UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 16-2255 (CRC) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant, ) 

 ) SUMMARY JUDGMENT 

AMERICAN ACTION NETWORK, ) REPLY AND OPPOSITION 

 ) 

 Intervenor-Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S REPLY 

IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT 

AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Charles Kitcher (D.C. Bar No. 986226) 

Acting Assistant General Counsel 

ckitcher@fec.gov 

Greg J. Mueller (D.C. Bar No. 462840) 

Attorney 

gmueller@fec.gov 

 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, DC 20463 

(202) 694-1650 

November 20, 2017 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 1 of 44
Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 2 of 44
Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 3 of 44
Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 4 of 44
Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 5 of 44
v 

Miscellaneous 

FEC, Guidebook for Complainants and Respondents on the FEC Enforcement 

 Process, (2012) https://transition.fec.gov/em/respondent_guide.pdf .............................. 12 

*FEC, Rules and Regulations: Political Committee Status, 

 72 Fed. Reg. 5595 (Feb. 7, 2007) .............................................................................. 14, 19 

FEC, Express Advocacy; Independent Expenditures; Corporate and Labor Organization 

Expenditures, 60 Fed. Reg. 35292, 35294 (July 6, 1995) .............................................. 22 

 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 6 of 44
1

ARGUMENT 

In its opening brief, the Federal Election Commission (“FEC” or “Commission”) 

explained why the agency’s post-remand actions with respect to plaintiffs’ administrative 

complaints against Americans for Job Security (“AJS”) and American Action Network (“AAN”) 

are not contrary to law. (FEC’s Mem. in Supp. of its Mot. for Summ. J. at 19-44 (Docket No. 

29) (sealed) (“FEC Mem.”).) 

 Plaintiffs’ challenge to the controlling Commissioners’ reasons for 

dismissing the administrative complaint about AAN also fails because the controlling decision is 

not contrary to the guidance of this Court or any of the other decisions plaintiffs highlight, and is 

consistent with the FEC’s own lengthy 2007 policy statement regarding its case-by-case 

approach to the major-purpose test. 

Plaintiffs’ brief provides no basis for the Court to rule in their favor. They seek to reduce 

their burden by incorrectly arguing in favor of an expedition requirement for FEC delay cases 

and against deferential review under Chevron U.S.A., Inc. v. Natural Resources Defense Council, 

Inc., 467 U.S. 837 (1984), in contravention of clear Circuit authority construing FECA’s 

contrary-to-law standard in 52 U.S.C. § 30109(a)(8). 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 7 of 44
Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 8 of 44
3

A. The Court Analyzes Plaintiffs’ Failure-to-Act Claim for Reasonableness, 

Using the Standards Generally Applicable to Agency Inaction 

As the Commission has explained, the Court analyzes plaintiffs’ failure-to-act claim 

regarding the AJS matter using a reasonableness standard, evaluating whether the agency has 

acted in a manner that is arbitrary or capricious. The Court makes this determination by 

applying the four factors set forth in Common Cause v. FEC, 489 F. Supp. 738, 744 (D.D.C. 

1980), and the six factors discussed in Telecommunications Research & Action Center v. FCC,

750 F.2d 70, 80 (D.C. Cir. 1984) (“TRAC”). (FEC Mem. at 20-21.) As observed in one of the 

cases plaintiffs rely on, the “standard is ‘a highly deferential one . . . which presumes the 

agency’s action to be valid.’” Citizens for Percy ’84 v. FEC, No. 84-2653, 1984 WL 6601, at *4 

(D.D.C. Nov. 19, 1984) (quoting Evtl. Def. Fund v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981)). 

Although plaintiffs do not dispute this standard in the main (Mem. of P. & A. in Supp. of 

Pls.’ Cross-Mot. for Summ. J. and in Opp’n to the FEC’s and AAN’s Motions for Summ. J. at 

21-22 (Docket No. 32) (Sealed) (“Pls.’ Mem.”)), they incorrectly seek to add a requirement that 

the FEC is required to act “‘expeditiously’” (e.g., id. at 21 & n.6 (quoting Common Cause, 489 

F. Supp. at 744)). They make this argument even though the Commission showed in its opening 

brief that FECA’s previously-existing expedition requirement was deleted decades ago. (FEC 

Mem. at 21-22 n.3.) Relying on Common Cause, plaintiffs nevertheless argue that “‘the Court 

must determine whether the Commission has acted ‘expeditiously.’” (Pls.’ Mem. at 21 (quoting 

Common Cause, 489 F. Supp. at 744).) But plaintiffs overlook that the Common Cause court 

explicitly explained that it was applying the pre-1980 version of the statute in that case. 489 F. 

Supp. at 739 n.1 (explaining that the court was applying “the pre-amendment version of the 

Act”); see also Nat’l Right to Work Comm. v. FEC, 2 Fed. Election. Campaign Fin. Guide (CCH) 

¶ 9225 at 51773 n.4. (D.D.C. 1984) (“[T]he FECA provision expressly calling for expedition has 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 9 of 44
4

been deleted, see [section 30109(a)], and the ‘arbitrary, capricious or contrary to law’ standard is 

now employed.”) (attached as Exhibit 1). Plaintiffs also contend that “the FECA still provides 

the FEC must ‘conduct investigations and hearings expeditiously’” (Pls.’ Mem. at 21 n.6 

(quoting 52 U.S.C. § 30107(a)(9) (emphasis added)), but FECA does not in fact state that the 

agency “must” conduct investigations and hearings expeditiously but rather that it “has the 

power” to do so, 52 U.S.C. § 30107(a)(9). The D.C. Circuit has accordingly determined that 

FECA requires the Commission “to proceed with due deliberation after it receives a complaint 

alleging violations of the Act,” Perot v. FEC, 97 F.3d 553, 558 (D.C. Cir. 1996) (per curiam), 

and has not included an independent requirement of “expedition” in its analysis of the relevant 

factors. 

In arguing that a vestige of the deleted expedition requirement remains, plaintiffs also 

rely on the district court decisions in Democratic Senatorial Campaign Committee v. FEC, No. 

95-0349, 1996 WL 34301203 (D.D.C. Apr. 17, 1996) (“DSCC”) and FEC v. Rose, 608 F. Supp. 

1 (D.D.C. 1984), reversed sub nom. In re National Congressional Club, Nos. 84-5701, 84-5719, 

1984 WL 148396 (D.C. Cir. Oct. 24, 1984) (per curiam). (Pls.’ Mem. at 21 n.6.) But the court 

in DSCC explained that it did “not reach the questions whether the Act imposes an obligation 

upon the FEC to investigate expeditiously and, if so, whether the FEC has done so in this case” 

because it found that the agency had failed to act reasonably. DSCC, 1996 WL 34301203, at *7 

n.5; id. at *7 (“[T]he law is clear in this Circuit that the FEC must at least act reasonably.”) And 

the cited decision in Rose was summarily reversed by the very D.C. Circuit opinion explicating 

the reasonableness standard on which the parties otherwise agree. In the Rose district court 

opinion plaintiffs cite, “the district court . . . incorrectly applied a ‘presumption’ that the 

Commission has acted ‘contrary to law’ whenever it fails to resolve a complaint within the twoCase 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 10 of 44
5

year period between elections.” In re Nat’l Cong. Club, 1984 WL 148396, at *1. The Court of 

Appeals reversed because “[t]he Act makes absolutely no reference to such a presumption. 

