UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

__________________________________________ 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, et al., ) 

 ) 

 Plaintiffs, ) Civil Action No. 14-1419 (CRC) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant, ) 

) 

AMERICAN ACTION NETWORK, ) 

) 

Intervenor-Defendant. ) 

__________________________________________) 

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 

The Plaintiffs, Citizens for Responsibility and Ethics in Washington (“CREW”) and 

Melanie Sloan, by their undersigned counsel, respectfully move this Court, pursuant to Federal 

Rule of Civil Procedure 56, for summary judgment declaring that the failure of the Federal 

Election Commission (“FEC”) to find “reason to believe” that the American Action Network 

(“AAN”) and Americans for Job Security (“AJS”) violated the Federal Election Campaign Act 

(“FECA”), 52 U.S.C. § 30101 et seq., was contrary to law, and directing the FEC to conform 

with such declaration within 30 days consistent with the Court’s judgment. 

Support for this motion is set forth in the accompanying Memorandum of Points and 

Authorities in Support of Plaintiffs’ Motion for Summary Judgment, the Declaration of Stuart C. 

McPhail, and the joint appendix containing copies of those portions of the administrative record 

that are cited or otherwise relied upon, to be filed no later than April 28, 2016. Plaintiffs’ 

Case 1:14-cv-01419-CRC Document 33 Filed 12/22/15 Page 1 of 54
2 

requested relief is set forth in the accompanying Proposed Order. Plaintiffs respectfully request 

oral argument on this motion. 

Dated: December 22, 2015. 

Respectfully submitted, 

/s/ Stuart McPhail 

Stuart C. McPhail 

smcphail@citizensforethics.org

(N.Y. Bar No. 4715025) 

(Cal. Bar No. 287048) 

Admitted Pro Hac Vice

/s/ Adam J. Rappaport 

Adam J. Rappaport 

arappaport@citizensforethics.org

(D.C. Bar No. 479866) 

Citizens for Responsibility and Ethics 

in Washington 

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

Washington, D.C. 20001 

Telephone: (202) 408-5565 

Fax: (202) 588-5020 

Attorneys for Citizens for Responsibility and 

Ethics in Washington and Melanie Sloan 

Case 1:14-cv-01419-CRC Document 33 Filed 12/22/15 Page 2 of 54
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

__________________________________________ 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, et al., ) 

 ) 

 Plaintiffs, ) Civil Action No. 14-1419 (CRC) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant, ) 

) 

AMERICAN ACTION NETWORK, ) 

) 

Intervenor-Defendant. ) 

__________________________________________) 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 

Case 1:14-cv-01419-CRC Document 33 Filed 12/22/15 Page 3 of 54
TABLE OF CONTENTS 

Page

INTRODUCTION 1

STATEMENT OF FACTS 2

A. The Growth of Dark Money Campaign Spending 2

B. The Dark Money Loophole 4

C. Dark Money is Now Prevalent 8

D. Procedural History 11

ARGUMENT 13

A. Jurisdiction 13

B. Standard of Review 14

1. General Standard of Review 14

2. De Novo Review of Controlling Commissioners’ Interpretations 

of Law 14

C. The Dismissals of Plaintiffs’ Complaints Were Contrary to Law 16

1. The First Amendment Allows Ample Room for Disclosure of 

Campaign Spending 17

2. Groups’ Electioneering Communications Are Relevant in 

Determining their “Major Purpose” 25

3. A Group’s Activities within the Calendar Year Demonstrate its 

Current “Major Purpose” 37

4. A Group’s “Major Purpose” May Be Supported by Less than 50% 

of its Expenditures 40

D. The Controlling Commissioners’ Application of the “Reason to Believe” 

Standard was Contrary to Law 43

CONCLUSION 45

Case 1:14-cv-01419-CRC Document 33 Filed 12/22/15 Page 4 of 54
i 

TABLE OF AUTHORITIES 

Cases

ACLU v. Jennings, 366 F. Supp. 1041 (D.D.C. 1973) .................................................................. 31 

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996) ............................................................................... 15 

Alaska Right to Life Comm. v. Miles, 441 F.3d 773 (9th Cir. 2006) ............................................ 29 

Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077 (D.C. Cir. 2001) .............................................. 2 

*Buckley v. Valeo, 424 U.S. 1 (1976) .................................................................................... passim 

Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) ................................................................... 31, 32 

Burroughs v. United States, 290 U.S. 534 (1934) .................................................................. 20, 24 

Catholic Leadership Coal. of Tex. v. Reisman, 764 F.3d 409 (5th Cir. 2014) ................. 20, 24, 32 

Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984) .......................................... 14 

Christensen v. Harris Cnty., 529 U.S. 576 (2000) .................................................................. 15, 16 

*Citizens United v. FEC, 558 U.S. 310 (2010) ...................................................................... passim 

City of Arlington v. FCC, 133 S. Ct. 1863 (2013) ........................................................................ 15 

Colo. Right to Life Comm. v. Coffman, 498 F.3d 1137 (10th Cir. 2007) ...................................... 42 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) .............................................................. 16 

*Ctr. for Individual Freedom v. Madigan, 697 F.3d 464 (7th Cir. 2012) .................. 20, 25, 32, 33 

Del. Strong Families v. Att’y Gen. of Del., 793 F.3d 304 (3d Cir. 2015) ..................................... 20 

Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131 (D.C. Cir. 1987) .......................... 14 

Doe v. Reed, 561 U.S. 186 (2010) ................................................................................................ 19 

FEC v. GOPAC, Inc., 917 F. Supp. 851 (D.D.C. 1996) ................................................... 34, 38, 42 

FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004) ..................................................... 35, 38, 42 

FEC v. Mass. Citizens for Life, 479 U.S. 238 (1986) ....................................................... 21, 28, 41 

FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471 (D.C. Cir. 1992) ...................... 14, 16 

FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) ............................................................. 34, 39 

Free Speech v. FEC, 720 F.3d 788 (10th Cir. 2013) .................................................................... 42 

Case 1:14-cv-01419-CRC Document 33 Filed 12/22/15 Page 5 of 54
ii 

Human Life of Wash., Inc. v. Brumsickle, 624 F.3d 990 (9th Cir. 2010) .......................... 20, 32, 41 

In re Carter-Mondale Reelection Comm., Inc., 642 F.2d 538 (D.C. Cir. 1980) ........................... 14 

In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000) ........................................................................ 16 

Indep. Inst. v. FEC, 70 F. Supp. 3d 502 (D.D.C. 2014) ................................................................ 33 

Justice v. Hosemann, 771 F.3d 285 (5th Cir. 2014) ............................................................... 21, 22 

*McConnell v. FEC, 540 U.S. 93 (2003) ............................................................................... passim 

McCutcheon v. FEC, 134 S. Ct. 1434 (2014) ................................................................... 19, 23, 24 

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29 (1983) ...................... 14 

N.M. Youth Organized v. Herrera, 611 F.3d 669 (10th Cir. 2010) ........................................ 34, 42 

N.Y. N.Y., LLC v. NLRB, 313 F.3d 585 (D.C. Cir. 2002).............................................................. 14 

*Nat’l Org. for Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011) .............................. 20, 25, 29, 32 

New Hampshire v. Maine, 532 U.S. 742 (2001) ........................................................................... 16 

North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008) ............................ 32, 43 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) ............................................................................ 14 

Public Citizen v. Burke, 843 F.2d 1473 (D.C. Cir. 1988) ............................................................. 15 

*Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544 (4th Cir. 2012) ................... 20, 29, 41, 43 

Rufer v. FEC, 64 F. Supp. 3d 195 (D.D.C. 2014) ........................................................................... 2 

*SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) .......................................... 20, 22, 24, 25 

United States v. Mead Corp., 533 U.S. 218 (2001) ...................................................................... 15 

United States v. Nat’l Comm. for Impeachment, 469 F.2d 1135 (2d Cir. 1972) .......................... 31 

Van Hollen v. FEC, 851 F. Supp. 2d 69 (D.D.C. 2012), .......................................................... 3, 30 

*Vt. Right to Life Comm., Inc. v. Sorrell, 758 F.3d 118 (2d Cir. 2014)................................. passim 

Wis. Right to Life, Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014) .......................................... 32, 33 

Worley v. Fla. Sec’y of State, 717 F.3d 1238 (11th Cir. 2013) ..................................................... 20 

Yamada v. Shoda, No. 15-215, 2015 U.S. LEXIS 7545 (Nov. 30, 2015) .................................... 21 

Case 1:14-cv-01419-CRC Document 33 Filed 12/22/15 Page 6 of 54
iii 

*Yamada v. Snipes, 786 F.3d 1182 (9th Cir. 2015) .................................................... 20, 22, 24, 25 

Statutes

5 U.S.C. § 551 ............................................................................................................................... 13 

26 U.S.C. § 7203 ........................................................................................................................... 23 

28 U.S.C. § 1331 ........................................................................................................................... 13 

52 U.S.C. § 30101 ................................................................................................................. 4, 6, 13 

52 U.S.C. § 30103 ................................................................................................................... 11, 39 

52 U.S.C. § 30106 ......................................................................................................................... 15 

52 U.S.C. § 30109 .................................................................................................................. passim 

52 U.S.C. § 30116 ................................................................................................................... 25, 27 

52 U.S.C. § 30120 ......................................................................................................................... 27 

52 U.S.C. § 30121 ......................................................................................................................... 27 

Bipartisan Campaign Reform Act, 107 Pub. L. No. 155, 116 Stat. 81 (2002) ............................. 26 

D.C. Code § 29-406.40 ................................................................................................................. 23 

Other Authorities

147 Cong. Rec. S2455 (daily ed. Mar. 19, 2001) (Sen. Snowe) ................................................... 26 

148 Cong. Rec. S2141 (daily ed. Mar. 20, 2002) (Sen. McCain) ................................................. 26 

FEC, Political Committee Status, Supplemental Explanation and Justification, 

72 Fed. Reg. 5595 (Feb .7, 2007) ............................................................................. 6, 29, 35, 44 

FEC, Statement of Policy Regarding Commission Action in Matters at the Initial 

State in the Enforcement Process, 72 Fed. Reg. 12545 (Mar. 16, 2007) .................................. 44 

Regulations

11 C.F.R. § 100.5 ............................................................................................................................ 6 

11 C.F.R. § 100.16 .......................................................................................................................... 4 

11 C.F.R. § 100.22 .......................................................................................................................... 4 

11 C.F.R. § 100.29 .......................................................................................................................... 5 

Case 1:14-cv-01419-CRC Document 33 Filed 12/22/15 Page 7 of 54
iv 

11 C.F.R. § 104.3 ............................................................................................................................ 6 

11 C.F.R. § 104.20 ...................................................................................................................... 5, 6 

11 C.F.R. § 109.10 ...................................................................................................................... 3, 5 

11 C.F.R. § 111.9 .......................................................................................................................... 44 

11 C.F.R. § 111.16 ........................................................................................................................ 44 

11 C.F.R. § 111.17 ........................................................................................................................ 44 

26 C.F.R. § 1.6001-1 ..................................................................................................................... 23 

Case 1:14-cv-01419-CRC Document 33 Filed 12/22/15 Page 8 of 54
1 

INTRODUCTION 

This challenge arises from the Federal Election Commission’s (“FEC”) dismissals of 

Plaintiffs’ complaints against the American Action Network (“AAN”) and Americans for Job 

Security (“AJS”) for their failure to register as political committees with the FEC. All of the 

FEC commissioners agreed that AAN’s and AJS’s “express advocacy” (i.e., ads explicitly asking 

voters to “vote for” a candidate or employing similar “magic words”) should count toward 

finding that they were political committees: groups that must disclose their contributors to ensure 

public transparency of campaign funding. Three commissioners (the “controlling 

commissioners”) did not agree, however, that their electioneering communications—ads run 

shortly before an election, aired to tens of thousands of voters in that election, and specifically 

naming a candidate in that election—should also count. These ads included, for example, one 

praising a candidate and condemning her opponent, and another ad touting the actions a 

candidate would take if elected. Nonetheless, the three commissioners concluded that the First 

Amendment barred the FEC from counting such communications toward finding that the groups’ 

“major purpose[s]” were to nominate or elect federal candidates. As they concluded that at least 

50% of a group’s spending over its entire existence must go to express advocacy for it to have 

such a major purpose, they found that AAN and AJS did not qualify as political committees. 

Their votes deadlocked the commission in a three-to-three tie, preventing an FEC investigation; 

consequently, their votes, despite not reflecting a majority of the commission, were controlling. 

