

FEC v. DSCC, 

454 U.S. 27 (1981) ...............................................................................................................8, 37 

FEC v. Furgatch, 

807 F.2d 857 (9th Cir. 1987) ...................................................................................................12 

FEC v. Mass. Citizens for Life, 

479 U.S. 238 (1986) .................................................................................................................11 

FEC v. NRSC, 

966 F.2d 1471 (D.C. Cir. 1992) ...............................................................................................40 

FEC v. O’Donnell, 

209 F. Supp. 3d 727 (D. Del. 2016) .......................................................................................8, 9

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 5 of 59
v 

FEC v. Survival Educ. Fund, 

65 F.3d 285 (2nd Cir. 1995)...............................................................................................34, 36 

FEC v. Wis. Right to Life, Inc., 

551 U.S. 449 (2007) (Roberts, C.J.) ..........................................................................................6 

In re FECA Litigation, 

474 F. Supp. 1044 (D.D.C. 1979) ..............................................................................................5 

Foo v. Tillerson, 

244 F. Supp. 3d 17 (D.D.C. 2017) ...........................................................................................26

Ford Motor Credit Co. v. Milhollin, 

444 U.S. 555 (1980) .................................................................................................................10 

General Electric Co. v. EPA, 

53 F.3d 1324 (D.C. Cir. 1995) .................................................................................................11 

George E. Warren Corp. v. EPA, 

159 F.3d 616 (D.C. Cir. 1998) .................................................................................................22 

Good Samaritan Hosp. v. Shalala, 

508 U.S. 402 (1993) .................................................................................................................40 

Haig v. Agee, 

453 U.S. 280 (1981) .................................................................................................................38 

Heartland Reg’l Med. Ctr. v. Sebelius, 

566 F.3d 193 (D.C. Cir. 2009) .................................................................................................44 

Heckler v. Chaney, 

470 U.S. 821 (1985) .................................................................................................................42 

Honig v. Doe, 

484 U.S. 305 (1988) .................................................................................................................16 

Horvath v. Dodaro, 

160 F.Supp.3d 32 (D.D.C. 2015) .............................................................................................22

Int’l Union, United Mine Workers of Am. v. Fed. Mine Safety & Health Admin., 

920 F.2d 960 (D.C. Cir. 1990) .................................................................................................43 

John Glenn Presidential Comm., Inc. v. FEC, 

822 F.2d 1097 (D.C. Cir. 1987) ...............................................................................................10 

Jost v. Surface Transp. Bd., 

194 F.3d 79 (D.C. Cir. 1999) ...................................................................................................23 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 6 of 59
vi 

Keeffe v. Library of Congress, 

777 F.2d 1573 (D.C. Cir. 1985) ...............................................................................................11 

Kimble v. Marvel Entm’t, LLC, 

135 S. Ct. 2401 (2015) .............................................................................................................39 

La Botz v. FEC, 

61 F. Supp. 3d 21 (D.D.C. 2014) .............................................................................................42 

La. Fed. Land Bank Ass’n, FLCA v. Farm Credit Admin., 

336 F.3d 1075 (D.C. Cir. 2003) .........................................................................................43, 44

LaRouche v. FEC, 

28 F.3d 137 (D.C. Cir. 1994) ...................................................................................................10 

Level the Playing Field v. FEC, 

232 F. Supp. 3d 130 (D.D.C. 2017) .........................................................................................20 

Lujan v. Defenders of Wildlife, et al., 

504 U.S. 555 (2006) .................................................................................................................21 

Martin Tractor Co. v. FEC, 

627 F.2d 375 (D.C. Cir. 1980) ...................................................................................................9 

Maxcell Telecom Plus, Inc. v. FCC, 

815 F.2d 1551 (D.C. Cir. 1987) ...............................................................................................11 

McConnell v. FEC, 

540 U.S. 93 (2003) ...............................................................................................................6, 33 

McFadden v. U.S., 

135 S. Ct. 2298 (2015) .............................................................................................................25 

Miller v. Youakim, 

440 U.S. 125 (1979) .................................................................................................................40 

Mobil Expl. & Producing U.S., Inc. v. Babbitt, 

913 F. Supp. 5 (D.D.C. 1995) ..................................................................................................22 

Montgomery Cnty, Md., v. FCC, 

863 F.3d 485 (6th Cir. 2017) ...................................................................................................22 

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

463 U.S. 29 (1983) ...................................................................................................................23 

Multicultural Media, Telecom and Internet Council v. FCC, 

873 F.3d 932 (D.C. Cir. 2017) .................................................................................................23 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 7 of 59
vii 

Murphy Exploration and Production Company v. U.S. Department of Interior, 

270 F.3d 957 (D.C. Cir. 2001) .................................................................................................19 

Mylan Pharm., Inc. v. Shalala, 

81 F. Supp. 2d 30 (D.D.C. 2000) .......................................................................................24, 25 

N.H. Motor Transp. Ass’n v. Rowe, 

448 F.3d 66 (1st Cir. 2006) ................................................................................................25, 26 

Nat’l Ass’n for Home Care v. Shalala, 

135 F. Supp. 2d 161 (D.D.C. 2001) .........................................................................................24 

Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs., 

545 U.S. 967 (2005) ...........................................................................................................11, 12 

Nat. Res. Def. Council v. Nuclear Regulatory Comm’n, 

666 F.2d 595 (D.C. Cir. 1981) .................................................................................................23 

National Association of Manufacturers v. Taylor, 

549 F. Supp. 2d 33 (D.D.C. 2008) .....................................................................................13, 14 

Ne. Md. Waste Disposal Authority v. EPA, 

358 F.3d 936 (D.C. Cir. 2004) .................................................................................................21 

NLRB Union v. FLRA, 

834 F.2d 191 (D.C. Cir. 1987) ...........................................................................................21, 22 

Perez-Guzman v. Lynch, 

835 F.3d 1066 (9th Cir. 2016) ...........................................................................................21, 22 

Perot v. FEC, 

97 F.3d 553 (D.C. Cir. 1996) .................................................................................16, 17, 19, 42 

Pillsbury v. United Eng’g Co., 

342 U.S. 197 (1952) .................................................................................................................26 

Pub. Citizen v. Dep’t of Justice, 

491 U.S. 440 (1989) .................................................................................................................32 

Pub. Citizen v. FAA, 

988 F.2d 186 (D.C. Cir. 1993) .................................................................................................38 

Pub. Citizen v. Nuclear Regulatory Comm’n, 

901 F.2d 147 (D.C. Cir. 1990) .................................................................................................22 

Pub. Employees for Envtl. Responsibility v. U.S. Fish & Wildlife Serv., 

189 F. Supp. 3d 1, 3 (D.D.C. 2016), appeal dismissed, No. 16-5224, 2016 WL 

6915561 (D.C. Cir. Oct. 31, 2016) ..........................................................................................44

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 8 of 59
viii 

Pub. Serv. Co. of Ind., Inc. v. ICC, 

749 F.2d 753 (D.C. Cir. 1984) .................................................................................................40 

Radio Athens, Inc. v. FCC, 

401 F.2d 398 (D.C. Cir. 1968) .................................................................................................11 

Rapanos v. U.S., 

547 U.S. 715 (2006) .................................................................................................................38 

Rosenberg v. U.S. Dept. of Immigration and Customs Enforcement, 

956 F. Supp. 2d 32 (D.D.C. 2013) ...........................................................................................16

Satellite Broad. Co., Inc. v. FCC, 

824 F.2d 1 (D.C. Cir. 1987) .....................................................................................................11 

Shays v. FEC, 

414 F.3d 76 (D.C. Cir. 2005) .....................................................................................................9 

Sims v. Apfel, 

530 U.S. 103 (2000) .................................................................................................................17 

Spannaus v. U.S. Dep’t of Justice, 

643 F. Supp. 698 (D.D.C. 1986) ..............................................................................................22 

Spannaus v. U.S. Dep’t of Justice, 

824 F.2d 52 (D.C. Cir. 1987) ...................................................................................................22 

SpeechNow.org v. FEC, 

599 F.3d 686 (D.C. Cir. 2010) (en banc) .................................................................................12 

Sugar Cane Growers Co-op. of Florida v. Veneman, 

289 F.3d 89 (D.C. Cir. 2002) ...................................................................................................43 

Swift & Courtney & Beecher Co. v. U.S., 

105 U.S. 691 (1881) ...................................................................................................................9 

Teich v. FDA, 

751 F. Supp. 243 (D.D.C. 1990) ..............................................................................................13 

U.S. Sugar Corp. v. EPA, 

844 F.3d 268 (D.C. Cir. 2016) .................................................................................................43 

U.S. v. Cleveland Indians Baseball Co., 

532 U.S. 200 (2001) .................................................................................................................40 

U.S. v. Mead Corp., 

533 U.S. 218 (2001) .................................................................................................................41 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 9 of 59
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U.S. v. Mosquera-Murillo, 

172 F. Supp. 3d 24 (D.D.C. 2016) ...........................................................................................32

United Transp. Union v. Lewis, 

711 F.2d 233 (D.C. Cir. 1983) .................................................................................................40 

Utility Workers Union of America, Local 369, AFL-CIO v. FEC, 

691 F. Supp. 2d 101 (D.D.C. 2010) .........................................................................................22 

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

425 U.S. 748 (1976) .................................................................................................................35 

Van Hollen, Jr. v. Fed. Election Comm’n, 

811 F.3d 486 (D.D.C. 2016) ..............................................................................................28, 35

Wilhelmus v. Geren, 

796 F. Supp. 2d 157 (D.D.C. 2011) ...................................................................................23, 24 

Woodford v. Ngo, 

548 U.S. 81 (2006) .............................................................................................................15, 16 

Statutes 

2 U.S.C. § 434(c)(1) .......................................................................................................................15 

2 U.S.C. § 434(c)(1) and (2) ......................................................................................................6, 24 

2 U.S.C. §§ 434(c)(2)(A)-(C) ........................................................................................................12 

2 U.S.C. § 434(e)(1) .......................................................................................................................31 

2 U.S.C. § 1601 et seq. (Lobbying Disclosure Act) ......................................................................13 

5 U.S.C. § 552 ................................................................................................................................13 

28 U.S.C. § 2401(a) .................................................................................................................21, 22 

40 U.S.C. § 3141 et seq. (Davis-Bacon Act) .................................................................................13 

52 U.S.C. § 30104(c) .................................................................................................................7, 39 

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

52 U.S.C. § 30104(c)(2) ...........................................................................................................19, 26 

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

52 U.S.C. § 30104(f) ......................................................................................................................33 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 10 of 59
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52 U.S.C. § 30104(g)(1), (2) ............................................................................................................8 

52 U.S.C. § 30109 ..........................................................................................................................16 

52 U.S.C. § 30109(a)(1) .................................................................................................................17 

52 U.S.C. § 30109(a)(8) .................................................................................................................19 

52 U.S.C. § 30111(d) .....................................................................................................................37 

52 U.S.C. § 30111(e) .................................................................................................................6, 13 

Other Authorities 

11 C.F.R. § 104.20(c)(9) ................................................................................................................27 

11 C.F.R. § 109.2(b) ......................................................................................................................31 

11 C.F.R. § 109.5 ...........................................................................................................................31 

11 C.F.R. § 109.10(b) ....................................................................................................................15 

11 C.F.R. § 109.10(e)(1)(vi) ..........................................................................................1, 14, 24, 26 

11 C.F.R. § 114.2(f)(1), (2)(i) ........................................................................................................31 

11 C.F.R. § 116.3 ...........................................................................................................................31 

143 Cong. Rec. S10485-01 (Oct. 7, 1997) (Sen. Torricelli Amndt., No. 1308, to 

the Bipartisan Campaign Reform Act of 1997) .......................................................................39 

143 Cong. Rec. S10661-02 (Oct. 8, 1997) (Sen. Murray Amndt., No. 1315, to the 

Bipartisan Campaign Reform Act of 1997) .............................................................................39 

144 Cong. Rec. S884-02 (Feb. 24, 1998) ................................................................................38, 39 

145 Cong. Rec. S12734-02 (Oct. 18, 1999) ...................................................................................38

Cong. Research Svc. Rept. No. 97-589, Statutory Interpretation: General 

Principles and Recent Trends ..................................................................................................27 

CREW, Comments in Response to Advance Notice of Proposed Rulemaking on 

Earmarking, Affiliation, Joint Fundraising, Disclosure, and Other Issues (Jan. 

15, 2015) ....................................................................................................................................7 

CRP, 2012 Outside Spending, by Group .......................................................................................30

CRP, Outside Spending by Disclosure, Excluding Party Committees ..........................................29 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 11 of 59
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FEC Adv. Op. No. 2008-10 (VoterVoter) ...............................................................................30, 31 

FEC Adv. Op. No. 2017-06 (Stein and Gottlieb) ..........................................................................31 

FEC MUR 4960 (Hillary Rodham Clinton for U.S. Senate Expl. Comm.), 

Statement of Reasons of Commissioners David M. Mason, Karl J. Sandstrom, 

Bradley A. Smith, and Scott E. Thomas ....................................................................................5 

FEC MUR 3503, First General Counsel’s Report .........................................................................36 

FEC MUR 6435 (Rangel), First General Counsel’s Report ............................................................5 

FEC, Request for Additional Information (RFAI)........................................................................7, 8 

First Amendment ...........................................................................................................................35 

H.R. Rep. No. 131, 107th Cong., 1st Sess., pt. 1 (2001) ...............................................................39 

Keating v. FEC, 

No. 10-145, 2010 WL 3777212 (U.S. Sept. 27, 2010) (Respondent’s Opp. Br.) ....................12 

Legislative History of Federal Election Campaign Act Amendments of 1974 ..............................37 

Legislative History of Federal Election Campaign Act Amendments of 1979 ............10, 24, 31, 32 

Lenora B. Fulani for President Comm. v. FEC, 

No. 97-1466, 1998 WL 35240588 (D.C. Cir. Feb. 20, 1998) (Respondent’s Br.) ..................10 

Rep. Van Hollen Petition for Rulemaking to Revise and Amend Regulations 

Relating to Disclosure of Independent Expenditures (Apr. 21, 2011) .....................................19 

Ronald M. Levin, “Vacation” at Sea: Judicial Remedies and Equitable Discretion 

in Administrative Law, 53 Duke L.J. 291 (2003) .....................................................................44 

Womble Carlyle, Don’t Sweat the Details . . . Unless You’re Filing at the Federal 

Election Commission (FEC), NAT’L L.J., May 9, 2014 .............................................................7 

 

 

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LIST OF ABBREVIATIONS 

APA – Administrative Procedure Act (5 U.S.C. § 500 et seq.) 

