UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, et al., ) 

 ) 

 Plaintiffs, ) Case No. 1:18-00076 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

 ) 

REPLY BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION 

FOR SUMMARY JUDGMENT AND IN OPPOSITION TO 

DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT 

 

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i 

TABLE OF CONTENTS 

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

ARGUMENT .................................................................................................................................. 3

I. Standard of Review .............................................................................................................. 3

A. Interpretations of Judicial Precedent Do Not Warrant Deference. ................................... 4

B. Non-Precedential Views of Two Individual Commissioners Do Not Warrant 

Deference. .................................................................................................................... 6

C. The Court May Consider the Materials in CREW’s Brief. .............................................. 9

II. The Two Controlling Commissioners’ Legal Interpretations Are Contrary to Law ........... 9

A. The FECA Plainly Defines “Expenditure” to Include New Models’s Gifts and 

Distributions to Political Committees. ....................................................................... 10

B. The FEC’s Misstatements and Misquotations Do Not Cure the Two Controlling 

Commissioners’ “Lifetime” Major Purpose Test Previously Struck Down. ............. 16

1. The Exact Analysis Below Has Been Declared Contrary to Law .............................. 16

2. The Lifetime Test is Contrary to Law ........................................................................ 22

III. A Terse Reference Does Not Immunize the Controlling Commissioners’ 

Legal Error from Judicial Correction. ................................................................................ 25

A. The Dismissal Below was Not Discretionary. ............................................................... 26

B. CREW/CHGO Would Not Bar Review of The Dismissal Even if Applicable. ............. 28

 

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TABLE OF AUTHORITIES 

CASES 

AFL-CIO v. FEC, 

333 F.3d 168 (D.C. Cir. 2003) ...............................................................................12 

Akins v. FEC, 

101 F.3d 731 (D.C. Cir. 1995) ....................................................................... passim

Antosh v. FEC, 

599 F. Supp. 850 (D.D.C. 1984) ............................................................................26 

Beach Commc’ns, Inc. v. FCC, 

959 F.2d 975 (D.C. Cir. 1992) .................................................................................9 

Buckley v. Valeo, 

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

Campaign Legal Ctr. v. FEC, 

312 F. Supp. 3d 153 (D.D.C. 2018) .........................................................................7 

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

467 U.S. 837 (1984) .................................................................................................3 

Citizens United v. FEC, 

558 U.S. 310 (2010) ...........................................................................................1, 15 

City of Arlington, Tex. v. FCC, 

569 U.S. 290 (2013) ...............................................................................................12 

Coastal States Gas Corp. v. Dep’t of Energy, 

617 F.2d 854 (1980) ...............................................................................................23 

Common Cause v. FEC, 

842 F.2d 436 (D.C. Cir. 1988) .................................................................................7 

Conn. Nat’l Bank v. Germain, 

503 U.S. 249 ..........................................................................................................14 

CREW v. FEC, 

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

CREW v. FEC, 

236 F. Supp. 3d 378 (D.D.C. 2017) .................................................................27, 30 

CREW v. FEC, 

316 F. Supp. 3d 349 (D.D.C. 2018) ................................................................. 28-29 

Case 1:18-cv-00076-RC Document 16 Filed 10/09/18 Page 3 of 38
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CREW v. FEC, 

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

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

485 U.S. 568 (1988) ...............................................................................................12 

FEC v. Akins, 

524 U.S. 11 (1998) .............................................................................................4, 28 

FEC v. GOPAC, Inc., 

917 F. Supp. 851 (D.D.C. 1996) ............................................................................23 

FEC v. Malenick, 

310 F. Supp. 2d 230 (D.D.C. 2004) .......................................................................23 

FEC v. Mass. Citizens for Life, Inc., 

479 U.S. 238 (1986) ................................................................................. 5-6, 21, 23 

FEC v. Nat’l Rifle Ass’n of Am., 

254 F.3d 173 (D.C. Cir. 2001) .................................................................................9 

FEC v. NRSC, 

966 F.2d 1471 (D.C. Cir. 1992) ...............................................................................7 

FEC v. Rose, 

806 F.2d 1081 (D.C. Cir. 1986) ...............................................................................4 

FEC v. Wisconsin Right to Life, Inc., 

551 U.S. 449 (2007) .................................................................................................5 

Fogo de Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec., 

769 F.3d 1127 (D.C. Cir. 2014) ...............................................................................8 

Free Speech v. FEC, 

720 F.3d 788 (10th Cir. 2013) ......................................................................... 21-22 

Gonzales v. Oregon, 

546 U.S. 243 (2006) .................................................................................................8 

Guindon v. Pritzker, 

31 F. Supp. 3d 169 (D.D.C. 2014) ...........................................................................8 

Guindon v. Pritzker, 

240 F. Supp. 3d 181 (D.D.C. 2017) .........................................................................8 

Heckler v Chaney, 

470 U.S. 821 (1985) .........................................................................................26, 30 

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Jarita Mesa Livestock Grazing Ass’n v. U.S. Forest Serv., 

305 F.R.D. 256 (D.N.M. 2015) ................................................................................9 

La Botz v. FEC, 

61 F. Supp. 3d 21 (D.D.C. 2014) ...........................................................................27 

McConnell v. FEC, 

540 U.S. 93 (2003) .............................................................................................1, 16 

NAACP v. Trump, 

298 F. Supp. 3d 209 (D.D.C. 2018) .......................................................................28 

Nader v. FEC, 

823 F. Supp. 2d 53 (D.D.C. 2011) ................................................................... 26-27 

Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Serv., 

545 U.S. 967 (2005) .................................................................................................8 

Natural Res. Def. Council v. Train, 

519 F.2d 287 (D.C. Cir. 1975) .................................................................................9 

N.Y. N.Y., LLC v. NLRB, 

313 F.3d 585 (D.C. Cir. 2002) ............................................................................. 4-6 

Oceana, Inc. v. Locke, 

831 F. Supp. 2d 95 (D.D.C. 2011) ...........................................................................8 

Orloski v. FEC, 

795 F.2d 156 (D.C. Cir. 1986) ....................................................................... passim

Robertson v. FEC, 

45 F.3d 486 (D.C. Cir. 1995) .................................................................................26 

Safari Club Int’l v. Zinke, 

878 F.3d 316 (D.C. Cir. 2017) ............................................................................. 8-9 

In re Sealed Case, 

223 F.3d 775 (D.C. Cir. 2000) .................................................................................7 

Serono Labs, Inc. v. Shalala, 

158 F.3d 1313 (D.C. Cir. 1998) ...............................................................................7 

Shays v. FEC, 

511 F. Supp. 2d 19 (D.D.C. 2007) ......................................................... 6, 11, 22-23 

SpeechNow.org v. FEC, 

599 F.3d 686 (D.C. Cir. 2010) ...................................................................15, 24, 26 

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The Real Truth About Abortion, Inc. v. FEC, 

681 F.3d 544 (4th Cir. 2012) ......................................................................... passim

United States v. Mead Corp., 

533 U.S. 218 (2011) ............................................................................................. 7-8 

Univ. of Great Falls v. NLRB, 

278 F.3d 1335 (D.C. Cir. 2002) ...............................................................................6 

Van Hollen v. FEC, 

811 F.3d 486 (D.C. Cir. 2016) .................................................................................5 

Warger v. Shauers, 

135 S. Ct. 521 (2014) .............................................................................................12 

STATUTES 

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

52 U.S.C. § 30101(9) .....................................................................................................2, 10

52 U.S.C. § 30104(b)(3) ....................................................................................................13 

52 U.S.C. § 30104(b)(4)(A) ...............................................................................................14 

52 U.S.C. § 30104(b)(4)(H) ......................................................................................... 13-14 

52 U.S.C. § 30104(b)(5) ....................................................................................................14 

52 U.S.C. § 30104(b)(6)(B)(i) ...........................................................................................13 

52 U.S.C. § 30104(c) ...............................................................................................5, 11, 13 

52 U.S.C. § 30104(f) ............................................................................................................5 

52 U.S.C. § 30109(a)(8)(C) .................................................................................................3 

52 U.S.C. § 30116(a)(7)(C)(ii) ..........................................................................................13 

REGULATIONS 

11 C.F.R. § 100.5 ...............................................................................................................14 

11 C.F.R. § 102.6 ...............................................................................................................14 

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11 C.F.R. § 114.5 ...............................................................................................................15 

OTHER AUTHORITIES 

Daniel Tokaji, Beyond Repair: FEC Reform and Deadlock Deference (Ohio State Univ. 