Their conclusion, however, is contrary to law, and warrants reversal by this Court. The 

First Amendment provides ample room for disclosure from politically active groups, including 

those groups heavily involved in electioneering communications. Further, any sensible reading 

of Buckley’s “major purpose” test must count electioneering communications as evidence of the 

Case 1:14-cv-01419-CRC Document 33 Filed 12/22/15 Page 9 of 54
2 

group’s political purposes. The public has a vital interest in disclosure of the contributors to a 

group that spends extensively on electioneering communications just as it does with a group that 

spends extensively on “magic words” ads. In addition, a group’s calendar year activities are the 

most relevant to determining the group’s current major purpose, and the group may also use less 

than 50% of its total spending to pursue that purpose. Finally, the FECA requires only a “reason 

to believe,” not conclusive evidence, to begin an investigation. Accordingly, Plaintiffs 

respectfully request this Court grant summary judgment and find that the controlling 

commissioners’ conclusions were contrary to law, in violation of 52 U.S.C. § 30109(a)(8)(C). 

STATEMENT OF FACTS 

A. The Growth of Dark Money Campaign Spending 

As the Supreme Court recognizes, disclosure of campaign spending “permits citizens and 

shareholders to react to the speech of corporate entities in a proper way.” Citizens United v. 

FEC, 558 U.S. 310, 371 (2010). “This transparency enables the electorate to make informed 

decisions and give proper weight to different speakers and messages.” Id. Unfortunately, 

however, campaign spending has only grown more opaque in recent election cycles. 

Before 2006, groups that do not disclose their contributors spent very little money on 

federal elections. Ex. 1.1

 After the Supreme Court decided FEC v. Wisconsin Right to Life in 

2007, lifting the limit on funds for certain kinds of campaign activity, these “dark money” groups 

began to spend heavily. Id. Citizens United further loosened the reins on campaign spending by 

outside groups, and dark money grew to represent more than $135 million in election spending in 

 

1

 Exhibits refer to exhibits attached to the accompanying Declaration of Stuart C. McPhail in Support of Plaintiffs’ 

Motion for Summary Judgment, filed herewith. The court may take notice of these exhibits as they constitute 

“legislative” facts that can aid the Court in its analysis of the First Amendment, federal campaign finance statutes, 

and Buckley’s “major purpose” test. See Rufer v. FEC, 64 F. Supp. 3d 195, 205 (D.D.C. 2014) (noting facts 

underlying efficacy of campaign finance laws were “legislative” facts that a court may consider on appellate 

review); see also Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (“[W]hen a party seeks 

review of agency action under the APA, the district judge sits as an appellate tribunal.”). 

Case 1:14-cv-01419-CRC Document 33 Filed 12/22/15 Page 10 of 54
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2010. Id. Most of that spending, $79.9 million, went to electioneering communications, and by 

the FEC’s own admission, the sources of funds were reported for less than 10% of those ads. See 

Def. FEC’s Answer ¶ 30, Van Hollen v. FEC, No. 1:11-cv-00766(ABJ) (D.D.C. June 21, 2011) 

(Ex. 2). By 2012, dark money spending ballooned to more than $300 million. Ex. 1. This 

represented nearly one third of money spent by outside groups in the 2012 election. Id. In 

Senate races alone, dark money spending doubled from 2010 to 2014, from $105 million to $226 

million. Ex. 3 at 2. In the 11 most competitive Senate races in 2014, dark money groups 

comprised approximately 59% of outside spending. Id.

This spending is only growing. As of September 2015, dark money groups had already 

spent more than $4.6 million in the current presidential election cycle, five-times what such 

groups had spent by this time in the 2012 election. Ex. 4. This spending made up nearly 20% of 

all reported outside spending at that time, up considerably from the 7% of such spending at the 

same time in 2012. Id.

It is no coincidence that dark money spending has increased so significantly: contributors 

are consciously choosing ways to spend money on elections that will not require disclosure. The 

president of Crossroads GPS, one of the largest dark money groups in operation, admitted that 

the “value of confidentiality to some donors” was a major reason for the group’s formation. Ex. 

5. Further, when a court threatened that anonymity by finding that groups funding electioneering 

communications would need to disclose their contributors, spending on electioneering 

communications plummeted and the funds were diverted to express advocacy as contributors for 

such communications could remain hidden under current FEC rules. Ex. 6; see also Van Hollen 

v. FEC, 851 F. Supp. 2d 69, 89 (D.D.C. 2012), rev’d, 694 F.3d 108 (D.C. Cir. 2012); 11 C.F.R. 

Case 1:14-cv-01419-CRC Document 33 Filed 12/22/15 Page 11 of 54
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§ 109.10(e)(vi). That decision was subsequently reversed, allowing money to flow back to 

electioneering communications without risk of disclosure. Ex. 6. 

B. The Dark Money Loophole 

Given the Supreme Court’s assumption that campaign contributions and spending would 

be disclosed, and that disclosure would suffice to address much of the government’s interest 

behind campaign finance laws, it is critical to understand how so much undisclosed money has 

nonetheless flooded our elections. Unfortunately, the FEC’s failure to reasonably interpret and 

enforce the laws has opened a loophole through which massive sums of money have flowed. 

The Federal Election Campaign Act (“FECA”) provides two regimes for disclosure of 

campaign-related communications. First, certain groups classified as political committees must 

regularly file reports disclosing their spending and contributors. Second, everyone, regardless of 

whether they qualify as a political committee, must file a report disclosing some information 

when they engage in either of two types of election-related communications: “independent 

expenditures” and “electoral communications.” 

An “independent expenditure” is an expenditure for a communication “expressly 

advocating the election or defeat of a clearly identified candidate” that is not coordinated with 

the campaign. 52 U.S.C. § 30101(17); 11 C.F.R. § 100.16. The scope of ads that qualify as 

“independent expenditures” is quite narrow. It is limited to “express advocacy”: ads that use 

phrases such as “vote for,” “re-elect,” “Smith for Congress,” “vote against,” etc., or ads that, “in 

context have no other reasonable meaning than to urge the election or defeat of one or more 

clearly identified candidate(s).” 11 C.F.R. § 100.22. 

Under FEC rules, any person spending more than $250 on independent expenditures in a 

calendar year must file a report with the FEC every time that person makes an independent 

expenditure, and the report must disclose “[t]he identification of each person who made a 

Case 1:14-cv-01419-CRC Document 33 Filed 12/22/15 Page 12 of 54
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contribution in excess of $200 to the person filing such report,” but only if the “contribution was 

made for the purpose of furthering the reported independent expenditure.” 11 C.F.R. § 109.10; 

but see 52 U.S.C. § 30104(b)(3)(A), (c)(1), (c)(2)(C). Under the rule, contributions not 

earmarked for a specific independent expenditure need not be reported, regardless of whether the 

donor intended the contribution to help nominate or elect a candidate. 11 C.F.R. § 109.10. 

Aware of the severe limitations of this category, Congress required reporting for a second 

narrow category of election-related communication: “electioneering communications.” 

McConnell v. FEC, 540 U.S. 93, 128–29, 196–97 (2003). Electioneering communications are 

(1) “broadcast, cable, or satellite communication[s]” that (2) “refer[] to a clearly identified 

candidate for Federal office,” (3) are “publicly distributed within 60 days before a general 

election for the office sought by the candidate, or within 30 days before a primary” or similar 

election “for the office sought by the candidate,” and (4) are “targeted to the relevant electorate.” 

11 C.F.R. § 100.29(a); see also 52 U.S.C. § 30109(f)(3). The statue and FEC regulations further 

limit the types of communications treated as electioneering communications. Only ads that reach 

50,000 or more persons are considered “publicly distributed.” 11 C.F.R. § 100.29(b)(3), (5), (7). 

Internet communications, print media, and mailings do not qualify as electioneering 

communications. Id. § 100.29(b)(1), (c)(1). Finally, explicitly excluded are “news stor[ies], 

commentar[ies], and editorial[s] distributed” by anyone other than the political party, political 

committee, or candidate. Id. § 100.29(c)(2). 

Anyone spending more than $10,000 on electioneering communications during a 

calendar year must file a report with the FEC every time they make an electioneering 

communication disclosing various types of contributions, depending on the nature of the entity 

paying for the ad. 11 C.F.R. § 104.20(b), (c)(7)–(9). Most relevant here, under the FEC’s rules, 

Case 1:14-cv-01419-CRC Document 33 Filed 12/22/15 Page 13 of 54
6 

if the electioneering communication is “made by a corporation or a labor organization,” then the 

“name and address of each person who made a donation aggregating $1,000 or more to the 

corporation or labor organization” over the prior calendar year must be disclosed, but again only 

if the donation “was made for the purpose of furthering electioneering communications.” Id.

§ 104.20(c)(9).2 

Consequently, while everyone, including dark money groups, must file disclosures with 

the FEC if they engage in one of two very limited forms of election-related communication, 

under current FEC rules, they need not disclose the actual source of the funds for the ads unless 

the contributions were earmarked for the purpose of airing those particular ads. Contributions 

made for the more general purpose of aiding in the nomination or election of a candidate need 

not be, and are not, reported. 

The rules are different for political committees. Political committees must periodically 

file reports with the FEC that, among other things, identify each person who contributed more 

than $200 to the group in a calendar year. 52 U.S.C. § 30104(b)(3)(A), 11 C.F.R. § 104.3(a). 

There is no requirement that the contribution be earmarked to be disclosed. 

Under the FECA, a group that receives more than $1,000 in “contributions” or makes 

more than $1,000 in “expenditures” in a calendar year for the purpose of influencing a federal 

election is a political committee. 52 U.S.C. § 30101(4); 11 C.F.R. § 100.5(a). The FEC 

interprets “expenditure” in this context to include only money spent on express advocacy. FEC, 

Political Committee Status, Supplemental Explanation and Justification, 72 Fed. Reg. 5595, 5604 

(Feb .7, 2007) (“Supplemental E&J”).3

 In Buckley v. Valeo, however, the Supreme Court added 

 

2

 This rule is currently the subject of a legal challenge in Van Hollen v. FEC, Nos. 15-5016 & 15-5017 (D.C. Cir. 

Jan. 12, 2015). 

3

 The FECA defines a “contribution” as “any gift, subscription, loan, advance, or deposit 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(8)(A). 

Case 1:14-cv-01419-CRC Document 33 Filed 12/22/15 Page 14 of 54
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a second requirement for a group to be a classified as a political committee under the law: that it 

must have as its “major purpose” the “nomination or election of a candidate.” 424 U.S. 1, 79 

(1976). The Court reasoned such a requirement would prevent groups “engaged purely in issue 

advocacy” from being swept up in the definition of political committee. Id. 

Three commissioners have interpreted the “major purpose” test to protect far more than 

“pure[]” issue advocacy groups, however, instead interpreting the test to ensure that only the 

narrowest subset of groups could qualify as political committees. They have substituted the 

Court’s test with one of their own: (1) does a group admit in its “official public statements” or 

“official documents,” or by its “chosen tax status,” that it is a political committee and, (2) if not, 

does it spend a “majority” of its budget over its “lifetime of existence and activities” on “express 

advocacy,” to the exclusion of any and all other campaign-related activities that aid in the 

nomination or election of a candidate? AR 1449, 1456, 1458, 1462, 1701, 1707, 1710, 1714. 

Indeed, according to the controlling commissioners, any sums spent on non-express advocacy 

communications count against finding that the group is a political committee. They treat that 

spending as non-political, adding it to the group’s total spending (the denominator in the test) but 

not the group’s expenditures for the nomination or election of candidates (the numerator). The 

controlling commissioners have steadfastly blocked even an investigation into any group 

(including AAN and AJS) not meeting this overly narrow and unreasonable test, ensuring that 

groups that do not meet their test evade the rigorous disclosure required by the FECA. 

In this way, the three commissioners—in contravention of the law—have opened a 

massive loophole through which millions of dollars in campaign-related spending have flowed. 

So long as a group (1) avoids spending more than 50% of its budget over its existence on express 

advocacy and does not state in its official documents that it is a political committee, and (2) does 

Case 1:14-cv-01419-CRC Document 33 Filed 12/22/15 Page 15 of 54
8 

not accept contributions earmarked for independent expenditures or electioneering 

communications, that group can keep secret the identities of all of its contributors. This allows 

the sources of campaign funds to remain hidden and prevents the public from “mak[ing] 

informed decisions and giv[ing] proper weight to different speakers and messages.” Cf. Citizens 

United, 558 U.S. at 371. 