CGPS – Crossroads Grassroots Policy Strategies 

CREW – Citizens for Responsibility and Ethics in Washington 

EC – electioneering communication 

FEC – Federal Election Commission 

FECA – Federal Election Campaign Act of 1971, as amended (52 U.S.C. § 30101 et seq.) 

IE – independent expenditure 

MUR – FEC matter under review 

PAC – political committee 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 13 of 59
1 

INTRODUCTION 

Crossroads Grassroots Policy Strategies (“CGPS”), which takes seriously its obligation to 

carefully comply with applicable campaign finance laws, relied on a longstanding regulation 

promulgated by the Federal Election Commission (“FEC”) in 1980, 11 C.F.R. § 109.10(e)(1)(vi), 

to lawfully report its independent expenditures (“IEs”) in 2012. CGPS so clearly complied with 

the regulation that the controlling commissioners, at the FEC career staff’s recommendation, 

dismissed the administrative complaint in this matter filed by Citizens for Responsibility and 

Ethics in Washington (“CREW”). CREW hardly even contests this point. Instead, as its reply 

brief makes clear, CREW’s principal goal is to bootstrap a challenge to the validity of the 

underlying regulation to its complaint seeking judicial review of the FEC’s dismissal of this 

enforcement matter. CREW’s challenge must be rejected because it would violate CGPS’s 

statutory and constitutional right to rely on a long-accepted regulation; moreover, it fails to 

exhaust administrative remedies, it comes 30 years too late, and it essentially asks this Court to 

subvert congressional intent and the FEC’s considered judgment on this regulatory issue. 

In all of its briefing, CREW fails to identify a single contribution that CGPS omitted from 

its reports in violation of the controlling FEC regulation. CREW weakly speculates that perhaps 

some such funds “may” have required reporting. CREW Opp. Br. (Doc 33) at 45. But the 

FEC’s longstanding enforcement policy, which is backed by judicial precedent and was applied 

consistently here, is to dismiss unsubstantiated complaints based on mere speculation. CREW 

entirely fails to show that the FEC’s dismissal here was “contrary to law” – the demanding 

standard CREW must satisfy to overturn the FEC’s action. 

Beyond this basic factual point, CREW does not deny that the Federal Election Campaign 

Act of 1971, as amended (“FECA”), expressly provides a safe harbor for those who comply in 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 14 of 59
2 

good faith with applicable FEC regulations. CREW asserts that CGPS’s reliance was not in 

good faith because the regulation supposedly fell short of the statute’s requirements. However, 

the FECA explicitly made the regulation – not the statute – the measure of good faith. And 

where a party has dutifully complied with a regulation of more than 30 years’ standing, as CGPS 

has done here, objective good faith exists as a matter of law. 

CREW’s own reply brief makes clear that the asserted reporting violation by CGPS is 

merely a pretext for CREW’s real objective: to obtain facial judicial review of the underlying 

FEC regulation. CREW’s attempt to misuse the FECA’s enforcement process for this purpose 

fails even the most basic scrutiny. First, CREW failed to exhaust its administrative remedies by 

not alleging the regulation’s invalidity in its administrative complaint, and CREW also failed to 

participate altogether in an earlier petition for rulemaking concerning the regulation, which is the 

primary avenue for such challenges under the Administrative Procedure Act (“APA”). Second, 

CREW’s attacks on the regulation are time-barred. CREW’s procedural objection to the 

“[in]adequate” contemporaneous explanation for the regulation, CREW Opp. Br. (Doc 33) at 5, 

is categorically prohibited outside the six-year statute of limitations for challenges to FEC 

regulations. Moreover, CREW asks this Court not only to strike the regulation, but also for the 

extraordinary remedy of retroactively applying CREW’s reading of the law against CGPS for its 

2012 activity – a precedent that would also profoundly affect many other organizations’ past 

activities. Such an unprecedented retroactive remedy is statutorily and constitutionally barred in 

light of CGPS’s reasonable reliance on the regulation. Relatedly, because CREW’s requested 

remedy is unavailable, CREW lacks standing to challenge the regulation outside of the ordinary 

six-year statute of limitations, even if the regulation is considered to have been “applied” to 

CREW. 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 15 of 59
3 

 Even assuming that the merits of CREW’s challenge to the regulation are properly before 

this Court – and they are not – CREW cannot and does not deny that: (1) the FEC was actively 

involved in drafting the underlying statutory provisions passed in 1979; (2) the agency promptly 

drafted the regulation to implement the statute; (3) Congress then reviewed the regulation under 

a special procedure intended to ensure compliance with legislative intent; (4) Congress allowed 

the regulation to take effect; and (5) in the more than 30 years thereafter, Congress has 

repeatedly amended FECA’s reporting requirements, including specifically the IE reporting 

regime, but chose to leave the FEC’s regulations in this area intact. All this belies CREW’s outof-context, ahistorical, and incorrect readings of the Coverage and Content Provisions, 52 U.S.C. 

§ 30104(c)(1) and (c)(2)(C), respectively, of the FECA’s IE reporting section. 

 CREW attempts to refute this mountain of authority by using data from the 2010-2016 

election cycles to unilaterally claim the regulation is not implementing the statute properly. But 

CREW assumes too much about the statute’s purposes and fails to present any pertinent evidence 

countering the extensive legislative history CGPS recited in support of the regulation. And even 

assuming the FEC was required to exercise clairvoyance when promulgating the underlying 

regulation in 1980, CREW fails to explain why, if these new and changed circumstances call for 

further analysis, CREW should not be required to present these facts to the FEC first in the form 

of a direct challenge to the regulation – i.e., a rulemaking petition – thus exhausting its 

administrative remedies and giving the FEC a fair chance to address the supposed problem. 

 Below, CGPS refutes CREW’s various assertions in detail. But at the end of the day, the 

simple fact is that the FEC and its professional staff reasonably concluded that CGPS complied 

with a longstanding FEC regulation as it has been consistently interpreted by the agency over 

many decades. That is enough to dispose of the enforcement aspect of this case. CREW’s wideCase 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 16 of 59
4 

ranging attack on the regulation likewise should be dismissed to allow CREW to properly 

exhaust its administrative remedies. CGPS should not be subject to any additional enforcement 

or sanctions simply because CREW failed to follow the proper procedures.

ARGUMENT 

I. THE COURT SHOULD DISMISS CREW’S COMPLAINT BECAUSE CGPS 

COMPLIED WITH THE FEC’S REGULATION. 

CGPS’s compliance with the regulation poses a fundamental and insurmountable obstacle 

to CREW’s present complaint. In its reply, CREW tries to sidestep the facts by arguing for a 

lower threshold for initiating an FEC investigation and asserting that the FECA’s protection for 

good faith reliance on the regulation does not apply here. Neither argument has merit. 

A. CGPS Complied With the FEC’s Regulation, and the FEC Properly Declined to 

Open an Investigation. 

There is little question that CGPS complied with the underlying regulation as written, 

interpreted, and applied by the Commission for more than 30 years. In fact, CREW’s opening 

and reply briefs devote a scant two and three paragraphs, respectively, arguing the facts of the 

case. See CREW MSJ Br. (Doc 27) at 44-45; CREW Opp. Br. (Doc 33) at 50. 

Lacking any actual evidence of a violation, CREW erroneously attempts to lower its 

burden by recasting the FEC’s “reason to believe” threshold – the standard for deciding whether 

to move forward in the enforcement process – as “a low one that only asks whether there are 

‘credibl[e] alleg[ations]’ that a violation ‘may’ have occurred.” CREW Opp. Br. (Doc 33) at 50. 

But that is not the relevant test. 

The “reason to believe” standard entails “a minimum evidentiary threshold that require[s] 

at least ‘some legally significant facts’” that are “‘incriminating’ and not satisfactorily answered 

by the respondents.” DSCC v. FEC, 745 F. Supp. 742, 745-46 (D.D.C. 1990) (quoting 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 17 of 59
5 

Supporting Memorandum for the Statement of Reasons (Commissioner Josefiak)). Complaints 

that state charges “only in the most conclusory fashion,” without supporting evidence, are 

dismissed by the Commission. In re FECA Litigation, 474 F. Supp. 1044, 1047 (D.D.C. 1979). 

Consistent with these principles, the FEC’s policy is not to find “reason to believe” to 

open an investigation unless the alleged facts lead to “a reasonable inference that a violation has 

occurred,” and “evidence provided in the response” may defeat inferences that otherwise might 

be drawn. CGPS MSJ Br. (Doc 28) at 18. “[M]ere speculation,” as a bipartisan group of 

commissioners wrote, cannot form a basis for finding “reason to believe.” FEC, Matter Under 

Review (“MUR”) 4960 (Hillary Rodham Clinton for U.S. Senate Expl. Comm.), Statement of 

Reasons of Commissioners David M. Mason, Karl J. Sandstrom, Bradley A. Smith, and Scott E. 

Thomas, available at http://eqs.fec.gov/eqsdocsMUR/0000263B.pdf; see also, e.g., MUR 6435 

(Rangel), First General Counsel’s Report at 11-12 n.40 (citing and quoting MUR 4960 Statement 

of Reasons), available at http://eqs.fec.gov/eqsdocsMUR/14044364410.pdf. 

As the FEC’s General Counsel’s Report explained in this matter, “[n]othing in the record 

before the Commission indicated that a donor had made a contribution for the purpose of funding 

the reported independent expenditure[s]” at issue. AR173. In fact, 13 of the 14 ads that were 

shown at the August 30, 2012, American Crossroads meeting that CREW’s complaint focuses on 

had already been “broadcast and fully paid for before August 30, 2012,” and the remaining ad 

was never aired or intended to be aired. AR175. Thus, no one who donated to CGPS could have 

done so to further those ads, as CREW alleges. See CREW Compl. at ¶ 114. Thus, the FEC 

properly dismissed CREW’s allegation that CGPS violated the regulation. 

 

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6 

B. CGPS Was Entitled to Rely on the Regulation and Did So in Good Faith, 

Thereby Defeating CREW’s Claims Two and Three. 

 1. CGPS Had a Statutory Right to Rely on the Regulation. 

CREW attacks CGPS’s right to rely on 52 U.S.C. § 30111(e), the statutory protection for 

persons who rely in good faith upon an FEC regulation, as well as the scope of that protection. 

See CREW Opp. Br. (Doc 33) at 37-38. But CREW’s arguments here border on frivolous. 

As an initial matter, the FECA’s good faith reliance protection is to be evaluated by an 

objective standard: compliance with the applicable regulation. This is consistent with a basic 

tenet governing campaign finance law, which regulates the freedom of speech and therefore 

requires standards that “are both easily understood and objectively determinable,” McConnell v. 

FEC, 540 U.S. 93, 103 (2003), and that “entail minimal if any discovery . . . [a]nd . . . eschew the 

open-ended rough-and-tumble of factors, which invite[s] complex argument in a trial court and a 

virtually inevitable appeal.” FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 469 (2007) (internal 

citations, quotation marks, and brackets omitted) (Roberts, C.J.).1

 

Furthermore, even if CREW’s arguments about CGPS’s good faith were relevant – and 

they are not – they are all easily dispatched. 

First, CREW’s attacks on CGPS’s good faith ring hollow because CGPS complied with 

the regulation as it was universally understood. The opening paragraph of CREW’s reply brief 

acknowledges that, like CGPS, “the FEC relied on [the regulation] to find no reason to believe 

[CGPS] needed to disclose its contributors” under either 52 U.S.C § 30104(c)(1) or (c)(2)(C). 

CREW Opp. Br. (Doc 33) at 1. It is hard to accuse CGPS of operating in bad faith when, as 

CREW readily admits, the federal agency charged with enforcing the statute interprets the law 

                                                            

1

 CREW erroneously cites a case about the evidentiary principles for proving the common law defense of duress for 

its supposition that the burden to prove good faith reliance here will fall on CGPS. CREW Opp. Br. (Doc 33) at 37 

(citing Dixon v. U.S., 548 U.S. 1, 9 (2006)). 

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7 

the same way CGPS did. See also AR1503 (explaining that the FEC’s IE regulation “has been 

amended to incorporate the changes set forth at 2 USC §§ 434(c)(1) and (2)”) (emphasis added). 

Moreover, CREW itself represented to the FEC in 2015 that “under the Commission’s 

regulations, the identity of a contributor who gives to the organization for the broad purpose of 

influencing a federal election, or even the specific purpose of making independent expenditures, 

need not be disclosed.” CREW, Comments in Response to Advance Notice of Proposed 

Rulemaking on Earmarking, Affiliation, Joint Fundraising, Disclosure, and Other Issues (Jan. 

15, 2015) at 3, available at http://sers.fec.gov/fosers/showpdf.htm?docid=312990. “Only if the 

contributor makes a contribution with the purpose of furthering a specific advertisement or other 

independent expenditure must the organization identify the contributor.” Id. at 4 (emphasis in 

the original).2

 CREW cannot now turn around and argue unreasonable reliance when even it was 

espousing CGPS’s position regarding the regulation at issue well after the conduct giving rise to 

this case. 

