UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 14-1419 (CRC) 

 ) 

 v. ) ORAL ARGUMENT REQUESTED

 ) 

FEDERAL ELECTION COMMISSION, ) MOTION FOR SUMMARY 

 ) JUDGMENT 

 Defendant, ) 

 ) 

AMERICAN ACTION NETWORK, ) 

 ) 

 Intervenor-Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S MOTION FOR SUMMARY JUDGMENT 

Defendant Federal Election Commission (“Commission”) respectfully cross-moves this 

Court for an order (1) granting summary judgment to the Commission pursuant to Rule 56 of the 

Federal Rules of Civil Procedure and Local Civil Rule 7(h), and (2) denying plaintiffs’ summary 

judgment motion (Docket No. 33). In support of this motion, the Commission is filing a 

Memorandum in Support of Its Cross-Motion for Summary Judgment and in Opposition to 

Plaintiffs’ Motion for Summary Judgment and a Proposed Order. The Commission requests oral 

argument on this motion. 

 Respectfully submitted, 

Daniel A. Petalas (D.C. Bar No. 467908) 

Acting General Counsel 

dpetalas@fec.gov 

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

Deputy General Counsel — Law 

lstevenson@fec.gov 

Erin Chlopak (D.C. Bar No. 496370) 

Acting Assistant General Counsel 

echlopak@fec.gov 

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

Attorney 

gmueller@fec.gov 

Case 1:14-cv-01419-CRC Document 36 Filed 03/01/16 Page 1 of 60
2

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

March 1, 2016 

/s/ Charles Kitcher 

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

Attorney 

ckitcher@fec.gov 

 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, DC 20463 

(202) 694-1650 

Case 1:14-cv-01419-CRC Document 36 Filed 03/01/16 Page 2 of 60
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 14-1419 (CRC) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) MEMORANDUM 

 ) 

 Defendant, ) 

 ) 

AMERICAN ACTION NETWORK, ) 

 ) 

 Intervenor-Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S MEMORANDUM IN SUPPORT OF ITS 

CROSS-MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO 

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 

Daniel A. Petalas (D.C. Bar No. 467908) 

Acting General Counsel 

dpetalas@fec.gov 

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

Deputy General Counsel — Law 

lstevenson@fec.gov 

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

March 1, 2016 

Erin Chlopak (D.C. Bar No. 496370) 

Acting Assistant General Counsel 

echlopak@fec.gov 

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

Attorney 

gmueller@fec.gov 

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

Attorney 

ckitcher@fec.gov 

 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, DC 20463 

(202) 694-1650 

Case 1:14-cv-01419-CRC Document 36 Filed 03/01/16 Page 3 of 60
i

TABLE OF CONTENTS 

 

 Page 

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

BACKGROUND .......................................................................................................................2 

I. STATUTORY AND REGULATORY BACKGROUND ............................................2 

A. The FEC and FECA’s Administrative Enforcement Process .............................2 

1. The Commission ....................................................................................2 

2. FECA’s Administrative Enforcement and 

Judicial-Review Provisions ....................................................................3 

B. FECA’s Registration and Reporting Requirements ...........................................4 

1. Event-Driven Reporting Requirements ..................................................4 

2. Regulation of “Political Committees” ...................................................6 

II. FACTUAL BACKGROUND ........................................................................................8 

A. Plaintiffs’ Administrative Complaints ..............................................................8 

B. The FEC’s Dismissals of Plaintiffs’ Administrative Complaints .....................9 

1. AJS .......................................................................................................10 

2. AAN .....................................................................................................12 

3. The Controlling Commissioners’ Approach to the 

Major Purpose Test ..............................................................................14 

4. The Controlling Statements’ Application of the Major 

Purpose test to AJS and AAN ..............................................................16 

ARGUMENT ...........................................................................................................................19 

I. STANDARD OF REVIEW .........................................................................................20 

A. Review Under Section 30109(a)(8) Is “Limited” and 

 and “Extremely Deferential” ...........................................................................20 

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B. The Court Must Accord Chevron Deference to the FEC’s 

 Split Vote Which Implemented, in Part, a Constitutional Holding .................22 

C. Section 30109(a)(8) Review is Based Solely on the 

 Administrative Record .....................................................................................28 

II. THE DISMISSAL DECISIONS CLEARLY WERE NOT 

 CONTRARY TO LAW .............................................................................................30 

A. The Controlling Commissioners’ Approach to Determining Each of AJS’s 

 and AAN’s “Major Purpose” Was Reasonable ...............................................31 

1. “Political Committee” Has Been Narrowly Construed 

 by Courts .............................................................................................31 

2. Judicial and FEC Precedents Informed the Controlling 

Approach ..............................................................................................33 

B. The Controlling “Major Purpose” Determinations Were Reasonable ..............35 

1. Commissioners Reasonably Concluded That Neither 

Group’s Central Organizational Purpose Was Nominating 

or Electing Candidates .........................................................................35 

2. Commissioners’ Comparative Spending Findings 

Were Reasonable ...............................................................................36 

a. Relevant Federal Campaign 

Spending (Numerator) ............................................................ 36 

b. Overall Spending During the Relevant 

 Time Period (Denominator) ................................................... 41 

c. The Controlling Statements Do Not Define a Threshold for 

Campaign Spending ................................................................ 45 

 C. Plaintiffs’ General Disclosure Argument Begs the Question 

 and Mischaracterizes the Considerations at Issue ...........................................47 

D. The Dismissals Were Also a Reasonable Exercise of 

 Prosecutorial Discretion ..................................................................................49 

CONCLUSION ........................................................................................................................50 

 

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TABLE OF AUTHORITIES 

Cases 

Akins v. FEC, 736 F. Supp. 2d 9 (D.D.C. 2010) ..........................................................20, 21, 43 

Akins v. FEC, 101 F.3d 731, 740 (D.C. Cir. 1996) ..................................................................22

*Buckley v. Valeo, 424 U.S. 1 (1976) ........................................................4, 5, 7, 22, 31, 37, 44

Camp v. Pitts, 411 U.S. 138 (1973) .........................................................................................28

Chelsea Industries, Inc. v. NLRB, 285 F.3d 1073 (D.C. Cir. 2002) ........................................43

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) .......................21

Citizens for Responsibility & Ethics in Washington v. FEC, 

 475 F.3d 337 (D.C. Cir. 2007) .....................................................................................20

Citizens United v. FEC, 558 U.S. 310 (2010) ..........................................................................32

Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997) ............................................. 20, 27-28 

Common Cause v. FEC, 655 F. Supp. 619 (D.D.C. 1986) ......................................................49 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) .............................................20, 23, 27 

Cty. of San Miguel v. Kempthorne, 587 F. Supp. 2d 64 (D.D.C. 2008) ..................................29 

Democratic Congressional Campaign Comm. v. FEC,

831 F.2d 1131 (D.C. Cir. 1987) ...................................................................4, 23, 24, 49 

Dist. Hosp. Partners, L.P. v. Sebelius, 971 F. Supp. 2d 15 (D.D.C. 2013) .............................29 

Earthworks v. Dep’t of the Interior, 279 F.R.D. 180 (D.D.C. 2012) .......................................28 

EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009) .................................................................22 

FEC v. Akins, 524 U.S. 11 (1998) ................................................................................22, 32, 49 

*FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981) ....................21, 42, 47 

FEC v. GOPAC, Inc., 917 F. Supp. 851 (D.D.C. 1996) ........................................16, 28, 35, 38

*FEC v. Machinists Non-Partisan Political League, 

 655 F.2d 380 (D.C. Cir. 1981) ...............................................................................32, 33

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FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004) ......................................................16, 38 

*FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) ....................................................32 

*FEC v. Nat’l Republican Senatorial Comm., 

 966 F.2d 1471 (D.C. Cir. 1992) .............................................................4, 10, 23, 24, 40 

FEC v. Nat’l Rifle Ass’n of Am., 254 F.3d 173 (D.C. Cir. 2001).................................23, 25, 26

FEC v. Rose, 806 F.2d 1081 (D.C. Cir. 1986) .........................................................................49 

FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) ...............................................16, 39 

Free Speech v. FEC, 720 F.3d 788 (10th Cir. 2013) .......................................15, 30, 33, 35, 44 

*Heckler v. Chaney, 470 U.S. 821 (1985) ...............................................................................50 

IMS, P.C. v. Alvarez, 129 F.3d 618 (D.C. Cir. 1997) ..............................................................28 

*In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000) ...................................23, 24, 25, 26, 27, 43

La Botz v. FEC, 61 F. Supp. 3d 21 (D.D.C. 2014) ..................................................................49 

McConnell v. FEC, 540 U.S. 93 (2003) .........................................................................5, 32, 39 

McCutcheon v. FEC, 134 S. Ct. 1434 (2014) ............................................................................4 

*New Mexico Youth Organized v. Herrera, 

 611 F.3d 669 (10th Cir. 2010) ............................................................. 15, 34, 38, 42-43 

North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008) .......................15, 35 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) .................................................................20, 49 

Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990) ...............................................21 

Real Truth About Abortion, Inc. v. FEC, 681 F.3d. 544 (4th Cir. 2012) ...............15, 33, 35, 42 

Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007) .......................................................7, 3, 3, 42 

Stark v. FEC, 683 F. Supp. 836 (D.D.C. 1988) ........................................................... 24, 49-50 

United States v. Mead Corp., 533 U.S. 218 (2001) .................................................................25 

Unity08 v. FEC, 596 F.3d 861 (D.C. Cir. 2010) ................................................................22, 33 

Case 1:14-cv-01419-CRC Document 36 Filed 03/01/16 Page 7 of 60
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Van Hollen v. FEC, ___ F.3d ___, 

 2016 WL 278200 (D.C. Cir. Jan. 21, 2016) ...............................................22, 44, 48, 49 

*Wisconsin Right to Life, Inc. v. Barland, 

751 F.3d 804 (7th Cir. 2014) .........................................................14, 15, 35, 37, 38, 49 

Statutes and Regulations 

26 U.S.C. § 501(c)(4) ...............................................................................................................12 

26 U.S.C. § 501(c)(6) ...............................................................................................................10 

26 U.S.C. § 527(a) .....................................................................................................................7 

26 U.S.C. § 527(e)(1) .................................................................................................................7 

*52 U.S.C. § 30101(4)(A)..................................................................................................22, 43 

52 U.S.C. § 30101(8)(A)(i) ........................................................................................................6 

52 U.S.C. § 30101(9)(A)(i) ........................................................................................................6 

52 U.S.C. § 30101(17) ...............................................................................................................5 

52 U.S.C. § 30103 ................................................................................................................6, 39 

52 U.S.C. § 30104(a)-(b) .....................................................................................................6, 39 

52 U.S.C. § 30104(c)(1) .............................................................................................................6 

52 U.S.C. § 30104(f)(1)-(2) .......................................................................................................6 

52 U.S.C. § 30104(f) ............................................................................................................6, 39 

52 U.S.C. § 30104(f)(3) .............................................................................................................5 

52 U.S.C. § 30106(b)(1) ............................................................................................................2 

52 U.S.C. § 30106(c) .................................................................................................................3 

52 U.S.C. § 30109(a)(1) .............................................................................................................3 

 

52 U.S.C. § 30109(a)(2) .............................................................................................................3 

Case 1:14-cv-01419-CRC Document 36 Filed 03/01/16 Page 8 of 60
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52 U.S.C. § 30109(a)(4)(A)(i) ...................................................................................................3 

52 U.S.C. § 30109(a)(6) .............................................................................................................2 

52 U.S.C. § 30109(a)(6)(A) .......................................................................................................3 

*52 U.S.C. § 30109(a)(8) .....................................................................................................3, 30 

*52 U.S.C. § 30109(a)(8)(C) ...................................................................................................20

11 C.F.R. § 100.16 .....................................................................................................................5 

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

11 C.F.R. § 100.5(a)...................................................................................................................6 

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

11 C.F.R. § 104.20(c)(9) ............................................................................................................6 

11 C.F.R. § 109.10(e).................................................................................................................6 

11 C.F.R. § 111.4 .......................................................................................................................3 

Bipartisan Campaign Reform Act of 2002, 

 Pub. L. No. 107-155, 116 Stat. 81 2002 ........................................................................5 

Federal Election Campaign Act Amendments of 1976, 

 Pub. L. No. 94-283, 90 Stat. 475 ...................................................................................5 

Miscellaneous

H.R. 12406, H. Rep. No. 94-917, 94th Cong., 2d Sess. (1976) ...............................................26 

Political Committee Status,

69 Fed. Reg. 11,736 (Mar. 11, 2004) .............................................................................7

*Rules and Regulations: Political Committee Status,

72 Fed. Reg. 5595 (Feb. 7, 2007) ............................................................7, 8, 34, 39, 46 

Statement of Policy Regarding Commission Action in Matters at the Initial Stage in the 

Enforcement Process, 72 Fed. Reg. 12,545 (Mar. 16, 2007) .......................................43

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INTRODUCTION 

Plaintiffs Citizens for Responsibility and Ethics in Washington and Melanie Sloan 

challenge the Federal Election Commission’s (“FEC” or “Commission”) dismissal of their 

administrative complaints alleging certain campaign-finance violations by Americans for Job 

Security (“AJS”) and American Action Network (“AAN”). Plaintiffs alleged that AJS and AAN 

each violated the Federal Election Campaign Act (“FECA” or “Act”) by spending substantial 

sums of money on advertising referencing federal candidates and legislative issues without 

registering with the Commission as “political committees” and complying with the disclosure 

requirements that apply to such groups. In June 2014, the Commission voted on whether to find 

“reason to believe” that either AJS or AAN had violated FECA. The Commission did not 

approve pursuing either matter further, and so voted to close its files, thereby dismissing 

plaintiffs’ administrative complaints. 