C. Dark Money is Now Prevalent 

The loophole created by the FEC’s failure to reasonably enforce the FECA has allowed 

dark money groups, including the subjects of this action, to become a formidable force in 

elections. AAN was formed in July 2009 as a tax-exempt social welfare organization under 

§ 501(c)(4) of the Internal Revenue Code (“tax code”). AR 1490. According to reports AAN 

filed with the FEC, between July 23, 2009 and June 30, 2011, it spent at least $18.1 million to 

produce and broadcast ads focused on 29 primary and general elections. AR 1482, 1638, 1649–

55. This figure includes $13,792,875 AAN spent on electioneering communications in 2010 

focusing on approximately 21 races: ads that, according to the controlling commissioners, did 

not demonstrate that AAN’s purpose was to nominate or elect federal candidates. AR 1482, 

1638. Among these ads were some attacking Rep. Ed Perlmutter and Rep. Dina Titus, asserting 

that they voted to provide “convicted rapists” with “Viagra.” AR 1652. The ads urged voters to 

tell the members of Congress “in November”—when they were up for reelection—to vote to 

repeal the law. Id. Similar ads pressed voters to register their displeasure with other candidates 

“in November”: one against Rep. Gerry Connolly for ostensibly “stripp[ing] [taxpayers] bare,” 

one against Rep. Stephanie Herseth Sandlin for providing “health care for illegal immigrants,” 

and another against Rep. Mark Critz for “quit[ting] work and leav[ing] town,” to list only a few. 

AR 1649–54. AAN spent an additional $484,999 on an ad to tout Kelly Ayotte, then a candidate 

for the U.S. Senate, and the fact that she would stop a deal to “[r]aise electric rates” if elected, 

Case 1:14-cv-01419-CRC Document 33 Filed 12/22/15 Page 16 of 54
9 

while her opponent would support it. AR 1679.4

 Combined, AAN’s political ads comprised 

roughly 66.8% of the group’s total spending for the first two years of its existence. AR 1485. 

AAN did not register as a political committee, however, and has not disclosed who paid for any 

of its ads. AR 1482, 1487, 1560.

AJS formed in 1997 as a tax-exempt business league under § 501(c)(6) of the tax code. 

AR 48, 49–50. In 2010, according to reports filed with the FEC, AJS spent approximately $9.5 

million on campaign advertisements, including $4.6 million spent on electioneering 

communications in eight races and that the controlling commissioners refused to attribute toward 

AJS’s major purpose. AR 1393–94. Those electioneering communications included an ad 

promoting Scott Brown, a candidate in the January 19, 2010 special election for a U.S. Senate 

seat in Massachusetts. AR 1404. The ad, aired just four days before the election, praised Mr. 

Brown, stating he would “protect Medicare,” not “raise taxes,” and would “listen to the people, 

not the lobbyists”—things he could do only if elected to federal office. AR 5, 1404. AJS 

produced and aired an electioneering communication attacking William Halter, the lieutenant 

governor of Arkansas and candidate for the U.S. Senate seat in Arkansas for “export[ing] jobs to 

Bangalore” while he was in the private sector, and asked viewers to “tell Bill Halter thanks for 

nothing.” AR 1405. Another ad AJS ran praised Ken Buck, then a candidate for a U.S. Senate 

seat in Colorado, touting his plan to “get Colorado back to work” if viewers elected him. AR 

1428. Another ad boasted of U.S. Senate candidate Pat Toomey’s record as a small 

businessman. AR 1429. 5 Combined, AJS’s political ads comprised approximately 76.5% of 

 

4

 AAN’s other ads similarly opposed or criticized federal candidates close to their elections. AR 1649–55. 5

 AJS’s other ads similarly opposed or criticized (or in two cases, praised) federal candidates close to their elections. 

AR 1404–07. 

Case 1:14-cv-01419-CRC Document 33 Filed 12/22/15 Page 17 of 54
10 

AJS’s total spending in 2010. AR 1433. Nonetheless, AJS did not register as a political 

committee and has not disclosed any of its contributors. AR 48. 

AAN and AJS are far from alone. For example, also active in 2010, Crossroads GPS 

spent approximately $20.8 million on ads to support the election of Republican candidates and 

provided an additional $15.8 million in grants that may have been spent on similar political 

activities. Ex. 7 at 8 n.16, 26. Crossroads GPS assured contributors that they could provide 

unlimited contributions to the group while also allowing the contributors to evade any legally 

mandated disclosure. Ex. 8 ¶ 27.6

 Similarly, a group called the Commission on Hope, Growth 

& Opportunity (“CHGO”) spent approximately $4.05 million, 85% of its budget, in 2010 on ads 

“credited by many for the GOP gaining control of the US House of Representatives.” Ex. 10 at 

17; Ex. 11. Despite these overtly political activities, neither Crossroads GPS nor CHGO 

registered as a political committee, nor have they reported any contributors for their ads. Ex. 9 

(reporting “0” in contributions to the FEC); Ex. 10 at 20. 

Due to the FEC’s inaction, AAN and AJS have become a template for political groups to 

hide political spending. For example, the Kentucky Opportunity Coalition spent more than $13 

million, 67% of its total expenditures in the 2014 election cycle, on ads to reelect Senator Mitch 

McConnell without registering as a political committee or disclosing the source for any of its 

funds. Exs. 12–14. Another organization, Carolina Rising, Inc., despite claiming to be a 

nonpolitical social-welfare organization, was admittedly started “to sort of help the conservatives 

and the Republicans in North Carolina.” Exs. 15, 16. Indeed, in a moment of candor, the 

group’s president admitted that Carolina Rising spent $4.7 million on ads “to get [Thom Tillis] 

 

6

 Crossroads GPS has remained active, spending more than $70 million in 2012 on express advocacy, Ex. 9 at 2, and 

$26 million in the 2014 elections, id. at 3. 

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11 

elected” to the U.S. Senate. Exs. 16, 17. Nevertheless, like AAN and AJS, Carolina Rising 

never registered as a political committee nor disclosed its contributors. Ex. 18. 

Lastly, the activities of these purported non-political committees have not gone unnoticed 

by candidates. For example, an investigation into Wisconsin Governor Scott Walker’s activities 

uncovered evidence that the governor sought contributions for an ostensibly nonpolitical 

organization to be used in his fight against a recall campaign. Ex. 19.7

 The governor apparently 

stressed to donors that contributions to the organization “are not disclosed” and that it could 

“accept corporate donations without limits.” Id. (quoting June 2011 email to Governor Walker). 

Clearly, Governor Walker viewed contributions to dark money groups as valuable as 

contributions to his campaign, a view likely shared by those candidates aided by AAN and AJS, 

with the additional benefit that they were shielded from any disclosure or contribution limits. 

D. Procedural History 

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

against AJS for violations of the FECA (“MUR 6548”). AR 1–13. The complaint alleged that 

AJS’s extensive political spending demonstrated that its major purpose was the nomination or 

election of a candidate, and thus that AJS violated 2 U.S.C. § 433 (now 52 U.S.C. § 30103) by 

failing to register as a political committee. Id. Thereafter, Plaintiffs filed a complaint against 

AAN on June 7, 2012 (“MUR 6589”), similarly alleging AAN’s extensive political spending 

demonstrated that it should have registered as a political committee. AR 1480–87. 

The FEC’s Office of the General Counsel (“OGC”) issued reports on both AAN and AJS 

and recommended finding reason to believe that each organization violated the FECA. AR 

1390–1433, 1635–84. The reports found that AAN and AJS each met the statutory requirement 

 

7

 Although the group in question was focused on a state election and therefore would not fall under the FEC’s 

jurisdiction, it is reasonable to assume that such activities are rampant in the federal arena. 

Case 1:14-cv-01419-CRC Document 33 Filed 12/22/15 Page 19 of 54
12 

for registration as a political committee by meeting the $1,000 expenditure threshold. AR 1401, 

1645–66. Turning to their major purposes, the OGC found that the “overall conduct” of each 

organization was “alone sufficient to establish that [their] major purpose in 2010 was the 

nomination or election of federal candidates.” AR 1402, 1646. Applying a test focused on the 

group’s spending on federal campaign activity in a calendar year, the OGC found AJS spent at 

least $9.5 million in 2010 on federal campaign activity, about 76.5% of its total spending for the 

year. AR 1411. Applying the same test to AAN, the OGC found AAN spent at least $17 million 

on federal campaign activity, about 62.6% of its total spending in 2010. AR 1659. 

Despite these recommendations, the Commission deadlocked on both complaints on June 

24, 2014. AR 1434, 1686. The same three commissioners voted against the OGC’s 

recommendation in both cases, and their statements of reasons are nearly identical for each. 

Compare AR 1438–69 with AR 1690–1723. To explain their vote, the controlling 

commissioners, purporting to interpret the First Amendment, first criticized the FECA’s political 

committee provisions as “weighty” and “extensive” constitutional burdens. AR 1444, 1696 

(calling political committee status a “First Amendment impingement[]”). They then interpreted 

Buckley’s “major purpose” test to allow for only an exceedingly narrow application of the 

FECA’s political committee provisions: only those groups that devote more than half of their 

spending over the course of their existence to express advocacy need register as political 

committees and disclose their contributors. AR 1444–54, 1461–63, 1696–1705, 1713–15. The 

controlling commissioners gave no consideration to the public’s interest in the transparency of 

groups spending heavily on electioneering communications in combination with express 

advocacy. Rather, the controlling commissioners concluded that the only relevant 

communications that counted toward qualifying a group as a political committee were those with 

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13 

“magic words” like “vote for” or “vote against” a particular candidate. AR 1450–54, 1701–05. 

Excluded were electioneering communications; indeed, under the controlling commissioners’ 

test, such ads count against finding that the group qualified as a political committee. Id.; AR 

1457, 1709 (comparing total expenditures, including sums spent on electioneering 

communications, to sums spent on express advocacy). The controlling commissioners then 

compared that overly narrow sum to an overly broad category of spending: AAN and AJS’s total 

spending over their entire existence (which, in AJS’s case, included more than a decade of 

activity), rather than the far more relevant spending in the past calendar year. AR 1457, 1708. 

Finding that AAN and AJS did not devote more than half of their spending over their 

existence to express advocacy, the controlling commissioners concluded that the First 

Amendment barred applying the FECA’s political committee disclosure requirements to them. 

AR 1456–58, 1708–09.8

 Because the FEC was deadlocked and could not proceed with an 

investigation, it voted to dismiss the complaints. AR 1434, 1686. 

Thereafter, plaintiffs brought this suit pursuant to 2 U.S.C. § 437g(a)(8) (now codified as 

52 U.S.C. § 30109(a)(8)) in federal court on August 20, 2014. 

ARGUMENT 

A. Jurisdiction 

This action arises under the Federal Election Campaign Act of 1971 (“FECA”), 52 

U.S.C. § 30101 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq. 

This Court has jurisdiction pursuant to 52 U.S.C. § 30109(a)(8)(A) and 28 U.S.C. § 1331. 

 

8

 The controlling commissioners further found AAN and AJS were not organized for the purpose of nominating or 

electing federal candidates simply because the groups did not admit to such a purpose in certain public documents or 

in their response to the FEC. AR 1455–56, 1706–07. 

Case 1:14-cv-01419-CRC Document 33 Filed 12/22/15 Page 21 of 54
14 

B. Standard of Review 

1. General Standard of Review 

A court reviews an FEC decision to dismiss a complaint to determine whether it is 

“contrary to law.” 52 U.S.C. § 30109(a)(8)(C); Democratic Cong. Campaign Comm. v. FEC, 

831 F.2d 1131, 1133 (D.C. Cir. 1987) (finding dismissals resulting from deadlocked FEC votes 

are subject to judicial review). “The FEC’s decision is ‘contrary to law’ if (1) the FEC dismissed 

the complaint as a result of an impermissible interpretation of the Act, or (2) the FEC’s dismissal 

of the complaint, under a permissible interpretation of the statute, was arbitrary or capricious, or 

an abuse of discretion.” Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986) (internal citations 

omitted). In deciding whether an action is “arbitrary or capricious, [or] an abuse of discretion,” 

courts employ the same standard as under the APA. In re Carter-Mondale Reelection Comm., 

Inc., 642 F.2d 538, 550–51, 551 n.6 (D.C. Cir. 1980) (Wald, J., concurring). If an agency has 

changed its position, it must provide a satisfactory explanation why. Motor Vehicle Mfrs. Ass’n 

v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 42 (1983). A court evaluating a dismissal 

analyzes the reasons provided by the commissioners who refused to find reason to believe a 

violation occurred as they represent the group that prohibited the FEC from going forward. FEC 

v. Nat’l Republican Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992). 