Second, CREW claims the “FEC sent [CGPS] notices that it was failing to comply with 

its reporting obligations.” CREW Opp. Br. (Doc 33) at 37. But the letter CREW references is 

“quite common and rarely newsworthy.” Womble Carlyle, Don’t Sweat the Details . . . Unless 

You’re Filing at the Federal Election Commission (FEC), NAT’L L.J., May 9, 2014. It is not 

uncommon, nor does it signal that the FEC believes that an organization has failed to comply 

with its reporting obligations, when it sends a letter asking a filer to “explain report information 

for the public record [or to provide] an FEC Campaign Finance Analyst [with] additional 

                                                            

2

 CREW attacks CGPS’s “misleading representation” that “CREW has previously taken the position that the 

regulation accurately incorporates all of the reporting provisions under § 30104(c).” CREW Opp. Br. (Doc 33) at

24-25 (emphasis added). CGPS said no such thing. CGPS simply pointed out that CREW has conceded (and 

continues to concede in its reply brief) that the regulation purports to implement both statutory provisions (whether 

“accurately” or not). Compare id. with CGPS MSJ Br. (Doc 28) at 28-29. 

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8 

clarification.” FEC, Request for Additional Information (RFAI), available at

https://www.fec.gov/help-candidates-and-committees/request-additional-information/. The 

transmission of such a letter does not mean, as CREW categorically (and falsely) claims, that 

CGPS was “failing to comply with its reporting obligations.” See CREW Opp. Br. (Doc 33) at 

37. 

Third, CREW cites previous courts’ rejections of defendants’ good faith defenses in two 

other fact-intensive cases involving the FEC. CREW Opp. Br. (Doc 33) at 37. However, in the 

O’Donnell case, the court did not even apply Section 30111(e)’s good faith reliance provision to 

the facts of the case because the candidate did not rely on a “rule or regulation.” See FEC v. 

O’Donnell, 209 F. Supp. 3d 727, 743 n.12 (D. Del. 2016) (considering existence of disputed 

phone calls when assessing good or bad faith of candidate for penalty purposes). And in the 

Craig case, there were disputes about whether the legal authorities the defendant relied on 

actually covered the transactions in question and whether certain authority had been issued at the 

time of the relevant transactions. See FEC v. Craig for U.S. Senate, 70 F. Supp. 3d 82, 89, 91, 

98 (D.D.C. 2014), aff’d 816 F.3d 829 (D.C. Cir. 2016). No party disputes those issues here. 

Fourth, CREW claims that every party interested in sponsoring an IE – or, for that 

matter, engaging in any regulated activity – must familiarize itself not only with an 

administrative agency’s regulations, but also with all of the comments and rulemaking petitions 

ever filed, such as the 2011 Van Hollen petition, to see if someone at some time may have 

disagreed with the agency’s reading of a statute (even where the agency formally rejected such 

an alternative reading). See CREW Opp. Br. (Doc 33) at 37. That is absurd and also practically 

impossible in many instances, as many IE reports are required to be filed within 24 or 48 hours 

of an ad’s dissemination. See 52 U.S.C. § 30104(g)(1), (2). CREW’s position would effectively 

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9 

shut down almost all political speech, as few speakers could afford the legal research costs or 

could practically comply with such an onerous requirement. For this reason, the FEC “is 

precisely the type of agency to which deference should presumptively be afforded” in its 

rulemaking and adjudicative functions. FEC v. DSCC, 454 U.S. 27, 37 (1981). Even worse, 

CREW’s position would effectively give anyone who disagrees with an agency’s regulation a 

heckler’s veto, whereby they could impeach the validity of a regulation merely by voicing 

disagreement with it – regardless of the position’s merit. 

Fifth, CREW cites a nineteenth century case, Swift & Courtney & Beecher Co. v. U.S., 

105 U.S. 691 (1881), to say that CGPS was obliged to “read the statute” and, sua sponte, ignore 

the FEC’s decades-old regulation. CREW Opp. Br. (Doc 33) at 37-38. While there are many 

obvious problems with relying on this authority, including that its facts are readily 

distinguishable and the decision predates modern administrative agencies, the most glaring fault 

here is that Congress enacted a statute – Section 30111(e) – that directly contradicts CREW’s 

argument. 

 2. The Regulation Protects CGPS Against “Equitable” Remedies. 

CREW separately contends Section 30111(e)’s safe harbor does not prohibit “equitable 

remedies” against CGPS. CREW Opp. Br. (Doc 33) at 38. But the FECA’s protections for 

reliance on FEC regulations are unequivocally expansive: Section 30111(e) removes “certain 

conduct from any risk of enforcement,” establishes “‘legal rights’ to engage in that conduct,” 

Shays v. FEC, 414 F.3d 76, 95 (D.C. Cir. 2005) (internal citation omitted) (emphasis added), 

“insulates [such person] from liability,” O’Donnell, 209 F. Supp. 3d at 743 n.12, and “is a 

defense to criminal prosecution or civil suit,” Martin Tractor Co. v. FEC, 627 F.2d 375, 385 

(D.C. Cir. 1980) (interpreting analogous safe harbor for advisory opinion reliance). It would 

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10 

undermine the statute’s protections – and contradict clear legal precedent – if a court were to 

exclude FECA-derived equitable relief from the scope of this broad protection.3

 

Congress added the good faith regulatory reliance provision specifically so that a “person 

who relies upon such regulations in good faith will not be subject to subsequent enforcement 

action.” Legislative History of Federal Election Campaign Act Amendments of 1979 at 208 

(“1979 FECA History”), available at http://classic.fec.gov/pdf/legislative_hist/legislative_ 

history_1979.pdf. As the Supreme Court has explained concerning a similar provision in the 

Truth in Lending Act, 15 U.S.C. § 1640(f), such provisions “signal[] an unmistakable 

congressional decision to treat administrative rulemaking and interpretation under the [statute] as 

authoritative . . . Courts should honor that congressional choice.” Ford Motor Credit Co. v. 

Milhollin, 444 U.S. 555, 566-68 (1980).4

CREW’s reliance on LaRouche v. FEC, 28 F.3d 137 (D.C. Cir. 1994) to undermine the 

scope of Section 30111(e)’s protections also is unavailing. CREW Opp. Br. (Doc 33) at 38. 

LaRouche involved a presidential candidate’s obligation to repay funds under the Presidential 

Primary Matching Payment Account Act (“PPMPAA”) rather than imposition of a sanction 

under the FECA. See 28 F.3d at 142. A PPMPAA repayment determination is only a “statutory 

recoupment remedy,” John Glenn Presidential Comm., Inc. v. FEC, 822 F.2d 1097, 1098 (D.C. 

Cir. 1987), and is “more in the nature of an effort to collect upon debt than a penal sanction,” 

Respondent’s Br., Lenora B. Fulani for President Comm. v. FEC, No. 97-1466, 1998 WL 

35240588, at 27 n.16 (D.C. Cir. Feb. 20, 1998) (internal citation and quotation marks omitted). 

                                                            

3

 This is particularly true given CREW’s own characterization of its administrative complaint as “seeking immediate 

investigation and enforcement action against [CGPS].” AR098, 001 (emphasis added). 

4

 Similar to what CREW alleges here, Ford Motor Credit Co. involved an agency regulation that arguably required 

less disclosure on loan documents than what the statute required. See id. at 557 and 568. 

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11 

Thus, LaRouche is inapposite here because it did not involve a sanction. 

 3. CGPS Had a Constitutional Right to Rely on the Regulation. 

CGPS also has a constitutional right to fair notice that prohibits the retroactive 

application of the FECA’s IE reporting requirements in the manner CREW urges. See CGPS 

MSJ Br. (Doc 28) at 27-32. CREW’s response that “[a] lack of fair notice bars only criminal or 

criminal-like sanctions” is mistaken. CREW Opp. Br. (Doc 33) at 38. CREW’s own cited 

authority, General Electric Co. v. EPA (“GE”), 53 F.3d 1324 (D.C. Cir. 1995), and the cases 

discussed therein, directly contradict CREW’s position. In GE, the court explained that the “fair 

notice” requirement applies not only to cases “imposing civil or criminal liability,” but also to 

cases involving “the civil administrative context.” Id. at 1328-29.5

 CREW also incorrectly maintains that the FECA did in fact give CGPS fair notice here. 

But CREW’s cited authorities are either easily distinguishable or fail to support this proposition. 

See CREW Opp. Br. (Doc 33) at 37-39. For example, CREW states that FEC v. Mass. Citizens 

for Life (“MCFL”), 479 U.S. 238 (1986) gave notice that CGPS’s “reporting obligations were 

more than what it understood [the regulation] required” and, specifically, that “subsection (c)(1) 

imposed its own obligation to disclose ‘all contributors who annually provide in the aggregate 

$200 in funds intended to influence elections.’” CREW Opp. Br. (Doc 33) at 37, 26. But 

CREW’s conjecture about MCFL is on an island unto itself. For one thing, “[b]efore a judicial 

                                                            

5 See also, e.g., Maxcell Telecom Plus, Inc. v. FCC, 815 F.2d 1551 (D.C. Cir. 1987) (applying fair notice 

requirement to agency denial of cellphone license); Satellite Broad. Co., Inc. v. FCC, 824 F.2d 1 (D.C. Cir. 1987) 

(applying fair notice requirement to agency denial of broadcast license); Keeffe v. Library of Congress, 777 F.2d 

1573, 1575-76, 1582 (D.C. Cir. 1985) (applying fair notice requirement to agency’s enforcement of political conflict 

of interest rules in reassigning employee); Radio Athens, Inc. v. FCC, 401 F.2d 398 (D.C. Cir. 1968) (applying fair 

notice requirement to agency denial of broadcast license); Armstrong v. Dist. of Columbia Pub. Library, 154 F. 

Supp. 2d 67, 70, 81-82 (D.D.C. 2001) (applying fair notice requirement to public library’s ability to block patrons 

based on staff guidelines prohibiting “objectionable appearance”). Certainly, the administrative ramifications in 

these cases were not “criminal or criminal-like sanctions” by any means. Rather, they were equivalent to (or 

arguably less punitive than) the “equitable” remedy CREW asks this Court to impose on CGPS. 

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12 

construction of a statute . . . may trump an agency’s, the court must hold that the statute 

unambiguously requires the court’s construction.” Nat’l Cable & Telecommunications Ass’n v. 

Brand X Internet Servs., 545 U.S. 967, 985 (2005). The MCFL Court made no such 

proclamation. For another, after referencing various authorities (including MCFL), the en banc

D.C. Circuit has cited only the following disclosure requirement when discussing the reporting 

requirements applicable to non-PAC entities (like CGPS) that sponsor IEs: “2 U.S.C. 

§ 434(c)(2)(C) (requiring only the reporting of contributions ‘made for the purpose of furthering 

an independent expenditure’).” SpeechNow.org v. FEC, 599 F.3d 686, 698 (D.C. Cir. 2010) (en 

banc) (emphasis added). The FEC agreed, concluding that in “MCFL, the Court [required IE 

makers to] only identify each person who contributed more than $200 ‘for the purpose of 

furthering an independent expenditure.’ 2 U.S.C. §§ 434(c)(2)(A)-(C).” Respondent’s Opp. Br., 

Keating v. FEC, No. 10-145, 2010 WL 3777212, at *17-*18 (U.S. Sept. 27, 2010) (emphasis 

added). And, as discussed previously, see CGPS MSJ Br. (Doc 28) at 50, the Ninth Circuit 

confirmed post-MCFL that the IE reporting requirements were far less expansive than the ones 

CREW proposes here, see FEC v. Furgatch, 807 F.2d 857, 859 n.2 (9th Cir. 1987). So, if 

anything, CREW should have been on notice that its interpretation of MCFL was in error. 

As to CREW’s other cited authorities, unlike the situation here, Abhe & Svoboda did not 

involve any alleged conflict between an agency regulation and a statute, but rather examined 

whether the plaintiff had fair notice of how an agency would make an administrative 

determination. The court determined the plaintiff had fair notice of the law based on “[e]xisting 

administrative and judicial decisions and the [statute] itself.” Abhe & Svoboda, Inc. v. Chao, 508 

F.3d 1052, 1060 (D.C. Cir. 2007) (emphasis added). Here, more than 30 years of administrative 

and judicial decisions and practice pointed consistently to the opposite conclusion CREW draws. 

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13 

See CGPS MSJ Br. (Doc 28) at 27-28, 50. Thus, CGPS did not have the same agency-endorsed 

notice that was present in Abhe & Svoboda.

CREW’s fleeting attempt to cite National Association of Manufacturers v. Taylor 

(“NAM”), 549 F. Supp. 2d 33, 67 (D.D.C. 2008), for the general proposition that a statute 

“provides ‘fair notice of the type of activities encompassed by the section’s disclosure 

threshold’” also is in error. NAM involved the specific question of whether the statutory 

language at issue, on its face, provided sufficient “fair notice” so as not to be unconstitutionally 

vague. 549 F. Supp. 2d at 67.6 NAM also did not involve decades of agency precedent 

confirming the law’s narrow scope. 

Lastly, CREW cites Teich v. FDA, 751 F. Supp. 243 (D.D.C. 1990) for the general 

proposition that agency regulations provide no protection “if a court [subsequently] determines 

that the regulation is invalid.” CREW Opp. Br. (Doc 33) at 38-39. However, as CREW 

concedes, CREW Opp. Br. (Doc 33) at 39 n.24, Teich held that a judicial decision may not be 

applied “[]retroactive[ly]” if the decision “establish[es] a new principle of law, either by 

overruling clear past precedent . . . or by deciding an issue of first impression whose resolution 

was not clearly foreshadowed,” 751 F. Supp. at 249. For the reasons explained previously 

(CGPS MSJ Br. (Doc 28) at 27-28) and elsewhere in this brief (at 11-12 and 36), the remedy 

CREW asks the Court to impose here falls squarely into this area. Moreover, unlike here, where 

the statute, 52 U.S.C. § 30111(e), specifically provides a liability-free guarantee for good faith 

reliance on agency regulations, the Freedom of Information Act at issue in Teich contains no 

                                                            

6

 Using CREW’s method of cherry-picking language from cases, CGPS could just as easily (and illogically) cite a 

multitude of other authorities finding laws to be unconstitutionally vague for the general proposition that statutes do 

not provide “fair notice” to the public. See, e.g., Buckley v. Valeo, 424 U.S. 1, 77 (1976) (holding that the 

“ambiguity” in the FECA’s definitions of “contribution” and “expenditure” failed to provide “adequate notice”). 