Plaintiffs disagree with the dismissals of the administrative complaints but they cannot 

meet their heavy burden of demonstrating that either dismissal was arbitrary, capricious, an 

abuse of the agency’s broad discretion, or otherwise contrary to law. Instead, plaintiffs seek to 

escape the well-established standard of review by urging the Court to disregard binding 

precedent in favor of a results-oriented analysis that plaintiffs believe would vindicate the 

government’s interest in disclosure. But the undisputed importance of the government’s 

disclosure interest is irrelevant here. The value of the information AJS or AAN would have to 

disclose if one or both of them were found to be a political committee does not bear on whether

they are political committees in the first place. Plaintiffs’ disclosure argument and their 

improper, extra-record “dark money” discussion wholly begs the question. 

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The only issues in this case are whether the Commission’s analyses of AJS’s or AAN’s 

political-committee status, and concomitant dismissals of plaintiffs’ administrative complaints, 

were contrary to law. They were not. The decisions of the three Commissioners who voted not 

to proceed in each matter are thoroughly explained in a separate statement of reasons for each 

matter. Each was grounded in the administrative record, reflects a reasonable application of the 

FEC’s repeatedly upheld case-by-case method for determining political-committee status using 

the Supreme Court’s “major purpose” test, and accords with other courts’ applications of that 

test. The statements are also consistent with courts’ repeated admonitions that FECA must be 

interpreted in accordance with the First-Amendment-sensitive area in which the Commission 

regulates. The Commissioners’ explanations more than satisfy the low threshold that requires 

this Court to affirm the dismissals in both matters. The Court accordingly should deny plaintiffs’ 

motion for summary judgment and grant the Commission’s cross-motion. 

BACKGROUND 

I. STATUTORY AND REGULATORY BACKGROUND 

A. The FEC and FECA’s Administrative Enforcement Process 

1. The Commission 

The FEC is a six-member, independent agency vested with statutory authority over the 

administration, interpretation, and civil enforcement of FECA. Congress authorized the 

Commission to “formulate policy” with respect to FECA, 52 U.S.C. § 30106(b)(1); “to make, 

amend, and repeal such rules . . . as are necessary to carry out the provisions of [FECA],” id.

§§ 30107(a)(8), 30111(a)(8); and to investigate possible violations of the Act, id. § 30109(a)(1)-

(2). The FEC has exclusive jurisdiction to initiate civil enforcement actions for violations of 

FECA in the United States district courts. Id. §§ 30106(b)(1), 30109(a)(6). It is required under 

Case 1:14-cv-01419-CRC Document 36 Filed 03/01/16 Page 11 of 60
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FECA to make decisions through majority votes and, for certain actions, including enforcement 

decisions, with the affirmative vote of at least four Commissioners. Id. § 30106(c). 

2. FECA’s Administrative Enforcement and Judicial-Review Provisions 

FECA permits any person to file an administrative complaint with the FEC alleging a 

violation of the Act. Id. § 30109(a)(1); see also 11 C.F.R. § 111.4. After considering the 

complaint and any response, the FEC determines whether there is “reason to believe” that FECA 

has been violated. 52 U.S.C. § 30109(a)(2). If at least four of the FEC’s six Commissioners 

vote to find reason to believe, the FEC may investigate the alleged violation; otherwise, it 

dismisses the administrative complaint. Id. §§ 30106(c), 30109(a)(2). 

If the FEC proceeds with an investigation, it then must determine whether there is 

“probable cause” to believe that FECA has been violated. Id. § 30109(a)(4)(A)(i). A probable 

cause determination also requires an affirmative vote of at least four Commissioners. Id.

§§ 30106(c), 30109(a)(4)(A)(i). If the Commission so votes, it is statutorily required to attempt 

to reach a conciliation agreement with the respondent. Id. The FEC’s assent to a conciliation 

agreement requires an affirmative vote of at least four Commissioners and such an agreement, 

unless violated, bars any further action by the FEC related to the violation underlying that 

agreement. Id. If the FEC is unable to reach a conciliation agreement, FECA authorizes the 

FEC to institute a de novo civil enforcement action in federal district court, upon an affirmative 

vote of at least four Commissioners. Id. §§ 30106(c), 30109(a)(6)(A).

If, at any point in the administrative process, the Commission determines that no 

violation has occurred or decides to dismiss the administrative complaint for some other reason, 

the complainant may file suit in this District against the Commission to obtain judicial review of 

the Commission’s dismissal decision. Id. § 30109(a)(8)(A). Reviewable dismissal decisions 

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include instances in which “the Commission deadlocks 3-3 and so dismisses a complaint.” FEC 

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

split vote] dismissal, like any other, is judicially reviewable under [§ 30109(a)(8)].”); 

Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131, 1133 (D.C. Cir. 1987) (“DCCC”) 

(same). In such split-vote cases, in order “to make judicial review a meaningful exercise, the 

three Commissioners who voted to dismiss must provide a statement of their reasons for so 

voting. Since those Commissioners constitute a controlling group for purposes of the decision, 

their rationale necessarily states the agency’s reasons for acting as it did.” NRSC, 966 F.2d at 

1476; see also Mem. Op. at 6-7 (Docket No. 20). 

B. FECA’s Registration and Reporting Requirements 

One way FECA reduces corruption in politics is by requiring public disclosures 

concerning the financing of certain kinds of election-related communications. Buckley v. Valeo, 

424 U.S. 1, 67 (1976) (per curiam) (“[D]isclosure requirements deter actual corruption and avoid 

the appearance of corruption by exposing large contributions and expenditures to the light of 

publicity.”). Disclosure also “provid[es] the electorate with information about the sources of 

election-related spending.” McCutcheon v. FEC, 134 S. Ct. 1434, 1459 (2014) (internal 

quotation marks omitted). FECA imposes different kinds of disclosure obligations depending 

upon the nature of the organization making the communications and the timing, form, and 

content of the communications. 

1. Event-Driven Reporting Requirements 

FECA’s event-driven reporting requirements apply to particular communications that 

meet certain criteria. As relevant here, FECA requires that spending above certain thresholds on 

“independent expenditures” or “electioneering communications” must be disclosed. 

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An “independent expenditure” is a communication “expressly advocating the election or 

defeat of a clearly identified candidate” and that is made without coordinating with the candidate 

or a political party. 52 U.S.C. § 30101(17); 11 C.F.R. § 100.16. The term “independent 

expenditure” was not part of FECA or its 1974 amendments. In Buckley, the Supreme Court 

reviewed a provision of FECA prohibiting expenditures of more than $1,000 “relative to” a 

federal candidate. 424 U.S. at 39-44. To avoid vagueness concerns, the Court construed that 

provision “to apply only to expenditures for communications that in express terms advocate the 

election or defeat of a clearly identified candidate for federal office” and held that these 

communications could not constitutionally be limited as the Act required. Id. at 44-45. 

After Buckley was decided, Congress embraced the Court’s “express advocacy” holding 

in its definition of a new statutory term, “independent expenditure.” Federal Election Campaign 

Act Amendments of 1976, Pub. L. No. 94-283, § 102(g)(3), 90 Stat. 475, 479. 

The Bipartisan Campaign Reform Act of 2002 (“BCRA”) added to FECA a new statutory 

term, “electioneering communications.” An electioneering communication is (1) a “broadcast, 

cable, or satellite communication” (2) referring to a “clearly identified” federal candidate (3) that 

is made within a 30- or 60-day run up to an election, convention, or caucus (depending upon 

what kind of election or other event it is) and (4) is “targeted to the relevant electorate.” 52 

U.S.C. § 30104(f)(3); 11 C.F.R. § 100.29. Communications falling within the 30- or 60-day 

statutory windows may be electioneering communications even if they do not expressly advocate 

for the identified candidate’s election or defeat. McConnell v. FEC, 540 U.S. 93, 189 (2003), 

overruled in part by Citizens United v. FEC, 558 U.S. 310 (2010).1

 

 

1

 BCRA also revised the definition of “independent expenditure” into its current form. 

Pub. L. No. 107-155, § 211, 116 Stat. 81, 92-93. 

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Any entity that spends more than $250 to finance independent expenditures must file 

with the Commission a disclosure report that identifies, inter alia, the date and amount of each 

expenditure and anyone who contributed more than $200 to further it. See 52 U.S.C. 

§ 30104(c)(1), (2)(A), (C); 11 C.F.R. § 109.10(e). Similarly, any entity making electioneering 

communications aggregating more than $10,000 must report, inter alia, the date and amount of 

each disbursement, the identity of all clearly identified candidates mentioned and the elections in 

which they are running, and the name and address of each donor who gave an aggregate of 

$1,000 or more to a segregated bank account if that account was used to make the disbursements. 

52 U.S.C. § 30104(f)(1)-(2); 11 C.F.R. § 104.20. If the disbursements were made by a 

corporation or labor union, the organization must identify the name and address of each person 

who contributed an aggregate of $1,000 or more over the course of the previous 12 to 24 months 

“for the purpose of furthering electioneering communications.” 11 C.F.R. § 104.20(c)(9). 

2. Regulation of “Political Committees” 

FECA also provides that certain organizations, which qualify as “political committees,” 

are subject to distinct disclosure requirements. Political committees must, inter alia, register 

with the FEC, appoint a treasurer, maintain names and addresses of contributors, and file 

periodic reports disclosing most receipts of $200 or more. 52 U.S.C. §§ 30103, 30104(a)-(b). 

Under FECA, any “committee, club, association, or other group of persons” that receives 

more than $1,000 in “contributions” or makes more than $1,000 in “expenditures” in a calendar 

year is a “political committee.” 52 U.S.C. § 30101(4)(A); 11 C.F.R. § 100.5(a). The Act defines 

“contribution” and “expenditure” to include any payment of money to or by any person “for the 

purpose of influencing any election for Federal office.” 52 U.S.C. § 30101(8)(A)(i), (9)(A)(i). 

In Buckley, however, the Supreme Court explained that FECA’s definition of political-committee 

Case 1:14-cv-01419-CRC Document 36 Filed 03/01/16 Page 15 of 60
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status “only in terms of amount of annual ‘contributions’ and ‘expenditures’” might result in an 

overbroad application by reaching “groups engaged purely in issue discussion.” 424 U.S. at 79. 

The Court therefore concluded that, in order to “fulfill the purposes of the Act,” FECA’s 

political-committee provisions “need only encompass organizations that are under the control of 

a candidate or the major purpose of which is the nomination or election of a candidate.” Id.; 

Mem. Op. at 4. Buckley thus established that an entity that is not controlled by a candidate must 

register as a political committee only if the group crosses the $1,000 threshold of contributions or 

expenditures and has as its “major purpose” nominating or electing federal candidates. 

In March 2004, the Commission issued a notice of proposed rulemaking seeking 

comment on whether the FEC should, inter alia, promulgate a regulatory definition of “political 

committee” that would encompass all “527” groups — i.e., political organizations holding taxexempt status under Section 527 of the Internal Revenue Code. Proposed Rules: Political 

Committee Status, 69 Fed. Reg. 11,736, 11,748-11,749 (Mar. 11, 2004); see 26 U.S.C. § 527(a), 

(e)(1). In 2004, after receiving and hearing testimony, the Commission issued an Explanation 

and Justification “explaining why it took no action to re-define ‘political committee.’” Shays v. 

FEC, 511 F. Supp. 2d 19, 23 (D.D.C. 2007). A court of this District rejected a challenge to the 

agency’s decision to “pursue adjudication over rulemaking” but found that the Commission 

should “better explain its decision.” Id. Accordingly, in February 2007 the Commission 

published in the Federal Register a Supplemental Explanation and Justification further 

explaining its decision not to promulgate such a regulation. Rules and Regulations: Political 

Committee Status, 72 Fed. Reg. 5595 (Feb. 7, 2007) (“Supplemental E&J”). 

The Supplemental E&J stated that, rather than adopting a new regulation, the 

Commission would continue its longstanding practice of determining an organization’s major 

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purpose through case-by-case adjudication. See id. at 5596-97. The Commission makes that 

fact-specific determination by reviewing the group’s activity, including by examining its 

“Federal campaign activity,” spending on other activity, and public statements. Id. at 5601 

(citing FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 262 (1986) (“MCFL”)). Finally, the 

Supplemental E&J discussed several prior matters in which the Commission had examined a 

group’s major purpose, explaining that those decisions “provid[ed] considerable guidance to all 

organizations” regarding the FEC’s application of the test. Id. at 5595, 5605-06. 