Rather, in using the language ‘contrary to law,’ Congress appears to have intended that the 

unreasonableness of the Commission’s delay in completing its task be tested under standards 

generally applicable to review of agency inaction.” Id.; accord Judicial Watch, Inc. v. FEC, 293 

F. Supp. 2d 41, 48 (D.D.C. 2003) (explaining that FECA gives the FEC the power to conduct 

investigations expeditiously but “does not create a deadline in which the FEC must act” (internal 

quotation marks omitted)). Plaintiffs’ claim that FECA includes an expedition requirement in 

this context is incorrect. 

B. The Court Should Accord Chevron Deference to the Controlling 

Commissioners’ Dismissal of Plaintiffs’ Complaint Concerning AAN 

Turning to the standard for reviewing the controlling Commissioners’ dismissal of 

plaintiffs’ administrative complaint concerning AAN, plaintiffs agree that, in this context, 

section 30109(a)(8)’s contrary to law standard requires that the dismissal must be sustained 

unless it was based on (1) an “impermissible interpretation” of FECA or (2) even “under a 

permissible interpretation of the statute, was arbitrary or capricious, or an abuse of discretion.’” 

Citizens for Responsibility & Ethics in Wash. v. FEC, 209 F. Supp. 3d 77, 85 (D.D.C. 2016) 

(“CREW I”), appeal dismissed, Nos. 16-5300, 16-5343 (D.C. Cir. Apr. 4, 2017) (per curiam) 

(Doc. #1669311) (quoting Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986)); Pls.’ Mem. at 

15. Additionally, consistent with the Commission’s opening brief, governing D.C. Circuit law, 

and the Court’s own observations (see FEC Mem. at 22-25), plaintiffs acknowledge that courts 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 11 of 44
6

undertaking such review “may provide deference where appropriate under the doctrine in 

Chevron.” (Pls.’ Mem. at 16.)1 

In addition, plaintiffs do not dispute that section 30109(a)(8)’s arbitrary or capricious 

review is similar to the second step of Chevron review. (FEC Mem. at 23-25 & n.5.) They agree 

that this standard requires them to show that the Commissioners “entirely failed to consider an 

important aspect of the problem, offered an explanation for its decision that runs counter to the 

evidence before the agency, or is so implausible that it could not be ascribed to a difference in 

view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm 

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); CREW I, 209 F. Supp. 3d at 88; Pls.’ Mem. at 20-21. 

Nor do they dispute that when the Court determines whether the AAN dismissal “‘was arbitrary 

or capricious or otherwise an abuse of discretion,’” it uses an “‘extremely deferential’” standard 

“‘requir[ing] affirmance if a rational basis for the agency’s decision is shown.’” (FEC Mem. at 

23 (quoting Orloski, 795 F.2d at 167); id. at 23-24 (relying on Van Hollen v. FEC, 811 F.3d 486, 

495 (D.C. Cir. 2016); FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981); 

Combat Veterans for Cong. Political Action Comm. v. FEC, 795 F.3d 151, 153 (D.C. Cir. 2015); 

Public Citizen, Inc. v. Fed. Energy Regulatory Comm’n, 839 F.3d 1165, 1171 (D.C. Cir. 2016)).) 

Notwithstanding these settled principles, plaintiffs argue that de novo is appropriate here 

(Pls.’ Mem. at 15-20), relying on arguments that are inconsistent with the Court’s analysis in 

CREW I and their improper, extra-record concerns about the ebb and flow of spending without 

 

1

 Plaintiffs’ suggestion that the contrary to law standard allows the Court to act in order to 

correct the agency “permit[ting] activity” that itself is “‘contrary to law’” (Pls.’ Mem. at 5), if 

correct, would effectively eliminate the agency’s prosecutorial discretion and require the Court 

to substitute its judgment in place of the Commissioners. This interpretation is contrary not only 

to plaintiffs’ other arguments, but decades of D.C. Circuit law interpreting section 30109(a)(8). 

See, e.g., Citizens for Responsibility & Ethics in Wash. v. FEC, 475 F.3d 337, 340 (D.C. Cir. 

2007). 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 12 of 44
7

disclosed contributors over several recent election cycles (id. at 13-14). The Court should reject 

these arguments. 

According to plaintiffs, the controlling Commissioners’ analysis of whether there was 

reason to believe AAN was a political committee because of its spending is an “interpretation 

concern[ing] matters over which [those Commissioners] do not have special authority or 

expertise,” because those Commissioners allegedly “interpret[ed] . . . Buckley’s ‘major purpose’ 

test” and not FECA’s statutory text. (Id. at 16-18.) But contrary to this claim that the controlling 

Commissioners’ did not draw upon their experience or expertise (id. at 17 n.3), the application of 

these Commissioners’ experience and expertise is evident in the ten single-spaced pages they 

devoted to analyzing whether AAN’s electioneering communications indicated that there was 

reason to believe that it was a political committee (AR 1767-79). The Court itself has described 

how the Commissioners “outlined a new framework for evaluating whether AAN’s 

electioneering communications (i.e., non-express advocacy) indicated a major purpose to 

nominate or elect a federal candidate; and then applied that framework in a fact-intensive manner 

to each of AAN’s electioneering communications.” Mem. Op. & Order at 3, CREW v. FEC, No. 

14-1419 (CRC) (D.D.C. Apr. 6, 2017) (internal quotation marks omitted) (Docket No. 75) 

(sealed) (“Show-Cause Decision”). Plaintiffs’ notion that this analysis concerned matters outside 

of the Commissioners’ expertise is unconvincing. 

Indeed, the Court has already rejected the premise of plaintiffs’ argument, explaining that 

the Supreme Court’s narrowing construction of FECA’s political committee definition in 52 

U.S.C. § 30101(4)(A) announced in Buckley “did not convert every judicial challenge to an FEC 

action linked in any way to the major purpose test into an issue for the courts’ de novo review.” 

CREW I, 209 F. Supp. 3d at 88. “If it had, this Court would not have deferred to the FEC when 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 13 of 44
8

the agency decided to adjudicate political committee status — and the major purpose test — 

rather than promulgate a rule defining it.” Id. “But the Court did defer, and rightly so, reasoning 

that this implementation choice was ‘exactly the type of question generally left to the expertise 

of an agency.’” Id. (quoting Shays v. FEC, 511 F. Supp. 2d 19, 31 (D.D.C. 2007)). Accordingly, 

the controlling Commissioners’ “choices regarding the timeframe and spending amounts relevant 

in applying the ‘major purpose’ test are implementation choices within the agency’s sphere of 

competence, and therefore warrant the Court’s deference.” Id. Far from being the “type of 

judgment that the Court previously found did not warrant Chevron deference” (Pls.’ Mem. at 18 

n.4), the controlling Commissioners’ implementation choices regarding “spending amounts 

relevant in applying the ‘major purpose’ test” principally at issue with respect to AAN do 

“warrant the Court’s deference.” CREW I, 209 F. Supp. 3d at 88. 