2. De Novo Review of Controlling Commissioners’ Interpretations of Law 

When interpreting statutes and regulations over which they have congressionally 

conferred authority, agencies normally receive deference for their decisions under Chevron 

U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Agencies, however, 

have no particular expertise in analyzing the Constitution or judicial precedent. Accordingly, 

courts afford such interpretations no deference. See N.Y. N.Y., LLC v. NLRB, 313 F.3d 585, 590 

(D.C. Cir. 2002) (“We are not obligated to defer to an agency’s interpretation of Supreme Court 

Case 1:14-cv-01419-CRC Document 33 Filed 12/22/15 Page 22 of 54
15 

precedent under Chevron or any other principle.” (internal quotation marks omitted)); Public 

Citizen v. Burke, 843 F.2d 1473, 1478 (D.C. Cir. 1988) (“The federal Judiciary does not, 

however, owe deference to the Executive Branch’s interpretation of the Constitution.”); see also 

Akins v. FEC, 101 F.3d 731, 740 (D.C. Cir. 1996) (en banc) (refusing Chevron deference to 

FEC’s interpretation of “major purpose” because it derived from Supreme Court precedent and 

constitutional law), vacated on other grounds, 524 U.S. 11 (1998). A review of the controlling 

commissioners’ statements of reasons shows that, in refusing to allow an investigation to 

proceed, they sought to interpret the requirements of the First Amendment and the “major 

purpose” test outlined in Buckley. See, e.g., AR 1443–44, 1694–96. Consequently, the question 

before the court is whether the controlling commissioners’ interpretation of the “major purpose” 

test is contrary to the “major purpose” test required by law, as determined de novo by this court. 

Further, even if the controlling commissioners were interpreting the FECA or the FEC’s 

own regulations—issues to which Chevron deference might typically apply—the Court need not 

defer to the controlling commissioners’ interpretation. Chevron deference is limited to actions 

by the agency within the scope of its authority. City of Arlington v. FCC, 133 S. Ct. 1863, 1874 

(2013); United States v. Mead Corp., 533 U.S. 218, 226–27 (2001) (Chevron deference limited 

to agency actions having “force of law”); Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000) 

(same). Here, the vote of three commissioners is insufficient to exercise the authority of the 

FEC. 

By congressional design, the FEC has authority to act only when four members of the 

commission agree. See 52 U.S.C. § 30106(c). While three members of the commission may 

stymie FEC action, requiring a court to review their statement of reasons to determine whether 

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the commission’s failure to act is “contrary to law,” such statement would not express the legally 

authorized interpretation of the FEC: 

[A] statement of reasons [of the three controlling commissioners] 

would not be binding legal precedent or authority for future cases. 

The statute clearly requires that for any official Commission 

decision there must be at least a 4-2 majority vote. To ignore this 

requirement would be to undermine the carefully balanced 

bipartisan structure which Congress has erected. 

Common Cause v. FEC, 842 F.2d 436, 449 n.32 (D.C. Cir. 1988).9

 

Finally, the FEC cannot claim Chevron deference in this action because it is judicially 

estopped from doing so. The FEC represented to the Court earlier in this litigation that the 

controlling commissioners could not exercise the legal authority of the FEC—a prerequisite for 

Chevron deference—and were awarded the relief they sought. They may not take a different 

position now. See New Hampshire v. Maine, 532 U.S. 742, 749–50 (2001).10 

C. The Dismissals of Plaintiffs’ Complaints Were Contrary to Law 

The FEC dismissed Plaintiffs’ complaints against AAN and AJS because the three 

controlling commissioners refused to find reason to believe the groups were political 

 

9

 While In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000), found deference is owed to a three-vote panel of the FEC, 

see id. at 779–80, that case involved a peculiar situation in which the DOJ sought to enforce a subpoena based on an 

interpretation of the FECA, see id. at 777, not one in which a court has been called to review the controlling 

commissioners’ statement of reasons. Further, its conclusion is unsupported and runs contrary to the precedent on 

which it purports to rely. In particular, In re Sealed Case rests its conclusion on FEC v. National Republican 

Senatorial Committee, 966 F.2d 1471 (D.C. Cir. 1992), but that case explicitly stated that it was not considering 

whether a particular interpretation was permissible, see id. at 1478, and therefore did not purport to apply Chevron. 

Nor does In re Sealed Case discuss the prior decision in Common Cause v. FEC, quoted above. 10 In moving to dismiss part of Plaintiffs’ complaint, the FEC represented that “[a] statement of three

Commissioners explaining their rationale for voting not to pursue an investigation or other enforcement action in a 

particular administrative enforcement matter does not—and by statute cannot—establish any policy or regulation on 

behalf of the Commission.” Def.’s Mot. to Dismiss at 16, ECF No. 5. Consequently, the FEC argued, Plaintiffs 

could not challenge the decision of the three commissioners under the APA. Id. The Court agreed with Plaintiffs 

and dismissed Plaintiffs’ APA claims. See Order (Aug. 13, 2015), ECF No. 19. To receive Chevron deference, 

however, the agency action in question must carry the force of law, i.e., it must be a “policy or regulation” 

promulgated “on behalf of the Commission.” See Christensen, 529 U.S. at 587. As the FEC has already admitted 

that the statement of the three commissioners lack force of law—and thus warrants no Chevron deference—and the 

FEC was afforded the relief it sought on the basis of that argument, the FEC is now judicially estopped from 

adopting a different position. See New Hampshire, 532 U.S. at 749–50. 

Case 1:14-cv-01419-CRC Document 33 Filed 12/22/15 Page 24 of 54
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committees, deadlocking the commission. But the controlling commissioners’ reasons for 

refusing to find reason to believe are based on impermissible interpretations of the law. First, 

they impermissibly interpreted the First Amendment to bar disclosure from any group that did 

not meet the narrowest definition of political committee: one that is primarily engaged in the 

creation and dissemination of express advocacy communications. Courts routinely find, 

however, that the First Amendment permits disclosure of political spending. Second, they 

impermissibly interpreted Buckley’s “major purpose” test to treat electioneering communications 

as irrelevant to determining a group’s major purpose. Electioneering communications, however, 

unquestionably serve the purpose of nominating or electing federal candidates, and courts and 

Congress understand a group’s electioneering communications to be equally political as express 

advocacy. Third, the controlling commissioners impermissibly interpreted the “major purpose” 

test to require an evaluation of a group’s activities over its entire existence, despite the reality 

that groups’ purposes often evolve. Fourth, the controlling commissioners impermissibly 

interpreted the “major purpose” test to require that relevant spending equate to 50% of a group’s 

total spending, despite such a standard fostering evasion and frustrating the purposes of the 

FECA. These interpretations were impermissible and, thus, the dismissals were contrary to law. 

1. The First Amendment Allows Ample Room for Disclosure of Campaign 

Spending 

In refusing to find reason to believe that either AAN or AJS failed to register and file 

disclosure reports as a political committee, the three controlling FEC commissioners largely 

relied on the First Amendment and judicial opinions applying it to conclude that disclosure was 

constitutionally suspect. For example, the controlling commissioners interpreted “political 

committee” to cover an exceedingly narrow category of groups “to ensure that issue advocacy 

groups are not chilled from engaging in First Amended-protected speech and association” by the 

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“weighty” and “extensive” registration, organization, and disclosure burdens. AR 1444, 1696 

(calling political committee status a “First Amendment impingement[]”). They asserted that 

requiring disclosure from “issue groups”—groups not meeting that exceedingly narrow 

definition—is not “constitutionally acceptable.” AR 1447, 1699. They also expressed “grave 

constitutional doubt” about the OGC’s method for determining whether a group’s major purpose 

qualified it as political committee. AR 1460, 1712. The controlling commissioners’ 

understanding of the First Amendment, however, has no basis in the Constitution and is 

foreclosed by precedent. Laws mandating disclosure of campaign spending, including those 

mandating disclosure of the contributors behind electioneering communications and disclosure 

premised on a group’s political committee status, routinely have been upheld as constitutional. 

The controlling commissioners’ view that disclosure conflicts with the First Amendment 

is simply false. “The First Amendment protects political speech; and disclosure permits citizens 

and shareholders to react to the speech of corporate entities in a proper way.” Citizens United, 

558 U.S. at 371. Disclosure serves a vital public interest, yet “impose[s] no ceiling on campaignrelated activities,” Buckley, 424 U.S. at 64, and does “not prevent anyone from speaking,” 

McConnell, 540 U.S. at 201. It “helps voters to define more of the candidates’ constituencies” 

and is “a reasonable and minimally restrictive method of furthering First Amendment values by 

opening the basic processes of our federal election to public view.” Buckley, 424 U.S. at 81–82.

[D]isclosure provides the electorate with information as to where 

political campaign money comes from and how it is spent by the 

candidate in order to aid the voters in evaluating those who seek 

federal office. It allows voters to place each candidate in the 

political spectrum more precisely than is often possible solely on the 

basis of party labels and campaign speeches. The sources of a 

candidate’s financial support also alert the voter to the interests to 

which a candidate is most likely to be responsive and thus facilitate 

predictions of future performance in office. 

Id. at 66–67 (internal quotation marks omitted); see also McCutcheon v. FEC, 134 S. Ct. 1434, 

Case 1:14-cv-01419-CRC Document 33 Filed 12/22/15 Page 26 of 54
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1459 (2014) (“[D]isclosure of contributions minimizes the potential for abuse of the campaign 

finance system.”); Doe v. Reed, 561 U.S. 186, 228 (2010) (Scalia, J., concurring) (concurring in 

eight to one judgment upholding disclosure identities of individuals signing ballot initiative, 

stating “[r]equiring people to stand up in public for their political acts fosters civic courage, 

without which democracy is doomed”); Citizens United, 558 U.S. at 366–371 (stating 

“transparency enables the electorate to make informed decisions and give proper weight to 

different speakers and messages”; finding disclosure triggers a lesser form of scrutiny than the 

strict scrutiny that applies to bans on campaign speech). 

Those interests are not limited to disclosure of contributors who support activities and 

communications that expressly advocate the election or defeat of candidates. They are equally 

served by disclosure of electioneering communications, a category of communications first 

defined by the Bipartisan Campaign Reform Act (“BCRA”): 

[T]he important state interests that prompted the Buckley Court to 

uphold FECA’s disclosure requirements—providing the electorate 

with information, deterring actual corruption and avoiding any 

appearance thereof, and gathering the data necessary to enforce 

more substantive electioneering restrictions—apply in full to 

BCRA. Accordingly, Buckley amply supports application of FECA 

§ 304’s disclosure requirements to the entire range of 

“electioneering communications.” 

McConnell, 540 U.S. at 196 (discussing FECA § 304, codified as amended as 52 U.S.C. § 30104, 

the provision of the FECA that includes political committee reporting; upholding disclosure of 

electioneering communications by a vote of eight to one); see also id. at 126–29, 196–97, 231 

(discussing constitutionality of electioneering communications regulation). 

Disclosure by political committees is an essential means to fulfill the public’s interest in 

campaign transparency, an interest that amply supports the modest registration and 

organizational burdens imposed on such groups. See Burroughs v. United States, 290 U.S. 534, 

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541–42, 548 (1934) (finding “public disclosure” of political committee contributors “tend[s] to 

prevent the corrupt use of money to affect elections”); see also Buckley, 424 U.S. at 67 (citing 

Burroughs with approval); McConnell, 540 U.S. at 223–24 (same). A majority of the courts of 

appeals, including the D.C. Circuit, have upheld contributor disclosure provisions under both 

FECA and comparable state laws, including laws that have broadly defined “political 

committee.”11 Indeed, in May, the Ninth Circuit upheld Hawaii’s political committee disclosure 

law against a First Amendment challenge. See Yamada v. Snipes, 786 F.3d 1182, 1185 (9th Cir. 

2015). The law defined political committee to include any group making more than $1,000 in 

expenditures over two years, regardless of whether the group has a major purpose of influencing 

an election, see id. at 1195, 1200–01, a far broader category than covered by the FECA, 

regardless of how electioneering communications are treated. The plaintiff appealed the Ninth 

Circuit’s holding to the Supreme Court, arguing that Hawaii’s political committee 

 

11 See, e.g., Vt. Right to Life Comm., Inc. v. Sorrell, 758 F.3d 118, 134–39 (2d Cir. 2014) (“VRTLC”), cert. denied, 

135 S. Ct. 949 (2015) (upholding disclosure law defining political committee as any group spending more than 

$1,000 in two years to support or oppose a candidate; rejecting argument that political committee status must be 

limited to groups with a “major purpose” to influence elections); Catholic Leadership Coal. of Tex. v. Reisman, 764 

F.3d 409, 414–15 (5th Cir. 2014) (upholding disclosure law that defined political committee to include any group 

which engages in “some” activities that “support[] or oppos[e]” a candidate); Worley v. Fla. Sec’y of State, 717 F.3d 

1238, 1240, 1253 (11th Cir. 2013), cert. denied, 134 S. Ct. 529 (2013) (upholding law applying political committee 

status to, and requiring attendant disclosures by, groups that raise contributions or spend “more than $500 in a year 

to expressly advocate the election or defeat of a candidate”); Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544, 

555–57 (4th Cir. 2012) (“RTAA”), cert. denied, 133 S. Ct. 841 (2013) (rejecting argument that FECA’s political 

committee status must be determined by looking to whether “campaign-related speech amounts to 50% of all 

expenditures”); Ctr. for Individual Freedom v. Madigan, 697 F.3d 464, 470–71, 491 (7th Cir. 2012) (upholding 

disclosure law that defined political committee to include any groups that spent more than $3,000 on ads that met 

definition “almost verbatim” of electioneering communications under federal law); Nat’l Org. for Marriage v. 

