UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

PUBLIC CITIZEN, et al.,

Plaintiffs,

v.

FEDERAL ELECTION COMMISSION,

Defendant,

CROSSROADS GRASSROOTS POLICY 

STRATEGIES,

IntervenorDefendant.

Civil Action No. 1:14-cv-00148 (RJL)

MEMORANDUM OF POINTS AND 

AUTHORITIES

CROSSROADS GRASSROOTS POLICY STRATEGIES’ REPLY MEMORANDUM IN 

SUPPORT OF ITS CROSS-MOTION FOR SUMMARY JUDGMENT

Michael E. Toner (D.C. Bar No: 439707)

Thomas W. Kirby (D.C. Bar No. 915231)

Stephen J. Kenny (D.C. Bar No. 1027711)

WILEY REIN LLP

1776 K Street NW

Washington, DC 20006

Tel.: 202.719.7000

Fax: 202.719.7049

Thomas J. Josefiak

J. Michael Bayes (D.C. Bar No. 501845)

HOLTZMAN VOGEL JOSEFIAK TORCHINSKY

PLLC

45 North Hill Drive, Suite 100

Warrenton, VA 20186

Tel.: 540.341.8808

Fax: 540.341.8809

Counsel for Crossroads Grassroots Policy 

Strategies

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................................................................................... ii

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

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

I. The Controlling Commissioners’ Interpretations Are Entitled to Chevron Deference .......3

A. The application of the major-purpose test is an exercise in statutory 

interpretation entitled to Chevron deference............................................................3

B. The controlling Commissioners’ Statement of Reasons is entitled to Chevron

deference in split-vote enforcement-action dismissals. ...........................................7

II. The Dismissal Was Not Contrary to Law..........................................................................10

A. It was reasonable for the controlling Commissioners to reject a rigid 

calendar-year approach. .........................................................................................11

B. The controlling Commissioners’ spending analysis was not contrary to law........14

1. It was reasonable for the controlling Commissioners to limit their 

spending analysis to express advocacy and its functional equivalent........14

2. It was reasonable for the controlling Commissioners to reject Public 

Citizen’s proposed standard.......................................................................20

C. The Commission’s conclusion that Crossroads GPS’s central organizational 

purpose is not federal electoral activity was not arbitrary and capricious.............22

III. Article III Redressability is Lacking..................................................................................23

CONCLUSION..............................................................................................................................25

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TABLE OF AUTHORITIES

Cases Page(s)

AFL-CIO v. FEC,

333 F.3d 168 (D.C. Cir. 2003)...................................................................................................4

Akins v. FEC,

101 F.3d 731 (D.C. Cir. 1996)...................................................................................................6

Already, LLC v. Nike, Inc.,

133 S. Ct. 721 (2013)...............................................................................................................24

Buckley v. Valeo,

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

Buckley v. Valeo,

519 F.2d 821 (D.C. Cir. 1975) (en banc),................................................................................15

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

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

Christensen v. Harris County,

529 U.S. 576 (2000)...................................................................................................................8

Citizens United v. FEC,

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

City of Arlington, Texas v. FCC,

133 S. Ct. 1863 (2013)...............................................................................................................7

Clark v. Martinez,

543 U.S. 371 (2005)...................................................................................................................3

Coburn v. McHugh,

679 F.3d 924 (D.C. Cir. 2012).................................................................................................18

Combat Veterans for Cong. Political Action Committee. v. FEC,

795 F.3d 151 (D.C. Cir. 2015)...................................................................................................9

Consolidated Edison Co. of New York, Inc. v. FERC.,

347 F.3d 964 (D.C. Cir. 2003).................................................................................................18

Davis v. FEC,

554 U.S. 724 (2008).................................................................................................................15

DeFunis v. Odegaard,

416 U.S. 312 (1974) (per curiam)............................................................................................24

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Democratic Senatorial Campaign Committee v. FEC,

745 F. Supp. 742 (D.D.C. 1990)..............................................................................................18

Dickinson v. Zurko,

527 U.S. 150 (1999).................................................................................................................23

Durning v. Citibank, N.A.,

950 F.2d 1419 (9th Cir. 1991) ...................................................................................................6

Edward J. DeBartolo Corp. v. Florida Gulf Coast Building 

& Construction Trades Council,

485 U.S. 568 (1988)...................................................................................................................6

FCC v. Fox Television Stations, Inc.,

132 S. Ct. 2307 (2012).............................................................................................................20

FEC v. Akins,

524 U.S. 11 (1998)...............................................................................................................6, 25

FEC v. Christian Coalition,

965 F. Supp. 66 (D.D.C. 1997)................................................................................................24

FEC v. GOPAC,

917 F. Supp. 851 (D.D.C. 1996)..............................................................................................17

FEC v. Massachusetts Citizens for Life, Inc.,

479 U.S. 238 (1986).................................................................................................................15

FEC v. National Rifle Ass’n of America,

254 F.3d 173 (D.C. Cir. 2001)...................................................................................................6

FEC v. Williams,

104 F.3d 237 (9th Cir. 1996) ...................................................................................................24

FEC v. Wisconsin Right to Life, Inc,

551 U.S. 449 (2007).................................................................................................................16

Florida Right to Life, Inc. v. Mortham,

No. 98-770CIVORL19A, 1999 WL 33204523 (M.D. Fla. Dec. 15, 1999) ............................16

Fogo De Chao (Holdings) Inc. v. Department of Homeland Security,

769 F.3d 1127 (D.C. Cir. 2014)...............................................................................................10

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,

528 U.S. 167 (2000).................................................................................................................24

Gold Reserve Inc. v. Bolivarian Republic of Venezuela,

No. CV 14-2014 (JEB), 2015 WL 7428532 (D.D.C. Nov. 20, 2015) .....................................18

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Independent Community Bankers of America v. Board of 

Governors of Federal Reserve System,

195 F.3d 28 (D.C. Cir. 1999)...................................................................................................10

INS v. Aguirre-Aguirre, 

526 U.S. 415 (1999)...................................................................................................................7

Martin v. OSHRC,

499 U.S. 144 (1991)...................................................................................................................9

McCleskey v. Kemp,

481 U.S. 279 (1987)...................................................................................................................9

McConnell v. FEC,

540 U.S. 93 (2003)...................................................................................................3, 16, 21, 22

National Cable & Telecommunications Ass’n v. Brand X Internet Services,

545 U.S. 967 (2005)...................................................................................................................4

National Institute of Military Justice v. United States Department of Defense,

512 F.3d 677 (D.C. Cir. 2008)...................................................................................................8

N.L.R.B. v. Catholic Bishop of Chicago,

440 U.S. 490 (1979)...................................................................................................................5

N.M. Youth Organized v. Herrera,

611 F.3d 669 (10th Cir. 2010) .................................................................................................16

Negusie v. Holder,

555 U.S. 511 (2009)...................................................................................................................6

O’Connor v. Donaldson,

422 U.S. 563 (1975)...................................................................................................................6

Orloski v. FEC,

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

Pipefitters Local Union No. 562 v. United States,

407 U.S. 385 (1972)...................................................................................................................6

Precon Development Corp. v. United States Army Corps of Engineers,

633 F.3d 278 (4th Cir. 2011) .....................................................................................................4

Real Truth About Abortion, Inc. v. FEC,

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

In re Sealed Case,

223 F.3d 775 (D.C. Cir. 2000).....................................................................................7, 8, 9, 10

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Shays v. FEC,

511 F. Supp. 2d 19 (D.D.C. 2007).............................................................................................4

Sloan v. United States Department of Housing and Urban Development,

236 F.3d 756 (D.C. Cir. 2006)...................................................................................................9

United States v. Mead,

533 U.S. 218 (2001).....................................................................................................7, 8, 9, 10

United States v. Midwest Generation, LLC,

720 F.3d 644 (7th Cir. 2013) ...................................................................................................24

United States v. United States Steel Corp.,

16 F. Supp. 3d 944 (N.D. Ind. 2014) .......................................................................................24

United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, 

Allied Industrial & Service Workers International Union, AFL-CIO-CLC v. 