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14 

such protection, see 5 U.S.C. § 552.7 

II. THE COURT SHOULD DISMISS CREW’S CLAIMS TWO AND THREE 

BECAUSE CREW FAILED TO EXHAUST ADMINISTRATIVE REMEDIES. 

CREW failed to exhaust administrative remedies in its administrative complaint by: (1) 

not squarely challenging the validity of 11 C.F.R. § 109.10(e)(1)(vi) – a claim which CREW first 

presented in its complaint for judicial review as Claim Two; and (2) not alleging CGPS violated 

52 U.S.C. § 30104(c)(1) (the Coverage Provision) – a claim which CREW first presented in its 

complaint for judicial review as Claim Three. CREW mistakenly contends it did not have to 

present these claims first to the FEC, but in reality, its failure to do so is fatal to both claims. 

A. CREW’s Administrative Complaint Failed to Challenge the Regulation’s 

Validity or Claim any Violation of the FECA’s IE Coverage Provision. 

CREW’s administrative complaint failed to squarely challenge the validity of the 

underlying regulation or to allege that CGPS violated the Coverage Provision of the FECA’s IE 

reporting requirement, 52 U.S.C. § 30104(c)(1). CREW’s administrative complaint only 

mentioned in passing in a footnote in the background section that the underlying regulation “fails 

to give full effect to th[e] [Coverage and Content P]rovisions” of the statute. None of the 

complaint’s five “counts” alleging violations of the law contended the regulation was invalid. 

Compare AR102, AR003-004 with AR108-115, AR010-016.8

 Similarly, CREW’s 

administrative complaint only included a passing recitation in the background section to 52 

U.S.C. § 30104(c)(1) (the Coverage Provision) as imposing a substantive donor reporting 

                                                            

7

 The same is true of the relevant statutes in Abhe & Svoboda (40 U.S.C. § 3141 et seq. (Davis-Bacon Act)) and 

NAM (2 U.S.C. § 1601 et seq. (Lobbying Disclosure Act)). 

8

 CGPS’s response to CREW’s administrative complaint did address CREW’s passing reference that “the statute and 

corresponding regulation are inconsistent.” AR083. However, that should not be read as anything more than simply 

a response to CREW’s attempt to have the FEC enforce 52 U.S.C. § 30104(c)(2)(C) – as CREW interprets it – in 

“disregard [of] the plain language of [the] regulation.” See id. CGPS did not respond to any claim about the 

regulation’s facial validity because CREW did not present such a claim. 

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15 

requirement, but it did not cite this provision in any of the claims it alleged against CGPS. 

Compare AR101, AR004 with AR108-115, AR010-016.9

 

 CREW’s fleeting commentary on the regulation and recitation of the Coverage Provision 

failed to give full (or even partial) effect to any claims on these issues and therefore were 

insufficient to serve as a basis for judicial review. See CGPS MSJ Br. (Doc 28) at 33-34. The 

Coburn case CREW cites on this point is not to the contrary and, in fact, goes against CREW’s 

position. Exactly like CREW’s administrative complaint, the appellant in Coburn discussed an 

agency action “as background” in its submission to the agency but did not assert the agency 

action “was unlawful in its ‘Discussion’” section of the submission. Coburn v. McHugh, 679 

F.3d 924, 930 (D.C. Cir. 2012). The D.C. Circuit held that the appellant had not properly 

presented to the agency its claim that the agency action was unlawful and therefore declined to 

review the claim. Id. at 931. 

B. CREW Failed to Exhaust Administrative Remedies by Not Presenting These 

Claims in Its Administrative Complaint, as the FECA Required It to Do. 

CREW does not meaningfully contest that it failed to exhaust administrative remedies by 

not presenting these issues to the FEC. Rather, CREW contends it “did not have to present” 

these issues because: (1) a plaintiff “may bypass the administrative process where [it] would be 

futile or inadequate”; (2) the FEC proceedings were “not adversarial”; and (3) judicial review 

under the FECA is “non-jurisdictional.” CREW Opp. Br. (Doc 33) at 33-34 and n.21. CREW is 

incorrect on all counts. 

“The doctrine [of exhaustion] provides that no one is entitled to judicial relief for a 

                                                            

9

 Significantly, CREW’s administrative complaint immediately thereafter described 52 U.S.C. § 30104(c)(1) as a 

coverage provision that merely provides an overview of what activity triggers the IE reporting requirement 

generally: “The FECA and FEC regulations require every person who is not a political committee who makes 

independent expenditures totaling more than $250 in a calendar year to file quarterly reports regarding the 

expenditures. 2 U.S.C. § 434(c)(1); 11 C.F.R. § 109.10(b).” AR102, AR005 (emphasis added). 

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16 

supposed or threatened injury until the prescribed administrative remedy has been exhausted.” 

Woodford v. Ngo, 548 U.S. 81, 88-89 (2006) (internal citation and quotation marks omitted). 

Importantly, “[c]ourts ‘will not read futility or other exceptions into statutory exhaustion 

requirements where Congress has provided otherwise.’” Rosenberg v. U.S. Dept. of Immigration 

and Customs Enforcement, 956 F. Supp. 2d 32, 40-41 (D.D.C. 2013) (internal citation and 

quotation marks omitted). This is just such a case. FECA’s enforcement provision, 52 U.S.C. § 

30109, “is as specific a mandate as one can imagine” that “exhaustion is required”; “the 

procedures it sets forth – procedures purposely designed to ensure fairness not only to 

complainants but also to respondents – must be followed before a court may intervene.” Perot v. 

FEC, 97 F.3d 553, 559 (D.C. Cir. 1996). 

Ignoring this clear precedent, CREW cites a hodgepodge of inapposite authorities 

purporting to create a number of exceptions to the exhaustion requirement. See CREW Opp. Br. 

(Doc 33) at 33-34 n.21. For example, CREW cites Honig as supporting a general futility 

exception to the exhaustion requirement. But Honig (and the authorities cited therein) 

specifically addressed dispensation of the exhaustion requirement under the federal Education of 

the Handicapped Act – not the FECA – and the decision only underscores that exhaustion is the 

default rule, subject to narrow exceptions that do not apply here. See Honig v. Doe, 484 U.S. 

305, 327 (1988). 

Moreover, even if futility were a valid excuse to the exhaustion requirement here – and it 

is not – CREW undermines its own futility claim. CREW cites the FEC’s 2011 vote not to 

proceed with a rulemaking petition to amend the IE reporting regulation as evidence of futility. 

CREW Opp. Br. (Doc 33) at 33-34 n.21. But as discussed later (at 29), CREW also purports to 

demonstrate the regulation is invalid based on data for the 2012, 2014, and 2016 election cycles. 

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17 

Compare CREW Opp. Br. (Doc 33) at 33-34 n.21 with id. at 18-20; CREW MSJ Br. (Doc 27) at 

15-17. While CREW’s recent data is not properly before the Court in this matter (as explained 

below at 27-28), its data post-dating the FEC’s 2011 rulemaking vote undercuts CREW’s 

categorical and speculative claim that presenting these issues and new data to the FEC would be 

futile. 

CREW also contends exhaustion is not required because the FEC’s administrative 

complaint process is “not adversarial.” CREW Opp. Br. (Doc 33) at 33 n.21. In support of this 

claim, CREW erroneously cites the Sims case involving informal Social Security benefits 

determinations, in which the agency decisionmakers are charged with “investigat[ing] the facts 

and develop[ing] the arguments both for and against granting benefits,” and reviewing “new and 

material evidence” at any point in the proceedings. Sims v. Apfel, 530 U.S. 103, 111 (2000). But 

those informal, “no[n-]adversarial” proceedings are a far cry from the FEC’s formal, adversarial 

administrative complaint process, in which the agency determines whether there is “reason to 

believe” a violation has occurred based solely on a written complaint and a response from the 

accused. Compare id. with 52 U.S.C. § 30109(a)(1). Therefore, under the FECA, CREW’s 

failure to present issues in its administrative complaint meant those issues were not properly 

before the FEC and, therefore, are not properly before this Court.10 

Because the FECA requires exhaustion, Perot, 97 F.3d at 559, CREW’s claim that the 

exhaustion requirement here is “non-jurisdictional” also is incorrect, CREW Opp. Br. (Doc 33) 

at 33-34 n.21. And even if exhaustion were “non-jurisdictional” here, the doctrine still requires 

                                                            

10 CREW attempts to bolster its claim that the FEC’s enforcement process is “not adversarial” by citing this Court’s 

observation that an FEC submission had argued that CREW was “not a party to the [enforcement] proceeding.” 

CREW Opp. Br. (Doc 33) at 33 n.21. However, the Court decided the question at hand “regardless of the plaintiff’s 

degree of involvement in the administrative process,” and thus did not determine the question of whether CREW 

was a party in the administrative proceeding. Mem. Op. at 16. 

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18 

CREW “to exhaust available administrative remedies before bringing [its] case to court.” 

Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247 (D.C. Cir. 2004). 

C. The Fact That CREW Is Now Challenging a Regulation’s Validity Does Not 

Excuse Its Failure to Exhaust Administrative Remedies. 

CREW also mischaracterizes authorities for the proposition that the exhaustion doctrine 

does not apply to CREW’s challenge to a regulation’s validity where CREW first raises such a 

claim in a complaint for judicial review of CREW’s administrative complaint. CREW Opp. Br. 

(Doc 33) at 33. In AT&T v. FCC, 978 F.2d 727 (D.C. Cir. 1992), exhaustion of administrative 

remedies was not even at issue, as the question of the regulation’s validity in that case was 

presented explicitly to the agency in an administrative adjudicative proceeding. See id. at 730 

(“AT&T contended [in an administrative filing that] [i]f the Fourth Report were a substantive 

rule . . . it was invalid . . . because it exceeded the FCC’s statutory authority”). By contrast, 

CREW’s administrative complaint failed to press any claim about the validity of the FEC’s IE 

reporting regulation. 

Darby v. Cisneros, 509 U.S. 137 (1993) is also inapposite. Darby specifically addressed 

the issue of finality of an agency action, and “whether [the Administrative Procedure Act, 5 

U.S.C. § 704], by providing the conditions under which agency action becomes ‘final for the 

purposes of’ judicial review, limits the authority of courts to impose additional exhaustion 

requirements as a prerequisite to judicial review.” 509 U.S. at 145. Here, there is no dispute 

over the finality of the FEC’s action, and the exhaustion requirement was also imposed by 

Congress. 

At bottom, CREW’s position is that it is entitled to attack the validity of the FEC’s IE 

reporting regulation by presenting such a claim for the first time to this Court. But CREW chose 

to bring this case as a complaint seeking judicial review of the FEC’s dismissal of CREW’s 

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administrative enforcement complaint under 52 U.S.C. § 30109(a)(8). CREW’s Claim Two, 

which is the only claim in its complaint for judicial review under which CREW even raises the 

issue of the regulation’s validity, alleges “[t]he FEC’s Failure to Find Reason to Believe that 

Crossroads GPS violated 52 U.S.C. § 30104(c)(2) was Arbitrary, Capricious, an Abuse of 

Discretion, and Contrary to Law.” See Compl. at 24 and ¶ 123. In other words, CREW’s 

challenge to the validity of the underlying regulation is integral to and inseparable from its 

administrative complaint against CGPS and the FEC’s dismissal thereof.11

This is precisely the type of claim that a plaintiff alleging FECA violations is required to 

first present to the FEC. See supra at 16; Perot, 97 F.3d at 559. Because CREW failed to 

properly present its claim about the validity of the FEC’s IE reporting regulation in its 

administrative complaint, and therefore failed to exhaust its administrative remedies, this claim is 

not properly before this Court.12

D. CREW Failed to Follow the Appropriate Procedure for Challenging the Validity 

of the FEC’s IE Reporting Regulation. 

CREW does not contest that it failed to even participate (whether as a petitioner or 

commenter) in the 2011 petition for the FEC to open a rulemaking to revise the regulation at 

issue in this case. See Rep. Van Hollen Petition for Rulemaking to Revise and Amend 

Regulations Relating to Disclosure of Independent Expenditures (Apr. 21, 2011), available at

http://classic.fec.gov/pdf/nprm/citizensunited/van_hollen.pdf. Nor does CREW contest that it 

                                                            

11 For this reason, Murphy Exploration and Production Company v. U.S. Department of Interior, 270 F.3d 957 (D.C. 

Cir. 2001) also is of no help to CREW. Not only did Murphy reaffirm the general rule that exhaustion of 

administrative remedies is required when seeking judicial review of an agency action, but the exception Murphy

contemplates – i.e., that a party can raise an issue in a separate proceeding – is inapplicable here since CREW 

participated in the FEC enforcement process appealed from to this Court. See id. at 958. 12 Even if the Court determines CREW’s challenge to the regulation’s validity is proper – and it should not – CGPS 

still cannot be held liable because of its statutory and constitutional rights to rely on the regulation, as discussed 

above (at 6-14) and in CGPS’s opening brief. 

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can, this very day, file its own rulemaking petition with the FEC. Nor does CREW contest that, 

if the FEC were to deny such a petition, CREW could seek judicial review of the agency’s action 

under the APA. 

Instead, CREW complains the APA-established rulemaking petition procedure would not 

be “an adequate forum for CREW to protect its rights” because an agency’s refusal to engage in 

rulemaking is “subject to only the most deferential review by a court.” CREW Opp. Br. (Doc 

33) at 32 n.20. This is not so. Judicial review of the FEC’s dispositions of a rulemaking petition 

and an enforcement matter are subject to the same “arbitrary, capricious, an abuse of discretion, 

or otherwise not in accordance with law” standard. Level the Playing Field v. FEC, 232 F. Supp. 

