UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

CITIZENS FOR RESPONSIBILITY AND )

ETHICS IN WASHINGTON, et al., )

)

Plaintiffs, )

)

v. ) Civil Action No. 14-1419 (CRC)

)

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

____________________________________)

PLAINTIFFS’ OPPOSITION TO THE FEDERAL ELECTION COMMISSION’S 

MOTION TO DISMISS

INTRODUCTION

Defendant Federal Election Commission (FEC or Commission) is widely viewed as a

largely ineffective agency that has abandoned its enforcement role, allowing groups and

candidates to flout the campaign finance regime imposed by the Federal Election Campaign Act

(FECA or the Act). Nearly every Commission vote on an enforcement matter of any

consequence results in a three-three split along party lines. But this deadlock, far from signaling

paralysis, has actually resulted in de facto policies and regulations that constitute what has been

called “a rapidly expanding universe of unofficial law.”1

This lawsuit challenges that de facto regulatory regime as reflected in part in the FEC’s

overall interpretation of the “major purpose test” to determine those organizations that are

operating as political committees and therefore subject to the FECA’s disclosure requirements. 

1

 Nicholas Confessore, Election Panel Enacts Policies By Not Acting, New York Times,

Aug. 25, 2014, available at http://www.nytimes.com/2014/08/26/us/politics/election-panelenacts-policies-by-not-acting.html?_r=0.

Case 1:14-cv-01419-CRC Document 11 Filed 11/24/14 Page 1 of 20
Brought under the Administrative Procedure Act (APA), CREW’s2

 challenge to the de facto

regulation/policy rests on the FEC’s abandonment of a case-by-case analysis, rooted in the

application of several identified factors and prior enforcement actions, in favor of a bright-line

test. This approach, however, directly contradicts the rationale the FEC offered a court in this

district several years ago in defense of the agency’s failure to promulgate a bright-line

regulation. Even more significantly, this test contravenes the FECA itself, as interpreted by the

courts and the FEC in prior enforcement actions. The FEC cannot have it both ways: either it

must use the formal regulatory process, with notice and comment, before adopting a bright-line

regulation that complies with law or it must hew to the approach it offered, and the court upheld,

as an acceptable alternative to a regulation.

The FEC has now moved to dismiss those parts of the Complaint brought under the APA

for failure to state a claim upon which relief can be granted.3

 According to the FEC, none of the

APA claims can survive because the FECA provides the exclusive basis for this Court’s review

and limits the scope of available relief. This argument, however, rests on a completely false

2

 CREW is the acronym for plaintiff Citizens for Responsibility and Ethics in

Washington. 

3

 The FEC has yet to answer the remaining portions of the Complaint. The D.C. Circuit

does not appear to have decided whether a partial motion to dismiss requires the defendant to

answer the rest of the Complaint within the original time for a response, and other courts have

split on the issue. Compare Gerlach v. Michigan Bell Tel. Co., 448 F. Supp. 1168 (E.D. Mich.

1978) (Rule 12(a) does not suspend a defendant’s obligation to respond to claims that are not

part of a partial motion to dismiss) with Brocksopp Eng’g Inc. v. Bach-Simpson Ltd., 136 F.R.D.

485 (E.D. Wis. 1991) (partial motion to dismiss suspends time to answer claims not subject to

the motion). In any event, commentators agree the best practice is to move to extend the time to

respond to that portion of the complaint not addressed in the motion to dismiss, something the

FEC also has failed to do here. See, e.g., S. Jarret Raab and Allison B. Hudson, The Partial

Motion to Dismiss: Is Piecemeal Litigation Required in Federal Court Under Rule 12?, The

Federal Lawyer, Dec. 2012, at 25-27.

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construction of CREW’s APA claims that falls apart upon even minimal scrutiny. The heart of

CREW’s APA claims is not that “a specific portion of the legal analyses” in two specific

enforcement matters is contrary to law, Federal Election Commission’s Memorandum of Points

and Authorities in Support of Its Motion to Dismiss (D’s Mem.), at 9, but rather that these

analyses evidence a much broader policy and/or de facto regulation governing how the FEC

applies the major purpose test.4 That de facto regulation was adopted without notice and

comment, contravenes the approach the FEC represented to the public and to reviewing courts it

would take – an approach that applied specifically identified factors and followed the lead of

prior enforcement cases – as well as governing law, and itself represents the kind of bright-line

test the FEC eschewed in declining to adopt a regulation.