Pension Benefit Guaranty Corp.,

707 F.3d 319 (D.C. Cir. 2013).................................................................................................22

University of Great Falls v. N.L.R.B.,

278 F.3d 1335 (D.C. Cir. 2002).............................................................................................5, 6

Van Hollen v. FEC,

811 F.3d 486 (D.C. Cir. 2016)...............................................................................................5, 6

Vermont Right to Life Committee, Inc. v. Sorrell,

758 F.3d 118 (2d Cir. 2014).....................................................................................................17

Wisconsin Right To Life, Inc. v. Barland,

751 F.3d 804 (7th Cir. 2014) .......................................................................................15, 16, 21

Statutes

52 U.S.C. § 30109....................................................................................................................10, 25

Regulations 

66 Fed Reg. 13,681 (proposed Mar. 7, 2001)................................................................................20

72 Fed. Reg. 5,595 (Feb. 7, 2007) .................................................................................................15

Other Authorities

13C Charles Alan Wright & Arthur R. Miller, 

Federal Practice and Procedure § 3533.3 (3d ed.).................................................................24

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Brad Smith, What does it mean when the Federal Election Commission “Deadlocks”, 

Center for Competitive Politics (Apr. 14, 2009)..............................................................................9

FEC, Office of General Counsel, Enforcement Manual (June 2013)......................................13, 18

Frances R. Hill & Douglas M. Mancino, Taxation of Exempt Organizations ¶ 36.03[4][a].........19

IRS, Instructions for Form 990; Return of Organization Exempt From Income Tax –

Additional Material; Glossary.......................................................................................................19

First General Counsel’s Report, MUR 4940 (Dec. 19, 2000) .......................................................21

Raymond Chick and Amy Henchey, Political Organizations

and IRC 501(c)(4) (1995)..........................................................................................................19

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INTRODUCTION

The Federal Election Commission (“FEC” or “Commission”) dismissed a complaint filed 

by Public Citizen against Crossroads Grassroots Policy Strategies (“Crossroads GPS”) for 

allegedly failing to register and report as a political committee. The controlling bloc of 

Commissioners (“controlling Commissioners”) correctly determined that Crossroads GPS’s 

major purpose was not federal election activity. As explained in Crossroads GPS’s cross-motion 

for summary judgment (Dkt. #60) (hereinafter “Cross-Motion”), the Commission lawfully 

dismissed the complaint on two grounds, either of which is sufficient to uphold the dismissal: 

First, the major-purpose test does not require a calendar-year time frame; and, second, the majorpurpose test does not require issue advertisements that merely “oppose” or “criticize” the policy 

positions of public officials running for reelection to be equated with express electoral advocacy.

It is important to note the number of points that Public Citizen fails to rebut in its most 

recent reply brief (Dkt. #62) (hereinafter “Reply”):

 For Public Citizen to prevail, it must establish that the Commission was required to both

(1) limit its time frame of analysis to a single calendar year and (2) reach far beyond 

express advocacy and also consider spending for true issue advertisements that could be 

interpreted as critical of a candidate as evidence of electoral purpose.

 Of all Crossroads GPS spending considered by the FEC (June 2010 to December 2011), 

less than 25% was for express advocacy. Even if analysis were limited to the latter half 

of 2010, as Public Citizen urges, less than 40% of its spending was for express advocacy.

 The only way the Commission could have found that Crossroads GPS reached the 50% 

spending threshold was to both limit the major-purpose analysis to the second half of 

2010 and treat issue advertisements that arguably, according to Public Citizen, criticize or 

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oppose federal officeholder candidates as evidence of Crossroads GPS’s alleged electoral 

purpose. Even under this artificially conceived scenario, only 53% of Crossroads GPS’s 

spending would be viewed as federal election activity.

 No statute or judicial decision requires that the major-purpose test be assessed on a 

calendar-year basis.

 No statute or judicial decision requires that the major-purpose test include spending for 

communications that do not contain express advocacy, much less explains how such nonexpress advocacy spending must be weighed.

 The FEC has not once this century authorized an enforcement action where, as here, five 

years have elapsed since the alleged conduct.

The controlling Commissioners were right to reject a rigid and myopic calendar-year time 

frame for conducting the major-purpose test. They reasonably concluded that limiting the majorpurpose inquiry to only seven months of Crossroads GPS’s activities during its first year of

existence, when a more extensive record was before the FEC, presented a distorted picture of the 

organization’s major purpose and was not compelled by statute or any other authority.

The controlling Commissioners also had a rational basis for including only spending for

express advocacy and its functional equivalent in the major-purpose analysis. This standard is 

supported by judicial precedent and provides clarity and guidance to speakers to know when 

their speech might trigger the onerous, ongoing registration and reporting requirements that 

apply to federal political committees. An alternative standard—advocated by Public Citizen—is 

wildly over-inclusive and raises serious vagueness questions. Public Citizen’s standard would 

require inclusion of communications that merely “criticize” or are “highly negative” about the 

policy and legislative positions of federal officeholders who also happen to be candidates up for 

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re-election, even if the communications are made more than a year before the relevant 

officeholders’ re-elections. Not only does this standard fail to provide clear guidance to 

speakers, it would inevitably impose burdensome political committee obligations on entities 

whose major purpose is to engage in issue-based speech. Under the deferential “contrary to law” 

standard of review, it was not irrational for the controlling Commissioners to adopt a clearer and 

more speech-protective standard that has been upheld by the courts. 

ARGUMENT

I. The Controlling Commissioners’ Interpretations Are Entitled to Chevron

1

Deference.

Public Citizen argues that the FEC’s dismissal is not entitled to Chevron deference 

because (a) the major-purpose test derives from judicial precedent—specifically Buckley v. 

Valeo, 424 U.S. 1 (1976)—and not from the specific language of FECA, and (b) circuit 

precedent that requires the controlling Commissioners’ decision to receive Chevron deference 

can supposedly be distinguished. Reply at 2-3. Neither argument is correct.

A. The application of the major-purpose test is an exercise in statutory 

interpretation entitled to Chevron deference.

The major-purpose test has its roots in a narrowing construction of the Federal Election 

Campaign Act of 1971, as amended (“FECA”), adopted by the Supreme Court in Buckley to 

avoid questions of constitutionality, see 424 U.S. at 79, and is primarily an exercise in statutory 

interpretation. The Court has emphasized this point with respect to the “express advocacy”

construction it imposed at the same time. See McConnell v. FEC, 540 U.S. 93, 191-92 (2003). 

Construing statutes to avoid questions of constitutionality—known as the canon of avoidance—

requires a court to “choos[e] between competing plausible interpretations of a statutory text.” 

Clark v. Martinez, 543 U.S. 371, 381 (2005). In so doing, the court adopts a particular 

 

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

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interpretation of the statute. But an agency is entitled to deference on a subsequent interpretation 

of the same statute, even if that interpretation is different from a federal court’s. Nat’l Cable & 

Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005). “Only a judicial 

precedent holding that the statute unambiguously forecloses the agency’s interpretation . . . 

displaces a conflicting agency construction.” Id. at 982-83. When a court adopts a narrowing 

construction to avoid constitutional questions, there is, by definition, a range of permissible 

interpretations of the statute for which an agency may be entitled to deference.