Moritz College of Law, Ctr. for Interdisciplinary L. & Pol’y Studies, Working 

Paper No. 440, Mar. 28, 2018), https://bit.ly/2MCDZ88 .................................... 7-8 

FEC, Advisory Opinion 1982-46 (Tex. Manufactured Housing Assoc.) (July 29, 1982), 

https://bit.ly/2PkNfOV ...........................................................................................15 

FEC, Advisory Opinion 1983-03 (Phila. Elec. Co.) (Feb. 24, 1983), 

https://bit.ly/2E6F9bv ............................................................................................15 

FEC, Advisory Opinion 1984-24 (SCCOPE) (July 13, 1984), 

https://bit.ly/2NxhnFc ..............................................................................................9 

FEC, Advisory Opinion 1987-12 (Costello) (June 12, 1987), 

https://bit.ly/2Ob5tpD ............................................................................................14 

FEC, Advisory Opinion 1996-13 (Townhouse Associates, LLC) (June 10, 1996), 

https://bit.ly/2M25JSo ............................................................................................14 

FEC, Advisory Opinion 1996-18 (Int’l Ass’n of Fire Fighters) (July 14, 1996), 

https://bit.ly/2IiKfhE ........................................................................................ 14-15 

FEC, Advisory Opinion 2000-25 (Minnesota House DFL Caucus) (Oct. 13, 2000), 

https://bit.ly/2RufXP3 ............................................................................................14 

FEC, Advisory Opinion 2003-29 (Fraternal Order of Police) (Nov. 25, 2003), 

https://bit.ly/2ObkrMy ...........................................................................................15 

Fed. R. Evid. 201 advisory committee’s note to 1972 proposed rule ..................................9 

Statement of Reasons of FEC Chairman Lee E. Goodman and Comm’rs Caroline C. 

Hunter and Matthew S. Petersen, MUR 6538 (July 30, 2014), 

https://bit.ly/2K1WWCA .......................................................................................17 

Statement of Vice Chair Ellen L Weintraub on the D.C. Circuit’s Decision in 

CREW v. FEC (June 22, 1018), https://bit.ly/2zmAKz5 .......................................27 

 

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INTRODUCTION 

Employing an analysis already declared unlawful, two commissioners (the “controlling 

commissioners”) of the Federal Election Commission (“FEC” or “Commission”) reached a 

remarkable conclusion in the administrative proceedings below: that a nonprofit that spent twothirds of its funds—more than $3 million—to influence the 2012 elections need not disclose 

anything to voters. Rather, they found that voters’ compelling interest in knowing “the funding 

sources” for those influencing elections, Citizens United v. FEC, 558 U.S. 310, 369 (2010), was 

limited to knowing that nondescript political committees were funded by that nondescript 

nonprofit, called New Models. The controlling commissioners concluded voters cannot learn the 

sources of New Models’s funds, despite its extensive involvement in influencing federal 

elections by funding political committees’ express advocacy campaign ads. While the 

controlling commissioners ensured that “the public may not [be] fully informed about the 

sponsorship” of the election ads they saw, “candidates and officeholders” who benefit from New 

Models’s spending are still quite able to “kn[o]w who their friends”—the donors to New 

Models—are. See McConnell v. FEC, 540 U.S. 93, 128–29 (2003). 

The controlling commissioners reached that remarkable and erroneous conclusion by 

adopting two impermissible interpretations of law, as plaintiffs Citizens for Responsibility and 

Ethics in Washington and Noah Bookbinder’s (together, “CREW”) opening brief demonstrated. 

First, they refused to apply the plain text of the Federal Election Campaign Act (“FECA”), 

instead finding New Models’s disbursements to the political committees were not and could not 

be “expenditures” under the FECA. Second, they construed Buckley v. Valeo, 424 U.S. 1 (1976), 

to compel a lifetime-of-spending analysis to discern a group’s major purpose, in the process 

contorting caselaw that expressly rejected that reading of Buckley and that found the very same 

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analysis employed below was contrary to law. Nothing in the FEC’s opposition brief remedies 

those impermissible interpretations of law. 

To start, the FEC is incorrect that the Court “must accord Chevron deference” to the 

erroneous analysis of the controlling commissioners below. FEC Mem. 19. Rather, that analysis 

is precisely the sort that warrants no deference, because it (1) relied on the controlling 

commissioners’ interpretations of judicial precedent, and (2) was contained in a statement that 

was not adopted by the agency and that bears no force of law. Either of those facts are sufficient 

to deprive the statement of any deference. 

On the merits, the FEC fails to justify the controlling commissioners’ refusal to follow 

the plain text of the FECA that defines “distribution[s],” “deposit[s],” and “gift[s]” like those 

New Models made to the political committees as “expenditures” that can qualify an organization 

as a political committee. See 52 U.S.C. § 30101(4), (9). The FEC fails to show that Buckley

compels the commissioners’ reading, particularly over the contrary holdings of multiple courts in 

this Circuit, including the D.C. Circuit sitting en banc, rejecting it. Indeed, the FEC makes 

concessions fatal to the controlling commissioners’ analysis: that Buckley does not support the 

two commissioners, and that any particular transaction may both be a “contribution” as to one 

party and an “expenditure” as to another. 

Further, rather than show Buckley compels a lifetime-spending analysis to determine a 

group’s major purpose, the FEC simply repeats the controlling commissioners’ gross distortions 

of the holding of CREW v. FEC, 209 F. Supp. 3d 77 (D.D.C. 2016), a decision of a court in this 

district that has already declared that a nearly word-for-word copy of the lifetime-spending 

analysis used below is contrary to law. The FEC fails to show that CREW does not squarely 

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resolve the issue here and fails to show CREW was incorrect in concluding a lifetime-spending 

analysis is unlawful. 

The FEC attempts to dodge judicial review of these errors, committed over the course of 

a thirty-two page analysis that led to a definitive finding on CREW’s allegations, by pointing to a 

one sentence footnote in the statement of reasons that references prosecutorial discretion. That 

brief footnote, however, hardly counts as the kind of considered exercise of discretion that would 

be sufficient to make the entire decision unreviewable, particularly where the controlling 

commissioners’ definitive finding left no room for discretion. Further, even if the footnote were 

enough to raise prosecutorial discretion, the “terse” reference here is reviewable as a clear 

abdication of the FEC’s statutory responsibilities to investigate violations of the FECA and must 

be rejected. 

Accordingly, CREW respectfully requests that this Court grant summary judgment for 

CREW and find that the two commissioners’ conclusions were contrary to law, in violation of 52 

U.S.C. § 30109(a)(8)(C). 

ARGUMENT 

I. Standard of Review 

As explained in CREW’s opening brief, Pls. Mem. 18-19, this Court reviews the two 

controlling commissioners’ reasons for dismissal of CREW’s complaint to determine whether 

the dismissal was “contrary to law.” 52 U.S.C. § 30109(a)(8)(C). That analysis requires this 

Court to vacate the dismissal below so long as it is “a result of an impermissible interpretation” 

of law. Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). That analysis involves no 

deference, contrary to the FEC’s erroneous assertion otherwise, unless the controlling 

commissioners’ interpretation fits within the confines of the doctrine of Chevron U.S.A., Inc. v. 

Natural Res. Def. Council, 467 U.S. 837 (1984). Compare Orloski, 795 F.2d at 161 (applying 

Case 1:18-cv-00076-RC Document 16 Filed 10/09/18 Page 10 of 38
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Chevron doctrine to FEC interpretation), and CREW, 209 F. Supp. 3d at 87 (affording the 

controlling commissioners “no deference” for interpretation where Chevron deference did not 

apply) (citation omitted), with FEC Mem. 19–20 (asserting all review is “extremely deferential,” 

but citing only authority relating to inapplicable “abuse of discretion” review).1 

Thus, it is not true that this Court “must accord Chevron deference” to the two controlling 

commissioners. FEC Mem. 19. Rather, this Court evaluates the controlling commissioners’ 

interpretation under the well-worn precedents of the Chevron doctrine and defers only if it finds 

that that doctrine applies. Here, however, Chevron deference is inapplicable for two reasons: 

(1) the relevant controlling-commissioners’ interpretations are of judicial precedent, and (2) the 

controlling commissioners’ interpretations were not endorsed or adopted by the agency and do 

not bear force of law. The FEC’s pleas fail to show any reason why deference would be 

available for such interpretations. 

A. Interpretations of Judicial Precedent Do Not Warrant Deference. 

It is black letter law that courts do not “defer to an agency’s interpretation of Supreme 

Court precedent under Chevron or any other principle.” N.Y. N.Y., LLC v. NLRB, 313 F.3d 585, 

590 (D.C. Cir. 2002) (citation omitted); see also Akins v. FEC, 101 F.3d 731, 740 (D.C. Cir. 

1995) (en banc) (affording no deference to FEC’s interpretation of Buckley), vacated on other 

grounds, FEC v. Akins, 524 U.S. 11 (1998). Nor does a court defer to an agency’s interpretation 

of a statute that “rest[s] on the [agency’s] interpretation of Supreme Court opinions.” N.Y. N.Y., 

313 F.3d at 590; see also CREW Mem. 22–23. 

 

1

 In addition, even if the FEC’s analysis is totally free of legal error, the Court must still vacate the dismissal and 

remand if it finds the dismissal was “arbitrary or capricious, or an abuse of discretion.” Orloski, 795 F.2d at 161. 

While that particular analysis is deferential, it nonetheless requires a “searching and careful” inquiry that the 

controlling commissioners’ statement of reasons here fails. FEC v. Rose, 806 F.2d 1081, 1088 (D.C. Cir. 1986) 

(citation omitted). 