II. FACTUAL BACKGROUND 

A. Plaintiffs’ Administrative Complaints 

In an administrative complaint dated March 8, 2012, plaintiffs alleged that “AJS’s major 

purpose in 2010 was the nomination or election of federal candidates,” and that, consequently, 

AJS and its president, Stephen DeMaura, had violated FECA by “failing to register as a political 

committee” and by “failing to file [the] periodic reports required of political committees.” (AR 

11-12.) In a separate administrative complaint dated June 7, 2012, plaintiffs alleged that 

“AAN’s major purpose between July 23, 2009 and June 30, 2011 was the nomination or election 

of federal candidates” and that it likewise had violated FECA by “failing to register as a political 

committee” and by failing “to file [the] periodic reports” required of political committees. (AR 

1486-87.) Both complaints requested that the FEC “conduct an investigation into these 

allegations, declare the respondent[s] to have violated [FECA] and applicable FEC regulations,” 

and impose sanctions and take “such further action as may be appropriate.” (AR 13; AR 1487.) 

AJS and Mr. DeMaura responded to plaintiffs’ administrative complaint on May 4, 2012. 

(AR 48-1389.) AAN submitted an initial response on July 20, 2012 (AR 1560-96), and on 

October 1, 2012, it submitted a supplemental response providing an amended IRS Form 990 it 

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had filed for the period July 1, 2010 through June 30, 2011 (AR 1597-1634). The FEC’s Office 

of General Counsel submitted to the Commission its First General Counsel’s Reports and 

Proposed Factual and Legal Analyses concerning the AAN matter on January 17, 2013 (AR 

1635-84) and concerning the AJS matter on May 2, 2013 (AR 1390-1433). The in-house staff 

reports respectively recommended that the Commission find reason to believe that AJS and AAN 

had violated FECA “by failing to organize, register, and report as a political committee, and that 

the Commission authorize an investigation.” (AR 1411; AR 1659.) 

B. The FEC’s Dismissals of Plaintiffs’ Administrative Complaints 

On June 24, 2014, the Commission, by a vote of 3-3, did not find reason to believe that 

AJS had violated FECA’s registration and reporting requirements for political committees. (AR 

1434-35.) Commissioners Ravel, Walther, and Weintraub voted to find reason to believe and to 

authorize an investigation. (Id.) Commissioners Goodman, Hunter, and Peterson voted against 

finding reason to believe. (Id.) On the same date, the Commission also voted 3-3 on the AAN 

matter, and likewise did not find reason to believe that AAN had violated FECA’s political 

committee registration and reporting requirements. (AR 1686-87.) Commissioners Ravel, 

Walther, and Weintraub voted to find reason to believe and to authorize an investigation, and 

Commissioners Goodman, Hunter, and Peterson voted against finding reason to believe. (Id.) 

The Commission then voted 6-0 to close the files in both matters. (AR 1434-35; AR 1686-87.)

On July 30, 2014, the Commissioners issued several Statements of Reasons concerning 

the AJS and AAN matters. Commissioners Goodman, Hunter, and Peterson issued a statement 

explaining their vote against finding reason to believe that AJS had violated the Act. (AR 1438-

69.) They also issued a separate statement explaining their vote concerning AAN. (AR 1690-

1723.) Commissioners Ravel, Walther, and Weintraub issued a combined statement in both 

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matters explaining their votes to proceed with investigations of AJS and AAN. (AR 1470-76; 

AR 1724-30.) Because Commissioners Goodman, Hunter, and Petersen were the 

Commissioners voting against making reason-to-believe findings, their “rationale[s] necessarily 

state[] the agency’s reasons for acting as it did” and they accordingly constitute the “controlling 

group” of Commissioners in both matters. NRSC, 966 F. 2d at 1476. 

In their statement concerning AJS, Commissioners Goodman, Hunter, and Petersen noted 

that the FEC had previously considered whether AJS is a political committee. (AR 1438.) “As 

before,” they wrote, “we believe AJS — an organization that has spent less than ten percent of its 

funds on express advocacy during its entire existence — is an issue-advocacy organization that 

cannot be regulated as a political committee.” (Id. (footnote omitted).) In their statement 

concerning AAN, Commissioners Goodman, Hunter, and Petersen found that AAN’s “public 

statements, organizational documents, and overall spending history objectively indicate that the 

organization’s major purpose has been issue advocacy and grassroots lobbying and organizing.” 

(AR 1690.) Both statements relied upon certain key facts about AJS and AAN that are not 

materially disputed. Based on those facts, which are set forth below, see infra pp. 10-13, the 

controlling Commissioners analyzed the groups’ central organizational purposes and their federal 

campaign spending as compared to their other spending, and concluded that neither AJS nor 

AAN had “violated the Act by failing to register and report as a political committee.” (AR 1463; 

AR 1716.) 

1. AJS 

Established in 1997, AJS is an incorporated non-profit tax-exempt organization that has 

registered with the IRS as a section 501(c)(6) entity. AR 1441; 26 U.S.C. § 501(c)(6) (providing 

tax-exemption to, inter alia, “[b]usiness leagues, chambers of commerce”). AJS’s Articles of 

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Incorporation state that it has the purpose of uniting “in a common organization businesses, 

business leaders, entrepreneurs, and associations of businesses” and promoting “the common 

business interests of its members . . . by helping the American public to better understand public 

policy issues of interest to businesses.” (AR 1441 (internal quotation marks omitted).) Its 2009 

Form 990 tax return declared that AJS “educat[es] the public through television, radio, 

newspaper and direct mail advertising . . . on economic issues with a pro-market, pro-paycheck 

message.” (AR 19.) AJS’s website identifies issues it is “actively working to affect,” including: 

“Reducing Taxes,” “Tort Reform,” “Free Markets & Free Trade,” “Transportation,” “Education 

Reform,” “Health Care Reform & Modernization,” and “Energy.” (AR 1441 n.22 (internal 

quotation marks omitted); AR 100.) 

AJS’s past activities have focused on these kinds of issues. In 2004 and 2005, AJS “ran a 

series of print and radio advertisements in various jurisdictions to promote public support of a 

repeal of the estate . . . tax.” (AR 1441.) In 2006, “AJS aired television communications in 

several states advocating against legislation to establish the asbestos trust fund.” (Id.) “[T]hese 

ads sought to raise public support for AJS’s economic-policy positions.” (AR 1442.) “[N]one 

featured any language expressly advocating the election or defeat of a federal candidate, nor 

were they run within thirty days of a primary election or [within] sixty days of a general 

election.” (Id.) AJS’s administrative response states that it did not make any electioneering 

communications until 2008, nor did it make any independent expenditures until 2010. (AR 52.) 

Between its founding in 1997 and May 2012, AJS “received a total of approximately 

[$54 million] in membership dues and assessments and has spent a total of approximately [$51 

million] on its activities and communications.” (AR 95 ¶ 3.) AJS’s 2009 Form 990 tax return 

reflects that it received $12,411,684 and spent $12,417,809 between November 1, 2009 and 

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October 31, 2010. (AR 18.) In the 2010 calendar year, AJS reported spending a total of 

$4,908,847.27 on independent expenditures and a total of $4,598,519.60 more on ten 

electioneering communications. The appendix to the controlling statement reproduces the scripts 

for the ten electioneering communications and breaks down AJS’s costs for creating and 

disseminating them. (AR 1466-69.) 

Therefore, of the total $51 million AJS spent during the fifteen-year period between 1997 

and May 2012, AJS’s spending of “just under $5 million” (AR 1442), or $4,908,847.27, on 

independent expenditures represents 9.6 percent of its total spending. (See AR 1458 & n.128.) 

AJS’s total 2010 spending on independent expenditures ($4,908,847) represents 39.5 percent of 

its spending that year ($12,417,809). (AR 1463 n.151.)2

 AJS’s financials as captured in the 

record can thus be summarized as follows: 

1997 to May 2012 20103

Receipts $54 million $12.4 million 

Expenses $51 million $12.4 million 

Independent Expenditures $4.9 million 

(9.6% of expenses) 

$4.9 million 

(39.5% of expenses) 

2. AAN 

AAN is a non-profit 501(c)(4) corporation. AR 1692; 26 U.S.C. § 501(c)(4) (providing 

tax-exemption to, inter alia, non-profit “[c]ivic leagues or organizations . . . operated exclusively 

for the promotion of social welfare”). Its Form 990 tax returns and website describe it as an 

“‘action tank’ that will create, encourage and promote center-right policies based on the 

principles of freedom, limited government, American exceptionalism, and strong national 

 

2

 Because the record does not contain AJS’s exact receipts and expenses in the 2010 

calendar year, all of the Commissioners used AJS’s fiscal year information as a proxy in their 

analyses. (See, e.g., AR 1463 n.151; AR 1473 n.22.) 

3

 See supra n.2. 

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policy.” (AR 1491; AR 1519.) AAN’s tax returns declare that it has “built a premier grassroots 

advocacy organization,” “created a cutting edge technological platform,” and “[c]onducted over 

20 policy interactive briefs called ‘Learn and Lead’ with over 1000 activities involved from 

around the country.” (AR 1491.) It has hosted public officials as guest speakers to educate 

“grassroots leaders about critical issues facing our country with regards to energy, education, tax 

policy, immigration, national security, spending and health care.” (Id.) 

AAN’s 2009 Form 990 tax return reflects that it received $2,750,372 and spent 

$1,446,675 between July 23, 2009 and June 30, 2010. (AR 1490.) Its 2010 Form 990 tax return 

states that it received $27,479,384 and spent $25,692,334 in its second fiscal year, ending June 

30, 2011. (AR 1518; AR 1600.) Thus, AAN received $30,229,756 and spent “over $27 million” 

(AR 1692), or $27,139,009, during its first two fiscal years. In 2010, AAN’s FEC filings reflect 

that it spent a total of approximately $4,096,910 on independent expenditures (AR 1708) and 

roughly $13 million more on 20 electioneering communications (AR 1709, 1719-23). The 

controlling statement’s appendix reproduces the scripts for the 20 electioneering communications 

and breaks down AAN’s costs for creating and disseminating them. (AR 1719-23.) 

Therefore, of the total $27,139,009 AAN spent between June 2009 and July 2011, AAN 

spent 15.1 percent ($4,096,910) on independent expenditures. (AR 1709.) AAN’s spending of 

$4,096,910 on independent expenditures during 2010 (assuming they were all made after June 

2010) comprised 15.9 percent of its total spending of $25,692,334 in its 2010 fiscal year. AAN’s 

financials as captured in the record can thus be summarized as follows: 

June 2009 to July 2011 2010 Fiscal Year 

Receipts $30.2 million $27.5 million 

Expenses $27.1 million $25.7 million 

Independent 

Expenditures 

$4.1 million 

(15.1% of expenses) 

$4.1 million 

(15.9% of expenses) 

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3. The Controlling Commissioners’ Approach to the Major Purpose Test 

There is no dispute that AJS and AAN “crossed the statutory threshold for politicalcommittee status by making over $1,000 in independent expenditures in 2010.” (AR 1454; AR 

1706.) For that reason, the controlling group of Commissioners’ analyses focused on assessing 

each organization’s “major purpose.” Those Commissioners relied on judicial decisions 

creating, evaluating, and applying the major-purpose test, issue speech as it relates to politicalcommittee status, as well as the Commission’s own 2007 Supplemental E&J explaining the 

Commission’s approach to the major-purpose test. (AR 1444-54; AR 1696-1705.) 

The controlling Commissioners first discussed the major-purpose test’s origins and 

establishment in Buckley, noting that the test was then “reaffirmed” in MCFL. (AR1447-48; AR 

1699-1700.) Those Commissioners’ statements explained that MCFL established both (1) that 

an issue advocacy organization could engage in activities advocating for federal candidates 

without becoming a political committee, and (2) that an organization could be classified as a 

political committee if its political spending became “‘so extensive’” that its “‘major purpose may 

be regarded as campaign activity.’” (AR 1448 (quoting MCFL, 479 U.S. at 262); AR 1699 

(same).) 

Turning to lower courts’ applications of the major-purpose test, the controlling statements 

discussed Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804, 838 (7th Cir. 2014), in which 

the Seventh Circuit Court of Appeals invalidated part of a Wisconsin provision that imposed 

political-committee reporting requirements on “ordinary citizens, grass-roots issue-advocacy 

groups, and § 501(c)(4) social-welfare organizations.” Id. at 838. The requirement applied when 

such groups exceeded a $300 threshold in “communicat[ing] their views about any political issue 

close to an election and include[d] the name or likeness of a candidate in a way that could be 

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construed by state regulators as a reference to the candidate’s qualifications or as ‘support’ or 

‘condemnation’ of the candidate’s record or positions.” Id. The Seventh Circuit had reasoned 

that imposing political-committee registration and reporting requirements on “groups that engage 

in express election advocacy as their major purpose . . . is a relevantly correlated and reasonably 

tailored means of achieving the public’s informational interest,” but it rejected the imposition of 

such requirements “on issue-advocacy groups that only occasionally engage in express 

advocacy.” Id. at 841; see also AR 1448 (discussing Barland); AR 1700 (same). 

The controlling statements also explained that the Fourth and Tenth Circuits have 

interpreted Buckley to hold that an organization may be classified as a political committee only if 

it has “the” major purpose of electing or nominating federal candidates, as opposed to “a” major 

purpose, N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 288-89 (4th Cir. 2008); Real Truth 

About Abortion, Inc. v. FEC, 681 F.3d. 544, 556 (4th Cir. 2012) (“RTAA”), cert. denied, 133 S. 

Ct. 841 (2013); Free Speech v. FEC, 720 F.3d 788, 797 (10th Cir. 2013), cert. denied, 134 S. Ct. 