The Court has rejected plaintiffs’ next argument as well. Urging the Court to “reconsider 

its prior decision with respect to Chevron deference to three-commissioner statement[s] of 

reasons” (Pls.’ Mem. at 20), plaintiffs once again rehash their claim that the controlling dismissal 

decision lacks sufficient force of law to require deference under United States v. Mead Corp., 

533 U.S. 218 (2001) (id. at 18-20). This argument remains contrary to controlling D.C. Circuit 

law and Congress’s intent “to preclude coercive Commission action . . . where the Commission 

. . . is evenly split.” In re Sealed Case, 223 F.3d 775, 780 (D.C. Cir. 2000). In Mead, the 

Supreme Court explained that the type of delegated authority that warrants deference “may be 

shown in a variety of ways, as by an agency’s power to engage in adjudication . . . or by some 

other indication of comparable congressional intent.” 533 U.S. at 227. As this Court explained, 

the Court of Appeals in “Sealed Case engaged in a thorough consideration” of the indications 

warranting Chevron deference approved of in Mead and concluded that such considerations 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 14 of 44
9

meant “that an FEC enforcement decision ‘falls on the Chevron side of the line.’” CREW I, 209 

F. Supp. 3d at 85 n.5 (quoting In re Sealed Case, 223 F.3d at 780). Instead of accepting 

plaintiffs’ argument that Mead undercut the Court of Appeals’s conclusions in In re Sealed Case

(or the precedents upon which it was based), this Court “‘follow[ed] controlling circuit 

precedent.’” Id. (quoting United States v. Torres, 115 F.3d 1033, 1036 (D.C. Cir. 1997)). 

Lest there could be any doubt, in FEC v. National Rifle Association of America, which 

was decided post-Mead, the D.C. Circuit itself viewed the analysis in In re Sealed Case as 

consistent with Christensen v. Harris County, 529 U.S. 576 (2000) and Mead. 254 F.3d 173, 

184-86 (D.C. Cir. 2001). And in Fogo De Chao (Holdings) Inc. v. U.S. Department of 

Homeland Security, upon which plaintiffs rely (Pls.’ Mem. at 18-19), the Court of Appeals found 

that the subject agency’s decision was “the product of informal adjudication within the [agency], 

rather than a formal adjudication.” 769 F.3d 1127, 1136 (D.C. Cir. 2014) (emphasis added). The 

Supreme Court held in Mead that “[i]t is fair to assume generally that Congress contemplates 

administrative action with the effect of law when it provides for a relatively formal 

administrative procedure tending to foster the fairness and deliberation that should underlie a 

pronouncement of such force.” 533 U.S. at 230. In contrast to the agency action in Fogo De 

Chao, the dismissal decision here falls on the Chevron side of the line because it is “‘analogous 

to a formal adjudication.’” CREW I, 209 F. Supp. 3d at 85 n.5 (quoting Sealed Case, 223 F.3d at 

780). In any event, the dismissal here has legal force, despite the 3-3 split vote, because it 

resolved the underlying AAN matter and precludes further enforcement proceedings. Plaintiffs’ 

force-of-law argument thus remains unsound. “Th[e] same standard of review applies to all FEC 

decisions, whether they be unanimous or determined by tie vote.” Id. at 85. 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 15 of 44
10

II. PLAINTIFFS’ EFFORT TO INTRODUCE EXTRA-RECORD EVIDENCE OF 

GENERAL POLITICAL SPENDING TRENDS SHOULD BE REJECTED 

Plaintiffs’ concerns about the “[g]rowth” of “dark money nonprofits” (Pls.’ Mem. at 13-

14) continues not to provide a basis to accept plaintiffs’ challenges. Section 30109(a)(8) does 

not permit what would appear to be an “‘across-the-board challenge to how the FEC approaches 

the “major purpose” issue.’” Citizens for Responsibility & Ethics in Wash. v. FEC, 164 F. Supp. 

3d 113, 120 (D.D.C. 2015). Disclosure of election-related spending is an undoubted and 

undisputed important government interest (FEC Mem. at 6), but the only question here regarding 

the AAN matter is whether the controlling Commissioners acted contrary to law by concluding 

that AAN should not be required to make the disclosures required of political committees. 

Whether AAN should make the disclosures required of political committees depends on whether 

it is in fact a political committee. Plaintiffs assume that it is, but the question for the Court is 

whether the Controlling Commissioners acted contrary to law in voting not to find reason to 

believe that it was. And even if the Court required evidence of the type plaintiffs have presented, 

the Court’s recourse is not to use a one-sided presentation of facts, submitted for the first time in 

litigation reviewing an administrative decision (Pls.’ Mem. at 13-14), but to remand the matters 

to the agency for legislative fact finding. E.g., Beach Commc’ns, Inc. v. FCC, 959 F.2d 975, 987 

(D.C. Cir. 1992) (remanding to agency because the court “require[s] additional ‘legislative 

facts’”). Here, no such remand is necessary because this case is not about whether spending 

without disclosed contributors by organizations that are not political committees is generally 

problematic. See Citizens for Responsibility & Ethics in Wash., 164 F. Supp. 3d at 120 

(“CREW’s exclusive remedy for its disagreement with the FEC’s rationale is to challenge those 

particular decisions under the judicial review provision of FECA [in section 30109(a)(8)].”). 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 16 of 44
Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 17 of 44
12

 

 

 

 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 18 of 44
13

 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 19 of 44
14

 

 

 

 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 20 of 44
15

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 21 of 44
16

 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 22 of 44
17

 

 

 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 23 of 44
18

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 24 of 44
19

IV. THE COMMISSION’S DISMISSAL OF THE AAN MATTER IS NOT 

CONTRARY TO LAW OR ARBITRARY OR CAPRICIOUS 

The Commission’s opening brief explained why the dismissal of plaintiffs’ administrative 

complaint concerning AAN is not contrary to law. (FEC Mem. at 31-44.) The decision of the 

controlling Commissioners is supported by courts’ sensitive approach to the First Amendment 

issues arising under the FEC’s regulation, consistent with the agency’s explanation of its 

approach to evaluating political committee status, FEC, Rules and Regulations: Political 

Committee Status, 72 Fed. Reg. 5595 (Feb. 7, 2007) (“Suppl. E&J”)), and consistent with the 

Court’s opinion in CREW I. (FEC Mem. at 31-35.) The controlling Commissioners analyzed 

AAN’s non-express advocacy communications in detail. (Id. at 33-35.) Their analysis accords 

with the Court’s own analysis of the issues and the Supreme Court’s analyses of independent 

expenditures in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), and electioneering 

communications in McConnell v. FEC, 540 U.S. 93 (2003), overruled in part by Citizens United 

v. FEC, 558 U.S. 310 (2010) and FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) (“WRTL”). 

(FEC Mem. at 35-42.) It is not arbitrary or capricious. (Id. at 42-44.) 