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Nonetheless, the FEC asserts that the D.C. Circuit ignored this black letter law in Van 

Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016). FEC Mem. 22–23. But that opinion shows no 

such thing. Rather, there, the court deferred to the FEC’s interpretation of a statutory provision, 

52 U.S.C. § 30104(f), which the FEC interpreted to parallel other statutory provisions, Van 

Hollen, 811 F.3d at 492, 493 (relying on 52 U.S.C. § 30104(c)(2)(C)), based on the agency’s 

desire to avoid misleading voters, the burden a broader disclosure rule would impose, and 

privacy concerns, id. at 497–99. Though a judicial decision, FEC v. Wisconsin Right to Life, 

Inc., 551 U.S. 449 (2007) (“WRTL”), brought about the need for FEC rulemaking by permitting 

previously prohibited activity, Van Hollen, 811 F.3d at 490, that decision “said absolutely 

nothing” about § 30104(f) or the scope of disclosure that section either permitted or required, id.

at 496 (citation omitted). Thus, the FEC did not and could not have interpreted WRTL in 

promulgating its interpretation of § 30104(f). Rather, had the FEC’s rule rested on its 

interpretation of WRTL, like the two commissioners’ reading of 52 U.S.C. § 30101(4) here rests 

on their interpretation of Buckley, the Court would have afforded it no deference. N.Y. N.Y., 313 

F.3d at 590. 

Next, the FEC argues that it may interpret Buckley’s major purpose doctrine free from 

judicial review because “the Supreme Court did not ‘mandate a particular methodology for 

determining an organization’s major purpose.’” FEC Mem. 23 (quoting The Real Truth About 

Abortion, Inc. v. FEC, 681 F.3d 544, 556 (4th Cir. 2012) (“RTAA”)). But it completely 

misconstrues the import of that point. It is true that Buckley did not spell out every application of 

the major purpose doctrine; but that is true of all judicial authority, which must be expanded and 

interpreted by subsequent courts. See, e.g., FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 

262 (1986) (“MCFL”) (interpreting Buckley to apply “major purpose” status to any group that 

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“extensive[ly]” spends to influence elections). Merely because the FEC must engage in a “factintensive” inquiry to determine whether a major purpose in fact exists, see, e.g., Shays v. FEC, 

511 F. Supp. 2d 19, 29 (D.D.C. 2007), that does not give it carte blanche to redefine what a 

“major purpose” is under Buckley. 

That is why the D.C. Circuit, sitting en banc, expressly rejected this exact same argument 

when the FEC presented it before. The FEC argued that, “[s]ince the Court [in Buckley] did not 

decide the types of organizations that are within the ‘definition’ of political committee, . . . the 

Commission has discretion to flesh out that concept.” Akins, 101 F.3d at 740. But the D.C. 

Circuit, sitting en banc, found “the FEC’s plea for deference is doctrinally misconceived.” Id. 

The full court recognized that the major purpose limitation was a product of Supreme Court 

precedent, and thus found the courts “are not obliged to defer” to the FEC’s “interpretation” or 

“appli[cation]” of that test. Id. at 740–41.2 

In sum, nothing in the FEC’s arguments counters the black letter law that courts do not 

defer to agency interpretations under Chevron where the interpretation is either of, or rests on, 

judicial precedent. As the doctrine of Chevron does not apply here, the FEC’s interpretations 

below warrant no deference. 

B. Non-Precedential Views of Two Individual Commissioners Do Not Warrant 

Deference. 

Apart and independent from the subject of the statement of reasons on review, the status 

of that statement also deprives it of Chevron deference. Once again, it is indisputable that 

 

2

 The FEC argues that Akins is irrelevant because it was vacated and that is has not “withstood the test of time.” 

FEC Mem. 22 n.9. While the former is true, Akins remains “as persuasive [authority] as non-precedential authority 

can be,” CREW, 209 F. Supp. 3d at 86, n.6, and its reasoning has been adopted by subsequent D.C. Circuit panels, 

see, e.g., Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1341 (D.C. Cir. 2002); N.Y. N.Y., 313 F.3d at 590. With 

regard to the latter, the FEC merely takes issue with irrelevant aspects of the decision which have no bearing here. 

Rather, the part that is relevant—the holding that courts do not defer to the FEC’s interpretation or application of 

Buckley—remains in force as the binding law of this Circuit. See Univ. of Great Falls, 278 F.3d at 1341; N.Y. N.Y., 

313 F.3d at 590. 

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Chevron deference is only available for statements “on behalf of the agency,” Serono Labs., Inc. 

v. Shalala, 158 F.3d 1313, 1321 (D.C. Cir. 1998), and then only for those statements that bear 

“force of law,” United States v. Mead Corp., 533 U.S. 218, 237 (2011). But the statement on 

review here is just a statement of the views of two commissioners; it is neither a statement of the 

FEC nor a statement that has any force of law. 

In response, the FEC cites no authority showing deference to a statement representing 

only the views of two commissioners. See FEC Mem. 20 & n.7 (citing In re Sealed Case, 223 

F.3d 775, 779 (D.C. Cir. 2000) (considering views of three commissioners); FEC v. NRSC, 966 

F.2d 1471, 1476 (D.C. Cir. 1992) (same); Campaign Legal Ctr. v. FEC, 312 F. Supp. 3d 153, 

158 (D.D.C. 2018) (same)).3 Rather, it merely cites authority to show that the statement below 

of two commissioners is the appropriate one for review. See id. That, however, is not in dispute, 

and the authority the FEC cites merely proves that the mere fact that a court reviews a 

commissioner’s statement does not convert that statement into “binding legal precedent or 

authority” of the agency. Common Cause v. FEC, 842 F.2d 436, 449 n.32 (D.C. Cir. 1988). 

Simply put, such statements are “not law.” Id. at 449. 

The FEC also wrongly asserts that In re Sealed Case—which itself relates to statements 

adopted by three commissioners—remains good authority to support deference to opinions not 

adopted by the agency and lacking force of law. See FEC Mem. 21–22. In re Sealed Case

predates Mead, and therefore did not consider whether the opinion of three commissioners has 

force of law. See 223 F.3d at 779; Daniel Tokaji, Beyond Repair: FEC Reform and Deadlock 

Deference 3, 26 (Ohio State Univ. Moritz College of Law, Ctr. for Interdisciplinary L. & Pol’y 

Studies, Working Paper No. 440, Mar. 28, 2018), https://bit.ly/2MCDZ88 (recognizing In re 

 

3

 As noted in CREW’s opening brief, Congress could at least have anticipated three commissioners blocking agency 

action. Pls. Mem. 26. It could not have expected that two commissioners could do so. 

Case 1:18-cv-00076-RC Document 16 Filed 10/09/18 Page 14 of 38
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Sealed Case is “not defensible” after Mead). The FEC does not dispute that the decisions of 

fewer than four commissioners lack any binding effect on “third parties,” the legally 

“conclusive[e]” benchmark for a decision to bear “force of law.” Fogo de Chao (Holdings) Inc. 

v. U.S. Dep’t of Homeland Sec., 769 F.3d 1127, 1137 (D.C. Cir. 2014) (citation omitted); accord 

Mead, 533 U.S. at 233 (holding “force of law” turns only on whether decision’s “binding 

character as a ruling stops short of third parties”). The FEC’s recognition that the dismissal 

precludes further FEC action, therefore, is irrelevant. Compare FEC Mem. 21 with Fogo De 

Chao, 769 F.3d at 1137 (finding a decision that is “conclusive only as between [the agency] itself 

and the [petitioner] to whom it was issued” does not bear force of law and does not warrant 

Chevron deference) (citation omitted).4 It is also irrelevant that the decision here was issued 

during the course of a purportedly formal process—formal processes are not a “sufficient 

condition” to confer Chevron deference. Nat’l Cable & Telecomm. Ass’n v. Brand X Internet 

Serv., 545 U.S. 967, 1004 (2005) (Breyer, J. concurring); see also Oceana, Inc. v. Locke, 831 F. 

Supp. 2d 95, 116–17 (D.D.C. 2011) (agency interpretation not afforded Chevron deference 

where it did not bear force of law, despite interpretation being product of formal proceedings).5 

Rather, the opinion must itself be an “exercise of [the agency’s] authority” to “make rules 

carrying the force of law” to warrant Chevron deference. Gonzales v. Oregon, 546 U.S. 243, 

255–56 (2006) (citation omitted); accord Mead, 533 U.S. at 227; see also Safari Club Int’l v. 

Zinke, 878 F.3d 316, 326 (D.C. Cir. 2017) (Chevron deference only available if “agency has 

 

4

 The FEC argues that Fogo de Chao has no application because it involved an informal agency proceeding, FEC 

Mem. 21, but that distinction fails to show the case does not govern here. First, Fogo de Chao distinguished the 

“informal adjudication within the [agency]” from “formal notice-and-comment rulemaking,” Fogo de Chao, 769 

F.3d at 1136. Here, the proceeding below is far closer to the former than the latter: it did not allow for outside 

comment or even argument from CREW after the complaint was filed. Second, Fogo de Chao recognized the 

formality of proceedings is an issue that only “weighs” on the question of Chevron deference. Id. at 1137. In 

contrast, it found the lack of binding effect on third parties “conclusive[]” as to that question. Id. 5 Accord Guindon v. Pritzker, 240 F. Supp. 3d 181, 193 n.3 (D.D.C. 2017); Guindon v. Pritzker, 31 F. Supp. 3d 169, 

198 (D.D.C. 2014). 