2288 (2014). (AR 1449 n.69; AR 1700 n.65.) Those statements further described the Tenth 

Circuit’s approach to the major-purpose test, which analyzes organizations’ public statements or 

comparative spending: “[T]he Tenth Circuit identified two methods for determining an 

organization’s major purpose: [1] ‘an examination of the organization’s central organizational 

purpose’; or [2] a ‘comparison of the organization’s electioneering spending with overall 

spending to determine whether the preponderance of expenditures is for express advocacy or 

contributions to candidates,’” N.M. Youth Organized v. Herrera, 611 F.3d 669, 678 (10th Cir. 

2010) (citing Colo. Right to Life Comm., Inc. v. Coffman, 498 F.3d 1127, 1152 (10th Cir. 2007)). 

(AR 1448-49; AR 1700.) 

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The statements additionally discussed the decisions of courts in this District in FEC v. 

Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004), and FEC v. GOPAC, Inc., 917 F. Supp. 851, 859 

(D.D.C. 1996), explaining that these decisions shed additional light on how courts have applied 

the major-purpose test. (AR 1449; AR 1701.) 

After discussing the Supreme Court’s consideration of issue speech in FEC v. Wisconsin 

Right to Life, Inc., 551 U.S. 449 (2007) (“WRTL”), the controlling statements summarized the 

Commission’s decision not to promulgate a regulatory major-purpose-test rule following the 

2004 notice of proposed rulemaking and the FEC’s choice, instead, to continue using its case-bycase approach. (AR 1451-54; AR 1703-05.) The Commissioners explained that although the 

“basic approach to political committee status outlined in the 2007 Supplemental E&J remains 

valid,” “some portions of the guidance contained therein [had] been superseded by subsequent 

case law and Commission interpretations.” (AR 1452; AR 1704.) The controlling statements 

noted that WRTL and Barland were both issued after the Supplemental E&J. (Id.) 

Based upon the above-referenced judicial decisions and the Commission’s Supplemental 

E&J, the controlling group of Commissioners explained their view that two factors, while not 

exclusive, are “most relevant” here: “(1) assessing [AJS’s and AAN’s] central organizational 

purpose by examining its public and non-public statements; and (2) analyzing [AJS’s and 

AAN’s] spending on campaign activities with its spending on activities unrelated to the election 

or defeat of a federal candidate, including the group’s genuine issue speech.” (AR 1706 

(footnote omitted); see also AR 1455.) 

4. The Controlling Statements’ Application of the Major Purpose Test to 

AJS and AAN 

The controlling Commissioners applied the two factors and concluded that neither AJS 

nor AAN had the central organizational purpose of nominating or electing federal candidates, 

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and that neither group’s spending reflected that its major purpose was nominating or electing 

federal candidates. 

The controlling group concluded that “[t]he official documents of AJS, including its 

articles of incorporation, its purpose statement, and its website, all indicate that AJS’s central 

organizational purpose is to promote economic issues, not the nomination or election of a federal 

candidate.” (AR 1456.) They explained that AJS’s “organizational documents, including its 

website, mission statement, and status as a 501(c) organization, counsel against it being a 

political committee.” (AR 1455.) And the Commissioners noted that although an organization’s 

tax status “is not dispositive,” AJS has been “organized as a 501(c)(6) for seventeen years — it 

was even audited by the IRS in 2004 only to have no further action taken.” (AR 1455-56.) 

To determine if AJS’s spending had “become so extensive as to subject” AJS “to 

regulation as a political committee,” the controlling Commissioners compared “the group’s 

overall spending on express advocacy against its overall spending on activities unrelated to 

campaigns, including issue advocacy.” (AR 1456 (internal quotation marks omitted).) The 

Commissioners analyzed AJS’s “entire history” of spending dating back to 1997, and found that 

“all of [AJS’s] electioneering communications identified in the [administrative] Complaint are 

genuine issue advertisements.” (AR 1456-57.) They explained that during the course of its 

history, “AJS spent over $50 million to promot[e] its public policy agenda through issue 

advocacy activities and communications, but only $4.9 million — or a mere 9.8 percent — of 

that spending was on express advocacy.” (AR 1458 (internal quotation marks and footnotes 

omitted).) And they concluded that AJS’s spending was not “‘so extensive that [its] major 

purpose may be regarded as campaign activity.’” (Id. (quoting MCFL, 479 U.S. at 262).) 

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 The controlling Commissioners similarly relied on AAN’s official statements in 

concluding that “AAN’s organizational documents and official public statements indicate that 

AAN was organized to promote public policy and engage in issue advocacy.” (AR 1706.) They 

also cited as relevant AAN’s 501(c)(4) status, “given that [AAN was] well aware of [its] 

limitations under a 501(c) exemption.” (AR 1707 & n.109 (noting that AAN’s administrative 

response stated its calculation that, between 2009-2011, “‘at most, only 19% of AAN’s spending 

was for political activities’ as the IRS defines them’”).) “Based upon AAN’s official public 

statements and chosen tax status,” the Commissioners found that “AAN’s central organizational 

purpose is not the nomination or election of a candidate to federal office.” (AR 1707.) 

The Commissioners further concluded that AAN’s spending “indicates that while 

nominating or electing candidates may have been a purpose of the organization in the time 

period in question, it was not the major purpose of the organization.” (AR 1708.) After 

explaining that AAN had spent funds on various organization-building activities (AR 1708-09), 

in addition to approximately $4.1 million it spent on independent expenditures in 2010, the 

Commissioners discussed AAN’s spending on issue advertising. Concluding that AAN’s 

advertisements “[we]re genuine issue advertisements,” the Commissioners determined that, 

“[a]ccordingly, the roughly $13 million that AAN spent on these . . . advertisements indicate that 

its purpose was something other than the nomination or election of a federal candidate.” (AR 

1709.) “Indeed, the roughly $4.1 million that AAN spent on independent expenditures between 

2009 and 2011 was the totality of its spending that was for the purpose of nominating or 

influencing the election of a federal candidate and represented approximately 15% of its total 

expenses during the same period.” (Id.) Consequently, the Commissioners concluded that 

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AAN’s spending was not “so extensive” such that its major purpose could be “regarded as 

campaign activity.” (Id. (internal quotation marks omitted).) 

Finally, both statements of reasons expressed the controlling Commissioners’ 

disagreement with the Commission’s in-house counsel’s comparative spending analyses. (AR 

1458-63; AR 1710-15.) In particular, the statements’ explained the Commissioners’ conclusions 

that (1) the relevant spending should not encompass genuine issue advertisements when 

calculating the numerator of the spending ratio, and (2) it is inappropriate to confine the relevant 

time period to a single calendar year when determining the denominator. (Id.) Both statements 

also noted that the controlling Commissioners relied upon the agency’s prosecutorial discretion 

in choosing to vote to dismiss the administrative complaints. (AR 1460-61 n.142, 1463 n.153; 

AR 1712-13 n.137, 1716 n.153 (citing Heckler v. Chaney, 470 U.S. 821, 831 (1985)).) 

ARGUMENT 

The Commission’s dismissals of plaintiffs’ administrative complaints must be sustained 

because they were not contrary to law. The rationales of the three Commissioners who voted not 

to find reason to believe that either AJS or AAN violated FECA reflect their thorough review of 

the records before the Commission, including careful analyses of both organizations’ statements 

and detailed reviews of their financial activities and communications. They also accord with 

courts’ instructions that FECA be interpreted in a manner that is sensitive to the First 

Amendment activity regulated by the statute. Those Commissioners’ analyses were reasonable 

and concern an area in which the Commission’s inquiry is necessarily both flexible and accorded 

extreme deference. The agency’s dismissals of both matters therefore should be affirmed. 

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I. STANDARD OF REVIEW 

In reviewing the challenged dismissal decisions under section 30109(a)(8), the Court is 

bound by controlling decisions of the Supreme Court and D.C. Circuit requiring that the 

Commission’s dismissal decisions be accorded full deference, irrespective of the Commission’s 

divided votes on the matters. Plaintiffs’ attempts to reduce their heavy burden by urging de novo 

review and a lesser degree of deference lack support and must be rejected. Additionally, in 

performing contrary-to-law review under section 30109(a)(8), the Court acts as an appellate 

tribunal and limits its review to the administrative record. Plaintiffs’ extensive extra-record 

attachments do not bear on this case. 

A. Review Under Section 30109(a)(8) Is “Limited” and “Extremely Deferential” 

In section 30109(a)(8), Congress mandated that the judicial task in cases like this is to 

determine whether the Commission’s dismissals of plaintiffs’ administrative complaints are 

“contrary to law.” 52 U.S.C. § 30109(a)(8)(C). Well-settled decisions construing section 

30109(a)(8) make clear that such review is “limited.” Common Cause v. FEC, 842 F.2d 436, 

448 (D.C. Cir. 1988); Citizens for Responsibility & Ethics in Washington v. FEC, 475 F.3d 337, 

340 (D.C. Cir. 2007) (explaining that judicial review under section 30109(a)(8) “is limited to 

correcting errors of law”). As plaintiffs acknowledge (Pls.’ Mem. at 14), the FEC’s dismissal of 

an administrative complaint cannot be disturbed unless it was based on an “impermissible 

interpretation of” FECA or was otherwise “arbitrary or capricious, or an abuse of discretion.” 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986); see also, e.g., Common Cause v. FEC, 108 F.3d 

413, 415 (D.C. Cir. 1997) (per curiam); Akins v. FEC, 736 F. Supp. 2d 9, 16-17 (D.D.C. 2010). 

The contrary-to-law standard is “extremely deferential” to the agency’s decision and 

“requires affirmance if a rational basis . . . is shown.” Orloski, 795 F.2d at 167. As the Supreme 

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Court explained more than three decades ago, in another section 30109(a)(8) case challenging 

the FEC’s dismissal of an administrative complaint, “the Commission is precisely the type of 

agency to which deference should presumptively be afforded.” FEC v. Democratic Senatorial 

Campaign Comm., 454 U.S. 27, 37 (1981) (“DSCC”) (emphasis added). This is due to the 

FEC’s “‘primary and substantial responsibility for administering and enforcing [FECA],’” its 

authority to “‘formulate general policy with respect to the administration of [the] Act,’” its “‘sole 

discretionary power’ to determine in the first instance whether or not a civil violation of the Act 

has occurred,” and its “inherently bipartisan” nature resulting from the fact that “no more than 

three of its six voting members may be of the same political party.” Id. “For these reasons” and 

others, the Court said, Congress “wisely provided” that the “dismissal of a[n administrative] 

complaint should be reversed only if ‘contrary to law.’” Id. 

In assessing whether the challenged dismissals were contrary to law, the Court’s task here 

is “not to interpret the statute as it [thinks] best but rather the narrower inquiry into whether the 

Commission’s construction was sufficiently reasonable to be accepted.” DSCC, 454 U.S. at 39 

(internal quotation marks omitted). Indeed, “[t]o satisfy this standard it is not necessary for [the 

Court] to find that the agency’s construction was the only reasonable one or even the reading the 

[C]ourt would have reached” on its own “if the question initially had arisen in a judicial 

proceeding.” Id. In applying this Chevron deference, which is “principal[ly] justifi[ed]” by the 

agency’s “practical . . . expertise,” Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 651-

52 (1990), the Court must affirm the dismissal so long as the agency’s construction was 

permissible and its application of that construction not arbitrary and capricious, see Chevron 

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n.11 (1984) (citing DSCC); 

Akins, 736 F. Supp. 2d at 18 (likening Chevron deference to that described in DSCC). 

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B. The Court Must Accord Chevron Deference to the FEC’s Split Vote Which 

Implemented, in Part, a Constitutional Holding 

The extremely deferential standard of review applicable to FEC dismissals extends to 

those, as here, that are animated in part by constitutional concerns. Given the Supreme Court’s 

imposition of the major purpose requirement, Buckley, 424 U.S. at 79, it plainly was not contrary 

to law for the FEC to interpret 52 U.S.C. § 30101(4)(A) with that limitation. Contrary to 

plaintiffs’ argument (Pls.’ Mem. at 14-15), however, the FEC is not seeking deference with 

respect to some generalized interpretation of Buckley; rather, the Court is required to defer to the 

agency’s interpretation of the applicable provision of the Act, section 30101(4)(A). In 

interpreting that provision, the Commission is permitted to take into account the “changed 

circumstances” resulting from major “[c]onstitutional decisions” of the Supreme Court. See Van 

Hollen v. FEC, ___ F.3d ___, 2016 WL 278200, at *9 (D.C. Cir. Jan. 21, 2016) (applying 

deferential review to an FEC regulation implementing WRTL even though that decision “said 

absolutely nothing” about the disclosure provision the Commission subsequently revised). 

Plaintiffs’ request that the Court deviate from the norm of deference and apply a de novo 

standard of review (see Pls.’ Mem. at 14-15) is thus unfounded.4

 

Nor is the deferential standard of review altered by the nature of the dismissal, which 

resulted from a 3-3 split vote instead of a majority vote such as 6-0, 5-1, or 4-2. The D.C. 

Circuit has squarely held that it owes deference to an FEC legal interpretation supporting a 

decision not to proceed on an enforcement matter, even if it only “prevails on a 3-3 deadlock.” 

 

4

 Plaintiffs rely on the Court of Appeals’s vacated opinion in Akins v. FEC, 101 F.3d 731, 

740 (D.C. Cir. 1996) (en banc), vacated on other grounds, 524 U.S. 11 (1998), to argue against 

deference (Pls.’ Mem. at 15). That opinion, however, is nonprecedential and of even more 

dubious value given that Court’s repeated reaffirmation of the major-purpose test during the last 

twenty years. See, e.g., Unity08 v. FEC, 596 F.3d 861, 867-69 (D.C. Cir. 2010); EMILY’s List v. 