McKee, 649 F.3d 34, 42, 54–57, 59 (1st Cir. 2011), cert. denied, 132 S. Ct. 1635 (2012) (upholding disclosure law 

for political committees even though law did not require a political committee have a “major purpose” of 

influencing an election); Human Life of Wash., Inc. v. Brumsickle, 624 F.3d 990, 1008–12 (9th Cir. 2010), cert. 

denied, 562 U.S. 1217 (2011) (upholding disclosure statute that defined political committee as a group with a 

“primary or one of the primary purposes” to “affect, directly or indirectly, governmental decision making by 

supporting or opposing candidates”); SpeechNow.org v. FEC, 599 F.3d 686, 698 (D.C. Cir. 2010), cert. denied,

Keating v. FEC, 562 U.S. 1003 (2010) (upholding FECA’s political committee organization and reporting 

requirements for group engaged in express advocacy); see also Del. Strong Families v. Att’y Gen. of Del., 793 F.3d 

304, 307, 313 (3d Cir. 2015) (upholding disclosure law that required any group spending more than $500 on an 

electioneering communication to disclose all contributors to it within the past year). 

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requirements—which encompassed registration, appointment of a treasurer, record keeping, and 

filing of disclosure reports, including reports disclosing contributors—were overly burdensome 

and unsupported by precedent upholding one-time, event-driven disclosure: precisely the 

arguments made by the controlling commissioners here. See Pet. for Cert. 13, Yamada v. Snipes, 

No. 15-215 (Aug. 14, 2015) (Ex. 20). The Supreme Court nevertheless refused to hear the 

plaintiff’s challenge. Yamada v. Shoda, No. 15-215, 2015 U.S. LEXIS 7545 (Nov. 30, 2015).12 

Similarly, the Second Circuit upheld a state campaign finance law that defined political 

committee to include any group that spent more than $1,000 over two years on ads that 

“support[] or oppose[]” a candidate, even if the ads did not constitute express advocacy, and 

even though the law applied no major purpose test at all. See VRTLC, 758 F.3d at 123–25, 128–

29, 136. The appellate court found that, “[b]y requiring that entity to meet reporting and 

organizational requirements, Vermont can ensure that the underlying speaker is revealed.” Id. at 

138. The Fifth Circuit reached the same conclusion when it upheld against a constitutional 

challenge a Mississippi campaign finance law that required groups to, among other things, 

appoint treasurers and file disclosure reports if they spent $200 to influence an election. Justice 

v. Hosemann, 771 F.3d 285, 288–89 (5th Cir. 2014). The court found that “Mississippi is not 

asking groups to adopt a complex structure; instead, it is asking them to do little more than 

 

12 The controlling commissioners rely on FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) (“MCFL”), to 

conclude that disclosure may be sought only from groups primarily engaged in express advocacy, AR 1448, 1699, 

but that case does not undermine the Supreme Court’s support for political committee disclosure. At issue in MCFL

was a ban on corporate speech and the question whether that ban placed an unjustified burden on a corporation not 

faced by other speakers simply due to its corporate status. See 479 U.S. at 251–52. The Court noted that it did, and 

one such burden included the need to create a separate political committee if it chose to engage in any political 

advocacy, a burden not faced by unincorporated speakers. See id. at 254 (noting MCFL would be subject to “more 

extensive requirements” than if it was unincorporated). But AAN and AJS need not create a separate political 

committee to speak so long as they register as political committees themselves, a burden faced by any group meeting 

the FECA’s political committee definition. 

Case 1:14-cv-01419-CRC Document 33 Filed 12/22/15 Page 29 of 54
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anything a prudent person or group would do in these circumstances anyway.” Id. at 300 

(internal quotation marks omitted). 

As these cases demonstrate, the First Amendment permits political committee 

registration, organization, and disclosure obligations to apply to a group simply because it spends 

$1,000 on express advocacy over two years, without regard to its major purpose. Accordingly, 

the First Amendment also permits these obligations to apply to a group that, in a year, spends 

more than $4.9 million on express advocacy and more than $4.5 million on electioneering 

communications (AJS), AR 1393–94, or that spends more than $4 million on express advocacy 

and more than $13 million on electioneering communications (AAN), AR 1638. 

Further, as these cases demonstrate, the organizational “burdens” that come with political 

committee status do not, as the controlling commissioners contend, impinge on the First 

Amendment. Those requirements are reasonable and substantially related to important 

government interests: accurate disclosure of political committee expenditures and contributions 

to voters would necessarily be frustrated if groups provided inaccurate information. See

Yamada, 786 F.3d at 1195–97; VRTLC, 758 F.3d at 138; Hosemann, 771 F.3d at 300. Indeed, 

the D.C. Circuit has expressly upheld the FECA’s organizational requirements against First 

Amendment challenge, noting that “[t]he Supreme Court has consistently upheld [the FECA’s] 

organizational and reporting requirements against facial challenges.” SpeechNow, 599 F.3d at 

696. The D.C. Circuit found that “the organizational requirements that SpeechNow protests, 

such as designating a treasurer and retaining records, [do not] impose much of an additional 

burden upon SpeechNow.” Id. at 697. 

Indeed, both AAN and AJS have tax-exempt status under § 501(c) of the tax code, and 

the IRS already imposes strict requirements on such groups. They must, for example, “keep . . . 

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23 

permanent books of account or records . . . sufficient to show specifically the items of gross 

income, receipts and disbursements,” and records “required to substantiate the information” on 

its annual return. 26 C.F.R. § 1.6001-1(c). Failing to keep these records or filing false 

information with the IRS can result in criminal penalties. 26 U.S.C. § 7203.13 

Moreover, courts have not only upheld campaign finance disclosure in the face of 

challenge, they have continually relied on the availability of disclosure to find that other, more 

restrictive, forms of campaign finance regulation were not the least restrictive means to achieve 

the government’s interest. For example, in Buckley, the Court noted that “[t]he interest in 

alleviating the corrupting influence of large contributions is served by the Act’s contribution 

limitations and disclosure provisions rather than by § 608(c)’s campaign expenditure ceilings.” 

424 U.S. at 55; see also id. at 68 (noting “disclosure requirements . . . appear to be the least 

restrictive means of curbing the evils of campaign ignorance and corruption that Congress found 

to exist”). In Citizens United, after striking down the ban on corporate-funded independent 

expenditures, the Court opined that modern disclosure capabilities would be sufficient to satisfy 

the government’s interests. See 558 U.S. at 370 (“With the advent of the Internet, prompt 

disclosure of expenditures can provide shareholders and citizens with the information needed to 

hold corporations and elected officials accountable for their position and supporters.”); id. at 369 

(“[D]isclosure is a less restrictive alternative to more comprehensive regulations of speech.”). 

And in McCutcheon v. FEC, Chief Justice Roberts, writing for the Court, extolled the virtues of 

disclosure, finding that it “often represents a less restrictive alternative to flat bans on certain 

types or quantities of speech.” See 134 S. Ct. at 1459–60. Indeed, the Court relied on the risk 

created by the aggregate contribution limits that disclosure may be evaded, as the limits might 

 

13 Further, state laws often require nonprofits to appoint a treasurer. See, e.g., D.C. Code § 29-406.40(a). 

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encourage donations to dark money organizations not subject to them, as a reason to strike down 

those limits. See id.

Finally, any suggestion that disclosure driven by political committee status is 

constitutionally different than the one-time disclosure driven by the incident of communication is 

mistaken. The Supreme Court, D.C. Circuit, and the majority of other circuit courts have not 

limited voters’ interest in disclosure to one-time events, but, rather, have routinely upheld 

political committee disclosure requirements on the grounds that they provide a vital public 

service. See, e.g., Burroughs, 290 U.S. at 548; Yamada, 786 F.3d at 1194–1201; Reisman, 764 

F.3d at 440; VRTLC, 758 F.3d at 134–39; SpeechNow, 599 F.3d at 697–98. Further, reporting 

contributions specifically earmarked for particular campaign communications—the only 

contributions that need be disclosed under the FEC’s interpretation of event-driven disclosure 

law—simply fails to capture the full scope of contributions made for the purpose of nominating 

or electing federal candidates, about which the public has a substantial interest in learning. 

Contributors to groups like AAN and AJS—and other dark money groups that spend heavily on 

federal campaign activity, regardless of whether the majority of the money goes to express 

advocacy—can expect their money will be used to elect (or defeat) one or more candidates; they 

did not need to earmark it for that purpose. 

Simply put, the voting public’s substantial interest in disclosure extends not only to 

disclosure in light of particular instances of campaign spending, but also to disclosure as to those 

groups through which campaign money flows. The burdens imposed by the law on political 

committees are reasonable and tailored to the important interests served. The First Amendment 

affords ample room for disclosure by groups like AAN and AJS that are engaged in campaign 

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activity beyond mere express advocacy, and the controlling commissioners’ conclusions 

otherwise were contrary to law. 

2. Groups’ Electioneering Communications Are Relevant in Determining their 

“Major Purpose” 

Citing their mistaken First Amendment concerns, the controlling commissioners 

interpreted the “major purpose” test to capture only those groups who spend a majority of their 

budget on express advocacy, to the exclusion of all other campaign activity, including 

electioneering communications. AR 1450–54, 1701–05 (treating all non-express advocacy as 

constitutionally protected “issue speech” that cannot trigger political committee status). But the 

public’s interest in disclosure is not limited to express advocacy and groups that spend more than 

50% of their expenditures on express advocacy. Congressional intent, Supreme Court precedent, 

and common practice demonstrate that electioneering communications are similarly instructive 

as to whether a group’s major purpose is the nomination or election of a candidate. There is no 

basis to exclude electioneering communications from the “major purpose” analysis as the 

controlling commissioners have done. Had the controlling commissioners counted AAN’s and 

AJS’s electioneering communications, they would have been forced to conclude that the groups 

satisfied Buckley’s “major purpose” test as their activity to nominate or elect federal candidates 

would have consisted of at least 60% (AAN) and more than 75% (AJS) of their expenditures for 

the year.14 

 

14 Indeed, it is questionable whether the “major purpose” test is still necessary. Buckley created the test as a way to 

limit the impact of political committee status when that status resulted in strict contribution and expenditure limits. 

See 52 U.S.C. § 30116(a)(1), (a)(2). These limits, however, no longer apply at least to non-coordinated political 

committees, see SpeechNow, 599 F.3d at 696, undermining the need for a major purpose test. See Yamada, 786 F.3d 

at 1200–01 (finding “major purpose” test not required by Constitution); VRTLC, 758 F.3d at 136 (same); Madigan, 

697 F.3d at 490 (same); Nat’l Org. for Marriage, 649 F.3d at 59 (same). 

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a) Electioneering Communications Are as Relevant as Express Advocacy to the 

Analysis of a Group’s Major Purpose 

Congress first ordered the reporting of electioneering communications in 2002 as a way 

to capture campaign activity that was evading disclosure. See BCRA, 107 Pub. L. No. 155, 

§ 201, 116 Stat. 81, 88 (2002). This narrow category of communications—encompassing only 

widely distributed broadcast ads airing shortly before an election that clearly identify a candidate 

but eschew the “magic words” that would trigger express advocacy regulations—became a 

favorite of organizations trying to skirt campaign finance law, having just as much (if not more) 

impact as traditional express advocacy on the electorate. See McConnell, 540 U.S. at 126–27. 

As the congressional record reflects, these communications “constitute[d] campaigning every bit 

as much as . . . any ad currently considered to be express advocacy and therefore subject to 

Federal election laws.” 147 Cong. Rec. S2455 (daily ed. Mar. 19, 2001) (Sen. Snowe).15 

Accordingly, regulating electioneering communications “serve[d] the very purposes that underlie 

the preexisting independent expenditure provisions: bringing campaign spending of the ‘issue’ 

ad variety within the scope of [the] longstanding source and disclosure rules” that already 

governed express advocacy. Br. of Intervenor-Defs. 60 n.48, McConnell, 540 U.S. 93 (2003) 

(Ex. 23). 