Properly understood, CREW’s APA claims are subject to APA review, as they involve de

facto rulemaking actions that are not encompassed by the judicial review provisions of the

FECA. See D’s Mem. at 11 n.3 (conceding rulemaking actions are subject to judicial review

under the APA). Moreover, while the FEC may disagree with the merits of those claims,5 such a

disagreement is not properly resolved on a Rule 12(b)(6) motion based solely on the argument

the APA does not authorize this Court’s review or the relief sought.

4

 To be clear, CREW does not challenge dismissal of any APA claim pertaining

exclusively to Counts One and Two, which concern the FEC’s dismissal of CREW’s

administrative complaints against the American Action Network (AAN) and Americans for Job

Security (AJS). As even the FEC concedes, this Court’s review of those claims implicates the

same considerations as review under the APA. D’s Mem. at 14 n.4. Thus, even without the

APA the Court’s analysis and the scope of the relief it can award do not change.

5 See, e.g., D’s Mem. at 16 arguing on the merits a group of three Commissioners lacks

the authority to establish a policy or regulation on behalf of the FEC.

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STATUTORY AND REGULATORY BACKGROUND

The FECA imposes on “political committees” registration, organization, and disclosure

requirements. 52 U.S.C. §§ 30102, 30103, 30104.6

 The Act and implementing FEC regulations

define a “political committee” as “any committee, club, association, or other group of persons

which receives contributions aggregating in excess of $1,000 during a calendar year or which

makes expenditures aggregating in excess of $1,000 during a calendar year[.]” 52 U.S.C. §

30101(4)(A); 11 C.F.R. § 100.5(a). Further, only organizations with a “major purpose” of

nominating or electing federal candidates can be “political committees.” Buckley v. Valeo, 424

U.S. 1, 79 (1976). 

The FECA defines the term “expenditure” to include, inter alia, “any purchase, payment,

distribution, loan, advance, deposit, or gift of money or anything of value, made by any person

for the purpose of influencing any election for Federal office[.]” 52 U.S.C. § 30101(9)(A). The

Supreme Court has clarified that “expenditures” for the purpose of this definition include only

“funds used for communications that expressly advocate the election or defeat of a clearly

identified candidate.” Buckley, 424 U.S. at 80. The FECA and FEC regulations further define

an “independent expenditure” as one made for a communication “expressly advocating the

election or defeat of a clearly identified candidate,” and “that is not made in cooperation with or

at the request or suggestion of such candidate, the candidate’s authorized political committee, or

their agents, or a political party or committee or its agents.” 52 U.S.C. § 30101(17)(A) and (B);

11 C.F.R. § 100.16. A “contribution” for these purposes is defined under the FECA as “any gift,

subscription, loan, advance, or deposit of money or anything of value made by any person for the

6

 CREW’s Complaint was filed before the recodification of the FECA, which was

effective as of September 1, 2014. This brief cites to the FECA as currently codified.

4

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purpose of influencing any election for Federal office[.]” 52 U.S.C. § 30101(8)(A). 

Taken as a whole, the FECA establishes a two-part test for status as a political committee

that asks: (1) whether the organization has made more than $1,000 in expenditures or received

more than $1,000 in contributions during a calendar year, and (2) whether the major purpose of

the organization is the nomination or election of a candidate. Buckley, 424 U.S. at 79.

The FECA and FEC regulations require all political committees to register with the FEC

within 10 days of becoming a political committee. 52 U.S.C. § 30103(a); 11 C.F.R. § 102(d). 

Further, under the FECA and implementing regulations, political committees must file periodic

reports with the FEC that, among other things: (1) identify all individuals contributing an

aggregate of more than $200 a year to the organization, and the amount of each individual

contribution; (2) identify all political committees making a contribution to the organization, and

the amount of each contribution; (3) detail all the outstanding debts and obligations of the

organization; and (4) list all of the expenditures of the organization. 52 U.S.C. § 30104(a)(4); 11

C.F.R. § 104.1(a).

The FEC considered but rejected other regulatory changes. On March 11, 2004, the FEC

published a Notice of Proposed Rulemaking (NPRM) seeking comment on a number of issues

surrounding the definitions of “contribution,” “expenditure,” and “political committee.” 