In response, plaintiffs’ brief does not identify any law which the controlling 

Commissioners contravened in analyzing AAN’s major purpose. Rather, plaintiffs argue that the 

controlling Commissioners impermissibly interpreted Buckley by relying upon WRTL in 

contravention of the Court’s holding in CREW I and by acting contrary to the Supreme Court’s 

decision in McConnell and a recent three-judge court decision in this District. Improperly 

relying on extra-record materials that were not before the Commission, plaintiffs also argue that 

the controlling rationale is arbitrary or capricious. These arguments are all without merit. At the 

core of each of them is plaintiffs’ rejected theory that all electioneering communications must 

categorically be counted towards a major purpose finding. 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 25 of 44
20

A. The Dismissal Decision Is Not Contrary to Law 

The Court should sustain the dismissal decision because it is not contrary to law. The 

decision is supported by, and not contrary to, each of the principal decisions on which plaintiffs 

rely, including this Court’s decision in CREW I, the Supreme Court’s decisions in WRTL and 

McConnell, and the three-judge Court decision in Independence Institute v. FEC, 216 F. Supp. 

3d 176 (D.D.C. 2016), aff’d, 137 S. Ct. 1204 (2017). 

1. The Dismissal Decision Does Not Improperly Rely on WRTL

Plaintiffs continue to insist that “it was legal error for the controlling commissioners to 

apply [WRTL] to interpret Buckley’s application to political committee reporting.” (Pls.’ Mem. 

at 24.) They argue that because the controlling Commissioners’ analysis of AAN’s 

electioneering communications is in line with the way the Supreme Court in WRTL analyzed 

certain issue communications referencing federal candidates by name (id. at 25), the 

Commissioners again contravened the Court’s conclusion in CREW I that WRTL’s 

“constitutional division between express advocacy and issue speech [wa]s simply inapposite,” 

CREW I, 209 F. Supp. 3d at 90. (See Pls.’ Mem. at 24-28.) 

The problem with this argument is that the constitutional division the Court found 

inapposite in CREW I is not present in the controlling Commissioners’ new dismissal decision. 

As the Court has explained, the new analysis under review “no longer exclude[s] as irrelevant to 

the major-purpose inquiry, on a categorical basis, all spending on electioneering communications 

(i.e., non-express advocacy).” (Show-Cause Decision at 5; FEC Mem. at 40 (explaining that the 

Court’s show-cause decision rejected the same argument that applying WRTL was in direct 

contravention of the Court’s opinion in CREW I).) That the Commissioners’ interpretation of 

WRTL was found to be legally erroneous in CREW I does not preclude an analysis consistent 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 26 of 44
21

with WRTL that is not erroneous — i.e., “free of the legal errors identified in [CREW I].” (ShowCause Decision at 5.) Indeed, rather than arguing that the controlling Commissioners have 

contravened WRTL or any other decision, as in CREW I, plaintiffs now tellingly complain that 

the new analysis “parrots the distinctions” in WRTL. (Pls.’ Mem. at 25.) But arguing that the 

controlling Commissioners’ reasoning is consistent with a similar analysis by the Supreme Court 

hardly furthers plaintiffs’ effort to show that the decision was contrary to law. Rather, it 

confirms that the new dismissal should be sustained.4

 

Indeed, the FEC has been called to distinguish electoral spending from issue spending in 

a number of contexts, including in the context of disclosure of express advocacy as a result of 

portions of Buckley v. Valeo. The Court held there that the express advocacy distinction was a 

required narrowing construction in both the context of spending limits and disclosure 

requirements, including not just political-committee reporting but also event-driven reporting. 

See Buckley, 424 U.S. at 39-51 (narrowing limitation on expenditures “‘relative to a clearly 

identified candidate’” because “the distinction between discussion of issues and candidates and 

advocacy of election or defeat of candidates may often dissolve in practical application”) 

(quoting FECA); id. at (narrowing disclosure provision for persons making “‘expenditures . . . 

for the purpose of influencing’ the nomination or election of federal candidates” due to the 

“potential for [that language to] encompass[] both issue discussion and advocacy of a political 

result”) (quoting FECA). 

 

4

 Plaintiffs’ inaccurate suggestion (Pls.’ Mem. at 33) that the controlling Commissioners 

found that only “ads that are the ‘equivalent of express advocacy’” can evidence “the purpose to 

nominate or elect candidates” distorts a point made in the FEC’s opening brief. The quote taken 

from the Commission’s brief referenced the functional equivalent of express advocacy because 

that was the context of WRTL, not because that concept played a role in the controlling 

Commissioners’ analysis of the major purpose test here. 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 27 of 44
22

The Commission subsequently promulgated a regulatory definition of express advocacy, 

which was applicable to both the disclosure provisions and the prohibition on corporate and 

union expenditures. See 11 C.F.R. § 100.22; Express Advocacy; Independent Expenditures; 

Corporate and Labor Organization Expenditures, 60 Fed. Reg. 35292, 35294 (July 6, 1995) 

(“Express Advocacy E&J”). The Commission explained that identification of express advocacy 

could occur in part through whether a communication discusses “a candidate’s character, 

qualifications, or accomplishments,” whether it “encourage[s] any type of action on any specific 

issue,” and whether “made in close proximity to an election,” with timing “considered on a caseby-case basis.” Express Advocacy E&J, 60 Fed. Reg. at 35295. This regulation has governed 

FECA’s disclosure requirements for more than 20 years. 

In the application of the major purpose analysis to communications here, the controlling 

Commissioners did not include the features of the express advocacy or functional equivalent 

tests that provide much of the narrowing construction, such as requiring an unmistakable 

electoral portion, 11 C.F.R. § 100.22(b)(1), but did use certain indicia that are consistent with the 

Commission’s Express Advocacy E&J that have sensibly been used by the Commission to 

distinguish between candidate advocacy and issue advocacy in different contexts. It was 

reasonable for the controlling group to consider the extent of references to candidates versus 

issues and whether the communications contain issue- or candidate-related calls to action (AR 

1767-78), and plaintiffs have not directly disagreed that such considerations can in at least some 

circumstances provide helpful indicia of purpose. Plaintiffs complain that the controlling 

analysis improperly parrots language in WRTL, an application of strict scrutiny in the context of 

a speech prohibition, but their analysis could also be alleged to parrot portions of the 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 28 of 44
23

Commission’s explanation for its express advocacy regulation, which has governed disclosure 

without a successful challenge as underinclusive for decades. 