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9 

acted pursuant to congressionally delegated authority to make law and with the intent to act with 

the force of law”). There is no dispute that the statement on review here was not an exercise of 

the FEC’s law-making power, and therefore Chevron deference is unavailable.6 

C. The Court May Consider the Materials in CREW’s Brief. 

The FEC also briefly asserts that the Court may not consider items cited in CREW’s brief 

that are not part of the record it certified. FEC Mem. 23. Yet the FEC’s counsel admitted that 

they failed to include in that record evidence considered by the Commissioners, and FEC counsel 

has conceded that such materials may be considered by this Court. See FEC Mem. 13, 24 n.10; 

see also Natural Res. Def. Council v. Train, 519 F.2d 287, 291 (D.C. Cir. 1975). Other materials 

are cited to “elucidat[e] the standard by which the Court should judge the facts of this case,” and 

thus may be considered even if not in the administrative record. Jarita Mesa Livestock Grazing 

Ass’n v. U.S. Forest Serv., 305 F.R.D. 256, 298 (D.N.M. 2015); accord Beach Commc’ns, Inc. v. 

FCC, 959 F.2d 975, 987 (D.C. Cir. 1992); Fed. R. Evid. 201 advisory committee’s note to 1972 

proposed rule. 

II. The Two Controlling Commissioners’ Legal Interpretations Are Contrary to Law 

As discussed in the opening brief, the two controlling commissioners purported to justify 

their dismissal of CREW’s complaint on the basis of two impermissible interpretations of law: 

(1) that New Models’s gifts and distributions to other political committees did not count towards 

 

6

 The FEC asserts that post-Mead authority shows the continuing validity of In re Sealed Case, but the cited 

authority shows nothing of the sort. FEC Mem. 21 (citing FEC v. Nat’l Rifle Ass’n of Am., 254 F.3d 173, 184–86 

(D.C. Cir. 2001) (“NRA”)). The cited decision, issued only ten days after Mead, considered the propriety of 

deference to an FEC advisory opinion, approved by a majority of the commissioners, and which thus had “binding 

legal effect.” NRA, 254 F.3d at 185; see also Advisory Opinion 1984-24 (SCCOPE) at 6 (July 13, 1984), 

https://bit.ly/2NxhnFc (noting only two dissents from advisory opinion). It thus did not consider deference to nonmajority decisions, and it cited In re Sealed Case simply for the proposition that Chevron deference is available to 

positions adopted by the majority of the Commission. See NRA, 254 F.3d at 185–86. Indeed, the FEC’s briefing in 

NRA wrongly identified In re Sealed Case as addressing a decision adopted by the full Commission. See

Declaration of Stuart C. McPhail filed herewith (“McPhail Decl.”) Ex. 1 (Brief of the FEC 18 & n.9, NRA, 00-5163 

(D.C. Cir. Nov. 21, 2000) (referring to decision at issue in In re Sealed Case as the “agency’s interpretation”)). 

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10 

the FECA’s $1,000 threshold for political committee status, and (2) that New Models was 

excused from reporting under Buckley’s “major purpose” test because a majority of its spending 

over its entire lifetime was not devoted to contributing to political committees or other election 

advocacy. See Pls. Mem. 28-40. Nothing in the FEC’s opposition brief remedies either of the 

controlling commissioners’ impermissible interpretations of law. 

A. The FECA Plainly Defines “Expenditure” to Include New Models’s Gifts and 

Distributions to Political Committees. 

An organization is a political committee if it makes more than $1,000 in “expenditures” 

in a calendar year. 52 U.S.C. § 30101(4). The FECA defines “expenditure” to mean “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)(B). A disbursement to a political committee plainly meets this definition—as New 

Models’s own attorneys conceded to the Commission. AR035, AR038–39, AR042; see also 

AR052, AR095–96. Thus, the plain text of the FECA commands the FEC to treat New Models’s 

distributions to the super PACs as New Models’s expenditures. The FEC’s attempts to ignore 

this plain text to bolster the two controlling commissioners’ impermissible interpretations fail. 

The FEC first asserts that Buckley held that all references to “expenditure” in the FECA 

are ambiguous. FEC Mem. 26. Buckley held no such thing. Rather, Buckley interpreted a 

specific provision of the FECA which explicitly did not apply to political committees and which 

was triggered by expenditures as little as $100. See 424 U.S at 79. In that situation the Court 

found the “relation of the information sought to the purposes of the Act may be too remote,” and 

thus construed “‘expenditure’ for the purposes of that section” to be limited to express advocacy. 

Id. at 80 (emphasis added). Congress ratified that narrowing of “expenditure” for that provision 

in subsequent amendments by explicitly limiting it to “independent expenditures.” See 52 

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U.S.C. § 30104(c). Notably, however, Congress did not alter other references to “expenditure” 

in the statute, including in 52 U.S.C. § 30101(4), the provision relevant here. 

With regard to the FECA’s political committee rules, however, Buckley imposed an 

entirely different limitation. The type of “expenditure” that would qualify a group under 

§ 30101(4) was not limited to express advocacy, but the groups would need pass a new test to 

qualify: they would have to be either under the control of a candidate or possess a “major 

purpose” to “nominat[e] or elect[]” federal candidates. Buckley, 424 U.S. at 79. 

That is why a fellow court in this district already rejected the controlling commissioners’ 

interpretation of “expenditure” in § 30101(4) as limited to express advocacy. In Shays, 511 F. 

Supp. 2d at 26–27, Judge Sullivan considered the FEC’s interpretation of Buckley to limit the 

expenditures that would qualify a group as a political committee to express advocacy, id. at 26. 

The court called that a “misreading of Buckley.” Id. Judge Sullivan recognized that Buckley

addressed constitutional concerns in the FECA “by imposing two different limiting 

constructions.” Id. First, with regard to one-time reports by any person making independent 

expenditures, Judge Sullivan recognized Buckley “imposed the narrowing gloss” on expenditures 

“only with regard” to 52 U.S.C. § 30104(c). Id. at 27. With regard to political committees, 

however, he found Buckley only imposed the candidate control or major purpose requirement. 

Id. at 26. Judge Sullivan therefore found the FEC’s narrowing of “expenditure” in § 30101(4) to 

express advocacy to be without legal basis. Id. at 27. 

Nor does the fact that Buckley narrowed that particular use of “expenditure” in 

§ 30104(c) under the doctrine of constitutional avoidance imply that the term is ambiguous for 

Chevron purposes. Cf. FEC Mem. 26. Once again, the D.C. Circuit sitting en banc has already 

expressly rejected the FEC’s suggestion otherwise. In Akins, the FEC argued that “[a]t a 

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minimum . . . [Buckley and its progeny] created an ambiguity in the statutory definition of 

‘political committee’ so that the Commission’s subsequent interpretation of the term is owed 

deference—and passes muster—under Chevron Step II.” 101 F.3d at 740. Yet the full D.C. 

Circuit rejected that argument, finding that Buckley’s application of the constitutional avoidance 

doctrine did not mean there was ambiguity for the agency to resolve. Id. In fact, it ruled that it 

“cannot be[] contended” that 52 U.S.C. § 30101(4) is “ambiguous.” Id. 

The D.C. Circuit’s en banc decision reflects the fact that before a court can afford 

Chevron deference, it must apply the “traditional tools of statutory construction,” among which 

is the doctrine of “constitutional avoidance.” AFL-CIO v. FEC, 333 F.3d 168, 183 (D.C. Cir. 

2003) (Henderson, J., concurring) (citing Edward J. DeBartolo Corp. v. Fla. Gulf Coat Bldg. & 

Constr. Trades Council, 485 U.S. 568 (1988)). A court’s application of the constitutional 

avoidance doctrine thus does not imply that the statute is ambiguous under Chevron Step I. Id. 

Rather, a court will apply constitutional avoidance so long as the adopted interpretation is not 

“plainly contrary to the intent of Congress.” DeBartolo, 485 U.S. at 575; cf. Warger v. Shauers, 

135 S. Ct. 521 (2014) (refusing to apply constitutional avoidance where interpretation would be 

plainly contrary to the intent of Congress; not considering Chevron deference). A court will 

afford Chevron deference in far more limited cases, however; only where the statute is “silent or 

ambiguous” after applying traditional rules of statutory construction. City of Arlington, Tex. v. 

FCC, 569 U.S. 290, 296 (2013) (citation omitted). Thus, a court’s application of constitutional 

avoidance to interpret a statute does not imply the statute is ambiguous for Chevron purposes. 

Further, the FEC also concedes that Buckley cannot support the two controlling 

commissioners’ interpretation. The controlling commissioners justified their limitation of 

“expenditure” in § 30101(4) by relying on Buckley, reading that case’s discussion of 

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13 

“expenditure” in § 30104(c) to bind their reading of it elsewhere in the statute. AR109 (stating 

that “[t]he Court circumscribed the definition of ‘expenditure’”). However, by admitting that the 

commissioners “did not purport to limit ‘expenditure’ to ‘independent expenditure’ for all 

purposes under [the] FECA,” FEC Mem. 31, the FEC agrees that Buckley did not compel its 

limitation on § 30104(c) to apply to all of the FECA. The FEC’s concession is thus fatal to its 

argument and proves the controlling commissioners’ interpretation rested on an impermissible 

interpretation of law. 