In enacting the FECA, Congress clearly recognized the comparable political impact of 

electioneering communications and express advocacy. Both trigger disclosure provisions and 

both can be deemed contributions if they are conducted in a coordinated fashion. Compare 52 

 

15 See also 148 Cong. Rec. S2141 (daily ed. Mar. 20, 2002) (Sen. McCain) (“This bill would simply subject soft 

money-funded campaign ads that masquerade as issue discussion to the same laws that have long governed 

campaign ads.”); Comments of Sen. McCain et al. at 3, Notice 2002-13 (FEC Aug. 23, 2002) (Ex. 21) (“[I]n 

general, reporting for electioneering communications should be analogous to reporting for independent 

expenditures.”); Def.-Intervenors’ Excerpts of Br. of Defs. I-96, McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 

2003 (Ex. 22) (arguing that electioneering communication disclosure rules “are just the types of rules that FECA has 

long imposed on ‘independent expenditures’ that ‘expressly advocat[e]’ the election or defeat of a federal 

candidate”). 

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U.S.C. § 30116(a)(7)(B) (coordinated expenditures, including express advocacy, to be treated as 

contributions) with 52 U.S.C. § 30116(a)(7)(C) (coordinated electioneering communications to 

be treated as contributions). Both sets of communications also must carry disclaimers 

identifying the entity responsible for paying for the ads. 52 U.S.C. § 30120(a). Foreign 

nationals are barred from funding either type of communication. 52 U.S.C. § 30121(a)(1)(C). 

The Supreme Court similarly recognized the interest in identifying the sponsors behind 

electioneering communications—often labeled “issue advocacy” by their authors—and express 

advocacy, rejecting the argument that the “First Amendment erects a rigid barrier between 

express advocacy and so-called issue advocacy.” McConnell, 540 U.S. at 193; see also Citizens 

United, 558 U.S. at 368–69 (“[W]e reject Citizens United’s contention that the disclosure 

requirements must be limited to speech that is the functional equivalent of express advocacy.”). 

The Court wrote: 

While the distinction between “issue” and express advocacy seemed 

neat in theory, the two categories of advertisements proved 

functionally identical in important respects. Both were used to 

advocate the election or defeat of clearly identified candidates, even 

though the so-called issue ads eschewed the use of magic words. 

Little difference existed, for example, between an ad that urged 

viewers to “vote against Jane Doe” and one that condemned Jane 

Doe’s record on a particular issue before exhorting viewers to “call 

Jane Doe and tell her what you think.” Indeed, campaign 

professionals testified that the most effective campaign ads, like the 

most effective commercials for products such as Coca-Cola, should, 

and did, avoid the use of the magic words. Moreover, the conclusion 

that such ads were specifically intended to affect election results was 

confirmed by the fact that almost all of them aired in the 60 days 

immediately preceding a federal election. Corporations and unions 

spent hundreds of millions of dollars of their general funds to pay 

for these ads, and those expenditures, like soft-money donations to 

the political parties, were unregulated under FECA. Indeed, the ads 

were attractive to organizations and candidates precisely because 

they were beyond FECA’s reach, enabling candidates and their 

parties to work closely with friendly interest groups to sponsor socalled issue ads when the candidates themselves were running out 

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of money. . . . While the public may not have been fully informed 

about the sponsorship of so-called issue ads, the record indicates that 

candidates and officeholders often were. A former Senator 

confirmed that candidates and officials knew who their friends were 

and “sometimes suggest[ed] that corporations or individuals make 

donations to interest groups that run ‘issue ads.’” As with softmoney contributions, political parties and candidates used the 

availability of so-called issue ads to circumvent FECA’s limitations, 

asking donors who contributed their permitted quota of hard money 

to give money to nonprofit corporations to spend on “issue” 

advocacy. 

McConnell, 540 U.S. at 126–29. Given the Court’s concern about electioneering 

communications and its understanding that such communications serve the same purposes as 

express advocacy, a group whose major purpose is the creation and dissemination of 

electioneering communications should be subject to the same disclosure obligations as one 

whose major purpose is the creation and dissemination of express advocacy. 

The Court’s “major purpose” test reflects this understanding and is broadly worded to 

capture both express advocacy and electioneering communications, as well as other non-express 

advocacy campaign activities. In Buckley, the Court established the “major purpose” test in the 

context of discussing a separate expenditure provision, which it construed to apply only to 

express advocacy. See 424 U.S. at 79–80. In the same discussion, however, the Court eschewed 

the language of express advocacy with regard to the major purpose test. Id.. Rather than state 

that the group’s major purpose must be to create and distribute communications that ask viewers 

to “vote for” or “vote against” a candidate, the Court stated the purpose need only be the 

“nomination or election of a candidate,” alluding to a broader category of activity than express 

advocacy. Id. at 79. This cannot be accidental. See also MCFL, 479 U.S. at 262 (noting that if a 

group’s “independent spending,” not just its expenditures on express advocacy, “become so 

extensive that the organization’s major purpose may be regarded as campaign activity,” not 

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merely express advocacy, then it “would be classified as a political committee” (emphasis 

added)); RTAA, 681 F.3d at 555–57 (rejecting argument that relevant activity for the “major 

purpose” test is limited to express advocacy).

Moreover, courts have upheld against constitutional challenge state law campaign finance 

disclosure regimes that have counted groups’ non-express advocacy communications, including 

their electioneering communications, toward their political committee status. See Alaska Right 

to Life Comm. v. Miles, 441 F.3d 773, 776, 786 (9th Cir. 2006), cert. denied, 549 U.S. 886 

(2006) (upholding law allowing group’s electioneering communications to qualify it as a 

political committee); see also VRTLC, 758 F.3d at 138 (upholding law defining political 

committee to include any group spending $1,000 in two years on ads that promote, attack, 

support, or oppose candidates, regardless of whether ads include express advocacy); RTAA, 681 

F.3d at 555–57 (finding FEC may consider activity beyond express advocacy spending); Nat’l

Org. for Marriage, 649 F.3d at 42, 62–63 (upholding law triggering political committee status 

through expenditures on communications that “promot[e],” “support,” or “oppos[e]”). 

Indeed, the FEC itself has long treated expenditures for all federal campaign activities, 

not simply for express advocacy, as indicative of a group’s major purpose. See Supplemental 

E&J at 5601 (noting FEC will evaluate a group’s “full range of campaign activities”). For 

example, in considering a complaint against Swift Boat Veterans for Truth, the FEC found the 

group constituted a political committee because, in part, 91% of its budget went not only to ads 

that expressly advocated John Kerry’s defeat in the presidential election, but to ads that also 

attacked his record. Ex. 24 ¶ 35. Similarly, in considering a complaint against MoveOn.org, the 

FEC found the group constituted a political committee because, in part, it spent 68% of its 

budget “oppos[ing]” federal candidates,” such as ads stating, “George Bush, He’s not on our 

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side,” and stating that he “misled” the country. These ads did not contain the “magic words” that 

the controlling commissioners now deem necessary to constitute express advocacy, yet the FEC 

found them relevant in determining MoveOn.org’s major purpose. Ex. 25 ¶¶ 11–13. 

Real world examples bear out the comparability of electioneering communications and 

express advocacy to the minds of contributors and campaign spenders. As discussed above, 

when a federal district court struck down an FEC regulation providing anonymity for 

contributors to electioneering communications, contributions to such communications 

plummeted and funds were diverted to express advocacy, which allowed donors to remain 

unnamed. See Van Hollen, 851 F. Supp. 2d at 89; Ex. 6. When that district court decision was 

reversed, funding for electioneering communications could return. Contributors apparently saw 

no functional difference between these forms of ads save that one allowed them to maintain 

anonymity while the other did not. Donors plainly understood that both have the same desired 

effect: to aid in the nomination or election of their preferred candidate. 

Simply put, Congress, the courts, and common practice demonstrate that electioneering 

communications are as relevant to determining a group’s major purpose as its express advocacy. 

After all, both communications serve a political purpose, and just as the public interest in 

transparency of express advocacy merits disclosure by groups primarily engaged in express 

advocacy, the public interest in transparency of electioneering communications similarly 

supports disclosure by groups primarily involved in electioneering communications. 

b) The Controlling Commissioners’ Explanation Is Inadequate and Does Not 

Support Excluding Electioneering Communications 

In light of this strong support for disclosure and the practical equivalence of 

electioneering communications and express advocacy, it is surprising the controlling 

commissioners concluded that applying disclosure requirements to AAN and AJS—groups that 

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indisputably spent heavily to elect federal candidates—violated their First Amendment rights. 

To reach this tortured interpretation, the controlling commissioners relied on inapposite and 

outdated case law and ignored the significant precedent to the contrary. 

The controlling commissioners first relied on a set of three cases that predate the 

Supreme Court’s discussion of electioneering communications in McConnell, as well as the 

“major purpose” test set out in Buckley: United States v. National Committee for Impeachment, 

469 F.2d 1135 (2d Cir. 1972); ACLU v. Jennings, 366 F. Supp. 1041 (D.D.C. 1973), vacated as 

moot, 422 U.S. 1030; and Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975). Each case was 

premised on vagueness in the FECA: National Committee and Jennings concerned the vagueness 

of “expenditure,” see Nat’l Comm., 469 F.2d at 1141; Jennings, 366 F. Supp. at 1054–55, and 

Buckley focused on overly vague language that would have covered nearly all communications 

of any kind, see 519 F.2d at 832. Any vagueness in the FECA’s definition of “expenditure,” 

however, was resolved by the Supreme Court in Buckley. See 424 U.S. at 62, 80. The Court has 

similarly found electioneering communications—the category of communications the FEC is 

called upon to evaluate here—are defined in sufficiently concrete terms to survive a vagueness 

challenge. See McConnell, 540 U.S. at 194.16

In addition, both National Committee and Jennings considered situations in which the 

government sought to classify the respective organizations as political committees on the basis of 

a single non-express advocacy newspaper advertisement. See Nat’l Comm., 469 F.2d at 1137–

38; Jennings, 366 F. Supp. at 1042–43. That is not the situation here. The FECA imposes a 

$1,000 express advocacy threshold before any group is qualified as a political committee, a 

 

16 In addition, National Committee, Jennings, and Buckley predate the FEC’s 2007 Supplemental E&J, which the 

controlling commissioners admit called for looking at a wider swath of a group’s activity than merely express 

advocacy. AR 1452, 1704. Accordingly, the cases cannot explain why the controlling commissioners concluded 

that the “major purpose” test has changed from the 2007 guidance. 

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threshold AAN and AJS easily passed, AR 1401, 1645–46. Further, the “major purpose” test 

under any formulation would require more than a single advertisement to qualify groups like 

AAN and AJS, which spent millions of dollars in a single year, as political committees. 

Irrespective of how AAN’s and AJS’s additional electioneering communications are counted, the 

ads at issue in National Committee and Jennings would not “alone” qualify them as political 

committees.17 

The controlling commissioners’ post-Buckley cases similarly fail to support their 

exclusion of electioneering communications. The controlling commissioners heavily rely on 

Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014) and North Carolina Right 

to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008) (“NCRTL”), but those cases considered state 

campaign regimes that went far beyond anything the controlling commissioners were asked to 

evaluate here. Neither case can shed light on the proper application of Buckley’s “major 

purpose” test because neither state regime employed such a test. See Barland, 751 F.3d at 834; 

NCRTL, 525 F.3d at 289.18 Indeed, the Fourth Circuit has explicitly stated that NCRTL’s brief 

“dicta” on the “major purpose” test, on which the controlling commissioners rely, “does not . . . 

make consideration of any other factors [than a group’s express advocacy] improper” for 

purposes of determining its major purpose. RTAA, 681 F.3d at 557; see also id. at 552–53 

(distinguishing NCRTL). And Barland’s conclusion that the state law provision at issue—one 

that went “well beyond” what was covered by the FECA’s electioneering communications 

 

17 In addition, the statutory provision before the Circuit Court in Buckley went far beyond anything in today’s 

FECA, and well beyond the category of communications defined as electioneering communications. See 519 F.2d at 

870 (considering provision that treated any communication in any form and made at any date as triggering 

disclosure requirements if they mentioned a federal candidate or his official acts). The FEC is not being called on to 

enforce any similarly sweeping provision. 

18 The Fourth Circuit found that the absence of the test rendered the state statute unconstitutional, a ruling that puts it 

in the minority of circuit courts to reach the question. See VRTLC, 758 F.3d at 136; Madigan, 697 F.3d at 470; Nat’l 

Org. for Marriage, 649 F.3d at 59; Human Life, 624 F.3d at 1009; see also Reisman, 764 F.3d at 440 (upholding 

Texas’s political committee statute without reference to absent “major purpose” test). 