Political Committee Status; Proposed Rule, 69 Fed. Reg. 11,736-60 (March 11, 2004). Among

other things, the NPRM sought comment on possible “tests” to determine the “major purpose” of

an organization. Id. at 11,745-49. In response, the FEC received more than 100,000 comments

“express[ing] a variety of viewpoints about the definitions of ‘political committee’ and

‘expenditure,’ the impact of the proposed tests on political issue advocacy, and the necessity and

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practicability of a proposed rule.” Shays v. FEC, 424 F. Supp. 2d 100, 107 (D.D.C. 2006)

(quoting 69 Fed. Reg. 69,056) (Shays I).

In November 2004, while adopting new regulations and revising others, the FEC

announced it was declining to revise its regulatory definition of “political committee” to define

“major purpose.” Political Committee Status, Definition of Contribution, and Allocation for

Separate Segregated Funds and Nonconnected Committees, 69 Fed. Reg. 68,056, 68,065 (Nov.

23, 2004). The FEC noted it had been applying the “major purpose test” “for many years

without additional regulatory definitions, and will continue to do so in the future.” Id.

The FEC’s refusal to adopt a bright-line test for “major purpose” was challenged in

litigation, Shays I, where the court ruled that the agency had failed to offer “a reasoned

explanation for its decision” to engage in a case-by-case decision making rather than a

rulemaking. 424 F. Supp. 2d at 116-17. The matter was remanded to the FEC to explain its

decision, which it did through a Supplemental Explanation and Justification, 72 Fed. Reg. 5595

(Feb. 7, 2007) (Supp. E&J). The Supp. E&J explained that the FEC conducts a fact-intensive,

case-by-case analysis of an organization to determine if its major purpose is the nomination or

election of federal candidates. Id. at 5601. An organization can meet the major purpose test

through sufficiently extensive spending on federal campaign activity. Id. See also FEC v.

Massachusetts Citizens for Life, Inc., 479 U.S. 238, 262 (1986). 

Through the Supp. E&J the FEC also provided additional guidance on the factors the

agency uses to determine an organization’s major purpose. They include, inter alia, public and

non–public statements about the organization’s purpose and activities; public and non-public

fundraising appeals; and the proportion of spending related to “federal campaign activity”

6

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compared to the proportion spent on “activities that [a]re not campaign related.” 72 Fed. Reg. at

5601; see also Shays v. FEC, 511 F. Supp. 2d 19, 22-23 (D.D.C. 2007) (Shays II) (discussing

Supp. E&J). In addition to this fact-intensive analysis, the FEC pointed to its enforcement

actions taken since 2004, which “provide[] guidance to organizations about . . . the major

purpose doctrine.” 72 Fed. Reg. at 5604. The FEC summarized the justifications for its refusal

to adopt a bright line test as follows:

Any organization can look to the public files for the Political

Committee Status Matters and other closed enforcement matters,

as well as advisory opinions and filings in civil enforcement

cases for guidance as to how the Commission has applied the

statutory definition of ‘political committee’ together with the

major purpose doctrine. The public documents available 

regarding the 572 settlements in particular provide more than

mere clarification of legal principles; they provide numerous

examples of actual fundraising solicitations, advertisements,

and other communications that will trigger political committee

status . . . To the extent uncertainty existed, these 572 settlements

reduce any claim of uncertainty because concrete factual 

examples of the Commission’s political committee status

analysis are now part of the public record.

Id. Based on this record, the Shays II court concluded the Commission’s revised explanation for

its failure to issue a regulation adopting a bright-line “major purpose” test was not arbitrary or

capricious under the APA. 511 F. Supp. 2d at 29.

Under the FECA, any person who believes the Act has been violated may file a sworn

complaint with the FEC. 52 U.S.C. § 30109(a)(1). Based on the complaint, any response

thereto, and any recommendation from the FEC’s Office of General Counsel (OGC), the FEC

may then vote on whether there is “reason to believe” a violation of the FECA has occurred. 52

U.S.C. § 30109(a)(2). The Commission conducts a further investigation only where four of the

six-member Commission vote in favor of a “reason to believe” finding. Id. If the vote splits

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three to three, the D.C. Circuit considers the votes of the three commissioners voting against

finding reason to believe a “controlling group for purposes of the decision[.]” Democratic Cong.

Campaign Comm. v. FEC, 831 F.2d 1131, 1134-35 (D.C. Cir. 1987). 

If at any stage of the proceedings the FEC dismisses a complaint, any “party aggrieved”

may seek judicial review of that dismissal in the United States District Court for the District of

Columbia. 52 U.S.C. § 30109(a)(8)(A). All petitions from the dismissal of a complaint by the

FEC must be filed “within 60 days after the date of the dismissal.” 52 U.S.C. § 30109(a)(8)(B). 