When judicial precedent has “engrafted” an extra-textual test onto “statutory 

requirements,” Chevron deference is available for an agency’s subsequent interpretation and 

application of that test. Precon Dev. Corp. v. U.S. Army Corps of Eng’rs, 633 F.3d 278, 289-90 

& n.10 (4th Cir. 2011) (holding that Chevron deference would apply to an agency’s formal 

interpretation of the judicially created “significant nexus” test under the Clean Water Act). This 

is a sensible approach because a prior judicial construction of a statute does not disturb the 

agency’s role as the primary interpreter and enforcer of that statute. See Brand X, 545 U.S. at 

982-83. This is all the more true with respect to the major-purpose test, which has been applied 

by the FEC on a case-by-case basis for forty years—a practice to which Congress has 

acquiesced—and is not simply an interpretation of Buckley. Indeed, all parties agree that 

Buckley “did not mandate a particular methodology for determining an organization’s major 

purpose,” Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544, 556 (4th Cir. 2012); Shays v. 

FEC, 511 F. Supp. 2d 19, 29 (D.D.C. 2007) (“Buckley established the major purpose test, but did 

not describe its application in any fashion.”).

“Unique among federal administrative agencies, the [FEC] has as its sole purpose the 

regulation of core constitutionally protected activity.” AFL-CIO v. FEC, 333 F.3d 168, 170 

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(D.C. Cir. 2003). Consistent with this mandate, the Commission must be sensitive to the 

implications its actions have on core protected speech. This, of course, requires the FEC to 

regularly consider judicial opinions that bear on First Amendment principles. But that 

consideration does not deprive the FEC of deference to which it is otherwise entitled. The D.C. 

Circuit recently held that the Commission is entitled to deference when it exercises “its unique 

prerogative to safeguard the First Amendment when implementing its congressional directives.” 

Van Hollen v. FEC, 811 F.3d 486, 501 (D.C. Cir. 2016), petition for reh’g filed (Mar. 4, 2016). 

Because the FEC must, by virtue of its unique mandate, consider the First Amendment 

consequences of its actions, Public Citizen’s proposed rule would have the effect of denying the 

FEC deference in nearly all of its adjudicatory actions.

There are, of course, limits to an agency’s subsequent interpretation of a statute that a 

court previously construed to avoid constitutional questions. An agency may not construe a 

statute to raise the precise constitutional questions the court sought to avoid in its initial 

interpretation. A case cited by Public Citizen illustrates this point. In University of Great Falls 

v. N.L.R.B., 278 F.3d 1335 (D.C. Cir. 2002), the National Labor Relations Board (“NLRB”) 

asserted that it had jurisdiction over a Catholic university. The Supreme Court, however, had 

previously applied the canon of avoidance to preclude such jurisdiction, holding that it would 

raise serious constitutional questions. See N.L.R.B. v. Catholic Bishop of Chicago, 440 U.S. 490 

(1979). But the NLRB, purporting to apply the holding of Catholic Bishop, concluded that the 

university did not have a “substantial religious character” and therefore assumed jurisdiction 

over it. 278 F.3d at 1340. This approach “not only create[d] the same constitutional concerns 

that led to the Supreme Court’s decision in Catholic Bishop, it [was] so similar in principle to the 

approach rejected in Catholic Bishop” that the court had no choice but to invalidate it. Id. at 

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1341. Because “the constitutional avoidance canon of statutory interpretation trumps Chevron

deference,” the court did not defer to the NLRB. Id. at 1340-41. 

The court’s concern in University of Great Falls is not, however, implicated in this case. 

The FEC did not apply the major-purpose test to Crossroads GPS in such a way as to raise First 

Amendment concerns. The holding of University of Great Falls is simply that the canon of 

avoidance precludes deference to an agency interpretation that raises serious constitutional 

questions. This is black-letter administrative law. See Edward J. DeBartolo Corp. v. Florida 

Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 574-75 (1988). The D.C. Circuit did 

not suggest that agency interpretations of statutes are deprived of the deference to which they are 

otherwise entitled simply because the agency also considered judicial precedent. See FEC v. 

Nat’l Rifle Ass’n, 254 F.3d 173, 182, 187 (D.C. Cir. 2001) (deferring to FEC interpretation based 

in part on Supreme Court’s decision in Pipefitters Local Union No. 562 v. United States, 407 

U.S. 385 (1972)). This is all the more true when judicial opinions are relied upon to support an 

interpretation that avoids serious constitutional questions. See Van Hollen, 811 F.3d at 501.2 

Because the FEC’s application of the major-purpose test in this case is based on an 

interpretation of FECA, the Commission’s decision is entitled to Chevron deference.3 The most 

 

2

Public Citizen relies chiefly on two additional cases, neither of which supports its argument. In Negusie v. 

Holder, 555 U.S. 511 (2009), the Supreme Court declined to defer to an agency’s interpretation of judicial precedent 

construing a different statute than the one the agency was interpreting in the instant case. See id. at 522 (The 

agency’s “mistaken assumption stems from a failure to recognize the inapplicability of the principle of statutory 

construction invoked in Fedorenko, as well as a failure to appreciate the differences in statutory purpose.”). The 

other case, Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996), was vacated by the Supreme Court. See FEC v. Akins, 524 

U.S. 11, 29 (1998). Vacatur of a judgment of the Court of Appeals “deprives that court’s opinion of precedential 

effect.” O’Connor v. Donaldson, 422 U.S. 563, 577 n.12 (1975); see also Durning v. Citibank, N.A., 950 F.2d 1419, 

1424 n.2 (9th Cir. 1991) (“A decision may be reversed on other grounds, but a decision that has been vacated has no 

precedential authority whatsoever.”). Although Akins has been cited subsequently for the general proposition that 

agencies are not typically entitled to deference when interpreting judicial opinions, it has not been cited for the 

specific proposition that the major-purpose test is one such exercise.

3

 Public Citizen concedes that relevant judicial precedent is silent as to the temporal scope of the majorpurpose test and contends that its preferred calendar-year time frame is compelled by the “plain statutory language.” 

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that can be said for Public Citizen’s argument is that deference is not appropriate in cases where 

an agency interpretation raises serious constitutional questions. This is not such a case. 

B. The controlling Commissioners’ Statement of Reasons is entitled to Chevron

deference in split-vote enforcement-action dismissals.

Public Citizen’s argument that Chevron deference is not owed to a controlling Statement 

of Reasons in a split-vote dismissal of an FEC enforcement action contradicts binding circuit 

precedent. As explained in Crossroads GPS’s cross-motion for summary judgment, the D.C. 

Circuit squarely held in In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000), that a court owes 

Chevron deference to controlling FEC Commissioners’ legal conclusions in split-vote dismissals 

of administrative complaints. The court explained that, because FEC enforcement decisions are 

“part of a detailed statutory framework” that is “analogous to formal adjudication” where “the 

agency ‘gives ambiguous statutory terms concrete meaning through a process of case-by-case 

adjudication,’” Chevron deference is owed to the controlling bloc of Commissioners. Id. at 780 

(quoting INS v. Aguirre–Aguirre, 526 U.S. 415, 425 (1999)). Because the process by which an 

agency makes an interpretation determines whether Chevron deference is available, see United 

States v. Mead Corp., 533 U.S. 218, 229-31 (2001), an interpretation made through the FEC’s 

formal adjudication process is entitled to Chevron deference. Interpretations made through 

formal processes, such as formal adjudication or notice-and-comment rulemaking, are essentially 

per se entitled to deference. See City of Arlington v. FCC, 133 S. Ct. 1863, 1874 (2013) 

(remarking that there has not been “a single case in which a general conferral of rulemaking or 

adjudicative authority has been held insufficient to support Chevron deference for an exercise of 

that authority within the agency’s substantive field”). 

 

Reply at 12. Crossroads GPS disagrees with this statutory interpretation, but, at the very least, the controlling 

Commissioners’ interpretation of FECA on this point is entitled to Chevron deference. 