2. The Dismissal Decision Is Not Contrary to McConnell

Nor is there any merit to plaintiffs’ argument that the controlling Commissioners’ 

analysis “conflicts with . . . McConnell.” (Pls.’ Mem. at 28; id. at 28-33.) The controlling 

Commissioners agree with plaintiffs that the “‘Yellowtail’” ad discussed in McConnell “may 

evidence an electoral purpose.” (AR 1768 n.23 (citing McConnell, 540 U.S. at 193 n.78).) Their 

assessment of the ad as “a critique of the candidate’s personal behavior” (id.) is not undermined 

by the text of the ad’s juxtaposition of Yellowtail’s alleged personal conduct (“‘fail[ing] to make 

his own child support payments’”) with his legislative conduct (“‘vot[ing] against child support 

enforcement’”), because the mention of his vote and vague exhortation to “‘[c]all Bill 

Yellowtail’” to “‘[t]ell him to support family values,’” McConnell, 540 U.S. at 193 n.78, 

primarily reinforces the alleged personal failings instead of speaking to a particular legislative 

issue. (Contra Pls.’ Mem. at 29 (contending that the Yellowtail ad contains a “legislative 

critique”).) Thus, like AAN’s “Bucket” ad that could be deemed indicative of a major purpose to 

nominate or elect a federal candidate, the Yellowtail ad “appear[ed] to be more about creating a 

negative impression of [the candidate] in the mind of the viewer than on changing [his] 

legislative behavior.” (AR 1774.) It was not contrary to McConnell for the controlling 

Commissioners to distinguish such ads from others such as “Repeal,” in which AAN claimed 

that “‘Obamacare’” was a “trillion-dollar health care debacle,” with “job-killing taxes,” and 

urged viewers to tell Congressman Mark Shauer “‘to vote for repeal H.R. 4903 (202)225-6276 in 

November.’” (AR 1775). 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 29 of 44
24

Furthermore, that McConnell upheld the constitutionality of electioneering 

communication disclosure provisions of the Bipartisan Campaign Reform Act (“BCRA”) does 

not mean, as plaintiffs argue, that communications the Court found could permissibly be 

“regulat[ed] under the FECA” (Pls.’ Mem. at 30) necessarily count towards a major-purpose 

finding. Plaintiffs’ argument that “the [Supreme] Court [in McConnell] found that all 

electioneering communications were sufficiently electoral as to warrant disclosure” (Pls.’ Mem. 

at 31) and that “the Court should clarify to the agency that the permissible interpretation of 

Buckley’s ‘major purpose’ test treats a group’s electioneering communications in the same way it 

treats express advocacy” (id. at 36 (emphasis added)), again seeks to collapse the distinct 

disclosure regimes respecting organizations making electioneering communications and applying 

to political committees. This Court has already rejected plaintiffs’ argument that “all

electioneering communications” should be counted as election-related for the purpose of 

determining political committee status. CREW I, 209 F. Supp. 3d at 93. In McConnell, the 

Court held that Congress could respond to the problem of groups running sham issue ads and/or 

attempting to hide behind anodyne-sounding names such as “Republicans for Clean Air” and 

“Citizens for Better Medicare” (Pls.’ Mem. at 29) by requiring the event-driven disclosures 

BCRA established. McConnell, 540 U.S. at 189-202. Here, AAN has disclosed its 

electioneering communications as contemplated by BCRA and the FEC is not aware of any other 

such communications that were not disclosed. (FEC Mem. at 38.) 

Plaintiffs also argue that an ad run in the 2000 Republican presidential primary by 

Republicans for Clean Air, contrasting the environmental records of John McCain and George 

W. Bush, demonstrates inconsistencies in the controlling Commissioners’ approach. (Pls.’ Mem. 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 30 of 44
25

at 29-30.) Not so. First, the text of the ad is less focused on criticizing the record of the named 

officeholder (McCain) than it is on supporting his opponent (Bush): 

Last year, John McCain voted against solar and renewable energy. 

That means more use of coal-burning plants that pollute our air. 

New York Republicans care about clean air. So does Governor 

Bush. He led one of the first states in America to clamp down on 

old, coal-burning electric power plants. Bush clean air laws will 

reduce air pollution more than a quarter million tons a year. That’s 

like taking five million cars off the road. Governor Bush. Leading 

. . . so each day dawns brighter. 

MUR 4982 (Bush for President, Inc.), Statement of Reasons of Commissioner Scott E. Thomas 

and Commissioner Danny Lee McDonald at 2 (footnotes omitted), 

http://eqs.fec.gov/eqsdocsMUR/00000127.pdf. In this regard, this ad resembles AAN’s “New 

Hampshire” communication, which specifically mentioned an officeholder (“Congressman 

Hodes”) but focused more on making a favorable contrast with former Senator Kelly Ayotte, his 

then-opponent, a situation which the controlling Commissioners found could “indicate an 

electoral purpose” and count towards a major-purpose finding. (AR 1777-78.) 

Further, in relying on this matter that was largely about coordination, not political 

committee status, plaintiffs appear to have overlooked that the FEC’s staff did not recommend 

finding reason to believe on allegations that Republicans for Clean Air was a political committee 

because “the advertisement does not contain express advocacy, and therefore there is no federal 

contribution or expenditure in excess of $1,000 with respect to the broadcasts.” FEC, MUR 

4982 (Bush for President, Inc.), First General Counsel’s Report at 25-26, 

http://eqs.fec.gov/eqsdocsMUR/00000124.pdf.5

 Finally, contrary to plaintiffs’ suggestion (Pls.’ 

 

5

 The FEC notes that the quotation of the organization’s “purported agenda” that plaintiffs 

identify (Pls.’ Mem. at 30) comes from the respondents’ submission, not the FEC staff’s analysis 

of the political committee question. 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 31 of 44
26

Mem. at 30), the Court in McConnell never discussed the Republicans for Clean Air ad’s 

application to political committee status. Rather, the Court highlighted the organization’s name, 

Republicans for Clean Air, using it as one of its examples of groups “hiding behind dubious and 

misleading names,” McConnell, 540 U.S. at 197, in order to uphold BCRA’s undisputed 

electioneering communications requirements not previously applying to such groups but now 

applying to AAN. 

The same weaknesses are evident in plaintiffs’ reliance on ads run by Citizens for Better 

Medicare. (Pls.’ Mem. at 30-31.) While the controlling Commissioners have not analyzed this 

communication or the organization’s other activity, the text of the example plaintiffs highlight 

appears to differ from AAN’s communications considerably because it praises the named 

candidate for his legislative positions and asks the viewer to call him in order to “see what you 

can do to support his prescription drug plan for seniors.”6

 The Commissioners found in their 

statement that certain of AAN’s communications could count towards it being viewed as a 

political committee because such communications did not “focus on changing the voting 

behavior or policy stances of the named individuals now or in the future” and “[i]n fact, the 

subtext of both ads is that neither individual is likely to change.” (AR 1778 (emphasis added).) 