The FEC’s other arguments are similarly misplaced. It oddly contends that the FECA’s 

treatment of coordinated expenditures favors its claims, FEC Mem. 28, but that treatment in fact 

directly disproves the two controlling commissioners’ reading. Far from proving that any given 

transaction must be treated exclusively as a contribution or an expenditure as the two 

commissioners contended, AR. 110 n.93, 52 U.S.C. § 30116(a)(7)(C)(ii) provides that a single 

transaction is both a contribution as to the maker, and an expenditure as to the candidate. That is 

exactly what § 30101(4) recognizes as well. New Models’s gifts and distributions to the super 

PACs are contributions as to the super PACs, which must report them as contributions, 52 U.S.C. 

§ 30104(b)(3), and expenditures as to New Models under 52 U.S.C. § 30101(4).7

 

Nor does 52 U.S.C. § 30104(b)(4)(H)(i) or (b)(6)(B)(i) undermine this plain reading. Cf. 

FEC Mem. 31. While those provisions do require political committees to segregate 

“contributions made to other political committees” from their “other disbursements,” see 52 

U.S.C. § 30104(b)(4)(H), they notably do not treat those distributions as something distinct and 

apart from the group’s “expenditures” in toto, but rather only distinct from certain other types of 

expenditures, see id. (distinguishing contributions to other committees from other types of 

 

7 See also 11 C.F.R. § 102.6(a)(2) (providing “making transfers” to an affiliated committee “count . . . against the 

reporting thresholds of the Act for determining whether an organization . . . is a political committee”). 

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expenditures, including “independent expenditures” and national or state committee 

expenditures); id. at § 30104(b)(4)(A) (“expenditures made to meet candidate or committee 

operating expenses”); id. at § 30104(b)(5) (same). Rather, the cited section merely reinforces the 

fact that a “contribution made to other political committees” and an “expenditure” are not 

mutually exclusive concepts. See also Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992) 

(holding statutory “redundancies” and “overlap” do not compel mutually exclusive meanings). 

The Commission previously recognized that plain reading of § 30101(4) in prior advisory 

opinions, and the FEC fails to show they do not apply here. For example, as CREW’s opening 

brief showed, the Commission unanimously adopted an advisory opinion informing an LLC that 

it would become a political committee under 52 U.S.C. § 30101(4)(A) if it made in-kind 

contributions to political committees. Advisory Opinion 1996-13 (Townhouse Associates, LLC) 

at 4 (June 10, 1996), https://bit.ly/2M25JSo. The FEC’s brief never responds to this authority. 

Nor is that authority an outlier. See Advisory Opinion 2000-25 (Minnesota House DFL Caucus) 

at 4 (Oct. 13, 2000), https://bit.ly/2RufXP3 (“An organization that makes expenditures in excess 

of $1,000 during a calendar year is a political committee. [52 U.S.C. § 30101](4), 11 CFR [§] 

100.5(a). Thus, by making these transfers [to a federal political committee], the Caucus’ 

nonfederal account would become a Federal political committee.”); Advisory Opinion 1987-12 

(Costello) at 2 (June 12, 1987), https://bit.ly/2Ob5tpD (advising that if “the proposed transfer to 

the Federal committee is in an amount greater than $1,000, the state committee would become a 

political committee under the Act upon transferring the funds. See [52 U.S.C. § 30101](4)(A); 

11 C.F.R. 100.5(a) and 102.6(a).”). Finally, the FEC fails to distinguish Advisory Opinion 1996-

18 (Int’l Ass’n of Fire Fighters) (July 14, 1996), https://bit.ly/2IiKfhE, authority on which its 

OGC relied below in recommending finding reason to believe New Models exceeded the 

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statutory threshold, AR070 n.18. That opinion follows the above precedent to find that the 

organization’s “making contributions” would qualify it as a political committee. AO 1996-18, at 

2–3. The FEC points to the advisory opinion’s discussion about the status of separate segregated 

funds (“SSF”) under § 30101(4)(B), FEC Mem. 28–29, but the Commission has recognized that 

the distinction between § 30101(4)(A) and (4)(B) is that “a [SSF] becomes a political committee 

whether it contributes or transfers $1 or $1,000,” Advisory Opinion 1983-03 (Phila. Elec. Co.) at 

2 (Feb. 24, 1983), https://bit.ly/2E6F9bv, while other groups “become political committees when 

they make contributions aggregating in excess of $1,000 per calendar year.” Advisory Opinion 

2003-29 (Fraternal Order of Police) at 6 (Nov. 25, 2003), https://bit.ly/2ObkrMy; see also 

Advisory Opinion 1982-46 (Tex. Manufactured Housing Assoc.) at 1–2 (July 29, 1982), 

https://bit.ly/2PkNfOV (comparing [§ 30101](4)(A) to (4)(B)).8 

Finally, CREW’s opening brief recognized that disclosure provisions like those reflected 

in the FECA’s political committee status are supported by a number of public interests beyond 

combating corruption, and whatever risk of corruption exists to support disclosure of 

independent expenditures similarly supports disclosure of their financial sources. Pls. Mem. 34–

35. The FEC responds only by repeating a quote from Citizens United v. FEC, FEC Mem. 30 

(quoting 558 U.S. 310, 357 (2010)), yet misses the point entirely. Even if independent 

expenditures “do not give rise to corruption,” Citizens United, 558 U.S. at 357, the public still 

has an interesting in knowing “who is funding that speech,” SpeechNow.org v. FEC, 599 F.3d 

686, 698 (D.C. Cir. 2010); see also Citizens United, 558 U.S. at 369 (public has interest in “the 

funding sources for the ads”); Buckley, 424 U.S. at 67, 76 (public has interest in being “fully 

informed” about the “sources of a candidate’s financial support”). Substituting the “misleading 

 

8

 SSFs are organizations under the control of a corporation or union. See 11 C.F.R. § 114.5(d). 

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name” of a political committee that airs the ad with the “misleading name” of a nonprofit that is 

its most immediate funder does nothing to ensure voters know “the source of the funding behind 

broadcast advertisements.” McConnell, 540 U.S. at 128, 196–97 (citation omitted). Even worse, 

while voters are unable to peer through the misleading name of the nonprofit, there is no reason 

to think “candidates and officeholders” are similarly limited in finding out “who their friends 

[are].” Id. at 128–29. Whether or not the money used may be a bribe does not mitigate the 

injury from that lack of information or obviate voters’ legitimate interest in it, and thus any lack 

of corruption has no bearing on the scope or application of the FECA’s disclosure obligations. 

In short, the plain text of the FECA refutes the two controlling commissioners’ cramped 

interpretation based on wholly inapposite judicial precedent. As the FECA and FEC precedent 

make clear, New Models’s gifts and distributions to other political committees meets the 

definition of an “expenditure” under the FECA. As those expenditures exceeded the $1,000 

statutory threshold, New Models qualified as a political committee under 52 U.S.C. § 30101(4). 

B. The FEC’s Misstatements and Misquotations Do Not Cure the Two Controlling 

Commissioners’ “Lifetime” Major Purpose Test Previously Struck Down. 

Despite a fellow court of this district rejecting the exact lifetime-spending test applied 

here, and despite that test’s conflict with statutory text, precedent, and common sense, the 

controlling commissioners once again applied it below to dismiss CREW’s complaint against 

New Models. The test remains contrary to law, however, and nothing in the FEC’s brief cures its 

defects. Indeed, the FEC merely resorts to gross misquotations and false characterizations to 

defend the indefensible. 

1. The Exact Analysis Below Has Been Declared Contrary to Law. 

The two controlling commissioners’ analysis below is a near word-for-word reproduction 

of the analysis the same commissioners employed to dismiss CREW’s complaint against two 

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other dark money groups. Compare AR097–108 with Statement of Reasons of Chairman Lee E. 

Goodman and Comm’rs Caroline C. Hunter and Matthew S. Petersen at 6–16, MUR 6538 (July 

30, 2014) (“AJS Statement”), https://bit.ly/2K1WWCA. That analysis has already been held to 

be contrary to law. CREW, 209 F. Supp. 3d at 94. Nonetheless, the two controlling 

commissioners ignored the order of a court of this district, copied-and-pasted their analysis to 

justify dismissal here, and then went so far as to falsely claim that the CREW decision upheld 

their prior analysis. See AR114–15. As CREW’s opening brief showed, the two controlling 

commissioners simply misrepresented the CREW decision and did nothing to try to correct the 

errors it identified, Pls. Mem. 38, and the FEC’s brief simply resorts to the same gross 

misrepresentations. 

To begin with, the FEC places inordinate weight on CREW’s recognition that 

consideration of a group’s lifetime spending is not “per se unreasonable.” FEC Mem. 38 (citing 

CREW, 209 F. Supp. 3d at 94). Yet to say it is not per se unreasonable is not to say the lifetime 

test—the same test applied below—is consistent with law under the FECA, as CREW found it 

not to be. CREW, 209 F. Supp. 3d at 94. 