The district court reviewing the FEC’s dismissal of a complaint may declare the FEC’s actions

“contrary to law.” 52 U.S.C. § 30109(a)(8)(C). The court also may order the FEC “to conform

with such declaration within 30 days[.]” Id. If the FEC fails to abide by the court’s order, the

FECA provides the complainant with a private right of action, brought in its own name, “to

remedy the violation involved in the original complaint.” Id.

FACTUAL BACKGROUND

American Action Network

On June 7, 2012, plaintiffs CREW and Melanie Sloan filed a complaint with the FEC

against AAN for violations of the FECA (MUR 6589). The complaint alleged, as demonstrated

by its extensive spending on federal campaign activities, AAN’s major purpose between July 23,

2009 and June 30, 2011 was the nomination or election of federal candidates. As a result, AAN

violated the FECA by failing to register as a political committee. The complaint alleged further

AAN violated the FECA by failing to file periodic reports with the FEC identifying, inter alia,

all individuals contributing an aggregate of more than $200 a year to AAN and the amount of

each individual contribution; all political committees that made a contribution to AAN and the

8

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amount of each such contribution; AAN’s outstanding debts and obligations; and all of AAN’s

expenditures. See Complaint (Compl.), ¶ 69.

On January 17, 2013, the FEC’s OGC issued its First General Counsel’s Report (AAN

Report) recommending that the Commission find reason to believe AAN had as its major

purpose the nomination or election of federal candidates during 2010, and therefore had violated

the FECA by failing to organize, register, and report as a political committee. Compl. at ¶ 70. 

On the issue of AAN’s major purpose, the AAN Report stated that under the FEC’s case-by-case

approach, which considers an entity’s “‘overall conduct,’ including its disbursements, activities

and statements,” the proportion of AAN’s spending related to federal campaign activity “is alone

sufficient to establish that its major purpose in 2010 was the nomination or election of federal

candidates.” Id. at ¶ 72. According to the AAN Report, this conclusion is consistent with past

enforcement actions in which the FEC has “determined that funds spent on communications that

support or oppose a clearly identified federal candidate, but do not contain express advocacy,

should be considered in determining whether that group has federal campaign activity as its

major purpose,” as well as “the Commission’s longstanding view – upheld by the courts – that

the required major purpose test is not limited solely to express advocacy (or the functional

equivalent of express advocacy).” Id.

Evaluating the content of AAN’s specific electioneering communications, the AAN

Report concluded they evidence AAN’s major purpose is the nomination or election of federal

candidates, as all featured a clearly identified candidate, supported or opposed a candidate, and

ran in the candidates’ districts shortly before a primary or general election. Compl., ¶ 74. The

AAN Report measured AAN’s activities for this purpose based on a calendar year period, rather

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than AAN’s fiscal tax years, explaining a calendar year test “provides the firmest statutory

footing for the Commission’s major purpose determination – and is consistent with FECA’s

plain language.” Id. at ¶ 75. The AAN Report noted the FECA defines “political committee” by

reference to expenditures made or contributions received “during a calendar year.” Id.

Despite the detailed analysis of the AAN Report, on June 27, 2014, the Commission by a

vote of three to three along party lines failed to find reason to believe AAN had violated the

FECA, and by a vote of six to zero closed the file. Id. at ¶ 78. According to the statement of

reasons of the three Republican commissioners voting against finding “reason to believe” –

Chairman Lee E. Goodman and Commissioners Caroline C. Hunter and Matthew S. Petersen –

AAN’s public statements, organizational documents, and overall spending issue demonstrate its

major purpose “has been issue advocacy and grassroots lobbying and organizing.” Compl., ¶ 79. 

In reaching this conclusion, the controlling decision makers considered only AAN’s spending on

express advocacy or its functional equivalent in comparison to its spending on activities

unrelated to campaigns, contrary to the FEC’s prior guidance, including its Supp. E&J, its prior

advisory opinions, and prior court decisions. Id. at ¶ 80. Further, the three voting against

finding reason to believe considered AAN’s entire “lifetime of existence and activities,” rather

than its activities in a fiscal or calendar year, in determining its major purpose. Id.

The statement of reasons of the three commissioners voting to find reason to believe

pointed out the impasse between the two blocks of commissioners has prevented the FEC from

enforcing its own written policy, and the reasoning of the three controlling decision makers

ignores prior Commission precedent, which examines not only an organization’s public

statements but also its “full range of campaign activities.” Id. at ¶ 81. Moreover, according to

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the three member minority, the “ongoing stalemate” over the FEC’s major purpose policy

overlooks its “entire purpose” – “disclosure.” Compl., ¶ 82.