FEC, 581 F.3d 1, 16 n.15 (D.C. Cir. 2009). 

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In re Sealed Case, 223 F.3d 775, 779 (D.C. Cir. 2000); FEC v. Nat’l Rifle Ass’n of Am., 254 F.3d 

173, 185 (D.C. Cir. 2001). 

In NRSC, another case in which Commissioners split 3-3, the Court of Appeals applied 

“ordinar[y]” principles of agency deference to the rationale of dissenting Commissioners. The 

Court found that the construction of a disputed regulation articulated by the three “declining-togo-ahead Commissioners,” Common Cause, 842 F.2d at 449, could be sustained in light of the 

“Commission’s precedents and statements,” which did not “clearly establish” what the disputed 

regulation meant. NRSC, 966 F.2d at 1476-77. The Court held that it was “enough to say” that 

the FEC had provided, through the declining Commissioners’ statement, “a reasoned justification 

for” its actions and found that “[i]t was error for the district court to force a different construction 

upon the Commission and the entities subject to its regulation.” Id. at 1478. 

The deference that the D.C. Circuit accorded the dissenting Commissioners in NRSC had 

its roots in DCCC, 831 F.2d 1131, an earlier FEC case that also arose from a split-vote 

dismissal.5

 In DCCC, in an opinion authored by then-Judge Ruth Bader Ginsburg, the D.C. 

Circuit “held that, to make judicial review a meaningful exercise, the three Commissioners who 

voted to dismiss must provide a statement of their reasons for so voting.” NRSC, 966 F.2d at 

1476 (discussing DCCC). A footnote in the DCCC opinion “strongly suggest[ed] that, if the 

meaning of the statute is not clear, a reviewing court should accord deference to the 

Commission’s rationale,” even in a situation in which the Commission was divided. Id. The 

 

5

 DCCC and DSCC were dismissed at the “reason to believe” stage of the Commission’s 

enforcement process. In NRSC, the court considered the Commission’s actions at the subsequent 

“probable cause” stage. Like a reason to believe finding, a probable cause finding requires four 

affirmative votes of Commissioners to proceed to the next step. See supra p. 3. Because of the 

highly analogous nature of the inquiries, the D.C. Circuit and courts in this District have made no 

distinctions in reviewing FEC dismissals based upon whether they occurred at the reason to 

believe or probable cause stages. 

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DCCC footnote stated that “[i]n the absence of prior Commission precedent . . . judicial 

deference to the agency’s initial decision or indecision would be at its zenith.” DCCC, 831 F.2d 

at 1135 n.5 (emphasis added). 

Shortly after deciding DCCC, the D.C. Circuit “expanded it to control generally 

situations in which the Commission deadlocks and dismisses.” NRSC, 966 F.2d at 1476. The 

D.C. Circuit in NRSC determined that the “import of DCCC today is that we see no material 

distinction between” a case reviewing a deadlock dismissal “and the Supreme Court’s decision in 

DSCC” reviewing a unanimous dismissal. Id. “[B]oth DCCC and DSCC were on review of 

Commission decisions, with supporting rationales, to dismiss complaints.” Id.; see also Stark v. 

FEC, 683 F. Supp. 836, 840-41 (D.D.C. 1988) (“[T]his Court reads DCCC to require that the 

same deference [accorded by the Supreme Court in DSCC] be accorded the reasoning of 

‘dissenting’ Commissioners who prevent Commission action by voting to deadlock as is given 

the reasoning of the Commission when it acts affirmatively as a body to dismiss a complaint.”). 

Accordingly, split-vote dismissals are owed the same level of deference as is owed to majority or 

unanimous dismissals. 

More recently, and subsequent to its vacated decision in Akins, the Court of Appeals 

reaffirmed the deference afforded to declining-to-go-ahead Commissioners and elaborated on its 

bases. In In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000), as plaintiffs acknowledge (Pls.’ 

Mem. at 16 n.9), the D.C. Circuit deferred to such a “controlling group’s” interpretation of 

whether a financial transaction involving a foreign national was illegal under FECA. Id. at 780 

(finding FEC’s determination regarding whether there was probable cause to believe a violation 

had occurred “entitled to deference”). That decision foreclosed the Department of Justice’s 

argument that the crime-fraud exception to privilege required the production of documents 

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possibly associated with the transaction. Id. at 779 (“This case does not fall within the crimefraud exception because what [the Republican National Committee] and its officials are accused 

of is not criminal.”). Although the context was different from NRSC — NRSC concerned an 

interpretation of an FEC regulation (not FECA itself) and concerned a civil (not criminal) matter 

— the Court of Appeals found these differences immaterial in deferring to the dissenting 

Commissioners’ adjudicative decision. Id. at 779-80; contra Pls.’ Mem. at 16 n.9 (attempting to 

distinguish In re Sealed Case due to its “peculiar situation”). 

In re Sealed Case further explains why Chevron deference is appropriate in instances in 

which the Commission deadlocks in enforcement proceedings. Based upon the structure of 

section 30109, FECA’s enforcement provision, the In re Sealed Case court explained that “the 

probable cause determination is part of a detailed statutory framework for civil enforcement and 

is analogous to a formal adjudication,” thus falling on the “Chevron side of the line.” 223 F.3d 

at 780; Nat’l Rifle Ass’n of Am., 254 F.3d at 185 (explaining that “in making probable cause 

determinations, the Commission . . . giv[es] ambiguous statutory language concrete meaning 

through case-by-case adjudication”; these were among the reasons why the court in In re Sealed 

Case determined that the FEC’s “probable cause determination and its underlying statutory 

interpretation had sufficient legal effect to warrant Chevron deference”); see also United States 

v. Mead Corp., 533 U.S. 218, 230 (2001) (“It is fair to assume generally that Congress 

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

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

pronouncement of such force.”); id. at 230 n.12 (collecting instances of Chevron deference in 

adjudication cases); Mem. Op. at 8 (explaining that agencies may announce new principles 

through adjudication). 

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Indeed, unlike other agencies, which may issue no-action letters prepared by staff, the 

FEC’s “no-action decision here was made by the Commission itself.” In re Sealed Case, 223 

F.3d at 780; see also Nat’l Rifle Ass’n of Am., 254 F.3d at 185. By providing in FECA that it 

takes four Commissioner votes to proceed on an enforcement matter, but only three to dismiss, 

Congress sought to ensure that the agency would not “provide room for partisan misuse.” H.R. 

12406, H. Rep. No. 94-917, 94th Cong., 2d Sess. at 3 (1976). The legislative history concerning 

the FEC’s structure confirms that Congress designed the Commission to “initiate investigations, 

. . . and take other steps of comparable importance only upon the affirmative vote of four . . . 

members. The four-vote requirement serves to assure that enforcement actions, as to which the 

Congress has no continuing voice, will be the product of a mature and considered judgment.” Id. 

The D.C. Circuit echoed these concerns, explaining that Chevron deference to a Commission’s 

split-vote enforcement dismissal is warranted both because it is consistent with Congress’s 

design of the agency to be statutorily balanced, without a political party possessing a majority, 

and with the Supreme Court’s instructions in DSCC, which were “more consonant with 

Chevron” deference (even though Chevron had not been decided yet) than with the less 

deferential standard of review under Skidmore v. Swift & Co., 323 U.S. 134 (1944). In re Sealed 

Case, 223 F.3d at 780-81. “If courts do not accord Chevron deference to a prevailing decision 

that specific conduct is not a violation, parties may be subject to criminal penalties where 

Congress could not have intended that result.” Id. at 780 (emphasis added). 

Plaintiffs acknowledge that Chevron deference is appropriate when the agency interprets 

FECA (as happened here), but they nevertheless contend that “the vote of three [C]ommissioners 

is insufficient to exercise the authority of the FEC.” (Pls.’ Mem. at 15.) Binding precedent — 

including the D.C. Circuit’s controlling decisions in NRSC, In re Sealed Case, National Rifle 

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Association, DCCC, and Common Cause, and the Supreme Court’s decision in DSCC — 

forecloses plaintiffs’ request that the Court decline to apply Chevron deference to the “prevailing 

decision[s]” challenged here. Plaintiffs overlook the distinction between the FEC’s authority to 

regulate prospectively through rulemakings or adjudications in which four or more 

Commissioners agree on a rationale, on the one hand, and the power of three Commissioners to 

compel dismissal of an administrative enforcement matter, on the other. Thus, while it is true 

that the D.C. Circuit noted in Common Cause that “[a] statement of reasons [by declining-to-goahead Commissioners] would not be binding legal precedent or authority for future cases,” 842 

F.2d at 449 n.32 (emphasis added), the statement of three such Commissioners in a case like this 

one is the agency’s official decision and is to be accorded Chevron deference in the context of 

judicial review of that adjudicative decision, In re Sealed Case, 223 F.3d at 780; see also Mem. 

Op. at 2 (explaining that the AJS and AAN dismissals were “ordinary adjudications”). Contrary 

to plaintiffs’ contention that a 3-3 dismissal does not “exercise the authority of the FEC” (Pls.’ 

Mem. at 15), that is precisely how the agency was designed to operate. Whether that design is 

considered a feature, as Congress understood it, or a defect, as plaintiffs do, deference to a 

dismissal resulting from an absence of a majority furthers the Congressional intent of requiring 

that any federal campaign finance enforcement be the product of the Commissioners’ bipartisan 

expertise. 

The Court must therefore accord Chevron deference to the controlling group of 

Commissioners in this case, just as other courts in this District have done when reviewing 

Commission dismissals resulting from split votes. See, e.g., Common Cause, 108 F.3d at 415 

(reciting the district court’s application of “Chevron deference” to the “‘declining-to-go-ahead’ 

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Commissioners”); GOPAC, Inc., 917 F. Supp. at 860 (noting that the statutory provision entitling 

the FEC to DSCC deference is section 30109(a)(8)). 

C. Section 30109(a)(8) Review is Based Solely on the Administrative Record 

As the parties have already recognized, this is an “‘action for review on an administrative 

record’” (Joint Meet and Confer Statement at 1 (Docket No. 30) (quoting LCvR 16.3(b)(1))), in 

which judicial review must be limited to the administrative record “already in existence, not 

some new record made initially in the reviewing court,” Camp v. Pitts, 411 U.S. 138, 142, 143 

(1973) (per curiam). Indeed, a “widely accepted principle of administrative law [is] that the 

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

the time its decision was made.” IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C. Cir. 1997). 

Plaintiffs nevertheless attempt to rely on hundreds of pages of material that were not part 

of the record before the Commission in either underlying matter. (See Decl. of Steward C. 

McPhail, Exhs. 1-20 Dec. 22, 2015 (Docket No. 33-1) (“McPhail Decl.”).) Indeed, much of 

plaintiffs’ extra-record material was not even available until after the June 24, 2014 dismissals 

challenged here. (Id. Exhs. 1, 3-6, 10-20.) Such extra-record material is improper in this section 

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

challenged dismissal decisions. See Earthworks v. Dep’t of the Interior, 279 F.R.D. 180, 184 

(D.D.C. 2012) (“[T]o ensure fair review of an agency decision, a reviewing court ‘should have 

before it neither more nor less information than did the agency when it made its decision.’” 

(citations omitted) (collecting cases)). 

Plaintiffs’ attempt to rely on various court filings and submissions from unrelated judicial 

and administrative matters as legislative facts is likewise improper. (Pls.’ Mem. at 2 n.1; see 

McPhail Decl., Exhs. 2, 7-9, 20-30.) A court’s general ability to take judicial notice of such 

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publicly available records does not supersede the well-settled principle that judicial review of 

agency actions must be limited to the administrative record before the agency at the time of the 

decision. See Dist. Hosp. Partners, L.P. v. Sebelius, 971 F. Supp. 2d 15, 31-32 (D.D.C. 2013) 

(refusing to order supplementation of administrative record absent “concrete evidence” that 

proffered additional material was considered by agency), aff’d sub nom. Dist. Hosp. Partners, 

L.P. v. Burwell, 786 F.3d 46 (D.C. Cir. 2015); Cty. of San Miguel v. Kempthorne, 587 F. Supp. 

2d 64, 78 (D.D.C. 2008) (refusing to take judicial notice of “[e]xtra-record material 

constitut[ing] documents, data, and other information which was not part of the administrative 

record”). Even if the Court chose to take judicial notice of indisputable facts from public 

sources, plaintiffs’ submissions are not limited to such facts. Instead, plaintiffs submit extrarecord materials regarding vigorously disputed factual questions, including allegations regarding 

two other groups alleged to be political committees about which FEC Commissioners disagreed 

(Pls.’ Mem. at 10) and circumstances about Wisconsin Governor Scott Walker’s recall campaign 

that have been the subject of extensive court proceedings (id. at 11). Those issues are not 

appropriate subjects for judicial notice. 

Relatedly, plaintiffs’ generalized “dark money” arguments (Pls.’ Mem. at 2-11), which 

largely rely on such extra-record material, are a stealth effort to relitigate this Court’s August 

2015 decision rejecting plaintiffs’ earlier attempt to make similar generalized policy arguments. 