The same could be said of the Citizens for Better Medicare ad. Inverting the controlling 

 

6

 Campaign Finance Institute, Issue Ad Disclosure, Appendix at A9 (Feb. 2001), 

http://www.cfinst.org/disclosure/pdf/issueads_rpt.pdf (“ARDELL DECARLO: My mother 

came from a family of eight. They have all passed away from cancer. I have had cancer a total 

of five times. At this point it is my faith and my support from my family and my friends, and 

then there is the medicine. ANNOUNCER: Congressman Ernie Fletcher has voted to strengthen 

and improve healthcare for seniors. He is working to add a prescription drug benefit to Medicare 

and to make sure that medicines are available for every senior who needs them. DECARLO: 

Without the medicine, I would not be where I am. And with people who have cancer those of us 

who are waiting, are looking for miracles. ANNOUNCER: Call Congressman Fletcher and see 

what you can do to support his prescription drug plan for seniors.”). 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 32 of 44
27

Commissioners’ observation that one of AAN’s ads appeared “to be more about creating a 

negative impression of [the candidate, Russ Feingold] in the mind of the viewer than on 

changing Mr. Feingold’s legislative behavior” (AR 1773-74), the Citizens for Better Medicare ad 

appears mainly to be about creating a positive impression of the candidate in the mind of the 

viewer, not on changing legislative behavior. And again, the Court in McConnell did not discuss 

the ads’ applicability to the organization’s political committee status, instead focusing on the fact 

that Citizens for Better Medicare “was not a grassroots organization of citizens, as its name 

might suggest, but was instead a platform for an association of drug manufacturers.” McConnell, 

540 U.S. at 128. 

Furthermore, plaintiffs are not aided by highlighting (Pls.’ Mem. at 31) the McConnell

Court’s observation that “[t]he precise percentage of issue ads that clearly identified a candidate 

and were aired during those relatively brief preelection timespans but had no electioneering 

purpose is a matter of dispute between the parties and among the judges on the District Court.” 

McConnell, 540 U.S. at 206. Consistent with WRTL, 551 U.S. at 470, that observation confirms 

that some electioneering communications may constitute genuine issue advocacy. (FEC Mem. at 

38.)7

 Instead of supporting plaintiffs’ argument that the Court should find that all electioneering 

communications evidence an intent to nominate or elect a federal candidate, the Supreme Court’s 

recognition that the line between campaign advocacy and issue advocacy can “‘dissolve in 

 

7

 Plaintiffs contend that it is significant that this discussion occurred in the context of the 

Court’s overbreadth discussion of BCRA § 203 and that the Court presumed that “all corporate 

and union funded electioneering communications . . . would originate from a political 

committee.” (Pls.’ Mem. at 31-32 & n.9.) But it is far more significant that the analysis 

plaintiffs rely on was expressly overruled in Citizens United, 558 U.S. at 365-66, permitting 

corporations and unions to finance electioneering communications without resort to a connected 

political committee. And the Court has maintained its view that legal distinctions may be drawn 

among different categories of speech such as candidate-related speech and issue speech. 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 33 of 44
28

practical application,’” WRTL, 551 U.S. at 456-57 (quoting Buckley, 424 U.S. at 42), supports 

the Court’s determination to defer to the agency’s implementation choices, which are “within the 

agency’s sphere of competence,” regarding the “spending amounts relevant in applying the 

‘major purpose.’” CREW I, 209 F. Supp. 3d at 88. Consistent with the Court’s instructions to 

analyze AAN’s communications themselves, the controlling Commissioners thus analyzed the 

communications on their own terms and avoided making categorical determinations of the sort 

plaintiffs urge. Contrary to plaintiffs’ argument that the controlling analysis is inconsistent with 

McConnell’s discussion of “‘call’” and “‘tell’” advertisements (Pls.’ Mem. at 29), the 

Commissioners found that some of AAN’s ads urging contact should not count towards a major 

purpose finding but that others could. (FEC Mem. at 37 (noting the controlling Commissioners’ 

acknowledgement that the “Read This” ad could be counted towards a major purpose finding 

despite its inclusion of a “‘tell’” exhortation).) The controlling Statement is not contrary to 

McConnell. 

3. The Controlling Dismissal Decision Is Not Contrary to Independence 

Institute 

Plaintiffs’ reliance (Pls.’ Mem. at 33-36) on Independence Institute is inapposite for 

similar reasons. In that case, plaintiff Independence Institute argued that it should not be 

required to make the electioneering-communication disclosures AAN has made because the ad 

Independence Institute intended to run constituted genuine issue advocacy. 216 F. Supp. 3d at 

179, 185-86. As in McConnell, Independence Institute was challenging the constitutionality of 

BCRA’s electioneering communication regime. The court’s rejection of that challenge correctly 

reaffirmed the constitutionality of the electioneering communications requirement AAN has 

already complied with, and does not bear on the separate question of whether there is reason to 

believe that either AAN or Independence Institute was a political committee. In addition, 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 34 of 44
29

plaintiffs here further err in conflating Independence Institute’s arguments for avoiding BCRA’s 

event-driven disclosure regime and the controlling Commissioners’ political committee analysis 

at issue in this case. (Pls.’ Mem. at 34-35.) In contrast to BCRA’s event-driven disclosure 

requirements, which can constitutionally apply to certain kinds of issue speech, Independence 

Institute, 216 F. Supp. 3d at 187, FECA’s political committee disclosure requirements may only 

apply to a non-candidate controlled organization that has the major purpose of nominating or 

electing a federal candidate.8

Plaintiffs nevertheless argue that it is “unworkable” and “nonsensical” for the controlling 

Commissioners to distinguish between electioneering communications that are relevant to a 

major purpose finding and those that are not. (Pls.’ Mem. at 34-35 (internal quotation marks 

omitted).) But the Court’s remand decision instructed the Commissioners to “reconsider[]” 

AAN’s electioneering communications “in light of the correction” it identified, and expressly 

contemplated that the agency could make such distinctions when it “refrain[ed] from replacing 

the Commissioners’ bright-line rule with one of its own.” CREW I, 209 F. Supp. 3d at 93. In so 

doing, the Court’s decision accords with the differing natures of the Commission’s case-by-case 

evaluation of political committee status and BCRA’s electioneering communications disclosure 

scheme. The former entails an assessment of an organization’s essential nature while the latter 

depends solely upon whether a particular communication has certain ascertainable properties, 

reflecting distinct regulatory approaches. 

 

8

 The other case plaintiffs rely on (Pls.’ Mem. at 34) considered distinct requirements 

applying under Montana law, which establishes that an organization making $250 in 

electioneering communications must register as a “political committee” under Montana law. 

Nat’l Ass’n for Gun Rights, Inc. v. Motl, No. 16-23, 2017 WL 3908078, at *4 (D. Mont. Sept. 6, 

2017). The decision did not discuss Buckley, the major purpose test, or FECA. 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 35 of 44
30

The Independence Institute court was right to reject an effort to muddy BCRA’s 

constitutional disclosures required in connection with electioneering communications. Since 

Buckley, courts and legislatures have struggled to avoid vagueness while addressing the 

dissolution “in practical application” between “discussion of issues and candidates and advocacy 

of election or defeat of candidates.” 424 U.S. at 42. BCRA’s electioneering communication 

definition was a specific attempt at avoiding such vagueness that the Supreme Court had facially 

upheld, McConnell, 540 U.S. at 189-97, and the Independence Institute had no cause to disturb 

the clarity of that provision. But this Court was also right to contemplate the possibility that 

certain electioneering communications could reasonably not be counted towards finding that 

AAN was a political committee because some broadcast communications referencing candidates 

could reasonably be considered not to be aimed at influencing elections. Moreover, analysis of 

spending for the major purpose test is not limited to communications meeting the electioneering 

communications definition, and challenging determinations are inevitable. The controlling 

Commissioners’ analysis is not contrary to Independence Institute. 