Americans For Job Security

On March 8, 2012, plaintiffs CREW and Melanie Sloan filed a similar complaint with the

FEC against AJS for violating the FECA by failing to register as a political committee and file

periodic reports with the FEC, despite a major purpose of nominating or electing federal

candidates (MUR 6548). See id. at ¶ 83. On May 2, 2013, the FEC’s OGC issued its First

General Counsel’s Report (AJS Report) recommending that the Commission find reason to

believe because AJS had as its major purpose federal campaign activity during 2010, it had

violated the FECA by failing to organize, register, and report as a political committee. Id. at 

¶ 84. On the issue of AJS’s major purpose, the AJS Report concluded under the FEC’s case-bycase approach the proportion of AJS’s spending related to its federal campaign activity “is alone

sufficient to establish that its major purpose in 2010 was the nomination or election of federal

candidates.” Id. at ¶ 86. As with the AAN Report, the AJS Report explained this conclusion is

consistent with past enforcement actions in which the FEC has “determined that funds spent on

communications that support or oppose a clearly identified federal candidate, but do not contain

express advocacy, should be considered in determining whether that group has federal campaign

activity as its major purpose,” as well as “the Commission’s longstanding view – upheld by the

courts – that the required major purpose test is not limited solely to express advocacy (or the

functional equivalent of express advocacy).” Compl., ¶ 87.

Evaluating the content of AJS’s specific electioneering communications, the AJS Report

concluded they evidence AJS’s major purpose is the nomination or election of federal

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candidates, as all featured a clearly identified candidate, supported or opposed a candidate, and

ran in the candidates’ districts shortly before a primary or general election. Id. ¶ 88. The AJS

Report measured AJS’s activities for this purpose based on a calendar year period, rather than

AJS’s “entire history,” explaining a calendar year test “provides the firmest statutory footing for

the Commission’s major purpose determination – and is consistent with FECA’s plain

language.” Id. at ¶ 89. The AJS Report noted the FECA defines “political committee” by

reference to expenditures made or contributions received “during a calendar year.” Id.

Despite the detailed analysis of the AJS Report, on July 30, 2014, the Commission by a

vote of three to three failed to find reason to believe AJS had violated the FECA, and by a vote

of six to zero closed the file. Compl., ¶ 78. According to the statement of reasons of the three

Republican commissioners voting against finding “reason to believe” – again Chairman

Goodman and Commissioners Hunter and Petersen – AJS’s major purpose as “an organization

that has spent less than ten percent of its funds on express advocacy during its entire existence . .

. is an issue-advocacy organization that cannot be regulated as a political committee.” Id. at ¶

92. In reaching this conclusion, the controlling decision makers considered only AJS’s spending

on express advocacy or its functional equivalent in comparison to its spending on activities

unrelated to campaigns. Id. at ¶ 93. Further, the three voting against finding reason to believe

considered AJS’s entire “lifetime of existence and activities,” rather than its activities in a fiscal

or calendar year, in determining its major purpose. Id.

On July 30, 2014, the three commissioners voting for reason to believe issued the same 

statement of their reasons as they issued in the AAN matter with the same caution that the

“ongoing stalemate” over the FEC’s major purpose policy overlooks its “entire purpose” –

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“disclosure.” Compl., ¶ 95.

This Complaint

While plaintiff’s Complaint speaks for itself, the FEC’s misleading or inaccurate

characterizations of some aspects of the Complaint must be addressed. First, plaintiffs do not

“purport” to seek relief under the APA, D’s Mem. at 9, their Complaint is brought expressly

under the APA. See Compl., ¶¶ 1, 2. Second, plaintiffs are not challenging “a single specific

portion of the legal analyses in the statements of reasons issued by” the three controlling

members in the AAN and AJS matters. D’s Mem. at 9. Rather, plaintiffs’ complaint challenges 

as arbitrary, capricious, and contrary to law the FEC’s policy 

and/or de facto regulation, adopted without notice and an

opportunity to comment, interpreting the “major purpose” test

for determining which organizations are operating as political

committees under the FECA as limited to a consideration of

express advocacy (or its functional equivalent) only conducted

during an ill-defined and ever-changing period of time.

Compl., ¶ 2 (emphasis added). 