3d 130, 137 (D.D.C. 2017) (internal citation and quotation marks omitted). While this standard 

is “highly deferential,” the FEC has been found to have “acted arbitrarily and capriciously by 

refusing to engage in rulemaking” where the agency acted “without a thorough consideration of 

the presented evidence and without explaining its decision.” Id. at 148. 

Here, because CREW “may petition the [FEC] directly for the relief [CREW] seek[s] in 

this lawsuit” but has not done so, and “the [FEC]’s discretion to issue [or amend or repeal] 

regulations is left in the first instance to the [FEC], not the federal courts, [CREW] must first 

challenge the [FEC]’s exercise of that discretion before the agency.” Assoc. of Flight 

Attendants-CWA v. Chao (“CWA”), 493 F.3d 155, 158-59 (D.C. Cir. 2007).13 Accordingly, this 

Court should dismiss CREW’s Claims Two and Three. 

                                                            

13 Similar to the circumstances here, in CWA labor unions “sued to force the government to increase its regulation of 

aircraft working conditions” after the Federal Aviation Administration had denied a rulemaking petition eight years 

earlier, and where “[t]he union [that had filed the petition] did not seek judicial review of that [agency] decision.” 

Id. at 157-58. The D.C. Circuit held that the plaintiffs’ challenge to the agency’s regulatory posture without filing 

another rulemaking petition was improper because “the unions did not pursue – much less exhaust – any 

administrative remedies before bringing this case in federal court.” Id. at 158. The D.C. Circuit admonished that 

“the exhaustion rule does not contain an escape hatch for litigants who steer clear of established agency procedures 

altogether.” Id. at 159. 

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III. THE COURT SHOULD DISMISS CREW’S CLAIM TWO BECAUSE CREW’S 

CHALLENGE TO THE REGULATION IS TIME-BARRED. 

Both CREW’s substantive and procedural challenges to the underlying regulation’s 

validity are time-barred. With respect to CREW’s substantive challenge, its ability to assert such 

a claim outside of the usual statute of limitations for challenging the regulation’s validity 

depends on its having standing. NLRB Union v. FLRA, 834 F.2d 191, 195 (D.C. Cir. 1987). 

However, as the parties’ briefs have revealed, the relief CREW seeks is to retroactively impose a 

new reporting burden on CGPS – a remedy that is unavailable. See supra at 6-14. Absent a 

redressable injury in this matter, CREW does not have standing to challenge the validity of the 

regulation (Claim Two).14 See Lujan v. Defenders of Wildlife, et al., 504 U.S. 555, 561-62 

(2006). 

With respect to its procedural challenge, CREW does not contest that such a challenge is 

time-barred, but denies it raises a procedural challenge. See CREW Opp. Br. (Doc 33) at 35-36. 

CREW is mistaken on this. One of the principal points of contention CREW raises – nearly four 

decades after the actual rulemaking – is that the FEC should have written a lengthier explanation 

for the IE reporting rule. See id. at 1, 5. This is a procedural argument. As the Supreme Court 

has held, “[o]ne of the basic procedural requirements of administrative rulemaking is that an 

agency must give adequate reasons for its decisions.” Encino Motorcars, LLC v. Navarro, 136 

S. Ct. 2117, 2125 (2016) (emphasis added). Other courts agree that CREW’s challenge here is 

procedural, see, e.g., Ne. Md. Waste Disposal Authority v. EPA, 358 F.3d 936, 948 (D.C. Cir. 

2004) (explaining that agency’s failure to articulate a rulemaking rationale was a “procedural 

                                                            

14 Because the regulation implements both the Coverage Provision, 52 U.S.C. § 30104(c)(1), and the Content 

Provision, id. § 30104(c)(2)(C), see AR1503, to the extent CREW’s attack on the regulation fails, CREW’s Claim 

Three, which alleges a violation of the Coverage Provision, also fails. 

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22 

charge”),15 and that an agency’s failure “to adequately explain its reasoning” is “subject to the 

general six-year limitations period,” Perez-Guzman v. Lynch, 835 F.3d 1066, 1077 (9th Cir. 

2016). 

Under “this circuit’s long-standing rule . . . a statutory review period” – like the six-year 

limit applicable here, 28 U.S.C. § 2401(a) – “permanently limits the time within which a 

petitioner may claim that an agency action was procedurally defective.” Pub. Citizen v. Nuclear 

Regulatory Comm’n, 901 F.2d 147, 152 (D.C. Cir. 1990) (emphasis added). Put another way, 

procedural challenges are “forever barred” after expiration of the six-year review period. Mobil 

Expl. & Producing U.S., Inc. v. Babbitt, 913 F. Supp. 5, 12 (D.D.C. 1995).16 

Unlike “an ordinary statute of limitations, § 2401(a) is a jurisdictional condition attached 

to the government’s waiver of sovereign immunity, and as such must be strictly construed,” 

Spannaus v. U.S. Dep’t of Justice, 824 F.2d 52, 55 (D.C. Cir. 1987); see also Horvath v. Dodaro, 

160 F.Supp.3d 32, 43 (D.D.C. 2015) (noting same), and never “relaxed by the courts for 

equitable considerations,” Spannaus v. U.S. Dep’t of Justice, 643 F. Supp. 698, 700 (D.D.C. 

1986). Similar to CGPS’s right to rely in good faith on the FEC regulation, this limitation serves 

“the important purpose of imparting finality into the administrative process, thereby conserving 

                                                            

15 See also Montgomery Cnty, Md., v. FCC, 863 F.3d 485, 491 (6th Cir. 2017) (noting that a challenge to an 

administrative decision that contains “scarcely any explanation at all” is “procedural” under the APA); Utility 

Workers Union of America, Local 369, AFL-CIO v. FEC, 691 F. Supp. 2d 101 (D.D.C. 2010) (crafting a “detailed 

explanation and justification” is a “procedural” activity). For its part, CREW cites authority, such as George E. 

Warren Corp. v. EPA, 159 F.3d 616 (D.C. Cir. 1998), that is of little help because it uses the words “procedural” and 

“substantive” inconsistently. Id. at 622, 626 (discussing a “procedural challenge” under a heading labelled 

“Substantive challenges”). 

16 The Court’s earlier ruling on the FEC’s motion to dismiss on grounds of standing and statute of limitations is not 

to the contrary. Specifically, the Court held that, generally, “when an agency applies a regulation to dismiss an 

administrative complaint, the party whose complaint was dismissed may challenge the regulation after the statute of 

limitations has expired on the ground that the regulation conflicts with the statute from which it derives” – provided, 

of course, that the “party [] possesses standing.” Mem. Op. at 15 and13 (quoting NLRB Union, 834 F.2d at 195). 

The Court did not specifically address how the statute of limitations applies to CREW’s procedural attack on the 

regulation and CREW’s lack of standing where the retroactive relief it seeks against CGPS is unavailable. 

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administrative resources and protecting the reliance interests of regulatees who conform their 

conduct to the regulations.” Nat. Res. Def. Council v. Nuclear Regulatory Comm’n, 666 F.2d 

595, 602 (D.C. Cir. 1981). Absent such a limitation, “procedural challenges [could] be brought 

twenty, thirty, or even forty years after the regulations were promulgated. No greater disregard 

for the principle of finality could be imagined.” Id. 

At bottom, this Court should not – and in fact jurisdictionally cannot – hear CREW’s 

procedural challenge to the adequacy of the FEC’s explanation for the underlying regulation. 

IV. THE COURT SHOULD DISMISS CREW’S CLAIMS TWO AND THREE 

BECAUSE THE FEC’s EXPLANATION FOR THE REGULATION 

IMPLEMENTING THE STATUTE WAS SUFFICIENT.

Even if it were not time-barred, CREW’s claim that the FEC failed to adequately explain 

and justify the regulation falls wide of the mark. For example, citing Motor Vehicle Mfrs. Ass’n 

of U.S. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983), CREW maintains its peculiar 

fixation with the number of words used to explain the regulation’s rationale. CREW Opp. Br. at 

4-5. “But State Farm does not require a word count; a short explanation can be a reasoned 

explanation.” Multicultural Media, Telecom and Internet Council v. FCC, 873 F.3d 932, 939 

(D.C. Cir. 2017) (internal citation and quotation marks omitted). All that is required is “that an 

agency take whatever steps it needs to provide an explanation that will enable the court to 

evaluate the agency’s rationale at the time of decision.” Jost v. Surface Transp. Bd., 194 F.3d 

79, 85 (D.C. Cir. 1999) (internal citation and quotation marks omitted). And even where an 

agency’s rationale is “not fully articulated” in writing, the regulation is valid when the court “can 

reasonably discern the basis for the agency’s action.” Am. Iron & Steel Inst. v. EPA, 526 F.2d 

1027, 1047 (3d Cir. 1975), amended, 560 F.2d 589 (3d Cir. 1977); see also Wilhelmus v. Geren, 

796 F. Supp. 2d 157, 161 (D.D.C. 2011) (“a decision that is not fully explained may be upheld if 

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the agency’s path may reasonably be discerned”) (internal citation and quotation marks omitted). 

Where an agency “has merely followed Congress’s mandate, its ‘path may reasonably be 

discerned.’” Nat’l Ass’n for Home Care v. Shalala, 135 F. Supp. 2d 161, 169 (D.D.C. 2001). 

Here, Congress explained that the statute was intended to regulate a “person who receives the 

contribution, and subsequently makes the independent expenditure.” 1979 FECA History at 103, 

458 (emphasis added). It should surprise no one that when the FEC required the reporting of a 

contribution “made for the purpose of furthering the reported independent expenditure,” 11 

C.F.R. § 109.10(e)(1)(vi), the bipartisan Commission did not feel obliged to write an exhaustive 

treatise explaining its decision to follow congressional intent. Instead, given the integral role the 

FEC played in recommending the statutory revisions to Congress and assisting with the 

legislative drafting, see CGPS MSJ Brief (Doc 28) at 9-10, all that was necessary was for the 

FEC to state that the regulatory revisions “incorporate the changes set forth at 2 USC 434(c)(1) 

and (2)” that it helped enact into law, see AR1503.17 

V. THE COURT SHOULD DISMISS CREW’S CLAIMS TWO AND THREE 

BECAUSE THE REGULATION PROPERLY IMPLEMENTS THE STATUTE. 

A. The FEC’s IE Reporting Regulation Properly Construes the Content Provision. 

1. The Statute Supports the FEC’s Interpretation Under Chevron Step One. 

CREW cites Mylan Pharm., Inc. v. Shalala, 81 F. Supp. 2d 30 (D.D.C. 2000) for the 

proposition that Congress’s choice “to employ the indefinite article does not imply that 

                                                            

17 CREW contends the FEC’s 1979 legislative recommendations did not specifically ask to “limit the reporting of 

contributions” on IE reports. CREW Opp. Br. (Doc 33) at 22. This is not so, and CREW’s over-hyped “fabrication” 

rhetoric, id. at 13, is simply an attempt to distract from a legislative record that runs counter to its argument. The 

FEC’s recommendations, upon which Congress acted, were specifically crafted to “reduce the burdens on those 

required to comply with [the FECA],” and they emphasized that a person filing an IE report should only have to 

identify the sources of “any contributions . . . donated with a view toward bringing about an independent 

expenditure.” 1979 FECA History at 33, 25. Even assuming arguendo CREW’s reading of the FEC’s legislative 

recommendations has merit (which it does not), Congress’s decision to narrowly limit the reporting requirement was 

made while working closely with the FEC. See CGPS MSJ Br. (Doc 28) at 9. Thus, the Commission was wellpositioned to know Congress’s intent. 

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‘Congress has explicitly left a gap for the agency to fill.’” CREW Opp. Br. (Doc 33) at 9. 

However, this does not mean that CREW’s reading of the statute is correct, much less that the 

use of an indefinite article in 52 U.S.C. § 30104(c)(2)(C) (the Content Provision) leaves no room 

for the FEC’s interpretation.18 Quite to the contrary, as Mylan recognized, a statute containing 

an indefinite article cannot be read in isolation, and “an analysis of the text and structure of the 

statute” is needed to determine what is meant by the use of the indefinite article. 81 F. Supp. 2d 

at 38. In short, “context matters.” Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 566 U.S. 

399, 413-14 (2012). 

CREW’s attempt to distort CGPS’s New Hampshire Motor Transportation Association 

authority also backfires. As CREW acknowledges, CREW Opp. Br. (Doc 33) at 10, the court 

there recognized that “‘[a]ny’ means ‘one . . . of whatever kind,’ and ‘an’ means ‘one.’” N.H. 

Motor Transp. Ass’n v. Rowe, 448 F.3d 66, 72 (1st Cir. 2006) (emphasis added) (internal citation 

omitted). From this, CREW concludes the two are “synonymous” (when they clearly are not), 

and thus the Content Provision’s use of the indefinite article “an” means the filer of an IE report 

is required to identify donors who give for the purpose of funding “any” IE. CREW Opp. Br. 

(Doc 33) at 10. This does not follow. 

To illustrate the fallacy in CREW’s linguistic sleight of hand, suppose a customer is 

asked at a farmer’s market where several apple varieties are sold whether she would like “an 

apple.” A response of, “Yes, I would like one,” would be very different from a response of, 

“Yes, I would like ‘one . . . of whatever kind.’” Cf. N.H. Motor Transp. Ass’n, 448 F.3d at 72. 

While the former response will prompt a follow-up question as to which variety of apple the 

                                                            

18 CREW incorrectly suggests the Supreme Court held in McFadden v. U.S., 135 S. Ct. 2298 (2015) that a statute’s 

use of an indefinite article was “unambiguous.” CREW Opp. Br. (Doc 33) at 9-10. In fact, the Court’s discussion 

of whether the statute was ambiguous was in the context of the statute’s scienter requirement. McFadden, 135 S. Ct. 

at 2306-07. 

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customer would like, the latter response rather clearly means she would be just as happy with a 

Braeburn, Red Delicious, or Granny Smith. 