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Public Citizen asserts that the Supreme Court’s decision in Mead would have led to a 

different result in Sealed Case. Public Citizen contends that Mead’s holding—that only 

interpretations carrying the force and effect of law may receive Chevron deference—was not 

considered in Sealed Case. But this is incorrect; the court in Sealed Case quoted Supreme Court 

precedent standing for that exact proposition. See 223 F.3d at 780 (“‘Interpretations . . . which 

lack the force of law []do not warrant Chevron-style deference.’” (emphasis in original) (quoting 

Christensen v. Harris Cty., 529 U.S. 576, 586 (2000)). In Christensen, the Court held that an 

interpretation contained in an opinion letter was not entitled to the same level of deference as an 

interpretation “arrived at after . . . formal adjudication,” which would have carried the force and 

effect of law.4 It is disingenuous for Public Citizen to claim that this is not the essential holding 

of Mead. There is simply no material distinction among Sealed Case, Christensen, and Mead, let 

alone an “eviscerat[ion]” of Sealed Case or Christensen by Mead. Nat’l Inst. of Military Justice 

v. U.S. Dep’t of Defense, 512 F.3d 677, 682 n.7 (D.C. Cir. 2008). To the contrary, binding 

precedent in this circuit holds that the legal conclusions of controlling Commissioners in 3-3 

dismissals of enforcement actions are entitled to Chevron deference. 

Finally, Public Citizen argues that the FEC’s uncontroversial statement that FECA 

requires four Commissioners to take certain affirmative action—such as promulgate a regulation 

or issue an advisory opinion—means that a split-vote dismissal of an administrative complaint is 

not entitled to Chevron deference. Reply at 9. This argument conflates two distinct issues: (1) 

whether three Commissioners can promulgate a regulation or issue an advisory opinion and (2) 

whether three Commissioners can issue a decision with the force and effect of law in a particular 

enforcement action, specifically by voting to dismiss an administrative complaint. Only the 

 

4

Public Citizen cites to Justice Scalia’s dissent in Mead but fails to note that he refused to join Part III of the 

Court’s decision in Christensen for the same reason he dissented in Mead. See Christensen, 529 U.S. at 587, 589-91 

(Scalia, J., concurring in part and concurring in the judgment). 

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latter is at issue here, and binding circuit precedent requires that such a decision by the 

controlling Commissioners be given Chevron deference. 

Public Citizen’s argument fails to account for the unique structure of the FEC and its 

enforcement process, and it is simply untrue that the votes of the controlling Commissioners in 

this matter “lack the force of law.” Congress designed the enforcement process to require the 

votes of four FEC Commissioners to ensure at least some bipartisan consensus among the 

Commissioners before the Commission may proceed on a complaint, as well as “to assure that 

enforcement actions . . . will be the product of a mature and considered judgment” and “reduce 

the risk that the Commission will abuse its powers.” Combat Veterans for Cong. Political Action 

Comm. v. FEC, 795 F.3d 151, 153 (D.C. Cir. 2015). Under this congressional architecture, “[i]f 

the FEC votes 3-3 not to find a violation, that means the FEC has determined that the conduct 

does not violate the law.” Brad Smith, What does it mean when the Federal Election 

Commission “Deadlocks”, Center for Competitive Politics (Apr. 14, 2009).5 In other words, 

when the Commission votes 3-3 in an enforcement matter, this is not a deadlock without effect. 

Rather, it is a vote to dismiss a complaint because the Commission lacks the statutorily required 

four votes to find reason to believe a violation occurred. This decision to dismiss carries the 

force and effect of law with respect to the particular case and is made through “a form expressly 

provided for by Congress.” Sealed Case, 223 F.3d at 780 (quoting Martin v. OSHRC, 499 U.S. 

144, 157 (1991)). Such a decision, the D.C. Circuit has held, is entitled to Chevron deference.6

 

5

 http://www.campaignfreedom.org/2009/04/14/what-does-it-mean-when-the-federal-election-commissiondeadlocks/. 

6

 Agency enforcement decisions are also, by nature, highly discretionary, Sloan v. U.S. Dep’t of Hous. & 

Urban Dev., 236 F.3d 756, 760 (D.C. Cir. 2006), and will be respected absent “exceptionally clear proof.” 

McCleskey v. Kemp, 481 U.S. 279, 296 (1987).

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The D.C. Circuit’s recent decision in Fogo De Chao (Holdings) Inc. v. Dep’t of 

Homeland Sec., 769 F.3d 1127 (D.C. Cir. 2014) is consistent with this precedent. As explained, 

supra at 7-8, the relevant test for determining whether an agency interpretation is entitled to 

Chevron deference is the process through which the agency acted. See Mead, 533 U.S. at 230. 

In Sealed Case, the D.C. Circuit held that Chevron deference is required for a split-vote 

dismissal of an FEC enforcement action because the decision is made through formal 

adjudication. 223 F.3d at 780. This is fully consistent with Fogo de Chao, where the court 

declined to defer to an agency’s interpretation because it was “the product of informal

adjudication within the Service, rather than a formal adjudication or notice-and-comment 

rulemaking.” 769 F.3d at 1136 (emphasis added).7

II. The Dismissal Was Not Contrary to Law.

In any event, the dismissal here was not “contrary to law.” See 52 U.S.C. 

§ 30109(a)(8)(C). An agency action is contrary to law if it is based on an impermissible 

interpretation of FECA or if it is “arbitrary or capricious, or an abuse of discretion.” Orloski v. 

FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). This standard is “extremely deferential” and “requires 

affirmance if a rational basis for the agency’s decision is shown.” Id. at 167. Public Citizen’s 

objections to the dismissal of the administrative complaint against Crossroads GPS do not satisfy 

the high threshold required to overturn an agency decision as contrary to law.

The controlling Commissioners dismissed the complaint for two independent reasons, 

either of which is sufficient to uphold the dismissal on its own. First, the controlling 

Commissioners concluded that a calendar year is not the exclusive or required time frame for a 

 

7

 To the extent that any aspect of Fogo de Chao is inconsistent with the holding of Sealed Case, the holding 

of Sealed Case controls. See Indep. Cmty. Bankers of Am. v. Bd. of Governors of Fed. Reserve Sys., 195 F.3d 28, 34 

(D.C. Cir. 1999) (“In the event of conflicting panel opinions . . . the earlier one controls, as one panel of this court 

may not overrule another.” (citation omitted)).

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major-purpose analysis. Second, the controlling Commissioners limited the relevant spending 

under the major-purpose test to express advocacy and its functional equivalent. Only if this 

Court holds that the Commission lacked a “rational basis” for both conclusions can this Court 

find the dismissal was contrary to law. Orloski, 795 F.2d at 167. 

A. It was reasonable for the controlling Commissioners to reject a rigid 

calendar-year approach.

As an initial matter, Public Citizen is incorrect in framing the issue as between a 

calendar-year standard and a fiscal-year time frame. Contrary to Public Citizen’s assertions, the 

controlling Commissioners did not “insist[] on an . . . examination only of the organization’s 

self-selected fiscal year.” Reply at 18. Instead, they explained, “We do not believe that fiscal 

year is the required time frame in all [major purpose] analyses any more than we believe 

calendar year is. Rather, the facts in the case before us will determine the appropriate time frame 

for analysis.” AR423 n.101. Here, the controlling Commissioners considered all of Crossroads 

GPS’s spending that was in the record (i.e., June 1, 2010 through December 31, 2011), which 

covered Crossroads GPS’s first two fiscal years, and concluded that “Crossroads GPS devoted 

only 25 percent of its spending to relevant expenditures” during this time period. AR423. The 

controlling Commissioners also explained that the use of other time frames—including a fiscal 

year and calendar year—did not alter this conclusion. Id. In this particular context, the 

controlling Commissioners rejected the calendar-year approach in favor of considering a wider 

range of activities (twelve months or more instead of seven) that offered a fuller picture of how 

Crossroads GPS “managed its affairs and programs.” Id. 