The FEC tries to evade this conclusion by asserting that the court in CREW engaged in its 

own lifetime test, and that the two controlling commissioners below didn’t engage in the equal 

weighting of years that CREW found unlawful. Yet the FEC simply resorts to distorting CREW

and the analysis below. 

First, it is false to assert that CREW engaged in any type of “lifetime” spending test. For 

example, the FEC falsely asserts CREW treated two groups’ pre-2010 activity as relevant to the 

proper analysis of the groups’ major purpose in 2010. See FEC Mem. 36. The portion the FEC 

quotes, however, was from the court’s discussion about why pre-2010 activity was irrelevant to a 

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lawful major purpose analysis. See CREW, 209 F. Supp. 3d. at 94 (recognizing that looking “at 

relative spending over an organization’s lifetime runs the risk of ignoring . . . that an 

organization’s purpose can change,” which is “precisely the trajectory” of the group in question). 

If the court had treated that activity as relevant, as the FEC asserts, then it would not have 

declared the FEC’s analysis of a “half-century-old organization with a substantial spending 

history” contrary to law, but it did. Id. Similarly, New Models’s pre-2012 spending is irrelevant 

to determine its major purpose in 2012: the prior activity merely shows that New Models’s 

major purpose changed in 2012. 

Second, the FEC also incorrectly asserts that CREW says nothing about the relevancy of 

activity that post-dates the year in which a group exceeds the FECA’s statutory threshold. FEC 

Mem. 36. In CREW, the administrative complaints asserted two groups met the statutory 

thresholds in 2010, and the court’s discussion of the major purpose analysis focused on the 

groups’ activities in that calendar year. See CREW, 209 F. Supp. 3d at 83 (looking at group’s 

2010 spending to find “over three-fourths of its spending was in some way tied to elections”).9 

That calendar year focus is notable given that CREW filed its complaints in 2012, id., the 

Commission voted to dismiss in 2014, id., and the court issued its decision in 2016. Yet the 

court never suggested that any spending in those later years was at all relevant to a proper major 

purpose analysis. Similarly, New Models’s post-2012 spending is irrelevant to determining its 

major purpose in 2012.10 Indeed, the FEC’s proposal would lead to grave injustice—a group’s 

 

9

 With regard to the other group, data was not available for its calendar year spending, since the group did not report 

on a calendar year schedule. Accordingly, the closest data available covered a span from mid-2009 to mid-2011. Id.

at 83. 

10 The FEC argues that it is relevant that the president of New Models asserted in 2014 that it had no plans to make 

further independent expenditures or contributions. FEC Mem. 38. New Models’s 2014 plans have no bearing, 

however, on what New Models actually did in 2012 and its major purpose that year. Further, it is far from clear 

whether New Models would have made contributions in 2014 absent CREW’s complaint—New Models received 

notice of CREW’s complaint earlier in the 2014 election cycle than when New Models made the vast majority of its 

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major purpose would depend not on its actions, but solely on when the Commission got around 

to voting on a complaint. 

The FEC next oddly asserts that the error CREW identified was only that the controlling 

commissioners there refused to give “any weight” to the groups’ spending in the calendar year 

the groups exceeded the statutory threshold, which the FEC says the controlling commissioners 

solved below by “compar[ing] New Models’s isolated contributions [in 2012] with other 

activities both in 2012 and during its lifetime.” FEC Mem. 32, 34–35. Yet it was this exact 

equal weighting—this “lifetime” test that treats spending in the relevant year equally to other 

years, even decades earlier, in evaluating a group’s major purpose in the relevant year—that 

CREW found contrary to law. CREW, 209 F. Supp. 3d at 94. Just as here, the controlling 

commissioners’ analysis in CREW compared the group’s expenditures in the calendar year to its 

other activities both in the relevant year and during its lifetime, leading the commissioners to 

conclude that one group was not a political committee because “‘during the course of its history 

dating back to 1997, [it] spent over $50 million . . . but only $4.9 million [in 2010] . . . on 

express advocacy.’” Id. at 84 (quoting statement of reasons below). The FEC’s distortions about 

what CREW held are simply incorrect. 

Having failed to twist CREW into authority endorsing the lifetime test, the FEC next 

attempts to reconcile the two controlling commissioners’ analysis below with CREW by 

reimagining the lifetime-spending analysis applied here. That arguments fails on the facts, 

however, as any reading of the statement of reasons amply demonstrates that the controlling 

commissioners gave conclusive weight to New Models’s lifetime spending. See AR094–96 

(laying out New Models’s lifetime of spending); AR111 n.96 (“We have consistently rejected 

 expenditures in the 2012 cycle. See AR046 (New Models received notice of complaint in September2014); AR035, 

AR038–39 (New Models’s 2012 contributions mostly occurred October 2014). 

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OGC’s myopic focus on one year of spending.”); AR117 (placing conclusive weight on fact New 

Models’s 2012 election-related spending “amounted to just 19.5% of the organization’s total 

spending”); AR118 (“[D]etermining an organization’s major purpose by reference to its activity 

in a narrow snapshot of time—one calendar year or two—overlooks the point of the major 

purpose test.”); see also AR120 (stating that even spending “90%” of funds in a calendar year on 

express advocacy would not qualify a group as a political committee over the group’s lifetime of 

spending). The FEC’s arguments simply try to obfuscate that fact. For example, the controlling 

commissioners’ recognition that New Models spent $1.5 million in 2012 on non-election 

activities, FEC Mem. 34, less than half of what it spent on expenditures that year, is only 

noteworthy because they found that non-election related spending, when combined with spending 

in every other year, outweighed New Models’s 2012 political expenditures. AR094–96. 

Similarly, looking to New Models’s entire post-Citizens United lifetime spending, FEC Mem. 

34, is the exact “lifetime” approach that CREW found improper.11 Finally, the FEC asserts that 

the controlling commissioners concluded 2012 was an “outlier,” FEC Mem. 35, but that 

judgment can only be made by looking at a group’s lifetime spending, including irrelevant 

spending in years after the group qualified as a political committee under the FECA. A group’s 

expenditures in one year will only not be an outlier, apparently, if those expenditures constitute a 

majority of the group’s spending over its lifetime.12 

 

11 While the change in law in Citizens United can help explain why a group’s purpose might change, it is of course 

not the only reason a group might change its purpose. Nor is 2010 the only time at which that purpose could 

change. Thus 2010 does not provide some singularly-unique cutoff that renders all post-2010 activity relevant to a 

major purpose analysis. 

12 The only other possibility is indeed a far more extreme interpretation of Buckley—one that would ignore the 

relevant-calendar year entirely if it was sufficiently distinct from its spending in other years. That test, however, 

would allow a group to evade reporting even if expenditures constituted more than half of its lifetime spending if 

those expenditures clustered in one or a few years. For example, under this proposed “outlier” test, a group could 

spend as little as $100 for a few years, then spend millions on an election, and then go back to spending trivial 

amounts in following years. Under the FEC’s proposed test, the single year of expenditures would be an “outlier,” 

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Finally, the FEC asserts that the controlling commissioners’ analysis was consistent with 

CREW because they also considered the absence of public statements from the organization 

admitting to an electoral purpose. FEC Mem. 33–34. That argument both fails to distinguish 

CREW and is irrelevant. First, the organizations at issue in CREW also had not made any public 

statements admitting that their major purpose was to influence elections, a fact the controlling 

commissioners had considered in their analysis. CREW, 209 F. Supp. 3d at 84; AJS Statement at 

18–19. Nevertheless, the court in CREW found the analysis was contrary to law. Second, the 

FEC would apparently make the lack of a signed confession determinative. Groups that evade 

disclosure, however, will likely never release a statement confessing that they are spending to 

influence elections, even as they do so. Therefore, while a group’s statements may prove its 

major purpose is to influence elections, those statements can never disprove that electoral 

purpose where its actions show otherwise. See MCFL, 479 U.S. at 262 (stating group would 

become a political committee when its spending on elections became “extensive[],” without 

requiring any confirmation in a public statement); CREW, 209 F. Supp. 3d at 95 (finding 

dismissals contrary to law based on erroneous treatment of spending, despite analysis also 

finding lack of electoral purpose expressed in public statements); supra at 14–15 (discussing 

advisory opinions holding same); cf. Free Speech v. FEC, 720 F.3d 788 (10th Cir. 2013) (finding 

extensive spending was not necessary for political committee status, but sufficient for it); RTAA, 

681 F.3d at 557 (same). 

The FEC fails to show that the controlling commissioners’ analysis is anything but an 

abject refusal to abide by the law as declared by a court in this district. The FEC simply resorts 

to a tortured reading of CREW that ignores its central holding—that the very same analysis 

 and voters would have no access to any information about from where those funds originated. 

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employed below here is contrary to law.

2. The Lifetime Test is Contrary to Law. 

Putting aside CREW, the lifetime test employed below is contrary to law for a number of 

other reasons, too. Statutory text, as well as judicial and regulatory precedent, all support a 

calendar year focus.13 

First, the plain text of the FECA provides the temporal scope for political committee 

examinations—a group’s spending “during a calendar year.” 52 U.S.C. § 30101(4). Given that 

Buckley neither commented on nor altered that focus, neither Buckley nor its progeny provides 

any basis for the Commission to depart from that congressionally commanded focus. 