In the same manner, the purported language variance between the FEC’s IE reporting 

regulation, 11 C.F.R. § 109.10(e)(1)(vi), and the Content Provision, 52 U.S.C. § 30104(c)(2)(C), 

is consistent with congressional intent under Chevron Step One because the statute’s requirement 

that an IE report identify donors whose contributions were “made for the purpose of furthering 

an independent expenditure” begs the question: which IE?19 Relatedly, CREW attempts to 

deflect CGPS’s Foo v. Tillerson, 244 F. Supp. 3d 17 (D.D.C. 2017) and Abbott GmbH & Co. KG 

v. Yeda Research and Dev. Co., Ltd., 516 F. Supp. 2d 1 (D.D.C. 2007) authorities as cases that 

“merely show that the word modified by the indefinite article may be ambiguous” (in this case, 

the term “independent expenditure”). CREW Opp. Br. (Doc 33) at 10. But once again, this begs 

the question: which IE does a donor have to support in order to be reported under the Content 

Provision? The statute leaves this question open for interpretation. 

CREW suggests Congress’s choice to “use different articles in other sections” of 52 

U.S.C. § 30104(c)(2) indicates the Content Provision was meant to encompass reporting a broad 

universe of donors. Id. at 11. But CREW’s cited authority, Pillsbury v. United Eng’g Co., 342 

U.S. 197, 199 (1952), only supports the general canon of statutory interpretation that where 

“Congress knew the difference between [two different terms in a statute],” it is presumed to have 

                                                            

19 The court’s conclusion in N.H. Motor Transp. Ass’n that “if a state law is preempted as to one carrier, it is 

preempted as to all carriers” is not to the contrary because the statute at issue contained preemption provisions for 

both “any motor carrier” and “an air carrier.” 448 F.3d at 72 (emphases in the original). But while the more general 

term encompassed the more specific term in that case, the converse is not true. Here, the FECA’s Content Provision 

requires reporting of the more specific term – “an independent expenditure,” and does not necessarily encompass 

reporting of a more general universe of “any independent expenditures.” Indeed, N.H. Motor Transp. Ass’n 

acknowledged that had the statute only used the article “an” without a corresponding provision containing the article 

“any,” “an” may have been ambiguous. Id. at 72 n.8. At minimum, the interpretive question the FECA’s Content 

provision leaves open here with the indefinite article “an” should be resolved in favor of more specificity (as the 

FEC did) because the surrounding FECA provisions use the definite article “the.” See CGPS MSJ Br. (Doc 28) at 

38-40. 

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“used the words advisedly.” CREW’s attempt to characterize that case as addressing how to 

construe definite and indefinite articles in a statute fails in light of the cases discussed above that 

actually address this specific issue. 

Lastly, the fact that the FEC’s EC reporting regulation, 11 C.F.R. § 104.20(c)(9), was 

“modeled on” the Content Provision, 52 U.S.C. § 30104(c)(2)(C), has no bearing on whether the 

statute invites interpretation, as CREW suggests. CREW Opp. Br. (Doc 33) at 14. Even though 

the EC regulation is “modeled on” the statute in concept, the two provisions clearly use different 

language. Moreover, the fact that a controlling group of FEC commissioners has adopted a 

narrowing interpretation of the EC regulation, id. at 14 n.4, is just further evidence that, to the 

extent the EC regulation is modeled on the Content Provision, both provisions invite 

interpretation. 

2. The Regulation Is Proper Under Chevron Step Two. 

i. Extrinsic post hoc campaign finance data cannot provide evidence of 

congressional intent or be considered in an APA challenge to the regulation’s 

validity. 

CREW cites the Federal Rules of Evidence for a rather novel theory of statutory 

interpretation: that this Court should look to recent campaign finance data to divine the “proper 

meaning” of the FECA’s IE Content Provision and thereby determine whether the FEC’s 1980 

rulemaking was permissible under Chevron Step Two. CREW Opp. Br. (Doc 33) at 18. There is 

good reason why this not a recognized theory of statutory interpretation, see, e.g., Cong. 

Research Svc. Rept. No. 97-589, Statutory Interpretation: General Principles and Recent Trends, 

available at https://fas.org/sgp/crs/misc/97-589.pdf: it places the cart before the horse and would 

convert the Court into a legislature unto itself. 

Even under the “purposive” approach to statutory construction CREW appears to be 

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urging here, it is still first necessary to determine Congress’s purpose in enacting the Content 

Provision before looking to post hoc data to determine whether a law is being implemented to 

achieve its purposes. In other words, post-enactment facts do not shed light on Congress’s 

enacting intent unless Congress somehow could have known those facts at the time it legislated. 

CREW has simply pointed to no evidence of legislative intent supporting its theory. 

Nor has CREW adequately refuted the substantial legislative history CGPS has presented 

previously. See CGPS MSJ Br. (Doc 28) at 8-11. CREW’s broad statements about the FECA’s 

generic disclosure purposes also are unavailing, as CREW’s cited authorities do not specifically 

address the Content Provision at issue here. See CREW Opp. Br. (Doc 33) at 17. Moreover, 

although the FECA is, in large part, a reporting statute, it does not require the type of “maximal 

disclosure” CREW demands here. See Van Hollen, Jr. v. Fed. Election Comm’n, 811 F.3d 486, 

494 (D.D.C. 2016). 

 CREW also is not permitted to point to extrinsic contemporary evidence, see CREW 

Opp. Br. (Doc 33) at 18-19, to demonstrate the FEC’s enactment of a regulation in 1980 was in 

error. “Under the APA, the focal point for judicial review should be the administrative record 

already in existence, not some new record made initially in the reviewing court . . . [I]f a court is 

to review an agency’s action fairly, it should have before it neither more nor less information 

than did the agency when it made its decision . . . .” Am. Wild Horse Pres. Campaign v. Salazar, 

859 F. Supp. 2d 33, 41 (D.D.C. 2012) (internal citations and quotation marks omitted). If 

CREW wishes to introduce this type of extrinsic, post hoc evidence before the Court to 

demonstrate a decades-old regulation is no longer achieving the statute’s purposes, CREW must 

first present this evidence to the FEC in a rulemaking petition. Only if the agency denies the 

petition may CREW properly seek judicial review of the agency’s action. See CWA, 493 F.3d at 

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158-59. 

ii. CREW’s extrinsic post hoc evidence fails to show the regulation has resulted 

in “no disclosure” of contributors on IE reports. 

Even if CREW’s resort to contemporary evidence were proper, CREW – not CGPS –is 

the party mischaracterizing the cited evidence. See CREW Opp. Br. (Doc 33) at 19. According 

to CREW, CGPS claimed that “between 7.2% and 29.7% of contributions” by non-PAC entities 

making independent expenditures were reported in recent election cycles. See id. at 18 

(emphasis added). But CGPS said no such thing. Rather, CGPS merely cited the CRP website 

for the proposition that “the percentage of ‘outside spending’ by organizations that have publicly 

reported some of their donors in recent years has ranged between 7.2% (in 2010) to 29.7% (in 

2012).” CGPS MSJ Br. (Doc 28) at 46 (emphasis added).20

Moreover, CREW’s own characterization of the CRP website is erroneous. It is not true 

that the “CPR [sic] label[] [of] ‘some disclosure’ refers to the total spending by organizations 

that either report $5,000 in contributions or contributions equal to 5% of their total 

expenditures,” and “if [CGPS] reported only 5% of its contributors, the entirety of its more than 

$70 million in independent expenditures would be treated as ‘some disclosure.’” See id. In fact, 

CREW’s characterization of the CRP data applies only “[if] the entity is a super PAC”; for a 

501(c)(4) entity such as CGPS, the “some disclosure” label “means the group has disclosed some 

of the donors, either voluntarily or because the donor earmarked the funds for political 

expenditures.” CRP, Outside Spending by Disclosure, Excluding Party Committees, available at

https://www.opensecrets.org/outsidespending/disclosure.php (emphasis added). 

Nor is it clear where, as CREW claims, the CRP website indicates that, of “tax exempt 

                                                            

20 Again, this extrinsic post hoc data is not relevant to the regulation’s validity, and CGPS cited it arguendo for the 

sole purpose of refuting CREW’s claim about the regulation’s effects. See id. 

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501(c) groups like [CGPS] . . . reported contributions used to fund independent expenditures 

amounted to only about $8 million, or about 2.7%” in 2012. CREW Opp. Br. (Doc 33) at 19. 

The page on the CRP website that CREW cites only appears to show the group types and their 

total spending on IEs and ECs. It does not appear to provide any dollar or percentage amounts 

for their reported contributions. Compare id. with CRP, 2012 Outside Spending, by Group, 

available at http://bit.ly/2nm87vU. 

In short, notwithstanding CREW’s mischaracterizations, the CRP data still do not 

corroborate CREW’s claim that the FEC’s regulation has “effectively resulted in no disclosure of 

contributions used to fund independent expenditures.” CGPS MSJ Br. (Doc 28) at 46 (quoting 

CREW MSJ Br. (Doc 27) at 34) (emphasis in the original)). 

iii. The regulation is not redundant. 

CREW’s reply maintains the regulation is invalid under Chevron Step Two because it 

“[c]reates [r]edundancy” with “other reporting requirements.” CREW Opp. Br. (Doc 33) at 20. 

It appears CREW really means the regulation is internally inconsistent, but either way, CREW is 

mistaken. 

CREW’s argument hinges on a single FEC authority that has no bearing here. 

Specifically, CREW cites an FEC advisory opinion for the proposition that, when “a company 

that allowed individuals to fund already existing ads . . . the company would not be the one who 

makes the independent expenditure; rather it would be the person providing the funds who did 

so.” Id. at 21 (citing FEC Adv. Op. No. 2008-10 (VoterVoter)). From this out-of-context 

discussion of the VoterVoter advisory opinion, CREW concludes the FEC’s IE reporting 

regulation misreads the FECA’s Content Provision by requiring only the reporting of donors who 

choose to fund the specific IE being reported, since that would convert the donors into the IE’s 

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31 

sponsors (and, in turn, the donors would have to file the IE reports, but would not be reported as 

contributors on any reports). See id. However, the VoterVoter advisory opinion CREW cites 

does not apply here because that opinion specifically addressed a commercial vendor selling 

existing political ads to individual clients. See FEC Adv. Op. No. 2008-10 (VoterVoter), 

available at http://saos.fec.gov/aodocs/AO%202008-10.pdf. It is axiomatic under the FEC’s 

regulations and precedents that commercial vendors are treated differently from groups engaged 

in regulated political speech; otherwise, every political consultant or ad vendor would be at risk 

of making excessive or prohibited contributions or having to file campaign finance reports. See, 

e.g., 11 C.F.R. §§ 114.2(f)(1), (2)(i), 116.3; FEC Adv. Op. No. 2017-06 (Stein and Gottlieb) at 6 

(collecting authority), available at http://saos.fec.gov/aodocs/AO%202017-

06%20(Stein%20Gottlieb)%20Final%20(09.14.17).pdf. 

Moreover, the extremely close nexus between funders and the particular ads identified on 

IE reports, which CREW contends is absurd, actually tracks closely with the legislative history 

behind the Content Provision of the FECA’s IE reporting requirement, and which is faithfully 

implemented in the FEC regulation. CREW’s suggestion to the contrary fails to acknowledge 

and grapple with how the Content Provision actually came to be. As CGPS has previously 

explained, prior to the 1979 amendments that enacted the Content Provision into the FECA, 

separate reports were, in fact, required to be filed by both: (1) donors to persons or groups 

sponsoring IEs; and (2) the IEs’ sponsors themselves. See CGPS MSJ Br. (Doc 28) at 8-9; see 

also 2 U.S.C. § 434(e)(1) (1976); 11 C.F.R. §§ 109.2(b) (1976) (“Reporting of independent 

expenditures”), 109.5 (1976) (“Reporting of independent contributions”). 

To eliminate the reporting burden on contributors, Congress (at the FEC’s 

recommendation) consolidated the separate reports by placing the reporting responsibility solely 

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32 

on the IEs’ sponsors. 1979 FECA History at 24-25, 104, 145. This did not mean, however, as 

CREW suggests, that there no longer had to be “a direct link between the contribution and the 

independent expenditure” to require a donor to be reported. See CREW Opp. Br. (Doc 33) at 20. 

In fact, such a “direct link” is quite consistent with the logic and breadth of donor reporting 

under the pre-1979 reporting regime that even CREW concedes was carried over in the 1979 

amendments. See id. at 28-29. To wit, just as a donor was required to report her contribution for 

a specific IE on the pre-1979 “independent contribution” report, post-1979, the IE report is 

required to identify the donor making the contribution for the specific ad being reported. 

B. The FEC’s IE Reporting Regulation Properly Construes the Coverage Provision, 

and CREW’s Alternative Reading Would Result in Misleading Reporting. 

The FEC’s regulation interprets 52 U.S.C. § 30104(c)(1) (the Coverage Provision) as 

merely providing an overview of the scope of persons and activities covered by the FECA’s IE 

reporting requirement. See CGPS MSJ Br. (Doc 28) at 49-50. This reading is consistent with 

the relevant canons of statutory construction, which support consideration of the Coverage 

Provision within “the specific context in which that language is used” (here, the FECA’s IE 

reporting section), “and the context of the [FECA] as a whole.” U.S. v. Mosquera-Murillo, 172 

F. Supp. 3d 24, 30 (D.D.C. 2016). 

CREW, for its part, urges this Court to read the Coverage Provision in isolation from the 

surrounding context and the entire statute. Under CREW’s alternative reading, IE reports would 

need to include acontextual and misleading information about donors who have nothing to do 

with the reported independent expenditure. The Court should reject such an odd reading. See, 

e.g., Public Citizen v. Dep’t of Justice, 491 U.S. 440, 454 (1989). 