Mem. Op. at 11. In recognizing that this case is a narrow challenge to the Commission’s 

dismissal of two specific administrative complaints, the Court explained that plaintiffs “may of 

course claim that the basis on which the FEC reached its [dismissal] decisions was arbitrary or 

unsound,” but clarified that “CREW’s exclusive remedy for its disagreement with the FEC’s 

rationale is to challenge those particular decisions under the judicial review provision of FECA.” 

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Id. (emphasis added). Plaintiffs’ general facts about topics like “The Growth of Dark Money 

Campaign Spending” do not relate to the particular decisions at issue here. 

The extra-record material in plaintiffs’ exhibits was not considered by Commissioners in 

making the underlying dismissal decisions on review here and such material, and plaintiffs’ 

arguments premised on such material, should thus be disregarded. 

II. THE DISMISSAL DECISIONS CLEARLY WERE NOT CONTRARY TO LAW 

Because AJS and AAN met the $1,000 statutory threshold for political-committee status, 

the only question is whether the controlling statements’ conclusions that each group did not have 

as its major purpose the nomination or election of federal candidates were reasonable. Free 

Speech, 720 F.3d at 797. Those conclusions were reasonable and certainly not contrary to law.6

The controlling Commissioners’ reasoning accords with the narrow construction of 

FECA’s political-committee definition that the Supreme Court and the federal courts of appeals, 

including the D.C. Circuit, have followed for nearly four decades, as well as the Commission’s 

own Supplemental E&J and historical practices. The controlling group’s approach to analyzing 

the organizations’ major purposes — by examining their central organizational purpose and 

comparative spending — was squarely justified. 

To determine AJS’s and AAN’s central organizational purposes, each statement analyzed 

the groups’ respective public statements and evaluated these statements and other information in 

the records before the Commission. In assessing the organizations’ comparative spending, the 

controlling group identified what it determined to be their relevant federal campaign activity, 

each group’s express advocacy, and compared such spending to the group’s total spending 

 

6

 Following the initiation of this lawsuit, the FEC moved to dismiss certain claims that 

sought relief under the Administrative Procedure Act. The Court granted that motion, Mem. Op. 

at 2, meaning that the case is now properly confined to review under 52 U.S.C. § 30109(a)(8). 

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captured in the administrative records. Based on these analyses, the controlling Commissioners 

reasonably determined that AJS is an “issue-advocacy organization that cannot be regulated as a 

political committee” (AR 1438) and that AAN’s major purpose is “issue advocacy and grassroots 

lobbying and organizing” (AR 1690). Because these applications of the major-purpose test were 

consistent with FECA, multiple court decisions, and the Commission’s own statements and 

practice, they readily pass muster under deferential review. 

A. The Controlling Commissioners’ Approach to Determining Each of AJS’s 

and AAN’s “Major Purpose” Was Reasonable 

1. “Political Committee” Has Been Narrowly Construed by Courts 

The controlling Commissioners’ approach to the major-purpose test was based upon First 

Amendment concerns that have been expressed by numerous courts and commentators. The test 

itself arose out of the Supreme Court’s concern that FECA’s political-committee definition, if 

mechanically applied, might sweep too broadly. In Buckley, the Court feared that defining 

political-committee status “only in terms of amount of annual ‘contributions’ and ‘expenditures’ 

. . . could be interpreted to reach groups engaged purely in issue discussion.” 424 U.S. at 79 

(footnote omitted). Noting that lower courts had construed “‘political committee’ more 

narrowly” in order to “avoid questions of unconstitutionality,” id. at 79 & n.106; see also AR 

1444-47 (discussing pre-Buckley analysis); AR 1696-98 (same), the Court limited the reach of 

FECA’s definition of “political committee” to “organizations that are under the control of a 

candidate or the major purpose of which is the nomination or election of a candidate,” Buckley, 

424 U.S. at 79. This construction was sufficient, the Court said, “[t]o fulfill the purposes of the 

Act”; the expenditures of such “major purpose” groups could be “assumed to fall within the core 

area sought to be addressed by Congress,” which are, “by definition, campaign related.” Id. 

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MCFL reaffirmed Buckley’s major-purpose holding. 479 U.S. at 252 n.6 (quoting 

Buckley, 424 U.S. at 79). Even though the organization at issue in the case, MCFL, occasionally 

“engage[d] in activities on behalf of political candidates,” it could not be regulated as a political 

committee because “[i]ts central organizational purpose [was] issue advocacy.” Id. Only if a 

group’s spending “become[s] so extensive that [its] major purpose may be regarded as campaign 

activity, [can it properly] . . . be classified as a political committee.” Id. at 262. Organizations 

that do have that major purpose are political committees and are subject to “extensive 

requirements,” including recordkeeping and reporting requirements. Id. at 254; Citizens United, 

558 U.S. at 337 (noting that political-committee obligations are “extensive”). 

The Supreme Court has not directly addressed the major-purpose test since its decisions 

in Buckley and MCFL.

7

 The D.C. Circuit has likewise not refined the particulars of the majorpurpose test, though it has followed the Supreme Court’s cautious approach. In FEC v. 

Machinists Non-Partisan Political League, the Court of Appeals explained that because 

evaluating political-committee status arises in the “delicate” First Amendment area, “there is no 

imperative” to stretch the statute or to “read into it oblique inferences of Congressional intent.” 

655 F.2d 380, 394 (D.C. Cir. 1981) (“Machinists”). “Achieving a reasonable, constitutionally 

sound conclusion in this case requires just the opposite,” the court observed, id., before holding 

that the FEC lacked jurisdiction to regulate contributions of a group seeking to “draft” Edward 

Kennedy as a candidate for president, id. at 390-97. Machinists follows the Supreme Court’s 

teaching that political-committee status should be narrowly construed to avoid the constitutional 

 

7

 Although a question about the test was raised in FEC v. Akins, 524 U.S. 11 (1998), the 

Court declined to answer it, instead permitting the Commission to address a threshold question 

about new rules defining the term “members” for purposes of a “membership organization.” Id.

at 26-29. In McConnell, in the course of upholding a definition of “federal election activity” 

added to FECA by BCRA, the Court cited Buckley’s major-purpose discussion with approval but 

did not otherwise elaborate on its focus. 540 U.S. at 170 n.64. 

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problems about which “Buckley and its lower court predecessors” were concerned. Id. at 394;

see also Unity08 v FEC, 596 F.3d 861, 867-69 (D.C. Cir. 2010) (following Machinists). 

2. Judicial and FEC Precedents Informed the Controlling Approach 

The controlling group’s approach also followed judicial opinions considering the majorpurpose test and the Commission’s case-by-case method. Because the Supreme Court did not 

“mandate a particular methodology for determining an organization’s major purpose,” the courts 

that have considered challenges to the Commission’s methodology have agreed with the 

Commission that it is “free to administer FECA political committee regulations either through 

categorical rules or through individualized adjudications.” RTAA, 681 F.3d at 556; Free Speech, 

720 F.3d at 797; see also Shays, 511 F. Supp. 2d at 30-31. “The determination of whether the 

election or defeat of federal candidates for office is the major purpose of an organization, and not 

simply a major purpose, is inherently a comparative task.” RTAA, 681 F.3d at 556; Free Speech, 

720 F.3d at 797. The Fourth and Tenth Circuits, as well as Judge Sullivan in this District, 

therefore agreed that the major-purpose determination requires a “fact-intensive analysis,” and is 

“incompatible with a one-size-fits-all rule.” RTAA, 681 F.3d at 556-57; Free Speech, 720 F.3d at 

797-98; see also Shays, 511 F. Supp. 2d at 29-31. “The necessity of a contextual inquiry is 

supported by judicial decisions applying the major purpose test, which have used the same factintensive analysis that the Commission has adopted.” RTAA, 681 F.3d at 557 (citing Malenick, 

310 F. Supp. 2d at 234-37, GOPAC, Inc., 917 F. Supp. at 859, 864-66, and Shays, 511 F. Supp. 

2d at 29-31); Free Speech, 720 F.3d at 798. Accordingly, the courts have upheld the 

Commission’s “sensible” and “flexibl[e] . . . case-by-case” method of determining an 

organization’s major purpose. RTAA, 681 F.3d at 556, 558; Free Speech, 720 F.3d at 797-98; 

see also Shays, 511 F. Supp. 2d at 29-31. 

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The Commission’s Supplemental E&J explains that the FEC performs the major-purpose 

analysis by consulting sources such as the group’s public statements, government filings, 

charters, and bylaws. See 72 Fed. Reg. at 5601, 5605 (describing sources). For example, “[a]n 

analysis of [an organization’s] public statements can . . . be instructive in determining an 

organization’s purpose.” Id. at 5601 (citing Malenick, 310 F. Supp. 2d at 234-36; GOPAC, Inc., 

917 F. Supp. at 859; Advisory Opinion 2006-20 (Unity 08)); see also id. (“The Commission may 

need to examine statements by the organization that characterize its activities and purposes.”); id.

at 5605 (noting use of “organizational planning documents”). In addition, the Commission has 

also explained that it “may . . . need to evaluate the organization’s spending on Federal campaign 

activity, as well as any other spending by the organization.” Id. at 5601. 

Here, the controlling group’s approach was based upon these “fundamental” factors 

articulated in the Supplemental E&J. (AR 1453; AR 1705.) Their statements analyzed each of 

AJS’s and AAN’s major purpose by reviewing their central organizational purposes and by 

comparing their “spending on campaign activities with [their] spending on activities unrelated to 

the election or defeat of a federal candidate, including the group[s’] genuine issue speech.” (AR 

1706 (footnote omitted); see also AR 1455.) 

The controlling group’s approach was also consistent with lower courts’ approaches to 

the major-purpose test, including the methods employed by the Tenth and Fourth Circuits. In the 

course of analyzing a state law, the Tenth Circuit held that there are “two methods” to determine 

major purpose: (1) examination of the organization’s central organizational purpose or 

(2) comparing election-related “spending with overall spending to determine whether the 

preponderance of expenditures is for express advocacy or contributions to candidates.” Herrera,

611 F.3d at 678. The approach used here also conforms with the Fourth Circuit’s explanation 

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that “the Commission first considers a group’s political activities, such as spending on a 

particular electoral or issue-advocacy campaign, and then it evaluates an organization’s ‘major 

purpose,’ as revealed by that group’s public statements, fundraising appeals, government filings, 

and organizational documents.” RTAA, 681 F.3d at 555 (citation omitted). And it is consistent 

with the way the district court in GOPAC explained that an “organization’s purpose may be 

evidenced by its public statements of its purpose or by other means, such as its expenditures in 

cash or in kind to or for the benefit of a particular candidate or candidates.” 917 F. Supp. at 859; 

see also Barland, 751 F.3d at 841 (“Full political-committee requirements apply only to ‘major 

purpose’ groups within the meaning of the Buckley limitation.”). 

B. The Controlling “Major Purpose” Determinations Were Reasonable 

In applying the major-purpose test, the controlling group of Commissioners correctly 

sought to determine each of AJS’s and AAN’s sole major purpose. “If organizations were 

regulable merely for having the support or opposition of a candidate as ‘a major purpose,’” 

political-committee status could reach “organizations primarily engaged in speech on political 

issues unrelated to a particular candidate.” Leake, 525 F.3d at 287-88; see also RTAA, 681 F.3d 

at 556; Free Speech, 720 F.3d at 797. The controlling group thus analyzed whether AJS’s and 

AAN’s sole major purpose was nominating or electing candidates by evaluating the groups’ 

central organizational purposes as the groups described them in their public statements and by 

comparing the groups’ relevant electoral spending to their other spending. 

1. Commissioners Reasonably Concluded That Neither Group’s Central 

Organizational Purpose Was Nominating or Electing Candidates 

The controlling group analyzed AJS’s and AAN’s public statements and records and 

reasonably determined that neither group’s organizational documents indicated that its primary 

purpose is nominating or electing candidates. See supra pp. 17-18. Plaintiffs have never argued 

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otherwise. (AR 1455 (observing that the administrative complaint does not “even suggest that 

AJS is a political committee based on its stated organizational purpose”); AR 1708 (similar).) 

2. Commissioners’ Comparative Spending Findings Were Reasonable 

The controlling Commissioners also extensively reviewed both AJS’s and AAN’s 

“overall spending on express advocacy against [their] overall spending on activities unrelated to 

campaigns, including issue advocacy.” (AR 1456; AR 1708.) The Commissioners determined 

that the relevant universe of spending for determining the groups’ federal campaign spending 

was their independent expenditures, and compared that spending with the groups’ total spending 

as documented in each administrative record. (AR 1456-58; AR 1708-09.) This analysis 

showed that about 10 percent (AJS) or 15 percent (AAN) of the organizations’ respective overall 

spending urged the election or defeat of clearly identified federal candidates. (AR 1458; AR 

1709.) These considerations of the groups’ (1) express advocacy spending (numerator) and (2) 

total spending during the relevant time period (denominator) were both reasonable, as were the 

controlling group’s conclusions that each group’s express advocacy spending representing only a 

fraction of the organization’s total spending was not “so extensive” as to provide reason to 

believe that either AJS or AAN was required to register as a political committee. (Id.) 

a. Relevant Federal Campaign Spending (Numerator) 

Defining relevant federal campaign spending as spending on independent expenditures — 

express advocacy — was reasonable and not contrary to law. As explained supra pp. 31-35, the 

Commissioners’ decision to narrowly construe which groups may be regulated as federal 

political committees is consistent with the Supreme Court’s decisions in Buckley and MCFL, the 

D.C. Circuit’s decision in Machinists, and the decisions of other federal courts. 