The FEC attempts to escape this fact by asserting that Buckley authorized a “factintensive” inquiry, and thus that the Supreme Court delegated to the FEC the power to rewrite 

the law on political committee status. FEC Mem. 39. Yet, once again, the FEC’s argument has 

already been squarely rejected by the D.C. Circuit sitting en banc. The full D.C. Circuit found 

the FEC’s assertion that Buckley gave it free reign to “flesh out” the rules for political committee 

status was “doctrinally misconceived.” Akins, 101 F.3d at 740. Thus, while the FEC has 

discretion whether “to administer FECA political committee regulations either through 

categorical rules or through individualized adjudications,” Free Speech, 720 F.3d at 797 (citing 

RTAA, 681 F.3d at 556); Shays, 511 F. Supp. 2d at 26 (same), the substance of any interpretation 

of Buckley is solely with the purview of the judiciary, Akins, 101 F.3d at 740; Shays, 511 F. 

Supp. 2d at 27. As discussed above, judicial precedent does not support the controlling 

 

13 The FEC argues CREW has not shown its definition is “arbitrary or capricious.” FEC Mem. 41. That is not 

CREW’s burden; rather CREW need only show its definition is erroneous as determined by this court de novo. 

Orloski, 795 F.2d at 161 (court to determine whether dismissal is arbitrary or capricious only after confirming no 

legal error in the analysis). Moreover, even if CREW were required to show the definition fails under Chevron step 

II, it has also met that burden. See CREW, 209 F. Supp. 3d at 94 (striking lifetime test as unlawful under Chevron

step II after erroneously affording Chevron deference). 

Case 1:18-cv-00076-RC Document 16 Filed 10/09/18 Page 29 of 38
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commissioners’ lifetime test. See CREW, 209 F. Supp. 3d at 94 (citing MCFL, 479 U.S. at 

262).14 

Nor does the other judicial authority cited by the FEC support their lifetime-spending 

approach. Far from endorsing a lifetime test, FEC v. GOPAC, Inc., 917 F. Supp. 851 (D.D.C. 

1996), found a group was not a political committee because its “major purpose in 1989 and 

1990” as determined by the group’s activities in each of those years was not to elect federal 

candidates, id. at 858. The FEC makes much of the discussion of the group’s post-1990 activity, 

see FEC Mem. 37–38, but the activity noted was that the group registered as a political 

committee in 1991, and the court gave no weight to that fact when deciding the group’s purpose 

in 1989 and 1989, GOPAC, 917 F. Supp. at 853. The FEC also fails to distinguish FEC v. 

Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004), see FEC Mem. 39 n.14, because the court there 

expressly determined the group’s “major purpose was the nomination or election of specific 

candidates in 1996,” a calendar year, Malenick, 310 F. Supp. 2d at 237.15 

Unable to distinguish this authority or cite any supporting authority,16 the FEC resorts to 

arguing that its prior use of a calendar year approach does not “foreclose the Commission from 

using a more comprehensive methodology” whenever it suits the whims of certain 

commissioners. FEC Mem. 39–40 (quoting RTAA, 681 F.3d at 557). Yet far from a holistic 

analysis which recognizes that a group may exhibit a major purpose to influence an election in a 

 

14 Further, even if Buckley conferred any discretion on the FEC to interpret “major purpose,” the lifetime test 

employed below is not a reasonable interpretation of it. See CREW, 209 F. Supp. 3d at 94. 15 While the court also considered materials from 1995, those materials evidenced the group’s 1996 purpose. Id. at 

235 (quoting 1995 material stating group’s goal “in the next two years”). Finally, noting materials outside a 

calendar year confirm the group’s major purpose is a far cry from excusing a group from reporting despite its 

possessing a qualifying major purpose in the relevant year merely due to activity outside that year. 

16 CREW’s opening brief showed the analysis below was not supported by FEC precedent, CREW Mem. 44–45, 

and the FEC makes no attempt to show otherwise. Moreover, one of those precedents cited by the two 

commissioners, MUR 3669, is not available on the FEC’s website or elsewhere, despite CREW’s repeated requests 

to the FEC since this May to make the materials available. The commissioners may not rely on this “secret law” to 

defend their opinion. See Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 858 (1980). 

Case 1:18-cv-00076-RC Document 16 Filed 10/09/18 Page 30 of 38
24 

number of ways, cf. RTAA, 681 F.3d at 557, the FEC’s arbitrary switching of the temporal focus 

by which it will evaluate a group’s purpose “in itself raises First Amendment concerns,” Akins, 

101 F.3d at 744 (striking FEC’s “variable major purpose standard”). The FECA’s calendar year 

test, on the other hand, is a clear standard, well supported in law. 

Lastly, the FEC essentially argues that the Constitution prohibits applying political 

committee status to an organization based on its single year of activities because political 

committee status “impose[s] significant burdens on the exercise of constitutionally protected 

political activities.” FEC Mem. 40 (citation omitted). For example, the FEC apparently 

disagrees with the statute’s provision for the only way by which political committees may 

terminate, id., and argues the controlling commissioners were thus free to exclude groups from 

political committee reporting to evade the burden imposed by that clear congressional command. 

Courts, however, have routinely upheld political committee burdens against First Amendment 

challenge. See SpeechNow.org, 599 F.3d at 696–97 (holding political committee status does not 

“impose much of an additional burden”); CREW, 209 F. Supp. 3d at 92 (rejecting controlling 

commissioners’ argument that political committee burdens justified lifetime test for major 

purpose). Those burdens are more than justified by the public’s compelling interest in knowing 

“who is funding” election-related speech, SpeechNow.org. 599 F.3d a 698, something the public 

can only learn if groups like New Models are subject to political committee reporting as 

Congress intended and the FECA commands. Congress already declared that any group that 

spends more than $1,000 in expenditures in a calendar year must qualify as a political 

committee. 52 U.S.C. § 30101(4). The Supreme Court narrowed that application by imposing a 

major purpose test, resolving any constitutional concerns. Buckley, 424 U.S. at 79. The 

controlling commissioners are not free to disregard statutory text and congressional intent to add 

Case 1:18-cv-00076-RC Document 16 Filed 10/09/18 Page 31 of 38
25 

additional limitations, no matter how much they believe Congress erred. 

In sum, the lifetime spending test imposed below has already been declared unlawful, and 

the controlling commissioners blatantly ignored that declaration by copying-and-pasting that 

analysis here. A fellow court correctly surmised that the controlling commissioners’ lifetime test 

is not supported by Buckley or other precedent, and in fact runs contrary to law and reason, even 

while erroneously affording that interpretation deference. The FEC fails to cure any of the errors 

already found in the analysis, and thus the lifetime test remains contrary to law. 

III. A Terse Reference Does Not Immunize the Controlling Commissioners’ Legal Error 

from Judicial Correction. 

The statement of reasons below spans thirty-two pages. AR091–122. It provides eleven 

pages of “legal background” that purports to recount the changes in the law on political 

committee status from 1972 until today, discussing more than a dozen judicial precedents and 

numerous sections of code and regulation. AR097–108. Based on that analysis, the controlling 

commissioners reached a firm decision on CREW’s allegations, “conclud[ing] . . . that New 

Models was not a political committee.” AR92 (emphasis added); accord AR110 & n.95, AR121. 

That result was required by their finding that “New Models did not meet the statutory threshold 

for becoming a political committee,” AR108 (emphasis added), and that New Models “did not 

have the requisite major purpose,” AR 110 (emphasis added). 

Nevertheless, the FEC asserts that the controlling commissioners’ extensive legal 

analysis is essentially dicta and is immune from judicial review because appended to that lengthy 

analysis that led to firm conclusions is a brief reference to “prosecutorial discretion” in a 

footnote. FEC Mem. 15–18. The FEC argues that a recent decision, currently pending en banc 

review, prevents any judicial review of the controlling commissioners’ legal error because of that 

short incantation. Id. (citing CREW v. FEC, 892 F.3d 434, 438 (D.C. Cir. 2018) 

Case 1:18-cv-00076-RC Document 16 Filed 10/09/18 Page 32 of 38
26 

(“CREW/CHGO”), en banc petition filed No. 17-5049 (D.C. Cir. July 27, 2018)). But the words 

“prosecutorial discretion” do not magically deprive CREW of its congressionally provided right 

to judicial review. The FEC fails to show that prosecutorial discretion actually played any part 

in the dismissal below or, even if it did, it would work to prevent review here. 

A. The Dismissal Below was Not Discretionary. 

As noted above, the controlling commissioners’ analysis reached a firm conclusion about 

the merits of CREW’s complaint, a conclusion that could only have been based on their lengthy 

(albeit erroneous) legal and factual analysis. In contrast, the controlling commissioners’ entire 

discussion of prosecutorial discretion can be found in one footnote, appended at the end of the 

opinion, citing Heckler v Chaney, 470 U.S. 821 (1985) and Nader v. FEC, 823 F. Supp. 2d 53 

(D.D.C. 2011), and containing a single sentence. A “terse” invocation of discretion such as a 

footnote, however, does not meet the agency’s obligations adequately explain its justifications to 

enable judicial review. See Robertson v. FEC, 45 F.3d 486, 493 (D.C. Cir. 1995) (rejecting terse 

explanation in statement of reasons as failing to “meet the standard of reasoned agency 

decisionmaking”); see also Antosh v. FEC, 599 F. Supp. 850, 853 (D.D.C. 1984) (holding 

“meekly” asserted grounds do not adequately explain agency action). Even the FEC’s brief only 

devotes a single paragraph to describing the purported exercise of discretion below, FEC Mem. 