CREW contends its interpretation of the Coverage Provision merely requires reporting of 

donors “based on when the[ir] contribution was made” in a way that is consistent with the 

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33 

statutory scheme for electioneering communication (“EC”) reports. CREW Opp. Br. (Doc 33) at 

29. This is comparing apples to bananas. Specifically, CREW appears to suggest that because 

reporting of ECs under the FECA is “defined by time,” it is also appropriate to require sponsors 

of IEs to report their donors based on when they gave (under CREW’s misreading of the 

Coverage Provision), in addition to whether they gave to further the reported IE (under the 

Content Provision). See id.; see also id. at 6. However, this only scratches the surface of the 

statutory text while ignoring the legislative history for regulating ECs. The regulation of certain 

ads within pre-election time windows as ECs, 52 U.S.C. § 30104(f), was supported by a 

legislative record “over 100,000 pages long” indicating that “candidate advertisements 

masquerading as issue ads” were “almost all [] aired in the 60 days immediately preceding a 

federal election.” Citizens United v. FEC, 558 U.S. 310, 332 (2010) (internal citation and 

quotation marks omitted); McConnell, 540 U.S. at 127, 132 (internal quotation marks omitted). 

By contrast, CREW has pointed to no evidence whatsoever that “almost all” – or even 

most – donors who would be reported under its misreading of the Coverage Provision give for 

the purpose of supporting an organization’s IEs. Nor is it clear what the scope of donor reporting 

would even be under CREW’s misreading of the Coverage Provision. On the one hand, CREW 

contends the Coverage Provision imposes an “unbounded contributor disclosure requirement” 

under which filers “must report all of their contributions without regard to earmarking.” CREW 

Opp. Br. (Doc 33) at 30 n.19 (emphasis added). Yet, CREW also maintains that “a person who 

donates money . . . without ‘the purpose of influencing any election for Federal office’ . . . is not 

a contributor . . . under any reading of . . . [52 U.S.C. § 30104](c)(1) . . . and thus would not be 

disclosed.” Id. at 17-18. 

Despite these disparate understandings of what constitutes a “contribution” or 

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34 

“contributor,” CREW nonetheless contends “the statute’s reference to ‘contributions’ . . . is not 

ambiguous in [52 U.S.C. § 30104](c)(1).” This blithely ignores the Supreme Court’s holding, 

which has been undisturbed for more than 40 years, that the term “contribution,” even as 

statutorily defined, is laden with “ambiguity.” Buckley v. Valeo, 424 U.S. 1, 77 (1976). In fact, 

even Buckley’s attempt to clarify the “contribution” definition was not entirely satisfactory. In 

light of the remaining “hazards of uncertainty” in this term, the Second Circuit subsequently 

further construed “contributions” to mean only funds “that will be converted to expenditures 

subject to regulation under FECA. Thus, Buckley’s definition of independent expenditures that 

are properly within the purview of FECA provides a limiting principle for the definition of 

contributions . . . as applied to groups acting independently of any candidate or his agents and 

which are not ‘political committees’ under FECA.” FEC v. Survival Educ. Fund, 65 F.3d 285, 

295 (2nd Cir. 1995) (emphasis added). 

Therefore, even if the Coverage Provision is incorrectly read out of context as CREW 

does – i.e., to require a non-PAC entity such as CGPS to report its sources of “contributions” – 

the FEC could not have simply adopted CREW’s “unbounded” understanding, CREW Opp. Br. 

(Doc 33) at 30 n.19, without interpreting “contribution” in the unconstitutionally vague manner 

that Survival Education Fund confirmed was impermissible. Thus, it was reasonable – indeed, 

necessary – for the FEC’s IE reporting regulation to interpret and implement both the Coverage 

and Content Provisions, see AR1503, as requiring only the identification of those who give for 

the purpose of furthering the IE being reported, see Edward J. DeBartolo Corp. v. Fla. Gulf 

Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) (“where an otherwise 

acceptable construction of a statute would raise serious constitutional problems, the Court will 

construe the statute to avoid such problems unless such construction is plainly contrary to the 

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35 

intent of Congress”). 

CREW also claims “it is unconstitutional for the FEC to limit disclosure” to avoid the 

type of misleading donor reporting that CREW urges under its misreading of the Coverage 

Provision. CREW Opp. Br. (Doc 33) at 8. However, the authority CREW cites (at id.) does not 

support this proposition, as it addressed an outright ban on speech that was purportedly harmful 

to the public. See Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 

767-68 (1976). CREW’s authority does not address the type of compelled speech at issue here, 

and whether the government may define the parameters of the speech it compels to avoid 

creating public confusion. Nor is it valid for CREW to suggest that donors concerned about 

being associated misleadingly with certain IEs could simply “limit their contributions” and stop 

giving to certain groups, CREW Opp. Br. (Doc 33) at 12, as this would infringe upon their First 

Amendment right of association, Van Hollen, 811 F.3d at 500; Buckley, 424 U.S. at 15. 

CREW’s supposition that Congress intended non-PAC entities like CGPS to report “all of 

their contributions without regard to earmarking” on the same basis as PACs, CREW Opp. Br. 

(Doc 33) at 30 n.19, 6-7,21 also ignores the fact that PACs are organizations whose “major

purpose . . . is the nomination or election of a candidate,” Buckley, 424 U.S. at 79. Just as 

requiring PACs to report all of their spending “can be assumed to fall within the core area sought 

to be addressed by Congress” because “[t]hey are, by definition, campaign related,” id., requiring 

PACs to report all of their revenue sources serves the interests in public disclosure the Court 

                                                            

21 See also id. at 21 (“the FECA is not concerned solely with contributions earmarked to particular purposes” 

because “there is no dispute that political committee contributions need not be earmarked to their final use in order 

to be reported,” and “by referencing this requirement, [52 U.S.C. § 30104](c)(1) [the Coverage Provision] imposes a 

similar unconstrained reporting requirement on those making independent expenditures.” CREW Opp. Br. (Doc 33) 

at 21. 

CREW cites no legislative history, or any authority for that matter, for its claim that Congress intended non-PAC 

entities filing IE reports to identify their donors in a manner similar to the way PACs must report their contributors. 

Case 1:16-cv-00259-BAH Document 36 Filed 01/22/18 Page 48 of 59
36 

identified in Buckley, see id. at 79-82. Conversely, non-PAC entities such as CGPS, by 

definition, do not have the “major purpose” of influencing elections, and thus not all donors to 

such entities may be presumed to have given for a purpose justifying their inclusion on IE 

reports. See Survival Education Fund, 65 F.3d at 295 (distinguishing regulable “contributions” 

for PAC and non-PAC entities based on Buckley’s “major purpose” test for PACs). 

CREW also mischaracterizes the FEC’s disposition of MUR 3503 (Perot Petition 

Committee) as evidence the agency has interpreted the Coverage Provision as creating a 

“standalone reporting obligation” for information about an IE sponsors’ donors. CREW Opp. 

Br. (Doc 33) at 26.22 MUR 3503 involved the reporting of independent expenditures made by an 

individual, and therefore the reporting of donor information was never at issue. See FEC MUR 

3503, First General Counsel’s Report at 3 (“Carmack Watkins stated that he alone placed the 

newspaper advertisements” at issue) (emphasis added). In fact, the FEC’s staff specifically 

recommended that the Commission find reason to believe there had been a violation of 52 U.S.C. 

§ 30104(c)(1) because “[t]he costs incurred by Mr. Watkins’ use of office space . . . along with 

the $100 for newspaper ads, may have exceeded $250, making the expenditures subject to [52 

U.S.C. § 30104](c)(1).” Id. at 4 (emphasis added). As CGPS has noted previously, the FEC’s 

enforcement precedents have actually dismissed the notion that subsection (c)(1) imposes a 

standalone donor reporting requirement. CGPS MSJ Br. (Doc 28) at 21; AR172-73. 

Ultimately, CREW’s arguments fail to demonstrate: (1) that the Coverage Provision, 52 

U.S.C. § 30104(c)(1), is unambiguous in the manner CREW suggests; and (2) that the FEC 

impermissibly and unreasonably interpreted (c)(1) and (c)(2)(C) (the Content Provision) in the 

agency’s implementing regulation by reading the provisions together to not require misleading 

                                                            

22 CREW mistakenly refers to this matter as “MUR 5303.” However, it is clear from CREW’s description of the 

matter and the “short URL” CREW provides that it is referring to MUR 3503. 

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and unconstitutionally vague and overbroad reporting of donor information.

C. Congress Has Ratified the FEC’s IE Reporting Regulation. 

Ironically, while CREW relies on subsequent developments to attack the underlying FEC 

regulation (see supra at 29), CREW urges this Court to ignore the one legitimate way in which 

post hoc events are relevant here: Congress’s subsequent ratification of the FEC’s regulation. 

See CGPS MSJ Br. (Doc 28) at 43-45; CREW Opp. Br. (Doc 33) at 21-23. While CREW 

heavily downplays this development, its significance is unavoidable. 

To begin, none of CREW’s authorities that purport to negate the significance of 

congressional acquiescence in agency regulations, see CREW Opp. Br. (Doc 33) at 22-23, 

discusses FECA’s special congressional review provision, 52 U.S.C. § 30111(d). Congress 

adopted this provision specifically to assure that FEC regulations would not “depart[] . . . from 

Congressional intent” and would “conform to the campaign finance laws.” Legislative History of 

Federal Election Campaign Act Amendments of 1974 at 643, available at https://transition. 

fec.gov/pdf/legislative_hist/legislative_history_1974.pdf.23 Moreover, Congress used this 

special review provision repeatedly prior to 1980 to disapprove FEC regulations. See CGPS 

MSJ Br. (Doc 28) at 13. The Supreme Court also validated an FEC regulation, in part, because 

“neither House [of Congress] expressed disapproval” pursuant to this process. See FEC v. 

DSCC, 454 U.S. 27, 34 (1981). CREW fails to explain why this Court should not do likewise 

here.24 

                                                            

23 The Committee on House Administration’s Report ultimately was incorporated into the final Conference 

Committee Report. See id. at 1065. 

24 CREW observes in passing that the special congressional review provision should be discounted because 

“§ 109.10 was one of over a hundred regulations spanning thirty pages sent to Congress for review.” CREW Opp. 

Br. (Doc 33) at 23. The inconsistency with such an “overworked” argument is, of course, that CREW’s brief also 

demands that the FEC – which had to actually write (and not just read) the hundred-plus regulations and 

accompanying explanations – should have written more content during the narrow window Congress gave it for 

promulgating the regulations. 

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Nor does CREW adequately justify disregarding Congress’s longstanding acquiescence 

in the FEC’s 1980 rulemaking, even as it repeatedly amended FECA in other respects. See Pub. 

Citizen, Inc. v. FAA, 988 F.2d 186, 194 (D.C. Cir. 1993) (where Congress had amended a statute 

on several occasions over two decades without disturbing an agency’s preexisting authority to 

regulate, Congress is presumed to adopt the agency’s interpretation of the statute when it 

reenacts the statute without change). Such acquiescence is “a significant indicator of the 

legislature’s will,” Abourezk v. Reagan, 785 F.2d 1043, 1055 (D.C. Cir. 1986), aff’d, 484 U.S. 1 

(1987) and, indeed, such “a consistent administrative construction of that statute must be 

followed by the courts unless there are compelling indications that it is wrong.” Haig v. Agee, 

453 U.S. 280, 291 (1981) (emphasis added, internal citation and quotation marks omitted). 

CREW points to language in Rapanos v. U.S., 547 U.S. 715, 749 (2006) expressing 

“skepticism . . . of congressional inaction” as a basis for concluding congressional acquiescence 

to a regulation. CREW Opp. Br. (Doc 33) at 22. But CREW fails to mention that the foregoing 

language did not garner the support of a Court majority. See Rapanos, 547 U.S. at 758 (Roberts, 

J., concurring) (“no opinion commands a majority of the Court . . .”). Moreover, that same 

plurality opinion (and other authorities CREW cites) fully acknowledges that the Court has 

“recognized congressional acquiescence to administrative interpretations of a statute,” id. at 749, 

including where, as here, legislative inaction is “long-standing,” Bismullah v. Gates, 551 F.3d 

1068, 1074 (D.C. Cir. 2009). 

Nowhere are these legal principles more compelling than in this case. After all, members 

of Congress are acutely aware and concerned about the process by which they are elected. 

During the nearly 40 years the FEC IE reporting regulation has been in effect, Congress has 

repeatedly debated independent expenditures and the reporting thereof. See, e.g., 144 Cong. Rec. 

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39 

S884-02 (Feb. 24, 1998) (Sen. Baucus) (discussing “unreported, undisclosed contributions spent 

by ‘independent expenditure’ campaigns”); 145 Cong. Rec. S12734-02 (Oct. 18, 1999) (Sen. 

Murray) (discussing the “right to know who is funding these so-called ‘independent 

expenditures’”). And some Senators even introduced amendments designed specifically to force 

501(c)(4) organizations like CGPS that sponsor IEs to report their donors in the more expansive 

manner that CREW urges the Court to impose here. See, e.g., 143 Cong. Rec. S10485-01 (Oct. 

7, 1997) (Sen. Torricelli Amndt., No. 1308, to the Bipartisan Campaign Reform Act of 1997); 

143 Cong. Rec. S10661-02 (Oct. 8, 1997) (Sen. Murray Amndt., No. 1315, to the Bipartisan 

Campaign Reform Act of 1997). 

Yet through it all, Congress never actually amended the FECA to impose the sweeping IE 

donor reporting regime CREW now asks the Court to graft onto the statute. In fact, Congress 

specifically amended the IE reporting statute six times since the FEC’s 1980 rulemaking. See

CGPS MSJ Br. (Doc 28) at 44. As part of the 2002 major overhaul of the FECA, Congress even 

made a change to 52 U.S.C. § 30104(c) to alter the IE reporting regime, but did not change the 

language of (c)(1) and (c)(2)(C) at issue here, see H.R. Rep. No. 131, 107th Cong., 1st Sess., pt. 

1, at 23 (2001), thereby further ratifying the FEC’s regulation, which implements both of those 

provisions, see AR1503. 