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Buckley itself emphasized, in the context of event-driven independent expenditure 

reporting, that “expenditure” needed to be construed narrowly in order to ensure that such 

“spending . . . is unambiguously related to the campaign of a particular federal candidate.” 424 

U.S. at 79-80. Given the Court’s vagueness concerns regarding the “contribution” and 

“expenditure” portions of the political committee definition, it was reasonable for the statements 

of reasons at issue here to construe the spending that would count towards major purpose as 

being limited to express advocacy. Buckley recognized that political committee expenditures 

“are, by definition, campaign related,” id., which echoes the campaign-relatedness of express 

advocacy by non-committees and confirms that spending on express advocacy is appropriate 

when examining groups’ spending to determine if they are political committees. (AR 1456-57 

n.117.) 

Plaintiffs prefer a broader application of the major-purpose test that would include as 

relevant federal campaign activity spending on non-express-advocacy communications such as 

electioneering communications. (Pls.’ Mem. at 26-37.) But plaintiffs fail to identify a single 

court decision requiring that the FEC include non-express-advocacy spending in performing its 

major-purpose analysis. The controlling group of Commissioners, by contrast, drew support for 

their definition of relevant federal campaign activity from post-Buckley case law addressing the 

question more closely. In Barland, the Seventh Circuit reasoned that imposing state politicalcommittee registration and reporting requirements on “groups that engage in express election 

advocacy as their major purpose . . . is a relevantly correlated and reasonably tailored means of 

achieving the public’s informational interest,” but it rejected the imposition of such requirements 

“on issue-advocacy groups that only occasionally engage in express advocacy.” 751 F.3d at 841. 

The court thus invalidated certain state statutory language that “could be construed by state 

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regulators as a reference to the candidate’s qualifications or as ‘support’ or ‘condemnation’ of 

the candidate’s record or positions,” leaving behind in its place a narrower statutory analysis 

“basically track[ing] the boundaries for express advocacy and its functional equivalent.” Id. at 

838. 

In Herrera, the Tenth Circuit reached a similar conclusion. In analyzing the spending of 

two groups under New Mexico’s campaign finance act, the court found “no indication” that 

either spent “a preponderance of its expenditures on express advocacy or contributions to 

candidates.” 611 F.3d at 678 (emphasis added). Likewise, in GOPAC, the court found an 

organization was not a political committee under FECA, in part by finding not relevant a letter 

that mentioned the name of a federal candidate, but “[did] not advocate his election or defeat, nor 

was it directed at [his] constituents.” 917 F. Supp. at 863; accord Malenick, 310 F. Supp. 2d at 

235 (considering communications “advocat[ing] for the election of specific federal candidates” 

in determining group’s major purpose).8

Unable to identify any judicial authority supporting their view that non-express-advocacy 

spending must be included as relevant federal campaign activity, plaintiffs attempt to rely on first 

principles. Plaintiffs first argue that Congress’s passage of amendments to FECA in 2002 

demonstrated its intent to require political-committee-style reporting of electioneering 

communications. (Pls.’ Mem. at 26-29.) This argument practically defeats itself. When 

Congress enacted electioneering communications disclosure requirements, it did not make those 

communications subject to FECA’s then-existing disclosure regime, such as the existing 

reporting requirements for political committees. Instead, Congress crafted a new, streamlined 

 

8

 Plaintiffs’ miscellaneous attempts to distinguish these decisions (Pls.’ Mem. at 32-35) do 

not change that these decisions support an express advocacy construction of the major-purpose 

analysis. 

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disclosure requirement tailored to curbing anonymous sham issue ads. Compare 52 U.S.C. 

§ 30104(f) (disclosure of electioneering communications), with 52 U.S.C. §§ 30103, 30104(a)-

(b) (registration and reporting for political committees). Tellingly, as the Commission observed, 

“Congress did not amend the definition of expenditure in BCRA, and in fact, specified that 

‘electioneering communications’ are not expenditures under the Act.” Supplemental E&J, 72 

Fed. Reg. at 5597 (citing 52 U.S.C. § 30104(f)(1)-(2) (treating electioneering communications as 

“disbursements”)). Thus, plaintiffs’ argument that by doing one thing Congress actually also 

meant to do something else, which it easily could have done if it wished, is unconvincing. 

Moreover, plaintiffs’ unqualified assumption that electioneering communications “serve 

the same purposes as express advocacy” (Pls.’ Mem. at 28) — i.e., advocate for a candidate by 

avoiding the use of so-called magic words — conflicts with the Supreme Court’s recognition that 

not all electioneering communications are the functional equivalent of express advocacy. “[A] 

court should find that an ad is the functional equivalent of express advocacy only if the ad is 

susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific 

candidate.” WRTL, 551 U.S.at 469-70 (emphasis added). Some electioneering communications 

may be genuine issue ads. McConnell, 540 U.S. at 206; WRTL, 551 U.S. at 470; see also AR 

1450-51; AR 1701-03. Under plaintiffs’ theory, an organization spending a majority of its funds 

on genuine issue ads similar to those at issue in WRTL, see 551 U.S. at 459, would be deemed to 

have a major purpose of nominating or electing candidates. And even if the line between 

campaign advocacy and issue advocacy can “‘dissolve in practical application,’” the Court has 

recognized a difference between them. Id. at 456-57. Accordingly, Congress’s imposition of 

event-driven reporting requirements for electioneering communications does not compel the 

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conclusion that such communications must be counted as part of a group’s relevant campaign 

spending in determining its major purpose. 

Plaintiffs’ contention that courts have upheld “state law campaign finance disclosure 

regimes that have counted . . . non-express advocacy communications, including their 

electioneering communications” (Pls.’ Mem. at 29) similarly falls far short of their burden in this 

case. It is one thing to show that an approach is permissible; it is quite another to show that it is 

required. Regardless of whether it would be constitutional for the FEC to include non-express 

advocacy communications in a group’s relevant spending when performing the comparative 

spending analysis portion of the major-purpose inquiry, as plaintiffs contend, such a showing is 

far short of demonstrating that it would be unreasonable for Commissioners to use other, 

alternative approaches. As explained above, plaintiffs have failed to identify any authority 

requiring the FEC to include electioneering communications as relevant spending. There is 

therefore no law to which the agency’s dismissals in these matters could be contrary to. 

Plaintiffs also contend that the FEC has “long treated expenditures for all federal 

campaign activities, not simply for express advocacy, as indicative of a group’s major purpose.” 

(Pls.’ Mem. at 29 (citing Supplemental E&J).) Although the Commission used the phrase 

“federal campaign activity” in the Supplemental E&J, plaintiffs fail to identify any FEC 

statement establishing that communications that lack express advocacy (or, perhaps, its 

functional equivalent) must be included under that standard. There was no “clearly 

establish[ed]” Commission determination on that issue, and the controlling group must be 

accorded deference here. NRSC, 966 F.2d at 1476-77. Moreover, even if the agency had 

provided consistent guidance on the question, the controlling group’s reliance on intervening 

appellate court decisions provides an eminently reasonable basis for its decisions. Indeed, the 

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controlling group noted its view that “the value of a number of the Commission’s past political 

committee enforcement matters cited in the 2007 Supplemental E&J has been diminished by 

intervening decisions both by courts and by the Commission.” (AR 1453; AR 1704.) 

Plaintiffs’ other arguments are just as meritless. Plaintiffs’ contention that the controlling 

Commissioners’ position “defies reason” by “providing less protection to groups that engage in 

express advocacy than groups engaged in other speech” (Pls.’ Mem. at 35) is backwards. More 

disclosure is required of groups that have a major purpose of nominating or election federal 

candidates precisely because such groups have that purpose. Furthermore, plaintiffs’ complaint 

that the controlling Commissioners’ approach is inconsistent with the agency’s expressed 

preference for the flexibility of case-by-case adjudication is baseless. (Id. at 35.) In both 

matters, the controlling Commissioners engaged in a fact-specific review of AJS’s and AAN’s 

electioneering communications. (AR 1465-69; AR 1718-23.) And plaintiffs’ final objection that 

whatever spending is excluded from the category of relevant election-related expenses wrongly 

then “counts against finding the groups are political committees” (Pls.’ Mem. at 36) would exist 

regardless of where the line is drawn. The comparative spending analysis by its nature requires 

identification of those expenses that count toward a group’s relevant spending and those that do 

not. Plaintiffs disagree with the controlling determinations but have failed to show that they are 

contrary to law. 

b. Overall Spending During the Relevant Time Period (Denominator) 

The controlling determination of the appropriate time period in which to consider AJS’s 

and AAN’s spending was also reasonable. Neither FECA nor any judicial decision specifies a 

particular time period for determining a group’s major purpose. It therefore fell within the 

Commission’s considerable discretion to determine what time period was appropriate. In these 

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matters, the controlling group analyzed the organizations’ spending over the entire period in the 

records before the Commission. In AJS’s case, this was the period between its founding in 1997 

and May 2012. (AR 1457.) For AAN, the period ran from its founding in July 2009 through 

June 2011. (AR 1708.) These decisions were reasonable and based upon previous cases and 

enforcement matters in which courts or the FEC looked beyond a single calendar year in 

evaluating organizations’ major purpose. (AR 1461 n.146 (collecting examples and noting that 

the same group of Commissioners used this approach in dismissing another matter, MUR 6396 

(Crossroads GPS)).) 

Plaintiffs contend that the controlling Commissioners “ignored the most reasonable 

application of the ‘major purpose’ test: consideration of a group’s calendar year expenditures.” 

(Pls.’ Mem. at 40 (emphasis added).) Whatever the merits of this argument, plaintiffs once again 

fail to connect their arguments to their burden. It is insufficient to argue that plaintiffs’ proposed 

analysis is better than the analysis they are challenging, or even that their proposed analysis 

would be best. The Court’s obligation is “not to interpret the statute as it [thinks] best but rather 

the narrower inquiry into whether the Commission’s construction was sufficiently reasonable to 

be accepted,” and “it is not necessary for [the Court] to find that the agency’s construction was 

the only reasonable one or even the reading the [C]ourt would have reached” on its own “if the 

question initially had arisen in a judicial proceeding.” DSCC, 454 U.S. at 39 (internal quotation 

marks omitted). Plaintiffs do not argue FECA’s text requires an organization’s major purpose to 

be determined based on its actions during a particular calendar year, nor could they. And 

plaintiffs do not identify any authority mandating a bright-line rule like the calendar-year test 

they advocate. In fact, courts have rejected the idea that such bright-lines are needed in this 

context, RTAA, 681 F.3d at 557; Shays, 511 F. Supp. 2d at 29-31; Herrera, 611 F.3d at 679 

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(rejecting automatic classification of organizations as political committees without reference to 

organizations’ “major purpose”).9 

In any event, the arguments plaintiffs do advance are unpersuasive. They rely on the 

analysis of the Commission’s Office of General Counsel (Pls.’ Mem. at 38), which had in turn 

recommended that the calendar-year test “‘provides the firmest statutory footing for the 

Commission’s major purpose determination’” (AR 1461 n.145). But an agency generally has no 

obligation to accept its staff’s views or recommendations, and the D.C. Circuit has specifically 

minimized the importance of staff views in judicial review of agency decisions. See, e.g., 

Chelsea Industries, Inc. v. NLRB, 285 F.3d 1073, 1077 (D.C. Cir. 2002) (rejecting as “rather 

silly” argument that agency’s decision was unreasonable due to its conflict with “General 

Counsel’s understanding of the case law before the present decision”). Courts reviewing FEC 

actions contrary to staff recommendations have thus done little more than note that background 

fact. See, e.g., In re Sealed Case, 223 F.3d at 781 (noting General Counsel’s position but 

analyzing Commission’s decision); Akins, 736 F. Supp. 2d at 24 (granting summary judgment to 

Commission despite contrary recommendation from General Counsel to find reason to believe). 

While it is true that FECA’s political committee definition uses a “calendar year” for 

determining whether an organization has received contributions or made expenditures exceeding 

$1,000, 52 U.S.C. § 30101(4)(A), the major-purpose test is an “‘additional hurdle to establishing 

 

9

 Plaintiffs also attempt to reduce their heavy burden by arguing that the reason-to-believe 

standard “is a low bar.” (Pls.’ Mem. at 43-45.) The argument is misplaced. The statement of 

policy on which plaintiffs rely merely recites in generic terms that the Commission generally will 

find reason to believe “in cases where the available evidence in the matter is at least sufficient to 

warrant conducting an investigation, and where the seriousness of the alleged violation warrants 

either further investigation or immediate conciliation.” Statement of Policy Regarding 

Commission Action in Matters at the Initial Stage in the Enforcement Process, 72 Fed. Reg. 

12,545, 12,545-46 (Mar. 16, 2007). Here, three Commissioners concluded that the record was 

insufficient to warrant further investigative proceedings, and for the many reasons described 

above, that conclusion was certainly reasonable. 