The controlling Commissioners had good reason to reject a rigid calendar-year standard. 

As Public Citizen concedes, “‘Buckley and its progeny’ have never compelled any particular time 

frame for the analysis of major purpose” and said nothing about “any temporal requirement to 

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the ‘major purpose’ limitation.” Reply at 12. And nothing in the text, structure, or purposes of 

FECA suggests that the FEC must assess an organization’s major purpose solely calendar-yearby-calendar-year. See Cross-Motion at 20-22. 

The controlling Commissioners, moreover, adequately explained the shortcomings of a 

myopic calendar-year approach.8 Depending on the circumstances, a calendar-year approach can 

produce a distorted picture of an organization and not accurately capture its true major purpose. 

AR420. For example, a group that is founded in the middle of an election year may spend 

primarily on express advocacy in its first few months, yet subsequent spending reveals that this 

was a minor focus of the group. This case exemplifies the reasonableness of the controlling 

Commissioners’ approach. In fact, it would have been unreasonable to review only seven 

months of Crossroads GPS’s activities to assess its major purpose when a more comprehensive 

record was before the agency. Puzzlingly, Public Citizen concedes this point, see Reply at 14 n.4 

(noting it was “reasonabl[e]” for the FEC Office of General Counsel to “focus[] on the period for 

which Crossroads provided specific information”), yet maintains the Commission was required 

to ignore the information before it concerning Crossroads GPS’s 2011 spending and focus solely 

on its 2010 spending.9

 

8

 Public Citizen does not attempt to refute these points, choosing instead to tilt at the fiscal-year standard the 

controlling Commissioners specifically disclaimed as not being the required time frame. And Public Citizen’s 

contention that only those organizations that admit to having the major purpose of electoral advocacy would have to 

register under the standard enunciated by the controlling Commissioners, Reply at 14, is not accurate. The FEC’s 

political committee determinations have always been retrospective, and organizations must assess whether they are 

political committees based partly on what they believe they might end up spending. If an organization concludes ex 

ante it is not a political committee, and its assessment turns out to be incorrect, then it may be liable post hoc for 

failing to register and report as a political committee.

9 Moreover, there are circumstances in which a fiscal-year time frame would cause an entity to have to 

register as a political committee whereas a calendar-year time frame would not. An organization with a July 1–June 

30 fiscal year, for example, might spend $20 million in the first six months of an election year on non-political 

activities. In the next few months preceding the election, it spends $10 million on federal electoral activities. Then, 

in the first six months of the following year, the organization spends $5 million on non-political activities. Viewing 

this scenario through a fiscal-year lens, the organization would have the major purpose of federal election activity. 

However, under the calendar-year approach, the organization would not have this major purpose. 

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As Crossroads GPS catalogued in its cross-motion for summary judgment, see CrossMot. at 22-23, and Public Citizen does not dispute, the single-calendar-year time frame has never 

been the required approach under Commission or judicial precedent. Indeed, such an approach 

was never even considered until this enforcement proceeding. AR425. Recognizing this history 

of contrary authority, Public Citizen concedes that the Commission and courts have found an 

election-cycle or even longer time frames to be the appropriate test in past enforcement cases. 

Reply at 16. This concession demonstrates that a rigid calendar-year approach is not required by 

relevant authority and that time frames beyond a single calendar year are appropriate depending 

on the circumstances.10

Finally, the Commission was not required to consider spending after December 31, 2011. 

All parties agree that there must be start and end dates in a major-purpose analysis. The 

controlling Commissioners reviewed 19 months of Crossroads GPS’s activities—a time period 

that included an election cycle—and concluded that only 25% of its spending was for federal 

election purposes. Of course, Public Citizen could have tried to amend its administrative

complaint or supplement its submission with the FEC to include information from 2012 and 

2013, see FEC, Office of General Counsel, Enforcement Manual at 34-35 (June 2013), but it did

not do so. Moreover, Public Citizen does not offer any evidence that indicates Crossroads GPS 

increased the percentage of its activities devoted to federal election activity after 2011. 

 

10

 To the extent that Public Citizen argues in the alternative that an election-cycle approach might be 

appropriate here—an argument it did not make before the Commission or in any previous filings with this Court—

the same objections would apply. Crossroads GPS was founded in June in the second year of an election cycle. A 

review of a few months’ worth of activities in isolation from the organization’s broader pattern of activities would 

likewise present a distorted picture of the organization. The controlling Commissioners were right to consider all of 

the spending in the administrative record. As they explained, “[o]ften one can assess an organization’s true major 

purpose only by reference to its entire history. In other instances, shorter time frames, such as an election cycle, 

might suffice.” AR423 n.101. But the facts and circumstances of each case will suggest which time frame is 

appropriate for a particular organization.

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B. The controlling Commissioners’ spending analysis was not contrary to law.

Public Citizen asserts that the standard articulated by the controlling Commissioners—

that only spending for communications containing express advocacy or its functional equivalent 

count when determining an entity’s major purpose—is contrary to law. Public Citizen also 

argues that its preferred standard—requiring inclusion of spending on communications that 

merely criticize or oppose the policy or legislative positions of federal officeholders running for 

reelection—is required by law. But the controlling Commissioners’ reasoning is well-supported 

by the administrative record, and Public Citizen cannot meet its burden to show that this 

reasoning lacks a “rational basis.” Orloski, 795 F.2d at 167.

1. It was reasonable for the controlling Commissioners to limit their 

spending analysis to express advocacy and its functional equivalent.

Public Citizen contends that the controlling Commissioners’ spending analysis was 

irrational for three reasons. First, they argue that the controlling Commissioners should not have 

limited their analysis of the relevant spending to express advocacy and its functional equivalent. 

Second, the controlling Commissioners allegedly failed to consider whether certain 

advertisements were the functional equivalent of express advocacy. Third, the controlling 

Commissioners should have investigated the extent to which Crossroads GPS grant recipients 

used donations to fund their own political activities. These objections are meritless, and, under 

any standard of review, the controlling Commissioners’ reasoning is not contrary to law.

a. The controlling Commissioners acted reasonably in drawing the line at express 

advocacy and its functional equivalent for purposes of the major-purpose test. At the outset, it 

should be noted that Crossroads GPS does not argue that spending on communications that do 

not contain express advocacy can never trigger disclosure requirements. Certain event-driven 

reporting requirements—such as requiring a report upon spending a specified amount on 

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electioneering communications, see Citizens United v. FEC, 558 U.S. 310, 368-69 (2010)—are 

narrowly tailored and “provide precisely the information necessary” to satisfy the government’s 

interest in disclosure. FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 262 

(1986). But the issue in this case is which types of spending will subject an entity to onerous and 

ongoing reporting requirements as a federal political committee. Cases upholding one-time,

event-driven reporting requirements have little bearing on disclosure regimes mandating ongoing 

reporting requirements. See, e.g., Wisconsin Right To Life, Inc. v. Barland, 751 F.3d 804, 824 

(7th Cir. 2014) (A “one-time, event-driven disclosure rule is far less burdensome than the 

comprehensive registration and reporting system imposed on political committees.” (discussing 

Citizens United, 558 U.S. at 368-69)). “[C]ompelled disclosure, in itself, can seriously infringe 

on privacy of association and belief guaranteed by the First Amendment.” Davis v. FEC, 554 

U.S. 724, 744 (2008) (quoting Buckley, 424 U.S. at 64). This is even truer when disclosure is 

compelled in perpetuity, as it is for federal political committees.