14–15, compared to the four pages it spends recounting the controlling commissioners’ legal 

analysis, id. at 10–14. 

The two commissioners’ brief reference here contrasts sharply to similar cases in which 

the controlling commissioners provided an actual explanation for exercising prosecutorial 

discretion. See CREW/CHGO, 892 F.3d at 438 (commissioners “placed their judgment squarely 

on the ground of prosecutorial discretion” after discussing over the course of many paragraphs 

the statute of limitations, group’s lack of funds, and other practical difficulties with 

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27 

enforcement); Nader, 823 F. Supp. 2d 53, 65–66 (D.D.C. 2011), vacated 725 F.3d 226 (D.C. Cir. 

2013) (holding FEC’s prosecutorial discretion was reasonable only after evaluating factors such 

as staleness of evidence and complainant’s undue delay before filing administrative complaint); 

see also La Botz v. FEC, 61 F. Supp. 3d 21, 35 (D.D.C. 2014) (“After conducting a thorough 

review . . . , the Commission ultimately decided its resources would be better utilized elsewhere, 

a decision entirely within its discretion.” (emphasis added)). 

The terse reference is no more than a tag-on to the actual analysis employed by the 

commissioners; one that in fact definitively “resolve[d] the political committee issue.” Cf. 

CREW v. FEC, 236 F. Supp. 3d 378, 389 (D.D.C. 2017) (finding dismissal was discretionary 

where “the controlling opinion did not resolve the political committee issue” and where entire 

opinion explained exercise of prosecutorial discretion). Given that the two controlling 

commissioners definitively resolved New Models’s political committee status in the negative, 

stating it was “not a political committee,” AR092, there was in fact no room for discretion. 

Given the firm conclusion, the only work the reference to prosecutorial discretion appears to be 

doing is to attempt to insulate the decision below from any judicial review. See Statement of 

Vice Chair Ellen L Weintraub on the D.C. Circuit’s Decision in CREW v. FEC (June 22, 1018), 

https://bit.ly/2zmAKz5 (predicting the controlling commissioners will cite prosecutorial 

discretion in bad faith, simply to evade legally mandated review). 

Because the statement of reasons for dismissal of CREW’s complaint against New 

Models was, in fact, one that based dismissal on the controlling commissioners’ legal and factual 

analysis, that analysis is subject to judicial review. See CREW/CHGO, 892 F.3d at 441 n.11 

(recognizing the “interpretation an agency gives to a statute is not committed to the agency’s 

unreviewable discretion”); Orloski, 795 F.2d at 161 (permitting reversal if dismissal involved 

Case 1:18-cv-00076-RC Document 16 Filed 10/09/18 Page 34 of 38
28 

“impermissible interpretation” of law, even if not otherwise arbitrary or capricious); CREW v. 

FEC, 316 F. Supp. 3d 349, 421–22 (D.D.C. 2018) (applying CREW/CHGO, finding reversal 

under FECA warranted despite reference to prosecutorial discretion because that discretion was 

based on erroneous interpretation of law); see also Akins, 524 U.S. at 25 (“[T]hose adversely 

affected by a discretionary agency decision generally have standing to complain that the agency 

based its decision upon an improper legal ground.”); NAACP v. Trump, 298 F. Supp. 3d 209, 234 

(D.D.C. 2018) (holding Chaney does not prevent review of dismissal “expressed as a general 

enforcement policy” and relies on “the agency’s view of what the law requires”). That fact 

cannot be altered by a terse reference to prosecutorial discretion, tagged on as no more than an 

afterthought, that could have no application where the matter at issue had been definitively 

resolved, and which could then have no other purpose than to evade congressionally intended 

judicial review. 

The FEC argues that a one sentence incantation in a footnote renders the entire action 

unreviewable under prosecutorial discretion. FEC Mem. 15-16. But the magic words of 

“prosecutorial discretion” do not allow the FEC to avoid judicial review of its actions. That 

would contravene the very purpose of the FEC’s judicial review provision and allow the FEC, 

with a rote recitation, to circumvent all judicial review of even blatantly incorrect interpretations 

of the law. A brief invocation of prosecutorial discretion in a footnote does not render the 

statement below immune from judicial review. 

B. CREW/CHGO Would Not Bar Review of The Dismissal Even if Applicable. 

Even if the terse reference to prosecutorial discretion were enough to bring the statement 

of reasons below within the control of CREW/CHGO, that still would not prevent review of the 

dismissal below. CREW/CHGO recognized that, even if the controlling commissioners squarely 

based their dismissal on prosecutorial discretion, judicial review would remain available if it 

Case 1:18-cv-00076-RC Document 16 Filed 10/09/18 Page 35 of 38
29 

reflected an “abdication of its statutory responsibilities” to enforce any provision of federal 

election law. CREW/CHGO, 892 F.3d at 440 n.9 (citation omitted). The dismissal below, even 

if based on prosecutorial discretion, reflects just such an abdication. 

In dismissing CREW’s complaint, the controlling commissioners refused to apply the 

FECA’s political committee laws to any group that qualifies under the statute as a result of its 

contributions to other political committees, or as the result of an analysis of less than its lifetime 

of spending. AR109, AR117. For the reasons explained above, those are impermissible 

interpretations of the applicable law. Assuming, however, that such statements merely reflect a 

discretionary choice by the controlling commissioners not to enforce the law in such situations, 

then they have “consciously and expressly adopted a general policy” of nonenforcement. See 

CREW, 316 F. Supp. 3d at 421 (holding agency abdicated enforcement where adopted 

enforcement policy conflicted with statutory requirements), stay denied No. 18A274, 2018 WL 

4441781 (U.S. Sept. 18, 2018). 

That abdication is also reflected in years of complaints against groups who failed to 

register as political committees being dismissed by these controlling commissioners, even where 

the FEC’s staff recognizes the complaints are meritorious. See CREW, 209 F. Supp. 3d at 83–84 

(same commissioners dismissed complaints against two groups over OGC’s recommendation 

based on same general policy of abdication applied here). Indeed, CREW could not identify a 

single case in which the controlling commissioners agreed with an OGC recommendation to 

impose political committee status on an organization that contested its election-related purposes. 

See McPhail Decl. Exhibit 2. 

The FEC tries to dodge this abdication by relying on an inapposite portion of the 

CREW/CHGO decision that found “the Commission routinely enforces the election law alleged 

Case 1:18-cv-00076-RC Document 16 Filed 10/09/18 Page 36 of 38
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in CREW’s administrative complaint.” CREW/CHGO, 892 F.3d at 440 n.9. But the only 

enforcement referenced in that case for which even the most minimal steps were taken did not 

relate to the political committee allegations, but rather to an organization’s failure to file 

independent expenditure and electioneering communication reports. See CREW, 236 F. Supp. 3d 

at 387 (noting Commission deadlocked on political committee allegations, but unanimously 

found reason to believe the group failed to file required disclosures for its independent 

expenditures and electioneering communications). CREW’s allegations against New Models did 

not involve a failure to file independent expenditure or electioneering communication reports, so 

the Commission’s enforcement of those provisions, anemic as they are, has no relevancy here. 

In sum, an agency may not invoke prosecutorial discretion to abdicate its enforcement 

duties. Chaney, 470 U.S. at 843 (Marshall, J., concurring in the judgment). The controlling 

commissioners here have committed to a policy of abdicating enforcement of the FECA’s 

political committee laws against organizations that do not meet their legally baseless and overly 

narrow test, regardless of any particularities of the group in question, and even then enforcement 

is apparently nonexistent. The dismissal below of CREW’s complaint against New Models, 

even if erroneously viewed as a discretionary action, is merely one in a long line of dismissals 

evincing the controlling commissioners’ abdication of enforcement. As such, it is reviewable 

and warrants reversal by this court. 

CONCLUSION 

For the foregoing reasons, CREW respectfully requests that the Court enter summary 

judgment for CREW, declare the dismissals contrary to law, and order the FEC to conform to 

that declaration within 30 days. 

Case 1:18-cv-00076-RC Document 16 Filed 10/09/18 Page 37 of 38
31 

Dated October 9, 2018 

 Respectfully submitted, 

/s/ Stuart McPhail 

 Stuart McPhail 

 smcphail@citizensforethics.org

(D.C. Bar. No. 1032529) 

 Adam J. Rappaport 

 (D.C. Bar. No. 479866) 

 Citizens for Responsibility and Ethics 

 in Washington 

 455 Massachusetts Ave., N.W. 

 Washington, D.C. 20001 

 Phone: (202) 408-5565 

 Facsimile: (202) 588-5020 

Case 1:18-cv-00076-RC Document 16 Filed 10/09/18 Page 38 of 38