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political committee status’” that the Supreme Court established in Buckley. Free Speech, 720 

F.3d at 797 (quoting Supplemental E&J, 72 Fed. Reg. at 5601). Thus, Congress has not 

expressed any intent, ambiguous or otherwise, regarding the relevant scope of time for 

determining an organization’s major purpose, and plaintiffs do not argue otherwise. The 

Commission nevertheless receives deferential review of how it responded to the changed 

circumstances following Buckley. Van Hollen, 2016 WL 278200, at *9. Nor did Buckley specify 

that consideration of an organization’s major purpose must parallel the statutory calendar-year 

test for contributions and expenditures. 424 U.S. at 79. Rather, the Court in Buckley referred to 

an organization’s major purpose without further elaboration, and plaintiffs point to no other 

judicial decisions that have sought to focus or limit the relevant time period for determining a 

group’s major purpose. The controlling Commissioners’ decision to use the entire record before 

it was neither unreasonable nor contrary to law. 

Plaintiffs’ other arguments are easily dispatched. Contrary to plaintiffs’ characterization, 

the controlling Commissioners did not state that their use of AJS’s and AAN’s whole spending 

picture was to generally minimize the number of groups “subject . . . to political committee 

disclosures.” (Pls.’ Mem. at 38.) What they said was that using a calendar-year test “renders an 

artificial and indeed distorted picture of the organization.” (AR 1714; see also AR 1462.) That 

window “would inevitably subject many issue-based organizations to the burdens of political 

committee status.” (AR 1714; see also AR 1462.) Moreover, while plaintiffs disagree with the 

Commissioners’ hypothetical of a group “formed shortly before an election” (Pls.’ Mem. at 38-

39), it is indisputable that any group that is not formed on January 1 of a particular year will have 

in its first year a truncated record of activity. That truncation could distort the organization’s 

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record in either direction. By contrast, more fulsome consideration of a group’s spending 

necessarily permits a more comprehensive picture of the organization’s activities. 

Plaintiffs’ “dilut[ion]” complaint that the Commissioners’ approach, if accepted, could 

allow an organization engaging more heavily in campaign activity in one year to “balance[] out 

the numbers” in later years (Pls.’ Mem. at 37, 40) appears to ignore that those balancing-out time 

periods of relatively low relevant campaign spending requires the organization to spend sums 

over time to substantiate its bona fides as a genuine issue group, i.e., to put its money where its 

mouth is. That is the same problem with plaintiffs’ argument that AJS’s whole spending picture 

should not be considered — because some of the group’s relevant spending in later years was 

illegal prior to changes in the law. (Id. at 39.) Plaintiffs argue that AJS preemptively diluted its 

spending and presciently predicted the direction of the Supreme Court’s jurisprudence, but it is 

implausible to think that AJS organized itself in a way that made the activity it wanted to do 

illegal for the first decade of its existence. And even if it is true that an organization’s purposes 

may “change over time” (id. at 39), a review of the broadest available view of the organization’s 

activity is the best way to determine whether a change is a deviation or a new norm. 

Thus, the controlling determination to analyze AJS’s or AAN’s activities over the entire 

periods in the records before the Commission was not contrary to law. 

c. The Controlling Statements Do Not Define a Threshold for 

Campaign Spending 

Plaintiffs also wrongly mischaracterize the controlling group’s major-purpose analyses as 

asking simply “whether more than 50% of a group’s expenditures go to express advocacy.” 

(Pls.’ Mem. at 40-43.) While portions of the controlling statements do discuss comparative 

spending in terms of a percentage, they do not define any threshold spending percentage for 

triggering political-committee status. (Compare AR 1449 (reciting Tenth Circuit’s evaluation 

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“‘whether the preponderance of expenditures is for express advocacy or contributions to 

candidates’” (quoting Herrera, 611 F.3d at 678) (emphasis added)); AR 1700 (same).) 

In these matters, there was no need for the controlling Commissioners to parse whether 

the relevant spending percentage was “51% or 49%” (Pls.’ Mem. at 43) because they concluded 

that AJS’s and AAN’s relevant spending constituted about 10 or 15 percent of the groups’ 

overall spending. Such minority spending, they concluded, did not reveal a major purpose of 

nominating or electing federal candidates. Those conclusions are consistent with the 

Commission’s findings in previous matters in which it found reason to believe, based on 

spending involving much higher proportions, such as 91 percent, 68 percent, or 50-75 percent. 

Supplemental E&J, 72 Fed. Reg. at 5605. They are also consistent with the findings of the Tenth 

Circuit that “groups that devoted only 7% and .5% of their spending to campaign activity” can 

“be said to only occasionally engage in such activity.” (Pls.’ Mem. at 42.) It is true that the 

controlling Commissioners noted that, with respect to AJS, even if they had employed the 

calendar-year test, the majority of AJS’s spending in 2010 funded activities other than 

independent expenditures. (AR 1463 n.151.) However, this was not a concession that the 

calendar year should have been used, but an alternative analysis that showed that even under a 

more sweeping regulatory standard closer to what plaintiffs propose, AJS’s “spending [did] not 

clearly signify a major purpose of engaging in express advocacy.” (Id.) 

* * * 

The Commission’s dismissals of plaintiffs’ administrative complaints were plainly 

reasonable and not contrary to law. The controlling statements of reasons reflect 

Commissioners’ thorough consideration of the administrative records and careful analyses of 

AJS’s and AAN’s central organizational purposes and comparative spending. Those analyses 

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were consistent not only with the Supplemental E&J but also with court decisions describing and 

applying Buckley’s major-purpose test. The controlling analyses reflect the signatories’ 

specialized knowledge and expertise and are owed substantial deference. Although plaintiffs 

may prefer an alternative method of analyzing groups’ major purposes, their preference fails to 

satisfy their heavy burden of demonstrating that the controlling group’s analyses were contrary 

to law. Indeed, even if this Court would have employed a different analysis or reached a 

different conclusion, that would not render the challenged dismissals impermissible. DSCC, 454 

U.S. at 39. The controlling rationales thus easily satisfy the Court’s reasonableness review. 

C. Plaintiffs’ General Disclosure Argument Begs the Question and 

Mischaracterizes the Considerations at Issue 

Plaintiffs devote extensive attention to extra-record news reports discussing the rise of socalled “dark money,” Pls.’ Mem. at 2-11; see supra pp. 29-30, and to their policy argument that 

“[t]he First Amendment [a]llows [a]mple [r]oom for [d]isclosure of [c]ampaign [s]pending” 

(Pls.’ Mem. at 17- 25), but the government’s general interest in disclosure is not disputed. Nor is 

it supportive of plaintiffs’ claims. 

Disclosure of election-related spending is undoubtedly an important government interest 

(Pls.’ Mem. at 18-22), and plaintiffs’ contention that the controlling Commissioners expressed a 

false “view that disclosure conflicts with the First Amendment” (id. at 18) is itself false. While 

the Commissioners discussed the regulatory obligations associated with political-committee 

status (AR 1443-44; AR 1694-96), they naturally did not question the constitutionality of such 

requirements as applied to groups that meet the requirements for political-committee status. 

The issue here, however, is not whether FECA’s disclosure programs are constitutional, 

nor is it whether entities such as AJS and AAN may, consistent with the First Amendment, be 

required to disclose the source of their funds. The only question here is whether the controlling 

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Commissioners acted contrary to law by concluding that AJS and AAN should not be required to 

make the disclosures required of political committees because they are not political committees. 

Plaintiffs’ results-oriented approach — which argues that the dismissal decisions were contrary 

to law based on plaintiffs’ subjective interest in disclosure by “groups like AAN and AJS” (Pls.’ 

Mem. at 24) — plainly places the cart before the horse, and must be rejected. Cf. Van Hollen, 

2016 WL 278200, at *7 (rejecting a similar, “particularly results-oriented brand of purposivism” 

in statutory construction). 

Moreover, if this case were a generalized constitutional dispute over disclosure, plaintiffs 

present a starkly incomplete portrait of the issues that would confront the Court. In passing and 

amending FECA, Congress was concerned not only with broader disclosure, but also with 

“conflicting privacy interests” and courts defer to the Commission’s efforts to interpret the 

statute in a way that is “‘a reasonable accommodation of conflicting policies that were 

committed to the agency’s care by the statute.’” Van Hollen, 2016 WL 278200, at *7 (quoting 

Chevron, 467 U.S. at 845). The Commission is “‘unique among federal administrative 

agencies,’” having “‘as its sole purpose the regulation of core constitutionally protected 

activity.’” Id. at *12 (quoting AFL-CIO v. FEC, 333 F.3d 168, 170 (D.C. Cir. 2003)). Efforts by 

the Commission at “tailoring” when interpreting FECA are not necessarily contrary to law, and 

instead may constitute “an able attempt to balance the competing values that lie at the heart of 

campaign finance law.” Id. at *14. Far from being an indicator of unreasonableness (Pls.’ Mem. 

at 18), it was entirely appropriate for the controlling statements to recognize countervailing 

concerns regarding burdens and privacy when applying FECA’s disclosure provisions. Plaintiffs 

appear to be complaining that FECA is underinclusive; but that is a question for Congress. And 

to the extent plaintiffs complain about a Commission regulation (Pls.’ Mem. at 24), that 

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regulation (which is not before this Court) has just been upheld by the Court of Appeals. Van 

Hollen, 2016 WL 278200. 

Plaintiffs’ disclosure argument is also overstated. AJS and AAN have filed numerous 

FEC reports detailing their independent expenditures and electioneering communications. See 

supra pp. 11-13. As the Seventh Circuit recognized, even groups “whose major purpose is not 

express advocacy — are not completely immune from disclosure and disclaimer rules for their 

occasional spending on express election advocacy.” Barland, 751 F.3d at 839. 

D. The Dismissals Were Also a Reasonable Exercise of Prosecutorial Discretion 

Finally, the challenged dismissal decisions are independently justified by the 

Commission’s broad prosecutorial discretion. AR 1460-61 n.142; AR 1712-13 n.137; see Akins, 

524 U.S. at 25 (acknowledging that agencies like the FEC “often have discretion about whether 

or not to take a particular action” and observing that the FEC’s “prosecutorial discretion” might 

have justified dismissal in that case, even if it “agreed with [complainants’] view of the law”). 

The Commission “clearly has a broad grant of discretionary power in determining 

whether to investigate a claim.” Common Cause v. FEC, 655 F. Supp. 619, 623 (D.D.C. 1986), 

rev’d on other grounds, 842 F.2d 436 (D.C. Cir. 1988); see also DCCC, 831 F.2d at 1133-34 

(discussing FEC’s prosecutorial discretion). In Orloski, the D.C. Circuit concluded that the FEC 

is entitled to decide not to begin an investigation based on a “subjective evaluation of claims.” 

795 F.2d at 168. “It is not for the judiciary to ride roughshod over agency procedures or sit as a 

board of superintendance [sic] directing where limited agency resources will be devoted. 

[Courts] are not here to run the agencies.” FEC v. Rose, 806 F.2d 1081, 1091 (D.C. Cir. 1986); 

see also La Botz v. FEC, 61 F. Supp. 3d 21, 33 (D.D.C. 2014) (sustaining the Commission’s 

decision not to prosecute based upon its “considerable” discretion); Stark, 683 F. Supp. at 840 

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(“[I]t is . . . surely committed to the Commission’s discretion to determine where and when to 

commit its investigative resources”). 

In Heckler v. Chaney, 470 U.S. 821 (1985), the Supreme Court rearticulated the bases for 

an agency’s discretion not to prosecute or enforce. Id. at 831 (collecting cases). It observed that 

such “discretion is attributable in no small part to the general unsuitability for judicial review of 

agency decisions to refuse enforcement,” and noted that such decisions “often involve[] a 

complicated balancing of a number of factors which are peculiarly within [the agency’s] 

expertise.” Id. Agencies may consider not only “whether a violation has occurred,” but also, 

inter alia, the best use of agency resources, the agency’s likelihood of prevailing if it pursues the 

violation, whether the requested enforcement action “best fits the agency’s overall policies,” and, 

indeed, whether the agency has enough resources to undertake the action at all.” Id. 

Here, both controlling statements noted the FEC’s prosecutorial discretion as discrete 

bases for deciding not to find reason to believe in the AJS and AAN matters. (AR 1463 & n.153; 

AR 1716 & n.153.) Specifically, the Commissioners expressed concern that in light of the 

similarities perceived between the approach recommended by the agency’s in-house staff and the 

approach rejected in Barland, “constitutional doubts raised . . . militate[d] in favor of cautious 

exercise of our prosecutorial discretion.” (AR 1460-61 n.142; AR 1712-13 n.137.) It was 

clearly reasonable for Commissioners to decline to pursue enforcement based on the analysis 

urged by plaintiffs here given the recent rejection of that approach by a federal Court of Appeals. 

The Commission’s dismissal was thus a reasonable exercise of its broad prosecutorial discretion. 

CONCLUSION 

For the foregoing reasons, the Court should grant the Commission’s cross-motion for 

summary judgment and deny plaintiffs’ motion for summary judgment. 

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 Respectfully submitted, 

Daniel A. Petalas (D.C. Bar No. 467908) 

Acting General Counsel 

dpetalas@fec.gov 

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

Deputy General Counsel — Law 

lstevenson@fec.gov 

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

March 1, 2016 

Erin Chlopak (D.C. Bar No. 496370) 

Acting Assistant General Counsel 

echlopak@fec.gov 

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

Attorney 

gmueller@fec.gov 

/s/ Charles Kitcher 

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

Attorney 

ckitcher@fec.gov 

 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, DC 20463 

(202) 694-1650 

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