Courts have repeatedly cautioned that engaging in issue advocacy is not a basis for 

political committee status. The D.C. Circuit held that the political committee definition must be 

narrowly construed “since it potentially reaches . . . the activities of nonpartisan issue groups 

which [seek to] influenc[e] the public to demand of candidates that they take certain stands on 

the issues.” Buckley v. Valeo, 519 F.2d 821, 863 n.112 (D.C. Cir. 1975) (en banc), aff’d in part 

and rev’d in part, 424 U.S. l (1976). The Supreme Court cited this language approvingly and 

confirmed that political committee status may not be stretched to apply to issue-oriented groups. 

Buckley, 424 U.S. at 79. The major-purpose test thus ensures that the FEC “avoid[s] the 

regulation of activity ‘encompassing both issue discussion and advocacy of a political result.’” 

72 Fed. Reg. 5,595, 5,597 (Feb. 7, 2007) (quoting Buckley, 424 U.S. at 79). 

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Public Citizen asserts that the express-advocacy test is “functionally meaningless” in 

distinguishing between issue advocacy and election-related speech. Reply at 24 (quoting 

McConnell, 540 U.S. at 193). But the Supreme Court’s decision in FEC v. Wisconsin Right to 

Life, Inc., 551 U.S. 449 (2007) stressed the continued vitality and relevance of an expressadvocacy standard and articulated the criteria for determining when speech is the “functional 

equivalent” of express advocacy as opposed to genuine issue advocacy. Id. at 469-70. The 

Court emphasized that issue advocacy does not have an electoral purpose “simply because the 

issues may also be pertinent in an election.” Id. at 474. An issue advertisement, therefore, does 

not become the “functional equivalent” of express advocacy merely because it mentions, 

criticizes, or asks citizens to contact a particular candidate. Id. at 470-73. Rather, the 

advertisement must be “susceptible of no reasonable interpretation other than as an appeal to 

vote for or against a specific candidate.” Id. at 469-70. The controlling Commissioners’ 

standard derives from and is grounded in this Supreme Court precedent.

Numerous federal court decisions support the controlling Commissioners’ approach to 

limiting the major-purpose analysis to express advocacy and its functional equivalent. See, e.g., 

Barland, 751 F.3d at 841 (limiting application of political committee requirements to “groups 

that engage in express election advocacy as their major purpose”); N.M. Youth Organized v. 

Herrera, 611 F.3d 669, 678 (10th Cir. 2010) (evaluating whether a “group spends a 

preponderance of its expenditures on express advocacy” and including only “expenditures on 

express advocacy or contributions to candidates” in the major-purpose inquiry); Fla. Right to 

Life, Inc. v. Mortham, No. 98-770CIVORL19A, 1999 WL 33204523, at *4 (M.D. Fla. Dec. 15, 

1999) (restricting political committee status “to organizations whose major purpose is engaging 

in ‘express advocacy’” as defined in Buckley), aff’d in relevant part on appeal sub. nom., Fla. 

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Right to Life, Inc. v. Lamar, 238 F.3d 1288 (11th Cir. 2001); FEC v. GOPAC, 917 F. Supp. 851, 

863-64 (D.D.C. 1996) (declining to consider a letter that did “not advocate [the candidate’s] 

election or defeat” as evidence that a group’s major purpose was the election of candidates). 

Plainly, the controlling Commissioners’ standard cannot be “arbitrary and capricious” when so 

many federal courts have adopted the same approach over many years.

Public Citizen cites several cases upholding state laws that allow non-express advocacy 

spending to trigger a regulated status. But these cases are of limited relevance, because states 

often do not impose the same burdensome registration and reporting requirements on political 

committees as FECA does. See, e.g., Vermont Right to Life Comm., Inc. v. Sorrell, 758 F.3d 

118, 138 (2d Cir. 2014) (noting that political committee status resets every two years in 

Vermont, in contrast to FECA’s perpetual reporting obligations). Ultimately, however, this 

Court is not called upon to decide which approach to the major-purpose test is best, but whether 

the controlling Commissioners’ approach has a “rational basis.” Orloski, 795 F.2d at 167. That 

numerous federal courts have restricted the major-purpose analysis to the “core area” of express 

candidate advocacy, Buckley, 424 U.S. at 79, underscores the reasonableness of the controlling 

Commissioners’ approach. 

b. Public Citizen contends that the controlling Commissioners did not determine 

whether $5.4 million in spending on communications criticizing or opposing federal candidates 

constitute the functional equivalent of express advocacy, Reply at 25, but is mistaken. See

AR415 n.69 (“[The Office of General Counsel] does not argue, nor could it, that these additional 

communications were the functional equivalent of express advocacy.” (emphasis added)). 

c. Finally, Public Citizen claims the controlling Commissioners were required to 

investigate whether recipients used Crossroads GPS grants to finance federal electoral activities. 

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But this argument has been waived in several respects, starting with Public Citizen’s failure to 

include this argument in its administrative complaint filed with the FEC. See Coburn v. 

McHugh, 679 F.3d 924, 929 (D.C. Cir. 2012) (“[I]issues not raised before an agency are waived 

and will not be considered by a court on review.” (citation omitted)). Indeed, Public Citizen’s 

administrative complaint is devoid of any mention of Crossroads GPS’s grants, AR1-22, and 

Public Citizen had three years to supplement or amend its initial complaint if it wanted to raise 

the issue in the enforcement action before the FEC, see Enforcement Manual at 34-35. 

Crossroads GPS submitted its IRS Form 990s to the FEC nineteen months before the 

Commission voted to dismiss the enforcement action. See AR239. Public Citizen failed to 

preserve the issue in this litigation.11 

Even if this argument was not waived, Public Citizen, in demanding the FEC investigate 

this issue at the reason to believe stage, ignores that the FEC may conduct an investigation only 

after it makes a reason to believe finding based on the record before the Commission. See

Democratic Senatorial Campaign Comm. v. FEC, 745 F. Supp. 742, 745-46 (D.D.C. 1990). And 

a reason to believe finding requires a complainant to meet “a minimum evidentiary threshold,”

providing “at least some legally significant facts to distinguish the circumstances from every 

other” situation where a person engages in permissible conduct. Id. (internal quotation marks 

and citation omitted). “[T]he alleged facts must present something that is, in the broad sense, 

‘incriminating’ and not satisfactorily answered by the respondents.” Id. at 746 (citation omitted). 

The record before the Commission in this case indicated only that Crossroads GPS made grants 

 

11 Public Citizen devoted only two sentences to this issue in a footnote in its motion for summary judgment. 

See Mot. at 27 n.6 (Dkt. # 23). But “[a]rguments made in a perfunctory manner, such as in a footnote, are waived.” 

Gold Reserve Inc. v. Bolivarian Republic of Venezuela, No. CV 14-2014 (JEB), 2015 WL 7428532, at *9 (D.D.C. 

Nov. 20, 2015) (citation omitted). Additionally, Public Citizen’s argument is waived because it did not develop the 

argument until its reply briefs. See Consol. Edison Co. of N.Y., Inc. v. FERC, 347 F.3d 964, 970 (D.C. Cir. 2003) 

(“This argument is twice waived: NYISO never presented it to FERC, and although NYISO hints at the argument in 

its opening brief here, it failed to develop it fully until its reply brief.” (citations omitted)).

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to other social welfare organizations and that Crossroads GPS made these grants with the 

condition that the funds be spent on activities consistent with each recipient organization’s 

Section 501(c)(4) exempt purpose. These facts alone do not suggest any violation of the Act or 

support an FEC investigation into these grants. Without some “legally significant facts” in the 

record—e.g., evidence that the grants were earmarked for electoral purposes—there was no 

reason to believe that these grants may have constituted federal election activity.