Plaintiffs take issue with the controlling Commissioners’ view that while “electioneering 

communications, by definition, must refer to a clearly identified federal candidate,” “such 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 36 of 44
31

references, by themselves, do not make the communications electoral” (AR 1768), arguing yet 

again that electioneering communications may be equated with express advocacy because it 

“would be absurd to say that an ad loses its electoral purpose when it discusses an ‘issue’ that 

gives an actual reason for the voters to vote in a particular way” (Pls.’ Mem. at 35). This 

variation of plaintiffs’ argument is in considerable tension with courts’ recognition that “[i]ssue 

advocacy conveys information and educates.” WRTL, 551 U.S. at 470. While an “issue ad” may 

have an “impact on an election,” that impact may “come only after the voters hear the 

information and choose — uninvited by the ad — to factor it into their voting decisions.” Id. 

Plaintiffs contend that certain extra-record transcripts of some of AAN’s express advocacy 

communications also discuss issues (Pls.’ Mem. at 35), but it is undisputed that AAN’s spending 

on these ads should — and did — count towards the major purpose finding because the ads 

expressly advocate for the election or defeat of candidates. And even if they were not express 

advocacy, the controlling Commissioners might have counted them towards finding that AAN 

was a political committee because none of the three referenced candidates in the ads plaintiffs 

feature were officeholders capable of taking legislative action on the issues discussed in the ads. 

The Commissioners did conclude that some of AAN’s involving individuals in office had a 

legislative purpose, but relied specifically on that fact. (See, e.g., AR 1771 (concluding that each 

of AAN’s “Bush Tax Cut” ads “focuses on government spending and tax cuts and calls on 

viewers to contact the named officeholders to urge them to take specific legislative actions.”).) 

B. The Dismissal Decision Is Not Arbitrary or Capricious 

In addition to failing to show that the controlling dismissal decision is contrary to law, 

plaintiffs are nowhere near their burden of showing that the Commissioners “entirely failed to 

consider an important aspect of the problem, offered an explanation for its decision that runs 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 37 of 44
32

counter to the evidence before the agency, or is so implausible that it could not be ascribed to a 

difference in view or the product of agency expertise.” State Farm, 463 U.S. at 43. Under this 

“extremely deferential” standard, Orloski, 795 F.2d at 167, the Court should affirm the 

controlling rationale. Plaintiffs’ arguments that the controlling Commissioners acted arbitrarily 

are improperly based upon extra-record materials not before the Commission when it made its 

decision and in any event fail on the merits. 

1. The Court’s Review Under Section 30109(a)(8) Is Based Solely on the 

Administrative Record

As plaintiffs have conceded, “[t]he parties agree that review of the FEC’s dismissal of the 

AAN’s complaint is subject to D.D.C. LCvR 7(n)(1) and limited to review of the FEC’s 

administrative record.” (Pls.’ Meet and Confer Stmt. at 1 (Docket No. 21) (emphasis added); 

see also Minute Order of May 1, 2017 (observing that this is a “case challenging administrative 

action”).) Accordingly, judicial review must be limited to the administrative record “already in 

existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 

138, 142, 143 (1973) (per curiam). Indeed, a “widely accepted principle of administrative law 

[is] that the courts base their review of an agency’s actions on the materials that were before the 

agency at the time its decision was made.” IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C. Cir. 

1997). 

Plaintiffs nevertheless attempt to rely on numerous materials — many provided via 

compressed web links — that were not part of the record before the Commission in either 

underlying matter. (See Pls.’ Mem. at 13, 14, 29, 30, 35, 37, 38, 40, 41; Decl. of Stuart C. 

McPhail, Exhs. 3-4, Sept. 26, 2017 (Docket No. 33-1).) Such extra-record material is improper 

in this section 30109(a)(8) case and cannot inform this Court’s review of the controlling 

rationales for the challenged dismissal decisions. See Earthworks v. Dep’t of the Interior, 279 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 38 of 44
33

F.R.D. 180, 184 (D.D.C. 2012) (“[T]o ensure fair review of an agency decision, a reviewing 

court ‘should have before it neither more nor less information than did the agency when it made 

its decision.’” (citations omitted) (collecting cases)). Plaintiffs complain that, following the 

Court’s remand, the controlling Commissioners “look[ed] only to context identified by AAN.” 

(Pls.’ Mem. at 36.) But plaintiffs themselves chose not to provide any further context of their 

own, thus choosing to leave the administrative record devoid of the information they now claim 

to be essential. The extra-record materials were not considered by Commissioners in making the 

underlying dismissal decision on review here and such materials, and plaintiffs’ arguments 

premised on them, should thus be disregarded. 

In arguing otherwise, plaintiffs contend that the Court can review their extra-record 

materials because a comment to Rule 201 of the Federal Rules of Evidence notes that judges are 

unrestricted in determining domestic law. (Pls.’ Mem. at 37 n.12.) While it is indisputably a 

judicial function to determine the law, plaintiffs’ assertion that this means that their materials — 

news stories, broadcast maps, analyses of electoral competition — may be considered in 

determining the law is incorrect. Plaintiffs’ theory would create a loophole swallowing the 

administrative record rule. Indeed, here plaintiffs seek to use this extra-record material in order 

to show the characteristics of AAN’s electioneering communications, not to address a question 

of law. Furthermore, as the cases plaintiffs cite explain, judicial consideration of extra-record 

material is limited to narrow circumstances. See Oceana, Inc. v. Locke, 674 F. Supp. 2d 39, 45 

(D.D.C. 2009) (discussing four circumstances); accord, e.g., Beyond Nuclear v. U.S. Dep’t of 

Energy, 233 F. Supp. 3d 40, 47-49 (D.D.C. 2017) (discussing “three ‘unusual circumstances’” 

(quoting Am. Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir. 2008))). And in both 

cases plaintiffs cite, the courts refused to consider the extra-record materials. In fact, in National 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 39 of 44
34

Treasury Employees Union v. Hove, the court made an observation that applies here: “[t]he only 

apparent purpose of plaintiffs’ outside evidence is to cast doubt on the wisdom of the [agency’s] 

decisions. However, consideration of outside evidence to determine the correctness or wisdom 

of the agency’s decisions is not permitted.” 840 F. Supp. 165, 169 (D.D.C. 1994) (internal 

quotation marks omitted). And as previously explained, in the event the Court were to determine 

that it needed additional facts, remand would be the proper course. See supra p. 10. 

The Court has not considered extra record materials when plaintiffs have submitted them 

before and it should not do so now. 