Further, plaintiffs do not “purport” to seek declaratory and injunctive relief for this claim,

D’s Mem. at 9, but rather do, in fact, ask the Court to “[d]eclare the policy and/or de facto

regulation of the FEC . . . arbitrary, capricious, an abuse of discretion, and contrary to law,” and

further to “[e]njoin the FEC” from relying on this policy and/or de facto regulation. Compl., ¶¶

5, 6. Finally, contrary to the FEC’s characterization, plaintiffs’ complaint does, in fact, rely on

the APA to challenge the Commission’s dismissal of their AAN and AJS complaints (compare

D’s Mem. at 10 with Compl., ¶ 1), although plaintiffs are no longer pursuing relief under the

APA for Counts One and Two. See supra at 3 n.4.

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ARGUMENT

STANDARD OF REVIEW

In ruling on a motion to dismiss brought under Rule 12(b)(6) for failure to state a claim,

the reviewing court must construe the complaint “in a light most favorable to the plaintiff and

must accept as true all reasonable factual inferences drawn from well-pleaded factual

allegations.” CREW v. Cheney, 593 F. Supp. 2d 194, 210 (D.D.C. 2009) (citation omitted). 

Further, “a complaint should not be dismissed for failure to state a claim unless it appears

beyond doubt that the plaintiff can prove no set of facts in support of his claim which would

entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The court may consider

only those facts alleged in the complaint, including documents attached to or incorporated in the

complaint, as well as matters of public record and those of which the court may take judicial

notice. See, e.g., EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir.

1997). Evaluating defendant’s motion to dismiss under these standards it is clear the

government has failed to carry its burden.

PLAINTIFFS’ COMPLAINT PROPERLY STATES CLAIMS 

SUBJECT TO JUDICIAL REVIEW AND RELIEF UNDER 

THE APA.7

The APA, 5 U.S.C. § 704, authorizes judicial review of “[a]gency action made

reviewable by statute and final agency action for which there is no other adequate remedy in a

7

 Because plaintiffs no longer are pursuing relief under the APA for Counts One and Two

pertaining to the FEC’s dismissal of CREW’s complaints against AAN and AJS, plaintiffs do not

respond herein to defendant’s arguments addressing those counts specifically. As the FEC

appears to concede, however, those counts may proceed under the review provisions of the

FECA. See D’s Mem. at 14 n.4 (“The Commission does not dispute that the same considerations

[under the FECA] are implicated by review of agency decisions under the APA[.]”).

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court[.]” The statute further defines the term “agency action” as including “the whole or a part

of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to

act.” 5 U.S.C. § 551(13). Courts reviewing agency actions under the APA are authorized to 

(1) compel agency action unlawfully withheld or unreasonably

delayed; and (2) hold unlawful and set aside agency action, 

and conclusions found to be [] (A) arbitrary, capricious, an abuse 

of discretion, or otherwise not in accordance with law[.]

5 U.S.C. § 706. The Supreme Court has emphasized that finality for purposes of APA review is

evaluated in a “pragmatic” and “flexible” way. Abbott Labs. v. Gardner, 387 U.S. 136, 149-50

(1967).

Counts Three and Four of the Complaint state claims under the APA. Specifically, they

challenge as arbitrary, capricious, and contrary to law the FEC’s abandonment of its prior

precedent, as set forth in its prior adjudication of individual cases and the factors delineated in

the Supp. E&J, all of which it used to justify its prior refusal to adopt a bright-line test for

determining “major purpose.” In its stead, the Commission has now adopted a bright-line

approach that considers only express advocacy conducted during an ill-defined and everchanging time period to determine an organization’s major purpose. Compl., ¶¶ 111-112 (Count

Three), 119-120 (Count Four). As alleged in the Complaint, this approach constitutes a de facto

policy and/or regulation that was adopted without prior notice and an opportunity for public

comment, and conflicts with governing law. Id. at ¶¶ 113 (Count Three), 121 (Count Four). To

remedy these violations plaintiffs seek declaratory and injunctive relief. Id. at ¶¶ 114, 122 and

Prayer for Relief at (3) and (4).

Despite the clarity of these allegations, the Commission argues they must be dismissed

because they fall outside the exclusive scope of the FECA, 52 U.S.C. § 30109(a)(8). D’s Mem.