In fact, none of Crossroads GPS’s grants were made for electoral purposes. As 

catalogued in Crossroads GPS’s Protest Letter to the IRS, “every grant that GPS has made since 

its inception was subject to an explicit agreement between GPS and the grantee that the grant 

funds would be used only for social welfare purposes.” Crossroads GPS Revised Protest Letter 

at 37 (Feb. 28, 2014); see also id. at 131-32 (Statement of Steven J. Law, President of Crossroads 

GPS, Regarding Crossroads GPS’s Grants).12 And, contrary to Public Citizen’s erroneous 

assertions, see Reply at 26, “[n]o other restriction or oversight is required for GPS’s grants to be 

properly classified as social welfare activity,” and a grantor is not liable for the grantee’s breach 

of an agreement. Protest Letter at 38 (citing Frances R. Hill & Douglas M. Mancino, Taxation of 

Exempt Organizations ¶ 36.03[4][a]). That some recipient organizations may have also engaged 

in political activities using other sources of funding is ultimately irrelevant. The IRS recognized

Crossroads GPS as a 501(c)(4) social welfare organization, which provides even further 

indication that Crossroads GPS’s major purpose is not the election or defeat of federal 

candidates.13 See Ex. B (Crossroads GPS IRS Determination Letter). 

 

12 The relevant portions of the Revised Protest Letter are attached as Exhibit A.

13

 A 501(c)(4) organization “may engage in political campaign activities if those activities are not the 

organization’s primary activity.” Raymond Chick and Amy Henchey, Political Organizations and IRC 501(c)(4)

(1995), https://www.irs.gov/pub/irs-tege/eotopicm95.pdf. The IRS defines “political campaign activities” much 

more broadly than the FEC to include “[a]ll activities that support or oppose candidates for elective federal, state, or 

local public office.” IRS, Instructions for Form 990; Return of Organization Exempt From Income Tax - Additional 

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2. It was reasonable for the controlling Commissioners to reject Public 

Citizen’s proposed standard.

Public Citizen offers a variety of defenses of its own proposed standard—that all 

advertisements that promote, attack, support, oppose, criticize, or are “highly negative” about the 

policy or legislative positions of public officeholders who are also federal candidates must count 

towards triggering political committee status. Public Citizen Mot. for Summ. J. at 7, 8, 26 (Dkt. 

#23). Public Citizen again ignores that the relevant question is not which standard this Court 

believes is the most preferable, but whether the standard actually adopted by the controlling 

Commissioners has a “rational basis.” Orloski, 795 F.2d at 167. The controlling Commissioners 

rightly rejected a “promote-attack-support-oppose-criticize” standard proposed by the FEC 

Office of General Counsel, because such a standard raises serious vagueness concerns and 

potentially chills protected speech. “[P]recision and guidance are necessary so that those 

enforcing the law do not act in an arbitrary or discriminatory way.” FCC v. Fox Television 

Stations, Inc., 132 S. Ct. 2307, 2317 (2012). “When speech is involved, rigorous adherence to 

those requirements is necessary to ensure that ambiguity does not chill protected speech.” Id.

Public Citizen’s inability to meaningfully distinguish between the two advertisements 

cited in Crossroads GPS’s motion for summary judgment, Reply at 31, is a telling indictment of 

its proposed standard. The most Public Citizen can muster is that the advertisements “concerned 

different subject matters, referenced different candidates and ran at different times during 

different elections.” Id. That the advertisements concerned different subject matters and 

candidates is immaterial. The fact that the advertisements ran within a few weeks of each other 

in their respective election cycles—yet the FEC Office of General Counsel came to opposite 

 

Material; Glossary, available at https://www.irs.gov/pub/irs-pdf/i990.pdf; see also Definition of Political 

Committee, 66 Fed. Reg. 13,681, 13,687 (proposed Mar. 7, 2001) (explaining that the IRS’s definition of a “political 

organization” is “substantially broader than the FECA definition of a ‘political committee’”).

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conclusions about their proximity to the election—underscores the lack of “precision and 

guidance” inherent in this standard.14 Indeed, under the standard advocated by Public Citizen, 

there is no temporal limit on when advertisements criticizing public officials will trigger political 

committee status. See AR365 (considering 2011 spending—more than a year before the 

election—indicative of an entity’s major purpose); see also Public Citizen Reply Mem. & Mem. 

in Opp’n to FEC’s Mot. for Summ. J. at 21 n.6 (Dkt. #38) (advocating inclusion of 2011 

communications as potentially “electorally motivated”). The controlling Commissioners were 

right and certainly not required to accept this vague and boundless standard.

Public Citizen cites a series of cases upholding the constitutionality of “promote-attacksupport-oppose” and similar standards at the state level. But, as explained supra at 17, states 

typically have less burdensome organizational and reporting obligations associated with political 

committee status than does FECA. “The greater the burden on the regulated class, the more 

acute the need for clarity and precision.” Barland, 751 F.3d at 837. With respect to FECA, the 

Court in Buckley held that terms like “relative to” and “‘advocating the election or defeat of’ a 

candidate” do not give “fair warning” to speakers. Buckley, 424 U.S. at 41-42 & n.48. More 

recently, the Seventh Circuit held that a similar standard under Wisconsin law was 

unconstitutionally vague. See Barland, 751 F.3d at 837-38.15 And, ultimately, the cases cited by 

Public Citizen do not render it irrational for the controlling Commissioners to opt for a standard 

 

14

 Public Citizen also tries to distinguish the First General Counsel’s Report in MUR 4940 by noting that it 

preceded the 2007 Supplemental E&J (by about six years). Reply at 31. This is, again, a distinction without a 

difference, because the FEC Office of General Counsel purported to apply a standard similar to the one advocated 

by Public Citizen. See MUR 4940, First General Counsel’s Report at 25 (Dec. 19, 2000) (“[N]either ad calls on the 

public to support or oppose the election of any federal candidate.”). That the same standard can be applied to 

similarly situated speakers and produce vastly different conclusions by regulators demonstrates the standard’s 

obvious vagueness problems.

15 The court further explained that the “promote-attack-support-oppose” standard upheld in McConnell was 

not vague with respect to political party committees but that the calculus changes when “ordinary citizens, grassroots issue-advocacy groups, and § 501(c)(4) social-welfare organizations are exposed to civil and criminal penalties 

for failing to register and report as a PAC.” Id. at 838. This is in contrast to “potential party speakers” whose 

actions “are presumed to be in connection with election campaigns.” McConnell, 540 U.S. at 170 n.64.

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that provides more clarity to regulated persons and poses fewer vagueness issues than Public 

Citizen’s preferred standard.

Finally, Public Citizen again tries to argue that past agency enforcement actions reveal a 

“policy” of considering non-express advocacy speech in the major-purpose analysis. Reply at 

32. But, as Crossroads GPS explained—and Public Citizen does not dispute—there was no 

occasion for the FEC in those enforcement actions to parse the precise types of spending that 

count in the major-purpose test. See Cross-Mot. at 39. Most of the enforcement actions cited in 

the First General Counsel’s Report, AR356, involved 527 organizations, which are “organized 

for the express purpose of engaging in partisan political activity.” McConnell, 540 U.S. at 174 

n.67. These organizations’ self-declared central organizational purpose was electoral activity for 

purposes of applying the major-purpose test. And, as Crossroads GPS noted, in the sole 

enforcement action involving a Section 501(c)(4) organization, the respondent conceded that the 

major-purpose test was satisfied. See Cross-Motion at 39 n.12.

C. The Commission’s conclusion that Crossroads GPS’s central organizational 

purpose is not federal electoral activity was not arbitrary and capricious.