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provisions—was “fatally vague and overbroad,” 751 F.3d at 834–35, is not instructive as to the 

treatment of electioneering communications under the FECA, a category of communications that 

the Supreme Court has found sufficiently definite and narrow to survive constitutional challenge, 

see McConnell, 540 U.S. at 194.19 

In addition, Barland’s conclusion that only those groups whose major purposes were 

“express election advocacy” may qualify as political committees—a conclusion on which the 

controlling commissioners rely, AR 1448, 1700—was premised on the mischaracterization of the 

Citizens United’s holding regarding electioneering communications as “dicta.” See Barland, 751 

F.3d at 836. Rather than “dicta,” the portions of Citizens United regarding electioneering 

communications were necessary to the result in that case. The communications before the 

Supreme Court in Citizens United concerned a movie attacking presidential candidate Hillary 

Clinton, as well as the advertisements for the movie. See 558 U.S. at 319–20. Although the 

Court found the movie was express advocacy, it ruled that the ads for the movie were 

electioneering communications and squarely held that the disclosure requirements that applied to 

them were constitutional. See 558 U.S. at 325, 367–71; see also Indep. Inst. v. FEC, 70 F. Supp. 

3d 502, 507–08 (D.D.C. 2014) (rejecting “dicta” argument). Citizens United’s discussion of 

electioneering communications was anything but “dicta,” and thus Barland’s conclusion to 

exclude such communications from a political committee’s “major purpose” is misplaced. 

Indeed, Barland’s conclusion is dicta itself as the case did not consider a law concerning a 

group’s electioneering communications. 

 

19 Further, while Barland attempted to distinguish the Circuit’s prior decision in Madigan and narrow it to express 

advocacy groups, see 751 F.3d at 839, Madigan actually upheld a political committee regime that looked beyond a 

group’s mere express advocacy to determine whether it was a political committee. See Madigan, 697 F.3d at 471–

72, 486–91 (upholding law that allowed a group’s advertisements in “opposition to” a candidate to qualify it as a 

political committee, even though the ads did not constitute express advocacy). Moreover, Barland’s conclusion is 

against the weight of authority, see supra n.12, and has been heavily criticized. See VRTLC, 758 F.3d at 138 

(finding Madigan more persuasive than Barland); Indep. Inst., 70 F. Supp. 3d at 508 (criticizing Barland). 

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The controlling commissioners’ reliance on FEC v. Wisconsin Right to Life, Inc., 551 

U.S. 449 (2007) (“WRTL II”), is similarly misplaced. At issue in that case was the FECA’s thenstanding ban on electioneering communications by corporate entities. See id. at 455; see also id.

at 464–65 (analyzing electioneering communication ban under strict scrutiny, not lower standard 

applied to disclosure laws). In striking down that ban, the Supreme Court took great pains to 

distinguish it from the ban on express advocacy, a ban which WRTL II left in place. See id. at 

456, 478–80 (accepting government interest in banning corporate “independent expenditures”). 

As Citizens United lifted the bar on independent corporate spending, at issue here are the only 

remaining provisions of the FECA that apply to independent political committees: its disclosure 

provisions, and the attendant registration and organization requirements that support disclosure. 

With regard to those provisions, “disclosure requirements [need not be] be limited to speech that 

is the functional equivalent of express advocacy.” Citizens United, 558 U.S. at 369; see also 

Nat’l Org. for Marriage, 649 U.S. at 54–57 (finding WRTL II’s distinction for issue advocacy 

does not apply to disclosure laws). 

The remaining cases relied on by the controlling commissioners are entirely inapposite. 

New Mexico Youth Organized v. Herrera (“NMYO”) considered communications that “were not 

mailed within 30 days of a primary or 60 days of a general election,” and thus would not 

constitute electioneering communications, by a group that never “advocated for the election or 

defeat of any candidate for office.” 611 F.3d 669, 674, 678 (10th Cir. 2010). FEC v. GOPAC, 

Inc. considered whether the FECA could apply to a group whose focus was state and local, but 

not federal, elections, and found it could not. See 917 F. Supp. 851, 858 (D.D.C. 1996). These 

groups are wholly incomparable to AAN and AJS, which spent millions on ads, including many 

that expressly advocated the election or defeat of federal candidates. The controlling 

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commissioners also inexplicably cited FEC v. Malenick, a case holding a group met the “major 

purpose” test but was silent on the relevancy of electioneering communications to that test. See

310 F. Supp. 2d 230, 237 (D.D.C. 2004).20 

The controlling commissioners’ position lacks support because it defies reason. They 

have interpreted the First Amendment as providing less protection to groups that engage in 

express advocacy than groups engaged in other speech. But express political speech enjoys the 

greatest protection under the First Amendment. See Buckley, 424 U.S. at 47–48 (express 

advocacy at “core” of First Amendment). Accordingly, the First Amendment cannot grant more 

protection to a group that spends heavily on electioneering communications than a group that 

spends heavily on express advocacy: the latter already receives the maximum protection under 

the Constitution. Rather, the issue is whether voters enjoy a sufficient interest in learning the 

identities of contributors to groups that engage in both extensive electioneering communications 

and express advocacy, and whether the FECA’s political committee status disclosure 

requirements bear a substantial relationship to that interest. It is apparent that they do and it 

does, and the controlling commissioners provide no explanation to justify concluding otherwise. 

Not only is the controlling commissioners’ interpretation without support, it contravenes 

the FEC’s own description of the “major purpose” test: a “flexib[le] . . .case-by-case analysis” 

and not a “one-size-fits-all rule.” Supplemental E&J at 5601. The controlling commissioners’ 

proposed interpretation is anything but flexible. Rather, it’s a bright line rule that looks only at 

the sum of a group’s reported independent expenditures compared to the organization’s reported 

expenditures in its tax filings. 

 

20 The controlling commissioners also cite their previous statements of reasons in cases that deadlocked. AR 1457 

n.118, 1458 n.131, 1694 n.28. These statements of reasons, however, do not provide authority upon which the 

controlling commissioners can justify their decision. They do not represent official determinations of the FEC and 

they cannot provide any guidance on how to determine the Supreme Court’s “major purpose” formulation. 

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Finally, it is worth recalling the ads that the controlling commissioners concluded did not

reflect that AAN’s and AJS’s major purpose supported the election of federal candidates. The 

controlling commissioners believe these ads count against finding the groups are political 

committees because the commissioners count sums spent on the ads in the groups’ total spending 

but do not count them toward the groups’ spending to nominate or elect candidates. Each of the 

ads ran within a very short window before the election of the referenced federal candidate and 

was targeted to thousands of voters in that election. AR 1404–07, 1674–80. They included 

several ads urging voters to tell elected officials “in November”—the time of the election—that 

they were displeased with them, including an ad attacking Reps. Perlmutter and Titus for 

allegedly giving “Viagra” to “convicted rapists” and several others attacking members of 

Congress for allegedly providing “free health care for illegal immigrants.” AR 1677. Another 

advertisement asserted a Republican candidate for the U.S. Senate, if elected, would oppose a 

deal that her Democratic opponent would support. AR 1679. They also included an 

advertisement praising a candidate for U.S. Senate, noting the various actions he might take if 

elected; an ad criticizing a federal candidate for “export[ing] American jobs” while he was a 

director of a private company; an ad praising a candidate for U.S. Senate and his plans to vote 

against a bailout if elected; and an ad praising another Senate candidate for his “common sense 

plan to get Pennsylvania back to work” if elected. AR 1404–07. The purpose of these ads is 

clear: they sought to elect (or defeat) federal candidates. 

In sum, Congress, the courts, and common practice demonstrate that a group’s 

electioneering communications should count toward finding that its major purpose is to nominate 

or elect a candidate, just as its independent expenditures do. The public has as substantial an 

interest in knowing about groups that spend significant sums on electioneering communications 

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as in those that spend on only independent expenditures. Counting electioneering 

communications toward a group’s major purpose would not run the risk of embroiling 

nonpolitical issue advocacy groups in the FECA’s political committee requirements: the category 

of communications covered is narrow, not vague, and would count only large ad buys. Further, 

groups would still need to meet the statutory $1,000 expenditure or contribution threshold.21 

Accordingly, the controlling commissioners had no basis to interpret Buckley’s “major purpose” 

test to exclude electioneering communications from an analysis of AAN’s and AJS’s political 

committee status. Consequently, their dismissals on that basis were contrary to law. 

3. A Group’s Activities within the Calendar Year Demonstrate its Current “Major 

Purpose” 

In addition to excluding electioneering communications, the controlling commissioners 

dismissed the complaints against AAN and AJS because, in part, they evaluated those groups 

based on their activities over their entire existence. That allowed the controlling commissioners 

to conclude, erroneously, that the relevant total spending for comparison consisted of the roughly 

$27 million AAN spent over its two years, AR 1708, and the roughly $50 million AJS spent over 

a decade, AR 1458. Counting the groups’ activities over such a wide swath of time only served 

to unreasonably dilute their current political spending and was contrary to law. 

A calendar year test would harmonize the “major purpose” test with the FECA’s statutory 

test for political committee status, which looks to a group’s activities “during a calendar year.” 

 

21 Furthermore, the FEC should treat as counting toward finding that a group’s major purpose is to nominate or elect 

a candidate those ads the group makes that “promote,” “attack,” “support” or “oppose” a candidate (called “PASO” 

ads), even if the ad does not reach the level of express advocacy (and regardless of whether they also constitute an 

electioneering communication). The Supreme Court has found that standard to be sufficiently clear to withstand 

constitutional scrutiny. See McConnell, 540 U.S. at 170 n.64. The Second Circuit found that political committee 

status may depend on a group’s PASO ads. See VRTLC, 758 F.3d at 122–23, 128–29. And the FEC has considered 

a group’s PASO ads in determining its major purpose. See, e.g., Ex. 24 ¶ 35 (counting ads that “attack[ed]” 

presidential candidate John Kerry but were not express advocacy); Ex. 26 (considering solicitation that “promotes, 

attacks, or opposes federal candidates”). AAN’s and AJS’s ads are sufficient to meet a PASO standard, but as the 

controlling commissioners did not apply that standard, this memorandum addresses this issue briefly. 

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See 52 U.S.C. § 30101(4). The OGC favored evaluating a group’s major purpose based on its 

spending in a calendar year. AR 1410, 1682–84. The OGC recognized that using another time 

period, such as fiscal year, could lead to absurd results because two groups with identical 

spending patterns might be evaluated differently if one group’s fiscal year ended on May 31 and 

another group’s ended on December 31. AR 1683. The OGC also recognized that prior FEC 

precedent supported looking to a single year’s activities, even if the group had existed for a 

longer period. AR 1410, 1683. 

The controlling commissioners, however, chose to ignore support for a calendar year test, 

but in crafting their own expansive “lifetime of existence and activities” test, AR 1462, 1714, 

cited no relevant authority.22 

Without authority on which to base their conclusion, the controlling commissioners could 

only appeal to two arguments: (1) looking only to a year’s activities might cause the FEC to 

recognize that more groups have major purposes of nominating or electing federal candidates 

and, thus, subject more groups to political committee disclosures, and (2) application of the rule 

to a hypothetical group that formed shortly before an election might be inequitable. The first 

argument is insupportable—the controlling commissioners provided no rationale for why more 

groups should not be subject to political committee disclosure requirements if their major 

 

22 The controlling commissioners primarily rely on their own statements of reasons issued in decisions in which they 

deadlocked the commission in three-to-three votes: statements that, for the reasons discussed above, do not bear the 

authority of law. AR 1461 n.146, 1694 n.28, 1713 n.139. The controlling commissioners’ other authority is 

inapposite and, rather, supports a more limited window for analysis than the controlling commissioners propose. 

GOPAC considered the group’s 2-year budget, from 1989 to 1990, even though the group was formed in 1979. See

917 F. Supp. at 853. Malenick found that the group was a political committee based in part on its activities in 1995 

and 1996, see 310 F. Supp. 2d at 232 n.1, 235, but the fact that a group met the political committee definition in both 

years does not mean that the FEC could not have looked at its activity in one year. Nor do the MURs cited support 

the controlling commissioners. Ex. 28 at 3 (OGC evaluated group’s major purpose by looking at expenditures for 

each year from 2002-2006, but concluded group never met statutory expenditure requirement); Ex. 29 at 18 (looking 

at spending in 2004 election cycle, not entire organization life); Ex. 30 at 3–4 (finding MoveOn.org exhibited major 

purpose to influence elections based on spending over a single year). 

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purpose for the year was the nomination or election of candidates. The second argument fares 

little better—a group formed shortly before an election that spends nearly all of its initial funds 

on electioneering was almost certainly formed for the purpose of that campaign activity. If, 

however, the timing was merely a coincidence and no such purpose existed, then that defense 

could be presented to the FEC, and the agency might take notice of its lack of campaign activity 

over the following year.23 

In contrast to the controlling commissioners’ unpersuasive conjecture, a case actually 

presented to the Commission provided substantial support for using a calendar year to assess a 

group’s major purpose. According to the controlling commissioners, AJS only began spending 

on electioneering communications in 2008 and express advocacy in 2010. AR 1442. The 

decade during which AJS did not engage in political activity, however, can hardly be attributed 

to its lack of interest in campaign spending. Only in 2007, after WRTL II, could AJS legally 

spend on electioneering communications. See 551 U.S. at 481. And only in 2010, in the wake of 

Citizens United, did it become lawful for AJS to spend on express advocacy. See 558 U.S. at 

365–66. The controlling commissioners completely ignored the fact that it had been illegal for 

AJS to engage in campaign activity until recently in reviewing AJS’s historical activities. 