 As the Supreme Court has held in reviewing similar legislative efforts, Congress 

“spurned multiple opportunities to reverse [the FEC’s rulemaking] – openings as frequent and 

clear as this Court ever sees. . . . Congress’s continual reworking of the [IE reporting] laws – but 

never of the [the FEC’s regulation –] supports leaving the decision in place.” Kimble v. Marvel 

Entm’t, LLC, 135 S. Ct. 2401, 2409-10 (2015). CREW fails to show why this compelling 

evidence of legislative intent should be discounted here. 

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CREW also makes a fleeting attempt to downplay the value of the FEC’s 

contemporaneous rulemaking. CREW Opp. Br. (Doc 33) at 22 n.9. But a close-in-time 

interpretation is a “particularly persuasive” indicator of congressional intent, United Transp. 

Union v. Lewis, 711 F.2d 233, 242 (D.C. Cir. 1983), that can even “carry the day against doubts 

that might exist from a reading of the bare words of a statute,” Good Samaritan Hosp. v. Shalala, 

508 U.S. 402, 414 (1993). In fact, “[u]nder Supreme Court precedent, it is well-established that 

a court should defer to the [agency’s] interpretation . . . when the administrative practice at stake 

involves contemporaneous construction of a statute by the [agency] charged with a responsibility 

with setting its machinery in motion, of making the parts work efficiently and smoothly while 

they are yet untried and new.” Pub. Serv. Co. of Ind., Inc. v. ICC, 749 F.2d 753, 765 (D.C. Cir. 

1984) (internal citation, brackets, and quotation marks omitted).25

VI. THE FEC’S DISMISSAL IS ENTITLED TO DEFERENCE. 

Courts accord a high degree of deference to the FEC’s dismissals of enforcement matters. 

See CGPS MSJ Br. (Doc 28) at 22-23. Despite CREW’s bizarre claim to the contrary, CREW 

Opp. Br. (Doc 33) at 42-43, this is true even in 3-3 deadlocks like the one at issue here: “[W]hen 

the Commission deadlocks 3-3 . . . the three Commissioners who voted to dismiss must provide a 

statement of their reasons for so voting . . . [and] their rationale necessarily states the agency’s 

reasons for acting as it did,” FEC v. NRSC, 966 F.2d 1471, 1476 (D.C. Cir. 1992) (internal 

citations omitted) (emphasis added), and “if the meaning of the statute is not clear, a reviewing 

court should accord deference to the Commission’s rationale,” id.; see also DSCC, 745 F. Supp. 

at 745 (“the Commission’s split vote [does not] make its decision unreasonable”). 

                                                            

25 See also U.S. v. Cleveland Indians Baseball Co., 532 U.S. 200, 219 (2001) (noting the “particular force” a 

regulation can have “if it is a substantially contemporaneous construction of the statute by those presumed to have 

been aware of congressional intent”); Miller v. Youakim, 440 U.S. 125, 144 (1979) (an agency’s construction is 

“especially persuasive” where “the agency participated in developing the provision”). 

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41 

CREW mischaracterizes the authorities it contends are to the contrary. CREW 

erroneously cites Akins and even its own eponymous case for the categorical proposition that 

courts afford no deference to the FEC’s dismissal of enforcement matters. CREW Opp. Br. (Doc 

33) at 42. In fact, those authorities simply state the “fairly intuitive principle, that courts need 

not, and should not, defer to agency interpretations of opinions written by courts,” CREW v.

FEC, 209 F. Supp. 3d 77, 87 (D.D.C. 2016) (emphasis added), or “an agency’s interpretation of 

Supreme Court precedent” when reviewing FEC dismissals, Akins v. FEC, 101 F.3d 731, 740 

(D.C. Cir. 1996) (emphasis added). Those authorities do not apply where, as here, the FEC’s 

dismissal is based on the agency’s interpretation of its own regulations and the statute. 

It is similarly disingenuous for CREW to cite U.S. v. Mead Corp., 533 U.S. 218 (2001) to 

negate the deference accorded to the FEC’s dismissal of administrative complaints. CREW Opp. 

Br. (Doc 33) at 42, 43 n.26. In fact, Mead specifically reaffirmed that Chevron deference is 

“merit[e]d” in cases involving “express congressional authorizations to engage in the process of 

rulemaking or adjudication” by agencies. 533 U.S. at 229 (emphasis added). This deference was 

held unwarranted in Mead because the government agency was acting far afield from the 

anticipated area of congressional delegation. Id. at 231. Here, by contrast, the FEC indisputably 

has “primary and substantial responsibility for administering and enforcing” the FECA. Buckley

424 U.S. at 109 (emphasis added). 

CREW’s attempt to call into question the “extremely deferential” review accorded to the 

FEC’s exercise of its prosecutorial discretion in this matter also attacks a strawman. According 

to CREW, no deference is warranted “[i]f the agency makes a legal error in the course of 

exercising its prosecutorial discretion.” CREW Opp. Br. (Doc 33) at 43. CREW appears to 

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42 

imply that the FEC’s Heckler dismissal26 of the agency’s self-initiated hypothetical theory 

regarding the FECA’s IE Coverage Provision, see CGPS MSJ Br. (Doc 28) at 34, was based on 

an error of law. However, the FEC’s dismissal of this theory was based on the fair notice 

concerns discussed above arising from the agency’s previous practice of not enforcing the 

Coverage Provision as a separate and additional reporting requirement. AR176; see also supra

at 36; CGPS MSJ Br. (Doc 33) at 27-28. In exercising the agency’s prosecutorial discretion, the 

Commission made no determination on the merits of the legal question CREW now alleges (for 

the first time) regarding the Coverage Provision. In fact, CREW’s reply brief contradicts itself 

on this point by later characterizing the FEC’s Heckler dismissal as a “prudential decision” as 

opposed to a “decision on the merits.” CREW Opp. Br. (Doc 33) at 49. 

Related to this point about the FEC’s discretion, CREW also prematurely and incorrectly 

declares that if the Court were to remand this matter to the FEC and the agency still does not 

proceed with enforcement, “CREW will have the authority to bring its own suit to protect its 

own rights.” CREW Opp. Br. (Doc 33) at 44. This is not true. The FEC’s exercise of 

prosecutorial discretion “is a decision generally committed to [its] absolute discretion” and is 

“presumptively unreviewable.” Heckler, 470 U.S. at 831-32. “The FEC is not required to 

pursue every potential violation of FECA,” La Botz v. FEC, 61 F. Supp. 3d 21, 35 (D.D.C. 

2014), and its Heckler dismissals “are entitled to great deference,” Combat Veterans for Cong. 

Political Action Comm. v. FEC, 983 F. Supp. 2d 1, 15 (D.D.C. 2013), aff’d, 795 F.3d 151 (D.C. 

Cir. 2015). And outside of the FEC’s enforcement process, “there is no private right of action to 

enforce the FECA against an alleged violator.” Perot, 97 F.3d at 558 n.2.27 

                                                            

26 Heckler v. Chaney, 470 U.S. 821 (1985). 

27 Moreover, even if – contrary to all of the reasons CGPS has provided – the Court were to adopt CREW’s reading 

of the FECA’s IE Coverage and Content Provisions, that still would not enable CREW in a separate suit to seek 

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VII. TO THE EXTENT THE COURT DOES NOT GRANT SUMMARY JUDGMENT 

TO THE FEC AND CGPS, THE APPROPRIATE REMEDY IS TO LEAVE THE 

REGULATION IN PLACE AND REMAND TO THE FEC FOR FURTHER 

PROCEEDINGS. 

While CGPS remains confident in its position, because CREW raises the issue of remedy, 

CREW Opp. Br. (Doc 33) at 39-41, a brief response is in order. Contrary to CREW’s plea for 

this Court to strike the FEC’s IE reporting regulation, “[i]f the record before the agency does not 

support the agency action . . . the proper course, except in rare circumstances, is to remand to the 

agency for additional investigation or explanation.” Banner Health v. Price, 867 F.3d 1323, 

1356 (D.C. Cir. 2017). This is because an “agency must first be afford[ed] . . . an opportunity to 

articulate, if possible, a better explanation.” Id. (internal citation and quotation marks omitted). 

Vacatur need not accompany the remand of an inadequately supported rule. See Allied–

Signal, Inc. v. NRC, 988 F.2d 146, 150 (D.C.Cir.1993). Courts have “commonly remanded 

without vacating an agency’s rule . . . where the failure lay in lack of reasoned decisionmaking 

[or where the agency’s action] was otherwise arbitrary and capricious.” Int’l Union, United 

Mine Workers of Am. v. Fed. Mine Safety & Health Admin., 920 F.2d 960, 966–67 (D.C. Cir. 

1990). In fact, “remanding without vacating” is the “established administrative practice,” Sugar 

Cane Growers Co-op. of Florida v. Veneman, 289 F.3d 89, 98 (D.C. Cir. 2002), and is warranted 

even in circumstances that “invite prejudicial agency delay.” U.S. Sugar Corp. v. EPA, 844 F.3d 

268, 270 (D.C. Cir. 2016). 

Ultimately, the decision to vacate depends on two factors: (1) “the seriousness of the 

order’s deficiencies (and thus the extent of doubt whether the agency chose correctly)”; and 

(2) “the disruptive consequences of an interim change that may itself be changed.” La. Fed. 

                                                            

enforcement of these provisions post hoc against CGPS in a manner contrary to the FEC’s regulation and 

longstanding prior interpretation. See supra at 6-14. 

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44 

Land Bank Ass’n, FLCA v. Farm Credit Admin., 336 F.3d 1075, 1085 (D.C. Cir. 2003) 

(concluding that vacatur was inappropriate) (internal citation and quotation marks omitted). 

With regard to the first factor, “[w]hen an agency may be able readily to cure a defect in 

its explanation of a decision, the first factor . . . counsels remand without vacatur.” Heartland 

Reg'l Med. Ctr. v. Sebelius, 566 F.3d 193, 198 (D.C. Cir. 2009). This is particularly true “if the 

basis for remand is a gap in the agency’s reasoning that the court finds troubling but thinks the 

agency may well be able to cure, or to ameliorate with minor changes in the rule or order.” 

Ronald M. Levin, “Vacation” at Sea: Judicial Remedies and Equitable Discretion in 

Administrative Law, 53 Duke L.J. 291, 379 (2003). Again, while not conceding the regulation 

needs further explanation, CGPS believes the FEC could take any steps the Court requests to 

remedy any concerns the Court may have about the regulation. 

As to the second factor, courts “consider disruptive impacts to the regulated industry.” 

Pub. Employees for Envtl. Responsibility v. U.S. Fish & Wildlife Serv., 189 F. Supp. 3d 1, 3 

(D.D.C. 2016), appeal dismissed, No. 16-5224, 2016 WL 6915561 (D.C. Cir. Oct. 31, 2016). It 

is hard to believe that the 2018 elections will be irreparably compromised if a regulation that has 

existed for almost 40 years now – and lasted through nearly 20 election cycles – is allowed to 

remain in place until the FEC issues a more detailed explanation for its 1980 rulemaking. Cf. 

A.L. Pharma, Inc. v. Shalala, 62 F.3d 1484, 1492 (D.C. Cir. 1995) (remanding, but not vacating, 

agency decision relied on “in good faith for over thirteen years”). 

As even CREW acknowledges, the “2018 election is quickly approaching and there have 

already been significant independent expenditures this year.” CREW Opp. Br. (Doc 33) at 40. 

The corollary to this, of course, is that there likely have been significant donations to 

organizations already made in reliance on the FEC’s regulation. It is not hard to see how, 

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45 

without warning or an opportunity to adjust their giving habits, a Republican who donated to the 

Sierra Club or a Democrat who donated to the National Rifle Association for those 

organizations’ general programs will suddenly find themselves involuntarily identified on public 

campaign finance reports because they did not retain a lawyer to read the FEC’s regulation, 

analyze whether it comports with the statute, and then survey third-party resources to see who 

might still question the rule’s validity. 

Immediate vacatur of the rule also would open up a Pandora’s Box of other problems. 

For example, the political and non-profit worlds would be thrown into chaos the moment a 

vacatur takes effect, as any entity that spent money on an IE within the five-year statute of 

limitations period (for enforcement matters) could immediately find itself the subject of an FEC 

complaint. Moreover, vacatur means the burden would fall on this Court in the first instance – 

rather than the FEC – to weigh the relevant constitutional and other issues in deciding which of 

the reporting standards suggested by CREW is the correct one – i.e., is the reporting limited only 

to those who gave for the purpose of funding IEs generally, does it extend to all those who gave 

for “political purposes,” or does it cover any donor who gave any money to an organization 

making IEs? Rather than the Court getting into these regulatory thickets, the best remedy would 

be to keep the existing regulation in place and either (a) let the FEC offer a revised explanation 

or (b) give the agency time to conduct further rulemaking proceedings and offer its guidance on 

the most appropriate way forward. 

CONCLUSION 

For the foregoing reasons, CGPS respectfully requests this Court deny CREW’s Motion 

for Summary Judgment and grant CGPS’s Cross-Motion for Summary Judgment. 

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Respectfully submitted, 

/s/ Thomas W. Kirby 

Thomas J. Josefiak Michael E. Toner (D.C. Bar No. 439707) 

J. Michael Bayes (D.C. Bar No. 501845) Thomas W. Kirby (D.C. Bar No. 915231) 

HOLTZMAN VOGEL JOSEFIAK TORCHINSKY PLLC Andrew G. Woodson (D.C. Bar No. 494062) 

45 North Hill Drive, Suite 100 Eric Wang (D.C. Bar No. 974038) 

Warrenton, VA 20186 WILEY REIN LLP 

Tel.: 540.341.8808 1776 K Street, NW 

Fax: 540.341.8809 Washington, DC 20006 

Tel.: 202.719.7000 

Fax: 202.719.7049 

Counsel for Crossroads Grassroots Policy 

January 22, 2018 Strategies

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