Without even addressing the extremely deferential “arbitrary and capricious” standard 

that applies to an agency’s weighing of record evidence, Public Citizen asks this court to reweigh the Commission’s treatment of eighteen news articles that neither the FEC Office of 

General Counsel, the controlling Commissioners, nor the dissenting Commissioners placed any 

weight on. As explained in Crossroads GPS’s cross-motion, it “is not the court’s function” to 

reweigh the record evidence before the agency. United Steel, Paper & Forestry, Rubber, Mfg., 

Energy, Allied Indus. & Serv. Workers Int'l Union, AFL-CIO-CLC v. Pension Benefit Guar. 

Corp., 707 F.3d 319, 325 (D.C. Cir. 2013). Rather, courts must affirm an agency decision if a 

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“‘reasonable mind might accept’ a particular evidentiary record as ‘adequate to support a 

conclusion.’” Dickinson v. Zurko, 527 U.S. 150, 162 (1999) (citation omitted). 

Public Citizen’s argument amounts to nothing more than that the controlling 

Commissioners should have placed more evidentiary weight on eighteen news articles. But the 

Commissioners explained why these articles were unreliable and of minimal value, AR411-12, 

credited Crossroads GPS’s explanation of each article in the record, AR228-236, and weighed 

what it considered to be more probative evidence, AR410-11. And the FEC Office of General 

Counsel—whose “approach to the major-purpose analysis” Public Citizen “supports,” Reply at 

28 n.15—did not even suggest that Crossroads GPS has the central organizational purpose of 

federal election activity. AR355-66. Nor did the dissenting Commissioners. AR505-09.

Public Citizen also highlights a stray quotation from an article that Crossroads GPS 

submitted as part of its application for recognition of tax-exempt status with the IRS. Leaving 

aside that this quotation does not suggest any impropriety—Crossroads GPS may coordinate 

with non-candidate groups when structuring its political activities—the IRS reviewed this 

document and nonetheless recognized that Crossroads GPS is a 501(c)(4) social welfare 

organization. By definition, a social welfare organization may not have political campaign 

activities as its primary purpose. See supra at 19. The IRS’s recognition of Crossroads GPS’s 

status as a 501(c)(4) organization further demonstrates that it was not arbitrary and capricious for 

the Commission to reach the same conclusion: that Crossroads GPS does not have the central 

organizational purpose of federal election activity.

III. Article III Redressability is Lacking.

Unable to demonstrate any plausible path to redress now that the limitations period has 

run, Public Citizen argues instead that post-complaint developments present questions of 

“mootness” under which Article III jurisdiction supposedly persists unless redress has become 

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absolutely “impossible.” Reply at 41. In fact, cases like the present one, where a court cannot 

directly grant redress, often present a “blend of standing and mootness” that defy easy formulas. 

13C Wright & Miller, Federal Practice and Procedure § 3533.3 (3d ed.). 

Moreover, words like “impossible” must often be taken with some salt. Where 

redressability comes into question as time passes during litigation, the Supreme Court dismisses 

if there is “no reasonable expectation” of remedy. DeFunis v. Odegaard, 416 U.S. 312, 318 

(1974) (per curiam). Even where a defendant argues that its own voluntary acts eliminate an 

Article III controversy—circumstances inviting abuse and calling for the greatest judicial 

skepticism—jurisdiction fails if it is clear a need for remedy “could not reasonably be expected 

to recur.” Already, LLC v. Nike, Inc., 133 S. Ct. 721, 727 (2013); Friends of the Earth, Inc. v. 

Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000). 

Under any standard short of mere hopeful speculation, redressability fails here. Public 

Citizen does not deny that any judgment Public Citizen might obtain would leave the FEC free to 

dismiss again on grounds of staleness. Public Citizen hypothesizes legal theories on which the 

FEC theoretically could attempt enforcement after the limitations period expired. But its only 

purported example of such a case comes from the last century, FEC v. Christian Coalition, 965 

F. Supp. 66, 68 (D.D.C. 1997), an action the FEC authorized before the Ninth Circuit’s decision 

in FEC v. Williams, 104 F.3d 237 (9th Cir. 1996).16 Public Citizen’s reliance on one outdated 

example tacitly confirms that the FEC’s current practice is to dismiss stale claims.17

 

16 The FEC authorized the Christian Coalition enforcement action on May 7, 1996. See 965 F. Supp. at 68. 

The Ninth Circuit decided Williams on December 26, 1996. 

17

 Public Citizen is mistaken in its reading of United States v. Midwest Generation, LLC, 720 F.3d 644 (7th 

Cir. 2013). The court did find that 28 U.S.C. § 2462 barred injunctive relief. See United States v. U.S. Steel Corp., 

16 F. Supp. 3d 944, 950 (N.D. Ind. 2014) (“[I]t is evident that the Seventh Circuit has applied a five-year limitations 

period to the EPA’s suit for injunction.” (discussing Midwest Generation)).

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Tellingly, Public Citizen points to no authority that an appeal from a dismissal of an FEC 

complaint tolls the statute of limitations. Moreover, although Public Citizen says it might be 

able to overcome the limitations defenses if it brought a private enforcement action against 

Crossroads GPS, Public Citizen has no authority to bring such a lawsuit unless the FEC fails to 

comply with a judgment in this action. See 52 U.S.C. § 30109(a)(8)(C). And Public Citizen 

does not even claim, much less attempt to show, that the FEC could not lawfully follow its 

current practice of dismissing stale claims following any judgment here. See FEC v. Akins, 524 

U.S. 11, 25 (1998) (dismissal on new grounds is lawful). Thus, whether Public Citizen might be 

able to overcome the statute of limitations is immaterial.18 

This is an unusual case in which any Article III controversy was marginal from the 

outset. The statute under which Public Citizen has sued does not authorize direct redress for 

Public Citizen’s claimed injury. Instead, the most Public Citizen can obtain here is a judgment 

that the FEC’s dismissal was invalid. That judgment can lead to redress only if the FEC then 

decides to pursue an enforcement action. The FEC’s current practice is to dismiss stale 

complaints, and Public Citizen has no reasonable expectation the Commission will deviate from 

that practice here. Article III jurisdiction therefore fails.

CONCLUSION

This Court should grant Crossroads GPS’s cross-motion for summary judgment and deny 

Public Citizen’s motion for summary judgment.

 

18 The scattershot arguments offered by Public Citizen are tempting targets. For example, it is implausible 

that, by obtaining a stay from the Court of Appeals to avert irreparable injury pending successful vindication of its 

legal right to intervene, Crossroads GPS gave up its limitations defense. Likewise implausible is the notion that 

Public Citizen’s lawsuit against the FEC, to which Crossroads GPS was not even a party, constitutes an enforcement 

action against Crossroads GPS. Compare 52 U.S.C. § 30109(a)(6) (the FEC may institute an enforcement action 

against a respondent) with § 30109(a)(8) (a complainant may appeal the dismissal of a complaint by suing the FEC).

Case 1:14-cv-00148-RJL Document 66 Filed 04/07/16 Page 32 of 33
 Respectfully submitted,

Thomas J. Josefiak

J. Michael Bayes (D.C. Bar No. 501845)

HOLTZMAN VOGEL JOSEFIAK TORCHINSKY

PLLC

45 North Hill Drive, Suite 100

Warrenton, VA 20186

Tel.: 540.341.8808

Fax: 540.341.8809

April 7, 2016

/s/ Thomas W. Kirby

Michael E. Toner (D.C. Bar No: 439707)

Thomas W. Kirby (D.C. Bar No. 915231)

Stephen J. Kenny (D.C. Bar No. 1027711)

WILEY REIN LLP

1776 K Street NW

Washington, DC 20006

Tel.: 202.719.7000

Fax: 202.719.7049

Counsel for Crossroads Grassroots Policy 

Strategies

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