2. Plaintiffs’ Evidence Does Not Show That the Controlling Dismissal 

Decision Is Arbitrary or Capricious

Even if the Court could consider plaintiffs extra-record materials that were not considered 

by the controlling Commissioners, plaintiffs cannot show that the dismissal decision is arbitrary 

or capricious. Plaintiffs primarily argue that AAN’s “purported policy ads were precisely 

targeted to the electorate of at-risk Democrats soon to be up for election, while ignoring any 

officials not up for election or Republicans.” (Pls.’ Mem. at 36; id. at 36-39.) But AAN may 

have viewed officeholders in tight races as susceptible to constituent demands. Likewise, 

plaintiffs’ complaints about timing (id. at 37 (“Nor does the record show any ad by AAN 

advocating its preferred policy positions after the election and during the lame duck session, 

even though a voter’s call would have been particularly timely then.”) are not consistent with the 

Supreme Court’s admonition against similar arguments in WRTL, 551 U.S. at 472 (concluding 

that such observations about the timing of the ads and the failure to run them after the elections 

were “irrelevant”). Though the Court’s holding there arose in the context of application of strict 

scrutiny to a spending prohibition, it was not unreasonable for the controlling Commissioners to 

act consistently with that portion of the opinion in the context presented here. Nor are plaintiffs 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 40 of 44
35

correct in contending that asserting that AAN’s preferred legislative objectives were implausible 

due to the Democrats’ control of Congress in 2010. (Pls.’ Mem. at 39-40.) In fact, as the 

Commission explained in its opening brief, Congress took up and decided to reauthorize the 

Bush tax cuts during this time. (FEC Mem. at 43.) 

Plaintiffs’ claim that it was “unnecessary” for AAN to inform their viewers with “attacks 

on the candidates’ records” “if the ads were actually focused on legislative issues” (Pls.’ Mem. at 

39) is irrelevant. If AAN’s goal was to mobilize constituent support for particular legislative 

action, it would not have been unreasonable for it to make the case to viewers why a particular 

public official should be contacted and urged to vote a certain way. And regardless, there is no 

basis for plaintiffs’ inference that any inclusion of discussion beyond what is necessary to 

convey the point of the ads necessitates a finding that a candidate-related purpose actually 

predominates. Plaintiff also argue that the Commission could count as relevant spending nonexpress advocacy communications that “refer[] to a clearly identified candidate for Federal 

office” and “promote[],” “support[],” “attack[],” or “oppose[]” a candidate for that office, 52 

U.S.C. § 30101(20)(A)(iii). (Pls.’ Mem. at 39.) But plaintiffs identify no cases holding that 

failing to use this standard would be arbitrary in this context. 

Plaintiffs also complain that the controlling Commissioners did not “adequately explain 

[AAN’s] ads’ constant reference to ‘in November.’” (Pls.’ Mem. at 39-40.) This is a strange 

criticism because the controlling Commissioners extensively discussed these references in their 

statement. As explained in the FEC’s opening brief (FEC Mem. at 34), the Commissioners 

acknowledged that certain of AAN’s ads referencing November made them appear arguably 

more “election-related.” (AR 1771.) But the Commissioners determined that “the word 

‘November’ is used only in calls to take specific legislative actions” in “a lame-duck session [of 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 41 of 44
36

Congress that] was widely expected to take place in November and, in fact, did begin on 

November 15, 2010.” (Id.) In AAN’s “Taxes” communication, for example, the script 

references “November” in just this way: “‘Tell Congressman Mark Critz to vote to extend the 

tax cuts in November.’” (Id.) The Commissioners concluded that “the use of ‘November’ in the 

ads is best understood as a reference to the time period in which the lame-duck session would 

commence.” (Id.; see AR 1774, 1776.) Plaintiffs’ disagreement with this analysis fails to show 

that the controlling analysis was inadequate or “so implausible that it could not be ascribed to a 

difference in view or the product of agency expertise.” State Farm, 463 U.S. at 43. 

Furthermore, plaintiffs’ argument that the Commissioners should have made judgments 

about AAN’s intent based upon the tone and visuals of the communications (Pls.’ Mem. at 40-

41) is inconsistent with courts’ use of transcripts. (E.g., FEC Mem. at 39 (discussing transcript 

at issue in WRTL).) It is also inconsistent with the Supreme Court’s related recognition in the 

context of “an as-applied challenge to” the former prohibition on corporate and union 

electioneering communications that the “the proper standard . . . must be objective, focusing on 

the substance of the communication rather than amorphous considerations of intent and effect.” 

WRTL, 551 U.S. at 469; see also FEC Mem. at 42-43. 

Finally, plaintiffs’ charge that the controlling analysis was “rushed” and “rife with basic 

errors” (Pls.’ Mem. at 41) is not borne out by a review of controlling statement itself. Their 

complaint that the Commissioners wrongly “again looked to the lifetime expenditures of the 

group” (id.) is inconsistent with the Court’s observation that “[t]he Commissioners . . . made 

clear that their determination did not turn on the application of the ‘lifetime-only’ rule, which the 

Court had considered arbitrary and capricious, at least as applied to AJS” (Show-Cause Decision 

at 5 n.4 (citing AR 1779 n.52 (explicitly considering “AAN’s spending solely in a single year”)). 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 42 of 44
37

And the FEC has already explained that inclusion of the Perlmutter ad “would only reinforce the 

Commissioners’ conclusion that AAN was not a political committee because they viewed the ad 

as not indicating a major purpose of nominating or electing candidates (AR 1775-76).” (FEC 

Mem. at 43.) Plaintiffs continue to assert that there is a $1.1 million amount that the controlling 

Commissioners “ignored.” (Pls.’ Mem. at 41.) But the record does not support that 

characterization, with the controlling Commissioners having considered roughly $1.75 million 

more of AAN’s spending to be relevant or potentially relevant campaign activity, not less. (FEC 

Mem. at 44.) 

CONCLUSION 

For the foregoing reasons, and those set forth in the Commission’s opening brief, the 

Court should grant the Commission’s motion for summary judgment and deny plaintiffs’ motion 

for summary judgment. 

 Respectfully submitted, 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Charles Kitcher (D.C. Bar No. 986226) 

Acting Assistant General Counsel 

ckitcher@fec.gov 

/s/ Greg J. Mueller 

Greg J. Mueller (D.C. Bar No. 462840) 

Attorney 

gmueller@fec.gov 

 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, DC 20463 

(202) 694-1650 

November 20, 2017 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 43 of 44
CERTIFICATE OF SERVICE 

I hereby certify that on this 20th day of November, 2017, I served the unredacted version 

of the FEC’s Reply in Support of Its Motion for Summary Judgment and Opposition to 

Plaintiffs’ Motion for Summary Judgment and the unredacted version of the accompanying 

Supplemental Declaration of Shanna M. Reulbach that were filed with the Court under seal, by 

sending these materials by email to the following counsel: 

Stuart C. McPhail 

Adam J. Rappaport 

Citizens for Responsibility and Ethics in Washington 

455 Massachusetts Ave., N.W., Sixth Floor 

Washington, D.C. 20001 

Telephone: (202) 408-5565 

Fax: (202) 588-5020 

smcphail@citizensforethics.org 

arappaport@citizensforethics.org 

Jan Witold Baran 

Caleb P. Burns 

Claire J. Evans 

Wiley Rein LLP 

1776 K Street NW 

Washington, DC 20006 

Tel.: 202.719.7000 

Fax: 202.719.7049 

jbaran@wileyrein.com 

cburns@wileyrein.com 

cevans@wileyrein.com 

/s/ Greg J. Mueller 

Greg J. Mueller 

Attorney 

Federal Election Commission 

Case 1:16-cv-02255-CRC Document 40 Filed 11/20/17 Page 44 of 44