The simple fact is that a group’s major purpose can and does change over time, 

something the controlling commissioners’ analysis ignores. Rather, their analysis would allow 

 

23 Indeed, the controlling commissioners’ solution does not resolve the very problem they raise. Take, for example, 

a group that spends more than 50% of its budget in its first few years of existence to nominate or elect federal 

candidates, but then spends little to no money on campaign activity in later years. If a complaint is filed early in its 

lifetime, the FEC will evaluate its spending over its life as it stood then and conclude that it was a political 

committee. Once the group was qualified as a political committee, it would remain a political committee until it 

properly terminated with the FEC, 52 U.S.C. § 30103(d), and thus would stay a political committee in later years. 

If, however, the group was brought to the FEC’s attention later in life, it is possible that the group’s lifetime 

spending would have fallen below the 50% mark (or whatever line is imposed), and thus would be found by the 

controlling commissioners to not only have not been a political committee at the time of their review, but also to 

have never been a political committee at all. The group’s political committee status cannot depend on when its 

existence is brought to the attention of the FEC. 

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for the absurd result that, if a group existed for long enough, it could spend 100% of its budget 

on express advocacy for multiple election cycles and still not be deemed a political committee, 

just so long as its historic spending balanced out the numbers. That result would deny the public 

the transparency the FECA provides. After all, contributors and candidates do not care about a 

group’s historic purposes if they know that money donated today will go to aid their favored 

candidate or harm the candidate’s opponents. 

The controlling commissioners simply ignored the possibility that a group’s purpose 

might change and ignored the most reasonable application of the “major purpose” test: 

consideration of a group’s calendar year expenditures. Had they reasonably limited their review 

to AAN’s and AJS’s activity in the previous calendar year and counted their electioneering 

communications, it would have been impossible to deny that both AAN’s and AJS’s major 

purposes were the nomination or election of candidates.24 Accordingly, their dismissals of the 

complaints on those grounds were contrary to law. 

4. A Group’s “Major Purpose” May Be Supported by Less than 50% of its 

Expenditures 

The controlling commissioners further dismissed Plaintiffs’ complaints in part because 

they interpreted Buckley’s “major purpose” test as asking, not whether the group’s major purpose 

is the nomination or election of a candidate, but whether more than 50% of a group’s 

expenditures go to express advocacy. AR 1448–49, 1458, 1463 n.121, 1700–01, 1709. 

Accordingly, with respect to AJS, they concluded the group did not satisfy the “major purpose” 

test even though its expenditures on express advocacy—which even the controlling 

 

24 In fact, with regard to AAN, it qualified as a political committee regardless of whether the FEC evaluated a single 

calendar year or the entirety of the record of AAN’s existence. AAN formed in 2009, so the FEC had before it only 

2 years of the group’s spending. AR 1708. With two years of activity counted, AAN’s express advocacy and 

electioneering communications consisted of more than 62% of its total spending, demonstrating political activity 

was not only AAN’s major purpose, but also the majority of its activity. 

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commissioners admit is relevant—amounted to 40% of its spending in the year. AR 1463 

n.151.25 The controlling commissioners’ interpretation, however, is contrary to law. 

Buckley’s “major purpose” test must be interpreted in light of the groups that it sought to 

exclude. Buckley expressly sought to exclude from the reaches of the FECA’s political 

committee status those groups that engage “purely” in issue discussion. See 424 U.S. at 79. The 

Court reiterated that reason in MCFL, stating that the FECA excludes groups that “occasionally” 

engage in political activity. See 479 U.S. at 262 (noting a group may be qualified as a political 

committee if its campaign activity becomes “extensive”). A group that devotes 40% of its 

spending to campaign activity can hardly be said to do so only “occasionally.” 

Further, the FEC has recognized that the “major purpose” test does not impose a rigid 

50% threshold. As late as 2012, the FEC argued to the Supreme Court that the “major purpose” 

test did not “establish a rigid rule that an organization must devote more than 50% of its funds to 

campaign-related spending” to qualify as a political committee. See Br. for the Resp’t 20, RTAA, 

No. 09-724 (Mar. 2010) (Ex. 27). That position was upheld by the Fourth Circuit. See RTAA, 

681 F.3d at 555, 557 (rejecting argument that political committee status is limited to groups 

spending 50% or more of their budgets on campaign-related speech), on remand from The Real 

Truth About Obama, Inc. v FEC, 559 U.S. 1089 (2010). After all, the “fundamental 

organizational reality [is] that most organizations do not have just one major purpose.” Human 

Life, 624 F.3d at 1011 (internal quotation marks omitted). 

A bright-line 50% test would easily lead to evasion and would deny the public insight 

into the groups through which campaign funds flow. For example, a group might dilute its 

 

25 Of course, if AJS’s electioneering communications are also counted, as they should have been, AJS’s qualifying 

expenditures exceed 76.5% of its spending in the year, clearly satisfying even the controlling commissioners’ 

erroneous 50% threshold. 

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campaign spending to less than 50% by donating significant sums to other groups in the 

knowledge the other groups would spend the donations on campaign activity. See, e.g., Ex. 7 at 

8 n.16, 26 & n.47 (finding group spent about 40% of its budget on express advocacy, and about 

an additional 40% on grants to other organizations). Or a group might spend 51% of its budget 

on rent and other overhead that, while not directly tied to express advocacy, serves no other 

purpose than to allow the group to exist so that it can engage in campaign-related activity. See, 

e.g., Ex. 11 at 13, 19–20 (noting $1.1 million, about 22% of the group’s budget, was spent on 

consultants to the group). 

Once again, however, the controlling commissioners relied on inapposite authority to 

create a contorted version of the “major purpose” test that is contrary to law. Colorado Right to 

Life Committee v. Coffman did not consider an application of a “major purpose” test because the 

law at issue had no such test. See 498 F.3d 1137, 1154–55 (10th Cir. 2007).26 Free Speech v. 

FEC, 720 F.3d 788 (10th Cir. 2013), upheld the FEC’s case-by-case analysis of a group’s major 

purpose, but it was not asked to decide any particular threshold for that analysis. See id. at 797–

98. NMYO considered groups that devoted only 7% and .5% of their spending to campaign 

activity, groups that could be said to only occasionally engage in such activity. See 611 F.3d at 

679. GOPAC considered whether the FECA applied to groups focused solely on state and local, 

and not federal, elections. See 917 F. Supp. at 858. And Malenick found that the defendant’s 

major purpose was to engage in campaign activity based on its stipulated goals and activities, but 

did not consider the minimum activity necessary. See 310 F. Supp. 2d at 237. 

Finally, the controlling commissioners cite NCRTL, which found a law defining a 

political committee to be any group with “a” major purpose of influencing a campaign, was 

 

26 The Tenth Circuit is in the minority of circuits in finding the “major purpose” test is a constitutional requirement. 

See supra n.16. 

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unconstitutional. See 525 F.3d at 289. But the Fourth Circuit subsequently found that NCRTL’s 

construction of the “major purpose” test—asking whether the “majority” of a group’s money is 

spent supporting or opposing candidates—was dicta and refused to follow it. See RTAA, 681 

F.3d at 557. Further, the Fourth Circuit recognized that NCRTL’s constitutional concerns were 

driven by the “restrictions on campaign speech” imposed by the North Carolina law, including 

“limits on acceptable contributions and expenditures.” Id. at 553. Where political committee 

status imposes only organizational and disclosure burdens, like the FECA now does, the Fourth 

Circuit has allowed a broader application of political committee status. Id.

The controlling commissioners’ overly narrow interpretation of the “major purpose” test 

is unsupported by authority and frustrates the public’s substantial interest in transparency of 

campaign spending. Contributors to groups that devote 51% or 49% of their spending to 

political activity can readily expect that their contributions will go to influence elections, and 

candidates recognize contributions to both groups will have that effect. Consequently, the 

controlling commissioners’ dismissals on the grounds that AAN and AJS did not devote more 

than 50% of their spending to nominate or elect candidates were contrary to law. 

D. The Controlling Commissioners’ Application of the “Reason to Believe” 

Standard was Contrary to Law 

Finally, it is worth noting that the question before the controlling commissioners was not 

whether, after a thorough investigation, the preponderance of the evidence indicated that AAN 

and AJS were political committees. Nor was it whether there was probable cause to believe 

AAN and AJS were political committees. Rather, the question was simply whether there was a 

“reason to believe” AAN and AJS were political committees. Nonetheless, the controlling 

commissioners’ statements of reasons demonstrates they applied a far higher standard by 

considering whether the evidence conclusively demonstrated AAN and AJS were political 

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44 

committees, see, e.g., AR 1455–56, 1705–07 (finding that because there was at least some 

evidence either group was not organized for a political purpose, they could not be political 

committees), a standard that is contrary to law. 

The FECA provides that if there is “reason to believe” that a violation has occurred, such 

as a political committee’s failure to organize, register, and disclose, then the commission “shall 

make an investigation of such alleged violation.” 52 U.S.C. § 30109(a)(2); 11 C.F.R. § 111.9. A 

reason to believe finding precedes a probable cause finding. 52 U.S.C. § 30109(a)(3), (4); 11 

C.F.R. §§ 111.16, 111.17. According to the FEC, a reason to believe exists where “the available 

evidence in the matter is at least sufficient to warrant conducting an investigation.” FEC, 

Statement of Policy Regarding Commission Action in Matters at the Initial State in the 

Enforcement Process, 72 Fed. Reg. 12545, 12545 (Mar. 16, 2007). “A ‘reason to believe’ 

finding followed by an investigation would be appropriate when a complaint credibly alleges

that a significant violation may have occurred . . . .” Id. (emphasis added). “[R]eason to 

believe” is a low bar. 

Had the controlling commissioners applied the correct standard, it is possible an ensuing 

investigation would have revealed additional evidence as to AAN’s and AJS’s major purposes. 

In other matters, the FEC has considered organizations’ nonpublic statements to determine that 

the groups’ major purposes were the nomination or election of federal candidates. See

Supplemental E&J at 5601 (the “major purpose doctrine requires the Commission to conduct 

investigations into the conduct of specific organizations that may reach well beyond publicly 

available advertisements”); Ex. 29 at (evaluating group’s solicitations). AAN’s and AJS’s 

activities at least gave rise to a reason to believe they were political committees, and the ensuing 

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45 

investigation might have revealed additional evidence that would have conclusively 

demonstrated that fact even to the controlling commissioners. 

Nonetheless, the controlling commissioners never evaluated this possibility because they 

applied a far higher standard to the complaints than the “reason to believe” standard specified in 

the FECA. Accordingly, their dismissals were contrary to law. 

CONCLUSION 

The controlling commissioners’ dismissals of Plaintiffs’ complaints were contrary to law. 

Their interpretations of the First Amendment and Buckley’s “major purpose” test are unfounded 

and impermissible. Neither bar the disclosure the FECA mandates from groups like AAN and 

AJS that are heavily involved in federal campaign activity. Similarly, neither requires the 

exclusion of a group’s electioneering communications from the analysis of its major purpose, 

requires comparison against spending outside a given calendar year while ignoring changing 

circumstances and changing purposes, nor requires a group to spend more than 50% of its budget 

on federal campaign activity. Rather, the “major purpose” test allows for a sensible result: a 

group’s electioneering communications in a year may demonstrate that its major purpose is the 

nomination or election of a federal candidate, and thus qualify it as a political committee, just as 

do its independent expenditures. Finally, the controlling commissioners employed a standard to 

even begin an investigation far higher than that found in the FECA, which requires only “reason 

to believe” a violation occurred. Consequently, Plaintiffs respectfully request that the Court 

enter summary judgment, declare the dismissals contrary to law, and order the FEC to conform 

to that declaration within 30 days. 

 

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Dated: December 22, 2015. 

Respectfully submitted, 

/s/ Stuart McPhail 

Stuart C. McPhail 

smcphail@citizensforethics.org

(N.Y. Bar No. 4715025) 

(Cal. Bar No. 287048) 

Admitted Pro Hac Vice

/s/ Adam J. Rappaport 

Adam J. Rappaport 

arappaport@citizensforethics.org

(D.C. Bar No. 479866) 

Citizens for Responsibility and Ethics 

in Washington 

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

Washington, D.C. 20001 

Telephone: (202) 408-5565 

Fax: (202) 588-5020 

Attorneys for Citizens for Responsibility and 

Ethics in Washington and Melanie Sloan 

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