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at 14. This argument rests on a complete mischaracterization of these claims in an attempt to

shoehorn them into the FECA’s judicial review provisions and remedies, which are the exclusive

means to challenge the FEC’s enforcement actions. See, e.g., Stockman v. FEC, 138 F.3d 144,

154 (5th Cir. 1998), quoting National R.R. Passenger Corp. v. Nat’l Ass’n of R.R. Passengers,

414 U.S. 453, 458 (1974). But while enforcement claims may be reviewed only under the

FECA, regulatory claims such as those brought here fall outside the FECA’s enforcement

scheme and are subject to APA review. See, e.g., Shays v. FEC, 414 F.3d 76, 96 (D.C. Cir.

2005) (court had jurisdiction under the APA to review a challenge to an FEC regulation as an

impermissible interpretation of the FECA). See also Shays I, 424 F. Supp. 2d at 109 (challenge

to FEC’s refusal to issue a regulation reviewable under the APA).

Accordingly, the Commission’s lengthy arguments concerning the FECA’s exclusive

review provisions, D’s Mem. at 10-14, simply are not relevant. Those provisions are limited to

“certain agency action,” Coal River Energy, LLC v. Jewell, 751 F.3d 659, 664 (D.C. Cir. 2014)

(cited in D’s Mem. at 12), specifically enforcement matters, not regulatory challenges like that

brought here. Similarly, the deference Congress intended the FEC’s enforcement decisions

receive, D’s Mem. at 12, applies to “how and when” the FEC enforces the FECA, FEC v. Nat’l

Conservative Political Action Comm., 470 U.S. 480, 485-86 (1985) (NCPAC) (cited in D’s Mem.

at 13), not to regulatory actions like that challenged here. See Shays I and II. 

The FEC attempts to avoid APA review by characterizing Counts Three and Four as

“selectively focus[ing] on a particular aspect of the dismissal decisions” in AAN and AJS. D’s

Mem. at 15 (emphasis in original). To the contrary, as the express language of the Complaint

makes clear, plaintiffs are challenging the FEC’s rejection of its case-by-case “major purpose”

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analysis set forth in the Supp. E&J, which applied factors delineated in the Supp. E&J and

precedent from prior enforcement actions, and considered the organization’s conduct during a

specified calendar or fiscal year period. This is a far cry from a particular dismissal decision; it

raises an across-the-board challenge to how the FEC approaches the “major purpose” issue.

 In certain respects this case is similar to the challenge presented in The Real Truth About

Abortion, Inc. v. FEC, 681 F.3d 544 (4th Cir. 2012), which the court held was properly reviewed

under the APA. The plaintiff in that case was challenging, in part, the Commission’s policy

decision not to adopt a regulation defining “political committee.” Id. at 555 n.4. The FEC

argued such a claim was not final agency action reviewable under the APA, but the court

disagreed, reasoning that the FEC’s policy choice:

is undoubtedly a ‘consummation of the agency’s decisionmaking

process’ that can determine a party’s rights and obligations,

namely the obligations of PAC status.

Id. (quotation omitted). Here, too, the challenged de facto policy and/or regulation helps

determine a party’s rights and obligations, specifically the obligation to register as a political

committee and file periodic disclosure reports. 

That the Commission’s approach is reflected in its treatment of at least three enforcement

matters – the AAN and AJS complaints and a complaint brought against Crossroads Grassroots

Political Strategies (see Compl., ¶¶ 96-98) – does not transform this case into an enforcement

challenge. Those discrete decisions evidence a broader approach of the three-Commission

voting bloc and an overall refusal to follow “[t]he Commission’s established approach to

evaluating political committee status,” and “the analytic approach enunciated in the 2007 Supp.

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E&J, adopted by a majority vote, and consistently upheld by the courts.”8

 As set forth in the

Complaint, this refusal has become so ingrained in the Commission as to constitute a de facto

regulation and/or policy properly subject to review under the APA

This approach also is ingrained in the public’s understanding of how the FEC works. An

August 25, 2014 news article references the more than 200 times in the prior six years the

Commission has split votes. Confessore, New York Times, Aug. 25, 2014. But far from

suggesting agency paralysis, “the 3-to-3 votes have created a rapidly expanding universe of

unofficial law” that is so pervasive lawyers for campaigns “advise clients that a 3-to-3 split

comes close to official commission policy.” Id. Indeed, one enterprising firm markets the split

as “(Almost) a ‘Win.’” Id. 

Regulating through the administrative fiat of a bloc of three commissioners also means

that “ultimately . . . there is no meaningful judicial remedy[.]” Confessore, New York Times,

Aug. 25, 2014. This, of course, appears to be the Commission’s goal here as well: to evade any

judicial review of its de facto policy and/or regulation by insisting its contents are reviewable, if

at all, only “in the context of section 30109(a)(8) cases.” D’s Mem. at 15. As explained above,

however, this argument rests on the untenable proposition that plaintiffs here are challenging the

FEC’s “case-by-case adjudications” solely in the AAN and AJS matters, id., and ignores the gist

of Counts Three and Four of the Complaint – a challenge to the FEC’s substitution of an 

8

 In the Matters of Americans for Job Security and American Action Network, MUR

6538 and 6589, Statement of Reasons of Vice Chair Ann M. Ravel, Commissioner Steven T.

Walther, and Commissioner Ellen L. Weintraub (July 30, 2014), at 5, 7, available at

http://eqs.fec.gov/

eqsdocsMUR/14044361995.pdf. 

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improper bright-line rule, adopted without notice and comment, for the case-by-case approach

approved by the court in Shays II, 511 F. Supp. 2d at 29-31.

The Commission’s citation to the Shays II decision as supporting its argument, D’s Mem.

at 15, is curious, given that court’s recognition of the key differences between rulemaking and

adjudication. Those differences include the fact that “many regulated entities comply with

codified regulations without having to be prosecuted.” Id. at 29. Moreover, while the Shays II

court accepted the FEC’s case-by-case approach as sufficient under the APA, the court made

clear its belief that “as a matter of policy . . . rulemaking is viable for the major purpose test[.]” 

Id. at 31. The Commission’s other citations are equally inapplicable. NCPAC, 470 U.S. at 485-

86 (cited at D’s Mem. at 13), addressed the FECA’s exclusive jurisdiction provision “to

determine how and when to enforce the Act,” a clear reference to FECA’s enforcement scheme. 

Likewise, Durkin for U.S. Senate Comm. v. FEC, No. C80-503D, 2 Fed. Election Camp. Fin.

Guide (CCH), ¶ 9147, at 51,113-14 (D.N.H. Oct. 30, 1980) (cited at D’s Mem. at 13), challenged

the FEC’s refusal to expedite an investigation, an exercise of the FEC’s enforcement authority,

not a regulatory challenge like that brought here. 

Not only is there no support for the overly expansive interpretation of the FECA’s

judicial review provisions the Commission advances here, but relief under that statute clearly

would be inadequate, as it would extend only to a specific complaint, leaving in place a

regulatory approach that is unlawful in all respects, not just as applied to a specific entity at a

specific point in time. The D.C. Circuit has recognized in these circumstances the remedy under

the FECA is inadequate because it leaves open the possibility a regulation’s validity could never

be challenged as “the court might well uphold FEC non-enforcement” of a specific matter

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“without ever reaching the regulation’s validity.” Shays I, 414 F.3d at 96. 

Indeed, it is precisely in situations like this that APA review is available, as the APA was

enacted to “‘provide[] a broad spectrum of judicial review of agency action,’” El Rio Santa Cruz

Neighborhood Health Ctr., Inc. v. Dep’t of Health & Human Servs., 396 F.3d 1265, 1270 (D.C.

Cir. 2005) (quoting Bowen v. Massachusetts, 487 U.S. 879, 903-04 (1988)), particularly where a

remedy afforded by a statute is “too ‘doubtful.’” Id. at 1274 (quoting Bowen, 487 U.S. at 901). 

See also Garcia v. Vilsack, 563 F.3d 519, 522 (D.C. Cir. 2009) (“An alternative remedy will not

be adequate under § 704 if the remedy offers only ‘doubtful and limited relief.’”) (citation

omitted). Here, a remedy under the FECA is not only “too doubtful,” but would fall far short of

addressing the de facto regulation/policy CREW’s complaint challenges. As a necessary

consequence, across-the-board regulatory challenges like that brought here constitute an “agency

rule” cognizable as “agency action” under the APA that should be set aside where the regulation

in question is arbitrary, capricious, and contrary to law. 5 U.S.C. §§ 551(13), 706.

CONCLUSION

For the foregoing reasons, defendant’s motion to dismiss should be denied.

Respectfully submitted,

 /s/ Anne L. Weismann 

Anne L. Weismann

(D.C. Bar No. 298190)

Melanie Sloan

(D.C. Bar No. 434584)

Citizens for Responsibility and Ethics in

Washington

409 7th Street, N.W., Suite 300

Washington, D.C. 20004

(202) 408-5565

November 24, 2014 aweismann@citizensforethics.org

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